The Death Penalty: Capital Punishment Legislation in the 109th Congress
The Death Penalty: Capital Punishment
th
Legislation in the 109 Congress
Updated December 11, 2006
Charles Doyle
Senior Specialist
American Law Division
The Death Penalty: Capital Punishment Legislation in
the 109th Congress
Summary
The USA PATRIOT Improvement and Reauthorization Act (Reauthorization
Act), P.L. 109-177, 120 Stat. 192 (2006) contains a number of death penalty related
provisions. Some create new federal capital offenses making certain death-resulting
maritime offenses punishable by death. Some add the death penalty as a sentencing
option in the case of pre-existing federal crimes such those outlawing attacks on mass
transit. Some make procedural alterations such as those governing federal habeas
corpus provisions for state death row petitioners. Other proposals offered during the
109th Congress would have followed the same pattern: some new crimes; some new
penalties for old crimes; and some procedural adjustments. Other than the Adam
Walsh Child Protection and Safety Act, P.L. 109-248, 120 Stat. 587 (2006), which
makes a federal capital offense commit a murder in the course of any of several
federal sex offenses, none of the other proposals were enacted. Several, however,
passed in one House or the other. Among these, H.R. 1279 would have amended the
venue provision for capital cases and would have made it a federal capital offense to
use the facilities of interstate commerce to commit multiple murders and another to
commit murder during and in relation to a drug trafficking offense. As would have
H.R. 4472. H.R. 1751; and H.R. 4472 would have made it a federal capital offense
to murder a federally funded public safety officer. H.R. 3132 would have created
special expedited habeas review of state child murder cases. And S. 2611 would
have made evasion of immigration, customs or agricultural border inspections when
death resulted a federal capital offense.
Of other capital proposals pending on adjournment, H.R. 4923 and S. 122 would
have abolished the death penalty as a federal sentencing alternative and H.R. 379
would have imposed a moratorium barring the states from imposing or carrying out
the death penalty.
The report is available in an abridged form – without footnotes, citations to most
authorities and appendices – as CRS Report RS22433, The Death Penalty: An
Abridged Look at Capital Punishment Legislation in the 109th Congress.
Contents
In troduction ..................................................1
Procedural Adjustments.........................................1
Pre-1994 Capital Air Piracy Cases.............................1
Habeas Corpus in State Capital Cases..........................3
Capital Procedures in Drug Cases.............................7
Appointment of Counsel in Capital Cases.......................7
Life Time Supervised Release Regardless of Risks................8
Additional Procedural Proposals..............................8
New Federal Capital Offenses...................................13
Capital Punishment for Violation of Existing Crimes.................15
Moratorium .................................................17
Appendix (Statutory Text)......................................17
Expedited Habeas Procedures in State Capital Cases.............17
Capital Offenses Created by the Reauthorization Act.............22
Adam Walsh Child Protection and Safety Act Amendments.......25
The Death Penalty: Capital Punishment
th
Legislation in the 109 Congress
Introduction
The USA PATRIOT Improvement and Reauthorization Act (Reauthorization
Act) contains a number of death penalty related provisions. Some create new federal
capital offenses; some add the death penalty as a sentencing option in the case of pre-
existing federal crimes; some alter the procedural attributes of federal capital cases.
Other proposals offered during the 109th Congress would have followed the same
pattern: some new crimes; some new penalties for old crimes; and some procedural
adjustments. Only one of the other proposals, the Adam Walsh Child Protection and
Safety Act, passed, although at least one House approved several others. Three
proposals do not fit the pattern; they either would have abolished the death penalty
as a federal sentencing alternative or would have imposed a moratorium upon
executions.
Procedural Adjustments
The Reauthorization Act changes procedures associated with federal capital
cases including those relating to air piracy cases arising before 1994, capital offenses
under federal drug laws, appointment of counsel in capital cases, and habeas
procedures for state capital petitioners.
Pre-1994 Capital Air Piracy Cases.
In the early 1970s, the U.S. Supreme Court held unconstitutional the imposition
of capital punishment under the procedures then employed by the federal government
and most of the states.1 In 1974, Congress established a revised procedure for2
imposition of the death penalty in certain air piracy cases. In 1994, when Congress
made the procedural adjustments necessary to revive the death penalty as a
sentencing option for other federal capital offenses, it replaced the air piracy
procedures with those of the new regime.3 At least one court, however, held that the
new procedures could not be applied retroactively to air piracy cases occurring after
the 1974 fix but before the 1994 legislation, in the absence of an explicit statutory4
provision.
1 Furman v. Georgia, 408 U.S. 238 (1972).
2 P.L. 93-366, 88 Stat. 409 (1974), 49 U.S.C. 1473 (1976 ed.)
3 P.L. 103-322, 108 Stat. 1796, 1970 (1994), 18 U.S.C. 3591-3598.
4 United States v. Safarini, 257 F.Supp.2d 191, 202-3 (D.D.C. 2003).
The Reauthorization Act adds an explicit provision to the end of the 1994
legislation.5 The amendment provides for the application of the existing federal
capital punishment procedures, 18 U.S.C. ch.228, after consideration of the
mitigating and aggravating factors in place in capital air piracy cases prior to the
1994 revival.6 It also provides for severance should any of the pre-1994 factors be
found constitutionally invalid, and includes a limiting definition of the “especially
heinous, cruel, or depraved” aggravating factor in section 46503 to avoid the
vagueness problems that might otherwise attend the use of such an aggravating
fact or. 7
The conference report on the Reauthorization Act notes that the changes apply
to a relative small group of individuals responsible for murders committed during the
course of hijackings in the mid 1980s who would otherwise be eligible for parole
within 10 years of sentencing and could not be effectively sentenced to more than 30
years in prison.8
5 “An individual convicted of violating section 46502 of title 49, United States Code, or
its predecessor, may be sentenced to death in accordance with the procedures established
in chapter 228 of title 18, United States Code, if for any offense committed before the
enactment of the Violent Crime Control and Law Enforcement Act of 1994 (Public Law
103-322), but after the enactment of the Antihijacking Act of 1974 (Public Law 93-366), it
is determined by the finder of fact, before consideration of the factors set forth in sections
3591(a)(2) and 3592(a) and (c) of title 18, United States Code, that one or more of the
factors set forth in former section 46503(c)(2) of title 49, United States Code, or its
predecessor, has been proven by the Government to exist, beyond a reasonable doubt, and
that none of the factors set forth in former section 46503(c)(1) of title 49, United States
Code, or its predecessor, has been proven by the defendant to exist, by a preponderance of
the information. The meaning of the term ‘especially heinous, cruel, or depraved’, as used
in the factor set forth in former section 46503(c)(2)(B)(iv) of title 49, United States Code,
or its predecessor, shall be narrowed by adding the limiting language ‘in that it involved
torture or serious physical abuse to the victim’, and shall be construed as when that term is
used in section 3592(c)(6) of title 18, United States Code,” § 211(a), P.L. 109-177, 120 Stat.
6 P.L. 103-272, 108 Stat. 1242 (1994). Because the 1994 legislation was enacted almost
immediately after recodification of title 49, 49 U.S.C. 46503 never appeared in the official
United States Code or any of its supplements. The predecessor to 49 U.S.C. 46503 as
repealed in the 1994 capital punishment revival statute appears in 49 U.S.C. App. 1473
(1988 ed.).
7 See, e.g., Maynard v. Cartwright, 486 U.S. 356, 359-61 (1988).
8 H.Rept. 109-333, at 101 (2005) ( “This provision is particularly important for several
reasons. In the absence of a death penalty that could be implemented for pre-FDPA
hijacking offenses resulting in death that also occurred before the effective date of the
Sentencing Guidelines on November 1, 1987, the maximum penalty available would be life
imprisonment. Under the pre-Sentencing Guidelines structure, even prisoners sentenced to
life imprisonment were eligible for a parole hearing after serving only ten years. While
there is a split in the Circuit Courts of Appeals as to whether a sentencing judge can impose
a sentence that could avert the 10-year parole hearing requirement, the current position of
the Bureau of Prisons is that a prisoner is eligible for a parole hearing after serving ten years
of a life sentence. Even if parole is denied on that first occasion, such prisoners are eligible
to have regularly scheduled parole hearings every two years thereafter. Moreover, in
addition to parole eligibility after ten years, the old sentencing and parole laws incorporated
H.R. 1763 and H.R. 3060 contained comparable provisions, but lacked the
severability clause found in the Reauthorization Act.
Habeas Corpus in State Capital Cases.
Federal law provides expedited habeas corpus procedures for state death row
inmates in those states that qualify for application of the procedures and have opted
to take advantage of them.9 Subject to a one time 30 day extension, district courts
with whom habeas petitions are filed by a prisoner challenging his state capital
conviction or sentence must make a final determination within the sooner of 60 days
after the case is submitted for decision or 450 days after the application is filed.10 In
such cases, the court of appeals has 120 days after the final briefs have been
submitted to render a decision; the court has 30 days to consider a petition for
rehearing or rehearing en banc and another 30 days to render an en banc decision
should it grant rehearing.11 No such judicial deadlines apply in other federal habeas
cases.
Before enactment of the Reauthorization Act, these expedited procedures found
in chapter 154 applied in capital cases only if the state met certain conditions. “A
state must [have] establish[ed] ‘a mechanism for the appointment, compensation, and
payment of reasonable litigation expenses of competent counsel’ in state
postconviction proceedings, and ‘must [have] provide[d] standards of competency
for the appointment of such counsel.’”12 As of enactment of the Reauthorization Act
apparently, few if any states had sought and been found qualified to opt in.13
a presumption that even persons sentenced to life imprisonment would be released after no
more than 30 years. In the context of the individuals responsible for the hijacking incidents
described above, most of the perpetrators were no older than in their twenties when they
committed their crimes. The imposition of a pre-Guidelines sentence of life imprisonment
for these defendants means that many, if not all of them, could be expect to be released from
prison well within their lifetime. Given the gravity of these offenses, coupled with the
longstanding Congressional intent to have a death penalty available for the offense of air
piracy resulting in death, such a result would be at odds with the clear directive of
Congress.”)
9 28 U.S.C. ch. 154.
10 28 U.S.C. 2266(b).
11 28 U.S.C. 2266(c).
12 Calderon v. Ashmus, 523 U.S. 740, 743 (1998).
13 At least for a short period of time Arizona was qualified to opt in, cf., Spears v. Stewart,
determined that although (a) the question whether Arizona had opted-in to the short-fuse
habeas scheme provided in Chapter 154. . . was entirely irrelevant to the outcome of the case
before it; (b) the linchpin provision for the procedures by which Arizona had once sought
to opt-in under Chapter 154 had already been repealed by the state; (c) the state did not even
comply with its own procedures in the case before the panel; (d) Arizona was
unquestionably not in compliance with Chapter 154 at the time the appeal was heard; (e) in
fact, the state had never at any time effectively complied with its short-lived procedures; and
(f) no other state in the nation has ever been held to have successfully opted-in under
Chapter 154, the panel would seize this opportunity to issue an advisory opinion stating that
Critics implied that the states have been unable to take advantage of the
expedited capital procedures only because the courts have a personal stake in the
outcome. The solution, they contended, was the amendment found in section 507 of
the Reauthorization Act, which allows the Attorney General to determine whether a
state qualifies, permits the determination to have retroactive effect,14 and allows
review by the federal appellate court least likely to have an interest in the outcome,
the no-longer-existent Arizona procedures were in compliance with Chapter 154’s
requirements”)(citing, Ashmus v. Woodford, 202 F.3d 1160, 1160 (9th Cir. 2000)(California
has not opted-in); Harris v. Bowersox, 184 F.3d 744, 7848 (8th Cir. 1999)(Missouri has not
opted-in); Duvall v. Reynolds, 139 F.3d 768, 776 (10th Cir. 1998)(Oklahoma has not opted-
in); Hill v. Butterworth, 941 F.Supp. 1129, 1146-147 (N.D.Fla. 1996), vac’d on other
grounds, 147 F.3d 1333 (11th Cir. 1998)(Florida has not opted-in); Mata v. Johnson, 99
F.3d 1261, 1267 (5th Cir. 1996), vac’d on other grounds, 105 F.3d 209 (5th Cir.th
1997)(Tennessee has not opted-in); Holloway v. Horn, 161 F.Supp.2d 452, 478 n.11
(E.D.Pa. 2001), rev’d on other grounds, 355 F.3d 707 (3d Cir. 2004)(Pennsylvania has not
opted- in); Smith v. Anderson, 104 F.Supp. 2d 773, 786 (S.D.Ohio 2000)(Ohio has not
opted-in); Oken v. Nuth, 30 F.Supp.2d 877, 879 (D.Md. 1998)(Maryland has not opted-in);
Tillman v. Cook, 25 F.Supp.2d 1245, 1253 (D.Utah 1998)(Utah has not opted-in); Weeks v.
Angelone,4 F.Suppl2d 467, 506 n.4 (E.D.Va. 1998)(Virginia has not opted-in); Ryan v.
Hopkins, 1996 WL 539220, at *3-4 (D.Neb. 1969)(Nebraska has not opted-in)). Related
cases include, Grayson v. Epps, 338 F.Supp.2d 699, 700-704 (S.D. Miss. 2004)(Mississippi
has not opted-in); Keel v. French, 162 F.3d 263, 267 n.1 (4th Cir. 1998)(North Carolina has
not opted-in); High v. Head, 209 F.3d 1257, 1262 n.4 (11th Cir. 2000)(Georgia does not
claim to have opted-in); Allen v. Lee, 366 F.3d 319, 353 (4th Cir. 2004)(Luttig, J.
dissenting)(noting that the Fourth Circuit has adopted by rule the section 2266 time lines).
14 “This chapter is applicable if – (1) the Attorney General of the United States certifies that
a State has established a mechanism for providing counsel in postconviction proceedings
as provided in section 2265; and (2) counsel was appointed pursuant to that mechanism,
petitioner validly waived counsel, petitioner retained counsel, or petitioner was found not
to be indigent,” 28 U.S.C. 2261(b).
“If requested by an appropriate State official, the Attorney General of the United States
shall determine – [(1)](A) whether the State has established a mechanism for the
appointment, compensation, and payment of reasonable litigation expenses of competent
counsel in State postconviction proceedings brought by indigent prisoners who have been
sentenced to death; (B) the date on which the mechanism described in subparagraph (A) was
established; and (C) whether the State provides standards of competency for the
appointment of counsel in proceedings described in subparagraph (A).
“(2) EFFECTIVE DATE. – The date the mechanism described in (1)(A) was
established shall be the effective date of the certification under this subsection ,” 28 U.S.C.
“(1) IN GENERAL. – The determination by the Attorney General regarding whether
to certify a state under this section is subject to review exclusively as provided under chapter
“(2) VENUE.– The Court of Appeals for the District of Columbia Circuit shall have
exclusive jurisdiction over matters under paragraph (1), subject to review by the Supreme
Court under section 2350 of ths title.
“(3) STANDARD OF VIEW. – The determination by the Attorney General regarding
whether to certify a state under this section shall be subject to de novo review,” 28 U.S.C.
the U.S. Court of Appeals for the D.C. Circuit.15 Opponents raised separation of
powers issues and questioned whether the chief federal prosecutor or the courts are
more likely to make an even handed determination of whether the procedures for
providing capital defendants with qualified defense counsel are adequate.16
Under the Reauthorization Act, states opt-in or have opted-in as of the date, past
or present, upon which the Attorney General determines they established or have
established qualifying assistance of counsel mechanism.17 Opting-in to the expedited
procedures of chapter 154 only applies, however, to instances in which “counsel was
appointed pursuant to that mechanism [for the death row habeas petitioner],
petitioner validly waived counsel, petitioner retained counsel, or petitioner was found
not to be indigent.”18 The earlier provision required that the mechanism include
competency standards for appointed counsel.19 The Reauthorization Act removed the
requirement, but granted the Attorney General regulatory authority sufficient to
establish such standards.20
The Act establishes a de novo standard of review for the Attorney General’s
determination before the D.C. Circuit.21 It also extends the expedited time deadline
for U.S. district court action on a habeas petition from a state death row inmate from
15 See 151 CONG. REC. S5540, 5541 (daily ed. May 19, 2005) (statement of Sen. Kyl)(“The
SPA [Streamlined Procedures Act] also expands and improves the special expedited habeas
procedures authorized in chapter 154 of the United States Code. The procedures are
available to States that establish a system for providing high-quality legal representation to
capital defendants. Chapter 154 sets strict time limits on Federal court action and places
limits claims. Currently, however, the court that decides whether a State is eligible for
chapter 154 is the same court that would be subject to its time limits. Unsurprisingly, these
courts have proven resistant to chapter 154. The SPA would place the eligibility decision
in the hands of a neutral party – the U.S. Attorney General, with review of his decision in
the D.C. Circuit, which does not hear habeas appeals”).
16 “[T]he SPA intimates that courts can’t objectively evaluate whether states meet the ‘opt-
in’ provisions detailed in the AEDPA because their dockets are implicated in the timelines
created by opt-in status. The legislation attempts to resolve this by empowering the chief
prosecutor in the United States, the Attorney General, to make these decisions. Giving
federal prosecutors control over even part of the federal judiciary’s docket and
decisionmaking authority would have serious implications for the separation of powers
necessary for fair administration of criminal justice,” Habeas Corpus Proceedings and
Issues of Actual Innocence: Hearings Before the Senate Comm. on the Judiciary, 109th
Cong., 1st sess. (2005) (testimony of Bryan Stevenson, Executive Director of Equal Justice
Initiative of Alabama, available on Jan. 6, 2006, at [http://judiciary.senate.gov/print_
testimony.cfm?id=1569&wit_id=4458].
17 28 U.S.C. 2265(a)(2).
18 28 U.S.C. 2261(b)(2).
19 28 U.S.C. 2261(b)(2000 ed.).
20 28 U.S.C. 2265(b).
21 28 U.S.C. 2265(c)(3).
completion of all pleadings, hearings, and submission of briefs).22 The Streamlined
Procedures Acts in the House and Senate, H.R. 3035 and S. 1088, would have made
similar changes in the opt in procedure, but set a different standard for appellate
review of the Attorney General’s decision,23 and would have included a wide range
of habeas amendments unknown to the Reauthorization Act.
In McFarland v. Scott, 512 U.S. 849, 859 (1994), the Supreme Court held that
federal district courts might stay the execution of a state death row inmate upon the
filing of a petition for the appointment of counsel but prior to the filing of a federal
habeas petition in order to allow for the assistance of counsel in the filing the
petition. In an amendment described as overruling McFarland,24 the Reauthorization
Act amends federal law to permit a stay in such cases of no longer than 90 days after
the appointment of counsel or the withdrawal or denial of a request for the
appointment of counsel.25
S. 956, H.R. 2388, and H.R. 313226 contained a common amendment governing
federal habeas cases of an individual convicted under state law of killing a child,
proposed 28 U.S.C. 2254. Habeas under section 2254 would have been unavailable
in such cases except for claims that both (1) relied on a new constitutional
interpretation made retroactively applicable by the Supreme Court or on evidence
that the petitioner could not reasonable have been previously discovered and (2) were
predicated upon facts in the face of which no reasonable judge or jury would have
found the petitioner guilty but for the constitutional error, proposed 28 U.S.C.
Under the bills, judicial consideration of claims that met the dual criterion
would have been subject to deadlines under which evidentiary hearings had to be (1)
requested within 90 days of the state’s answer to the petition and granted or denied
within 30 days, (2) held within 60 days and completed within 150 days, and (3)
decided within 15 months of the state’s answer; the state could enforce deadlines
through a mandamus petition to the court of appeals, proposed 28 U.S.C. 2254(j)(3).
Appellate courts would have had 120 days to pass upon an appeal, 30 days to
consider whether to grant a hearing en banc, and 120 days to decide a case en banc,
proposed 28 U.S.C. 2254(j)(4).
The rights of victims under 18 U.S.C. 3771(b) to be notified, attend, and
participate in relevant criminal proceedings would have been expanded to include
habeas proceedings under an amendment found in each of the bills, proposed 18
U.S.C. 3771(b).
22 28 U.S.C. 2266(b).
23 “The Attorney General’s determination of whether to certify a state under this section
shall be conclusive unless manifestly contrary to the law and an abuse of discretion,”
proposed 28 U.S.C. 2267(c)(3).
24 H.Rept. 109-333, at 109 (2005).
25 28 U.S.C. 2251(b).
26 Legislation that has passed one of the two Houses of Congress (other than the
Reauthorization Act) appears in italics throughout.
Proponents pointed to examples of delays of up to 20 years between conviction
and the completion of habeas proceedings to explain the amendment; they contended
that the Supreme Court has upheld past restrictions on protracted federal habeas
proceedings conducted on behalf of state prisoners; and they argued the
appropriateness of confining relief to those who can establish their innocence.27
Critics claimed the amendment was unnecessary and that great care should be
taken before closing the doors of the federal courts to claims that a state criminal
court has convicted an accused and imposed the death penalty in an unconstitutional
manner.28 Some observers might have suggest that the participation of victims in the
habeas process is more likely to prolong it than to streamline it.
Capital Procedures in Drug Cases.
Prior to the Reauthorization Act, federal law provided two sets of death penalty
procedures for capital drug cases, the procedures applicable in federal capital cases
generally29 and the procedures specifically applicable in federal capital drug cases.30
The two procedures were virtually identical and either might be employed in a capital
drug case.31 The Reauthorization Act eliminates the specific drug case procedures
so that only the general procedures apply in such cases. According to the conference
report, this “eliminates duplicative death procedures under title 21 of the United
States code, and consolidates procedures governing all Federal death penalty
prosecutions in existing title 18 of the United States Code, thereby eliminating
confusing requirements that trial courts provide two separate sets of jury
instructions.”32
Appointment of Counsel in Capital Cases.
Prior to the Reauthorization Act, the federal capital drug provisions called for
the appointment of counsel to assist indigents facing federal capital charges and
indigent federal and state death row inmates during federal habeas proceedings.33
The Reauthorization Act transfers these provisions to title 18.34
27 H.Rept. 109-218, at 30-8 (2005), citing inter alia, Felker v. Turpin, 518 U.S. 651 (1996).
28 H.Rept. 109-218, at 254 (2005)(dissenting views of Reps. Conyers, Robert Scott and
Linda Sanchez).
29 18 U.S.C. 3591-3598.
30 21 U.S.C. 848 (2000 ed.).
31 United States v. Matthews, 246 F.Supp.2d 137, 141 (N.D.N.Y. 2002).
32 H.Rept. 109-333, at 102 (2005).
33 21 U.S.C. 848(q)(4)-(10)(2000 ed.).
34 § 222, P.L. 109-177, 120 Stat. 231 (2006), adding new 18 U.S.C. 3599.
Life Time Supervised Release Regardless of Risks.
Prior to the Reauthorization Act, in capital and noncapital cases alike a federal
sentencing court could impose a term of supervised release for any term of years or
for life (to be served upon release from prison) if the defendant has been convicted
of a federal crime of terrorism (18 U.S.C. 2332b(g)(5)(B)) involving the foreseeable
risk of physical injury of another, 18 U.S.C. 3583(j)(2000 ed., Supp.I).35 The
Reauthorization Act amends section 3583(j) to eliminate the requirement that the
defendant be convicted of a crime involving a foreseeable risk of injury; conviction
of any federal crime of terrorism is sufficient.
Additional Procedural Proposals.
Venue. Several anti-gang bills would have purported to change the place
where capital cases may be tried. S. 155, H.R. 970, H.R. 1279, and H.R. 4472 would
each have rewritten 18 U.S.C. 3235. Section 3235 provides that where possible
35 The federal crimes of terrorism are violations of: 18 U.S.C. 32 (destruction of aircraft
or aircraft facilities), 37 (violence at international airports), 81 (arson within special
maritime and territorial jurisdiction), 175 or 175b (biological weapons), 175c (variola virus),
cabinet, and Supreme Court assassination and kidnaping), 831 (nuclear materials), 842(m)
or (n) (plastic explosives), 844(f)(2) or (3) (arson and bombing of Government property
risking or causing death), 844(i) (arson and bombing of property used in interstate
commerce), 930(c) (killing or attempted killing during an attack on a Federal facility with
a dangerous weapon), 956(a)(1) (conspiracy to murder, kidnap, or maim persons abroad),
1030(a)(1) (protection of computers), 1030(a)(5)(A)(i) resulting in damage as defined in
1030(a)(5)(B) (ii) through (v) (protection of computers), 1114 (killing or attempted killing
of officers and employees of the United States), 1116 (murder or manslaughter of foreign
officials, official guests, or internationally protected persons), 1203 (hostage taking), 1361
(government property or contracts), 1362 (destruction of communication lines, stations, or
systems), 1366(a) (destruction of an energy facility), 1751(a), (b), (c), or (d) (Presidential
and Presidential staff assassination and kidnaping), 1992 (train wrecking), 1993 (terrorist
attacks and other acts of violence against mass transportation systems), 2155 (destruction
of national defense materials, premises, or utilities), 2156 (national defense material,
premises, or utilities), 2280 (violence against maritime navigation), 2281 (violence against
maritime fixed platforms), 2332 (certain homicides and other violence against United States
nationals occurring outside of the United States), 2332a (use of weapons of mass
destruction), 2332b (acts of terrorism transcending national boundaries), 2332f (bombing
of public places and facilities), 2332g (missile systems designed to destroy aircraft), 2332h
(radiological dispersal devices), 2339 (harboring terrorists), 2339A (providing material
support to terrorists), 2339B (providing material support to terrorist organizations), 2339C
(financing of terrorism), 2340A (torture); 42 U.S.C. 2122 (prohibitions governing atomic
weapons), 2284 (sabotage of nuclear facilities or fuel); 49 U.S.C. 46502 (aircraft piracy),
the second sentence of 46504 (assault on a flight crew with a dangerous weapon),
46505(b)(3) or (c) (explosive or incendiary devices, or endangerment of human life by
means of weapons, on aircraft), 46506 if homicide or attempted homicide is involved
(application of certain criminal laws to acts on aircraft), and 60123 (b) (destruction of
interstate gas or hazardous liquid pipeline facility). Section 112 of the Act adds 18 U.S.C.
2339D(foreign military training) and 21 U.S.C. 1010A (narco-terrorism) to the list, 18
U.S.C. 2332b(g)(5)(B) as amended by the Act.
capital cases should be tried in the county in which the crime occurred.36 Section
3235 is followed by a section that states that murder and manslaughter cases should
be tried where the death-causing injury was inflicted regardless of where death
actually occurs, 18 U.S.C. 3236.37 Section 3236 is followed in turn by a section that
provides that multi-district crimes may be tried where they are begun, continued, or
completed and that offenses involving the use of the mails, transportation in interstate
or foreign commerce, or importation into the United States may be tried in any
district from, through, or into which commerce, mail, or imports travel.38
At least one federal appellate court has held that the specific instruction of
section 3236 overrides the general instructions of section 3237(a) only with regard
to “unitary” murder offenses, such as murder by a federal prisoner.39 Section 3236
does not apply, the court held, to “death resulting” cases, cases where murder is a
sentencing element rather than a substantive element of the offense, such as in cases
of a violation of 18 U.S.C. 924(c)(use of a firearm during and relating to the
commission of crime of violence), the sentence for which is determined in part by
whether death resulted from the commission of the offense.40
The proposal would have repealed the “county trial” language of section 3235
and would have replaced it with language reminiscent of the multi-district terms of
section 3237(a): “(a) the trial of any offense punishable by death shall be held in the
district where the offense was committed or in any district in which the offense
began, continued, or was completed. (b) If the offense, or related conduct, under
subsection (a) involves activities which affect interstate or foreign commerce, or the
importation of an object or person into the United States, such offense may be
prosecuted in any district in which those activities occurred,” proposed 18 U.S.C.
Although it is far from certain, the proposal appeared intent upon repealing both
the “county trial” feature of section 3235 and, by indirection, the section 3236
override of multi-district section 3237 in murder cases. The manslaughter features
of 3236 would presumably have continued in place since they are not capital cases
and thus by definition are beyond the reach of the proposed capital venue provisions
of the amended section 3235.
The proposal would have operated in the shadow of two constitutional
provisions and of two Supreme Court cases which construe them. Article III declares
that “[t]he trial of all crimes . . . shall be held in the state where the said crimes shall
36 “The trial of offenses punishable with death shall be had in the county where the offense
was committed, where that can be done without great inconvenience,” 18 U.S.C. 3235.
37 “In all cases of murder or manslaughter, the offense shall be deemed to have been
committed at the place where the injury was inflicted, or the poison administered or other
means employed which caused the death, without regard to the place where the death
occurs,” 18 U.S.C. 3236.
38 18 U.S.C. 3237(a).
39 18 U.S.C. 1118.
40 United States v. Barnette, 211 F.3d 803, 814 (4th Cir. 2000).
have been committed.”41 The Sixth Amendment directs that, “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the state and district wherein the crime shall have been
committed.”42
The Supreme Court in United States v. Cabrales held that in light of these
provisions the crime of money laundering committed in Florida could not be tried in
Missouri where the laundered funds had been criminally generated – absent other
circumstances.43 Shortly thereafter, the Court held in United States v. Rodriguez-
Moreno, that the crime of using a firearm during and in relation to the crime of
kidnaping could be tried in New Jersey into which the victim had been carried,
notwithstanding the fact that the firearm was acquired and used in Maryland after the
victim had been moved there from New Jersey. The Court reasoned (1) that a crime
may be tried wherever one of its conduct elements occurs; (2) that the kidnaping
constituted a conduct element of the offense of using a firearm during and in relation
to the crime of kidnaping; (3) that the kidnaping was a form of continuous conduct
beginning where the victim was seized (in Texas) and continuing (to New Jersey and
then into Maryland) until he was released or escaped; (4) that the kidnaping could be
tried in New Jersey; and (5) consequently the firearm use charge could be tried in
New Jersey.44
It is not clear how the proposal would have fared in light of Cabrales and
Rodriguez-Moreno. It says “(a) the trial for any offense punishable by death shall be
held in the district where the offense was committed or in any district in which the
offense began, continued, or was completed. (b) if the offense, or related conduct,
under subsection (a) involves activities which affect interstate or foreign commerce,
or the importation of an object or person into the United States, such offense may be
prosecuted in any district in which those activities occurred,” proposed 18 U.S.C.
3235. It would appear to permit trial of an offense in a district in which related
conduct affecting interstate or foreign commerce occurs even if the offense itself is
committed entirely in another district. The Cabrales’ money generating drug
trafficking in Missouri would seem to qualify as conduct related to the laundering in
Florida for purposes of the proposal, and yet in Cabrales that was not enough. Nor
would the proposal always appear to meet Rodriguez-Moreno’s “conduct element”
standard. There is nothing in the proposal that requires that the “related conduct
affecting interstate commerce” be an element of the offense to be tried. In fact, the
alternative wording – “if the offense, or related conduct . . . involves activities which
41 U.S. Const. Art. III, §2, cl.3.
42 U.S. Const. Amend. VI.
43 524 U.S. 1, 7-10 (1998)(“The money laundering counts included no act committed by
Cabrales in Missouri. . . nor did the government charge that Cabrales transported the money
from Missouri to Florida. . . . the counts at issue do not charge Cabrales with conspiracy;
they do not link her to, or assert her responsibility for, acts done by others. . . . In the counts
at issue, the government indicted Cabrales for transactions which began, continued, and
were completed only in Florida”).
44 526 U.S. 275, 280-82 (1999).
affect interstate commerce” – seems to contemplate situations in which affecting
commerce is not an element, conduct or otherwise, of the offense.
Mitigating and Aggravating Factors. The death penalty may be imposed
in a federal capital case only after consideration of the mitigating and aggravating
factors listed in 18 U.S.C. 3592 and only if at least one aggravating factor is found.45
Several bills adjust the factors. One of the aggravating factors in homicide cases
consists of the fact that the death resulted from the commission of a list of designated46
felonies. The Adam Walsh Child Protection and Safety Act, P.L. 109-248, 120
Stat. 587, 614 (2006) adds 18 U.S.C. 2245 to the list, 18 U.S.C. 3592(c)(1). Among
the proposals that failed to secure passage, H.R. 3060 would have placed 18 U.S.C.
H.R. 5040 would have done the same and would have added 18 U.S.C. 241 (civil
rights conspiracy), 245 (deprivation of federally protected activities), 247
(interference with religious exercise), 1512 (tampering with federal witnesses), and
1513 (retaliating against federal witnesses), proposed 18 U.S.C. 3592(c)(1). Both
H.R. 3060 and H.R. 5040 would have made obstruction of justice an aggravating
factor in homicide cases, proposed 18 U.S.C. 3592(c)(17).
Other Procedural Proposals. H.R. 3060 would have allowed the court
upon a finding of good cause or agreement of the parties to proceed with a capital
sentencing jury of fewer than 12 members, proposed 18 U.S.C. 3593(b). Existing47
law requires agreement of the parties.
The bill also would have amended Rule 24(c) of the Federal Rules of Criminal
Procedure to allow for the selection of a maximum of 9 alternate jurors and to allow
each side 4 peremptory alternate juror challenges when either 7, 8, or 9 alternates
were to be selected, proposed F.R.Crim.P. 24(c). The present Rule calls for a
45 18 U.S.C. 3593.
46 “In determining whether a sentence of death is justified for an offense described in
section 3591(a)(2), the jury, or if there is no jury, the court, shall consider each of the
following aggravating factors for which notice has been given and determine which, if any,
exist: (1) Death during commission of another crime.– The death, or injury resulting in
death, occurred during the commission or attempted commission of, or during the immediate
flight from the commission of, an offense under section 32 (destruction of aircraft or aircraft
facilities), section 33 (destruction of motor vehicles or motor vehicle facilities), section 37
(violence at international airports), section 351 (violence against Members of Congress,
Cabinet officers, or Supreme Court Justices), an offense under section 751 (prisoners in
custody of institution or officer), section 794 (gathering or delivering defense information
to aid foreign government), section 844(d) (transportation of explosives in interstate
commerce for certain purposes), section 844(f) (destruction of Government property by
explosives), section 1118 (prisoners serving life term), section 1201 (kidnaping), section
844(i) (destruction of property affecting interstate commerce by explosives), section 1116
(killing or attempted killing of diplomats), section 1203 (hostage taking), section 1992
(wrecking trains), section 2280 (maritime violence), section 2281 (maritime platform
violence), section 2332 (terrorist acts abroad against United States nationals), section 2332a
(use of weapons of mass destruction), or section 2381 (treason) of this title, or section 46502
of title 49, United States Code (aircraft piracy),” 18 U.S.C. 3592(c)(1).
47 18 U.S.C. 3593(b).
maximum of 6 alternates and affords the parties 3 alternate juror peremptory
challenges.48 These and other similar proposals passed the House initially as part of
H.R. 3199, but were dropped in conference and were not part of the Reauthorization
Act as passed.
H.R. 5040 would have struck the provision which outlaws the execution of the
mentally retarded, proposed 18 U.S.C. 3596(c). The omission, although perhaps
surprising to some, appeared inconsequential since execution of the mentally retarded
is constitutionally proscribed.49 The bill also would have required notice to the
government and would have permitted the government to request an independent
mental health examination when a defendant intended to enter mental retardation as
a mitigating factor for capital sentencing purposes, proposed 18 U.S.C. 3593(b). The
existing statute mentions no such requirements.50 Presumably recourse to the
proposed procedure would have been more infrequent in those cases where the
district court conducted a pre-trial evidentiary hearing to determine whether the
mental retardation of the accused precluded imposition of the death penalty following
any conviction.51
Present law permits a capital jury to unanimously recommend a sentence of
death or of imprisonment without possibility of release; if they do not, the court is to
sentence the defendant to any lesser sentence authorized by law, i.e., imprisonment
for life or a term of years.52 H.R. 5040 would have provided that if the jury could not
agree on a capital recommendation, a new sentencing jury should be empaneled and
the issue retried, proposed 18 U.S.C. 3594.
Existing law specifically contemplates that the execution of federal capital
sentences will be carried out in state facilities.53 H.R. 5040 would have granted the
Attorney General regulatory implementing authority without exclusive reference to
state facilities, proposed 18 U.S.C. 3596, 3597.
The bill also would have rewritten 18 U.S.C. 3005 which assures defendants
two assigned counsel in capital cases. The proposal would have made it clear that
the statute only applied when the government sought the death penalty and not in
capital cases where it had elected not to do so, proposed 18 U.S.C. 3005(a). The
federal appellate courts are divided on the question over whether section 3005 now
entitles a defendant to the assistance of two attorneys in all capital cases or only in
those in which the government actively seeks the death penalty.54 The proposal
48 F.R.Crim.P. 24(c).
49 Atkins v. Virginia, 536 U.S. 304, 321 (2002).
50 18 U.S.C. 3593.
51 E.g., United States v. Nelson, 419 F.Supp.2d 891 (E.D.La. 2006).
52 18 U.S.C. 3594; Jones v. United States, 527 U.S. 373, 380-81 (1999).
53 18 U.S.C. 3596, 3597.
54 United States v. Boone, 245 F.3d 352, 358-61 (4th Cir. 2001)(all capital cases), contra,
United States v. Waggoner, 339 F.3d 915, 917-19 (9th Cir. 2003); United States v. Grimes,th
would have explicitly authorized the government to strike for cause potential jurors
in capital cases whose opposition to the death penalty “would prevent or substantially
impair the performance” of their duties as jurors, proposed 18 U.S.C. 3005(b). The
proposal borrowed language from Supreme Court cases that indicate a potential juror
may be struck if his views on capital punishment “would prevent or substantially
impair the performance of his duties as a juror in accordance with his instructions and
his oath.”55
New Federal Capital Offenses
Title III of the Reauthorization Act, designated the Reducing Crime and
Terrorism at America’s Seaports Act, creates three new federal capital offenses:
18 U.S.C. 2282A (devices or dangerous substances in waters of the United States
likely to destroy or damage ships or to interfere with maritime; causing a death);
18 U.S.C. 2283 (transportation of explosive, biological, chemical, or radioactive
or nuclear materials; causing a death); and
a death).
The provisions supplement federal capital offenses created earlier, e.g., 18
U.S.C. 2280 (violence against maritime navigation where death results), 229 & 229A
(possession of chemical weapons where death results), 1111 (murder within the
maritime jurisdiction of the United States).
Two other port security bills would have suggested similar new death penalty
offenses, H.R. 2651 and S. 378 (as reported) (proposed 18 U.S.C. 2282A, 2283, and
173 (proposed 18 U.S.C. 1372 (destruction of vessel or maritime facility; if death
results), 2280A (devices or substances in waters of the United States likely to destroy
or damage ships; if death results), and 2282 (malicious dumping; if death results)).
The bills drafted to counter gang violence – H.R. 4472 and H.R. 1279, 57 H.R.
970, and S.155 – frequently included two new federal death penalty offenses. One
of the proposed offenses would have proscribed the use of interstate facilities with
the intent to commit multiple murders and would have been a capital offense where58
death resulted. The other, modeled after the provision that condemned the use of
55 Wainwright v. Witt, 469 U.S. 412, 420 (1985), quoting, Adams v. Texas, 448 U.S. 38, 45
(1980).
56 For an inventory of federal capital offenses in effect at the beginning of the 109th
Congress see, Capital Punishment: An Overview of Federal Death Penalty Statutes, CRS
Rep. RL30962. The text of the new crimes is appended.
57 See also, H.Rept. 109-74 (2005).
58 “Whoever travels in or causes another (including the intended victim) to travel in
interstate or foreign commerce, or uses or causes another (including the intended victim) to
use the mail or any facility of interstate or foreign commerce, or who conspires or attempts
to do so, with intent that 2 or more intentional homicides be committed in violation of the
laws of any state or the Untied States shall, in addition to being subject to a fine under this
a firearm during or in relation to a crime of violence or a drug offense, would have
outlawed crimes of violence committed during or in relation to a drug trafficking
offense and would have made the offense punishable by death if a death results.59
A few bills would have made it a federal capital offense to kill a police officer
under various circumstances. For example, H.R. 2363 would have outlawed killing
a peace officer and fleeing the country, proposed 18 U.S.C. 1121(c). H.R. 175160
and H.R. 2194 would have prohibited murdering federally funded state or local law
enforcement officers, proposed 18 U.S.C. 1123.
Other proposed new federal capital offenses would have included:
agroterrorism when death results, proposed 18 U.S.C. 2339D (S.1532);61
interference with federal disaster relief efforts if death results, proposed 18
U.S.C. 1370 (H.R. 3728);
death resulting from a violation of 18 U.S.C. 1590 (trafficking in persons) that
involves raping or kidnaping more than one person, proposed 18 U.S.C. 1590 (S.
death resulting from a violation of proposed 18 U.S.C. 555 (S. 2611) that
proscribes evading immigration, customs or agricultural inspection at the border;
and
death resulting from the commission of federal crimes of terrorism, violations of
18 U.S.C. 175 (biological weapons), 175b (biological materials), 229 (chemical
weapons), 831 (nuclear materials), or of 42 U.S.C. 2284 (atomic weapons), or
conspiracies or attempts to commit such crimes or violations, proposed 18 U.S.C.62
title – (1) if the offense results in the death of any person, be sentenced to death or life in
prison. . . .” proposed 18 U.S.C. 1123.
59 “Whoever commits, or conspires, or attempts to commit, a crime of violence during and
in relation to a drug trafficking crime, shall, unless the death penalty is otherwise imposed,
in addition and consecutive to the punishment provided for the drug trafficking crime and
in addition to being subject to a fine under this title – (1) if the crime of violence results in
the death of any person, be sentenced to death or life in prison. . . .” proposed 21 U.S.C. 865.
60 See also, H.Rept. 109-271 (2005).
61 “(a) Any person who knowingly develops, produces, stockpiles, transfers, acquires,
possesses, or uses any biological agent, toxin, or delivery system in furtherance of or in
commission of an act causing damage or harm to, or destruction or contamination of a crop,
livestock, raw agricultural commodity, food product, farm or ranch equipment, material, or
any other property associated with agriculture, or a person engaged in agricultural activity,
that is committed to – (1) intimidate or coerce a civil population; (2) influence the policy of
a government by intimidation or coercion; and (3) disrupt interstate commerce or foreign
commerce of the Untied States agricultural industry, shall be fined under this title or
imprisoned for any term of years or for life.
“(b) If a death results form a violation of subsection (a) and such killing constitutes a
murder (as defined in section 111(a)), the person shall be punished by death, fined under this
title, or imprisoned for a term of 10years to life,” proposed 18 U.S.C. 2339D.
62 A similar provision appeared in H.R. 3199 as passed by the House but was not included
in the final Reauthorization Act. In S. 3882 and S. 3848 the proposed new section is 18
U.S.C. 2339G.
Capital Punishment for Violation of Existing Crimes
Section 110 of the Reauthorization Act merges 18 U.S.C. 1992 (2000 ed.)
(wrecking trains) and 18 U.S.C. 1993 (2000 ed.) (attacks on mass transit) into a new
18 U.S.C. 1992. The train wreck offense was a capital offense; the mass transit
offense was not; under the new section both are now capital offenses, 18 U.S.C.
The most common example of a proposed death penalty sentencing option for
an existing crime came from some of the child safety bills, many of which would
have made the death penalty available when a child died as a result the commission
of a federal crime of violence or some other federal crime:
S. 956 (crime of violence, proposed 18 U.S.C. 3559(d));63
H.R. 2388 (same);
H.R. 3132 (same);
H.R. 4472 (same); and
H.R. 3860 (violations of 18 U.S.C. ch.110 (sexual exploitation of children), ch.
proposed 18 U.S.C. 2245(b)).
Congress adopted a variation of this theme in the Adam Walsh Child Protection
and Safety Act when it amended 18 U.S.C. 2245 to read, “A person who, in the
course of an offense under this chapter [chapter 109A], or sections 1591[(sex
trafficking in children], 2251, 2251A, 2260, 2421[transportation for sexual
purposes], 2422[coercion or enticement to travel for sexual purposes],
2423[transportation followed by sexual abuse of minors], or 2425[interstate
transmission of information about a minor], murders an individual shall be punished
by death or imprisoned for any term of years or for life.” The section had previously
covered only death resulting violations of chapter 109A, 18 U.S.C. 2245 (2000 ed.)
which then as now included sections 2251, 2251A and 2260.
The gang bills would have rewritten the federal criminal gang statute (18 U.S.C.
521) to permit imposition of capital punishment for a death-resulting violation of the
newly crafted provisions or of the Travel Act (18 U.S.C. 1952): H.R. 1279, proposed
18 U.S.C. 521, 1952; S. 155, proposed 18 U.S.C. 523, 1952; H.R. 4472, proposed 18
U.S.C. 521, 1952; see also, H.R. 970, proposed 18 U.S.C. 523.64
63 “A person who is convicted of a federal crime of violence against the person of an
individual who has not attained the age of 15 years shall. . . (1) if the crime of violence
results in the death of a person who has not attained the age of 15 years, be sentenced to
death or life in prison,” proposed 18 U.S.C. 3559(c)(1). Some death-causing federal crimes
of violence are already capital offenses, e.g., carjacking (18 U.S.C. 2119); others are not,
interference with commerce by threat or violence (18U.S.C. 1951).
64 A criminal street gang violation is now punishable by imprisonment for not more than 10
years; the maximum penalty remains the same regardless of whether the offense results in
a death, 18U.S.C. 521, although the killing would be punishable under other state and/or
federal laws, e.g., 1111, 1112 murder and manslaughter within U.S. special maritime and
H.R. 3060, H.R. 5939, S. 3882, and S. 3848 would have made capital offenses
of several death-resulting terrorism-related offenses that are now punishable by no
more than life imprisonment, specifically, proposed 18 U.S.C. 832 (participating in
foreign nuclear or other weapon of mass destruction programs), proposed 18 U.S.C.
2332g (anti-aircraft missiles), proposed 18 U.S.C. 2332h (radiological dispersal
devices), proposed 18 U.S.C. 175c (smallpox virus), and proposed 18 U.S.C. 42
U.S.C. 2272 (atomic weapons).
It is possible that the drafters of H.R. 3060 also intended to treat receipt of
military training from a foreign terrorist organization, 18 U.S.C. 2339D, like treason
and espionage; that is, to make it a capital offense even if no death results from
commission of the offense. The statutes that outlaw treason and espionage make
them punishable by death or a term of imprisonment, 18 U.S.C. 2381, 794. Section
3591(a)(1) of the federal capital punishment procedures provides that treason or
espionage are punishable by death if execution is found justified after considering the
mitigating and aggravating factors listed in section 3592. Section 3592(b) lists three
aggravating factors for treason and espionage cases, i.e., (1) the offender has a prior
espionage or treason conviction, (2) the offense involved a grave risk to national
security, and (3) the offense involved a grave risk of death.
Violation of section 2339D is punishable by imprisonment for not more than 10
years, 18 U.S.C. 2339D(a). H.R. 3060 would have made no change in section
2339D, but it would have amended section 3591(a)(1) of the capital procedures
provisions to say that violations of sections 2381 (treason), 794 (espionage), or
2339D (terrorist training) might be punished by death if execution were found
justified after considering the mitigating and aggravating factors listed in section
aggravating factors to add a fourth factor, i.e., the defense involved substantial
planning by the defendant, proposed 18 U.S.C. 3592(c)(4). Assuming the
conforming amendment to section 2339D – making it a capital offense – was an
oversight and in spite of the proposal’s caption (“addition of terrorism to death
penalty offenses not resulting in death”), it is not clear that the courts would permit
imposition of the death penalty for a violation of section 2339D unless the offense
also involved a first degree murder. The Eighth Amendment’s cruel and unusual
punishment clause precludes imposing the death penalty for the rape of an adult
woman by an individual already under a sentence of life imprisonment at the time of
the rape;65 it precludes imposition of the death penalty even in the case of murder
unless the defendant at least acted intentionally or acted with reckless indifference
to human life while participating in a felony involving a murder;66 and since the
Court’s decision in Furman v. Georgia, it has never been called upon to approve, and
territorial jurisdiction. A death causing violation of the Travel Act, 18 U.S.C. 1952, is not
punishable by imprisonment for any terms of years or for life, although the same misconduct
might be a capital offense under either federal or state law or both, e.g., 18 U.S.C. 1111.
65 Coker v. Georgia, 433 U.S. 584, 592 (1977).
66 Tison v. Arizona, 481 U.S. 137, 156-58 (1987) (“In Enmund v. Florida [458 U.S. 782
(1982)], the Court recognized again the importance of mental state, explicitly permitting the
death penalty in at least those cases where the felony murderer intended to kill and
forbidding it in the case of a minor actor not shown to have had any culpable mental state”).
consequently has never approved, imposition of the death penalty for a crime that did
not involve murder.67
Moratorium
H.R. 4923/S. 122 would have repealed federal death penalty provisions and
would have barred imposition or execution of any capital sentence for violation of
federal law. It made no mention of capital punishment imposed for violation of state
law. H.R. 379, on the other hand, would have set a ten year moratorium on
imposition and execution of capital sentences in any state in which an individual
originally sentenced to death had subsequently been judicially found innocent. It said
nothing of capital punishment imposed or executed under federal law.
Appendix (Statutory Text)
Expedited Habeas Procedures in State Capital Cases.
(Provisions added by the Reauthorization Act in italics)
(Provisions repealed by the Reauthorization Act have been struck)
appointment of counsel; requirement of rule of court or statute; procedures for
appointment
(a) This chapter shall apply to cases arising under section 2254 brought by
prisoners in State custody who are subject to a capital sentence. It shall apply only
if the provisions of subsections (b) and (c) are satisfied.
(b) Counsel.– This chapter is applicable if – (1) the Attorney General of the
United States certifies that a State has established a mechanism for providing
counsel in postconviction proceedings as provided in section 2265; and (2) counsel
was appointed pursuant to that mechanism, petitioner validly waived counsel,
petitioner retained counsel, or petitioner was found not to be indigent.
(b) This chapter is applicable if a State establishes by statute, rule of its court of
last resort, or by another agency authorized by State law, a mechanism for the
appointment, compensation, and payment of reasonable litigation expenses of
competent counsel in State post-conviction proceedings brought by indigent prisoners
whose capital convictions and sentences have been upheld on direct appeal to the
court of last resort in the State or have otherwise become final for State law purposes.
The rule of court or statute must provide standards of competency for the
appointment of such counsel.
67 “Some legal scholars have concluded that the decisions in Coker v. Georgia and Enmund
v. Florida stand as an absolute bar to imposition of the death penalty in any non-homicide
case,” Pinkard, The Death Penalty for Drug Kingpins: Constitutional and Interpretational
Implications, 24 VERMONT LAW REVIEW 1, 3 (1999), citing inter alia, Matura, When Will
It Stop? The Use of the Death Penalty for Non-Homicide Crimes, 24 JOURNAL OF
LEGISLATION 249 (1998); see also, None Dare Call It Treason: The Constitutionality of the
Death Penalty for Peacetime Espionage, 87 CORNELL LAW REVIEW 820, 851 (2002).
(c) Any mechanism for the appointment, compensation, and reimbursement of
counsel as provided in subsection (b) must offer counsel to all State prisoners under
capital sentence and must provide for the entry of an order by a court of record –
(1) appointing one or more counsels to represent the prisoner upon a finding that
the prisoner is indigent and accepted the offer or is unable competently to decide
whether to accept or reject the offer; (2) finding, after a hearing if necessary, that the
prisoner rejected the offer of counsel and made the decision with an understanding
of its legal consequences; or (3) denying the appointment of counsel upon a finding
that the prisoner is not indigent.
(d) No counsel appointed pursuant to subsections (b) and (c) to represent a State
prisoner under capital sentence shall have previously represented the prisoner at trial
or on direct appeal in the case for which the appointment is made unless the prisoner
and counsel expressly request continued representation.
(e) The ineffectiveness or incompetence of counsel during State or Federal
post-conviction proceedings in a capital case shall not be a ground for relief in a
proceeding arising under section 2254. This limitation shall not preclude the
appointment of different counsel, on the court's own motion or at the request of the
prisoner, at any phase of State or Federal post-conviction proceedings on the basis
of the ineffectiveness or incompetence of counsel in such proceedings.
28 U.S.C. 2262. Mandatory stay of execution; duration; limits on stays of
execution; successive petitions
(a) Upon the entry in the appropriate State court of record of an order under
section 2261(c), a warrant or order setting an execution date for a State prisoner shall
be stayed upon application to any court that would have jurisdiction over any
proceedings filed under section 2254. The application shall recite that the State has
invoked the post-conviction review procedures of this chapter and that the scheduled
execution is subject to stay.
(b) A stay of execution granted pursuant to subsection (a) shall expire if – (1)
a State prisoner fails to file a habeas corpus application under section 2254 within the
time required in section 2263; (2) before a court of competent jurisdiction, in the
presence of counsel, unless the prisoner has competently and knowingly waived such
counsel, and after having been advised of the consequences, a State prisoner under
capital sentence waives the right to pursue habeas corpus review under section 2254;
or (3) a State prisoner files a habeas corpus petition under section 2254 within the
time required by section 2263 and fails to make a substantial showing of the denial
of a Federal right or is denied relief in the district court or at any subsequent stage of
review.
(c) If one of the conditions in subsection (b) has occurred, no Federal court
thereafter shall have the authority to enter a stay of execution in the case, unless the
court of appeals approves the filing of a second or successive application under
section 2244(b).
28 U.S.C.2263. Filing of habeas corpus application; time requirements; tolling
rules
(a) Any application under this chapter for habeas corpus relief under section
2254 must be filed in the appropriate district court not later than 180 days after final
State court affirmance of the conviction and sentence on direct review or the
expiration of the time for seeking such review.
(b) The time requirements established by subsection (a) shall be tolled – (1)
from the date that a petition for certiorari is filed in the Supreme Court until the date
of final disposition of the petition if a State prisoner files the petition to secure review
by the Supreme Court of the affirmance of a capital sentence on direct review by the
court of last resort of the State or other final State court decision on direct review; (2)
from the date on which the first petition for post-conviction review or other collateral
relief is filed until the final State court disposition of such petition; and (3) during an
additional period not to exceed 30 days, if – (A) a motion for an extension of time is
filed in the Federal district court that would have jurisdiction over the case upon the
filing of a habeas corpus application under section 2254; and (B) a showing of good
cause is made for the failure to file the habeas corpus application within the time
period established by this section.
28 U.S.C. 2264. Scope of Federal review; district court adjudications
(a) Whenever a State prisoner under capital sentence files a petition for habeas
corpus relief to which this chapter applies, the district court shall only consider a
claim or claims that have been raised and decided on the merits in the State courts,
unless the failure to raise the claim properly is – (1) the result of State action in
violation of the Constitution or laws of the United States; (2) the result of the
Supreme Court's recognition of a new Federal right that is made retroactively
applicable; or (3) based on a factual predicate that could not have been discovered
through the exercise of due diligence in time to present the claim for State or Federal
post-conviction review.
(b) Following review subject to subsections (a), (d), and (e) of section 2254, the
court shall rule on the claims properly before it.
28 U.S.C. 2265. Certification and judicial review
(a) Certification. –
(1) In general.--If requested by an appropriate State official, the Attorney
General of the United States shall determine – (A) whether the State has established
a mechanism for the appointment, compensation, and payment of reasonable
litigation expenses of competent counsel in State postconviction proceedings brought
by indigent prisoners who have been sentenced to death; (B) the date on which the
mechanism described in subparagraph (A) was established; and (C) whether the
State provides standards of competency for the appointment of counsel in
proceedings described in subparagraph (A).
(2) Effective date.– The date the mechanism described in paragraph (1)(A) was
established shall be the effective date of the certification under this subsection.
(3) Only express requirements.– There are no requirements for certification or
for application of this chapter other than those expressly stated in this chapter.
(b) Regulations.– The Attorney General shall promulgate regulations to
implement the certification procedure under subsection (a).
(c) Review of certification.–
(1) In general.– The determination by the Attorney General regarding whether
to certify a State under this section is subject to review exclusively as provided under
chapter 158 of this title.
(2) Venue.– The Court of Appeals for the District of Columbia Circuit shall
have exclusive jurisdiction over matters under paragraph (1), subject to review by
the Supreme Court under section 2350 of this title.
(3) Standard of review.– The determination by the Attorney General regarding
whether to certify a State under this section shall be subject to de novo review.
28 U.S.C. 2266. Limitation periods for determining applications and motions
(a) The adjudication of any application under section 2254 that is subject to this
chapter, and the adjudication of any motion under section 2255 by a person under
sentence of death, shall be given priority by the district court and by the court of
appeals over all noncapital matters.
(b)(1)(A) A district court shall render a final determination and enter a final
judgment on any application for a writ of habeas corpus brought under this chapter
in a capital case not later than 450 days after the date on which the application is
filed, or 60 days after the date on which the case is submitted for decision, whichever
is earlier 180 days after the date on which the application is filed. (B) A district court
shall afford the parties at least 120 days in which to complete all actions, including
the preparation of all pleadings and briefs, and if necessary, a hearing, prior to the
submission of the case for decision. (C)(i) A district court may delay for not more
than one additional 30-day period beyond the period specified in subparagraph (A),
the rendering of a determination of an application for a writ of habeas corpus if the
court issues a written order making a finding, and stating the reasons for the finding,
that the ends of justice that would be served by allowing the delay outweigh the best
interests of the public and the applicant in a speedy disposition of the application. (ii)
The factors, among others, that a court shall consider in determining whether a delay
in the disposition of an application is warranted are as follows: (I) Whether the
failure to allow the delay would be likely to result in a miscarriage of justice. (II)
Whether the case is so unusual or so complex, due to the number of defendants, the
nature of the prosecution, or the existence of novel questions of fact or law, that it is
unreasonable to expect adequate briefing within the time limitations established by
subparagraph (A). (III) Whether the failure to allow a delay in a case that, taken as
a whole, is not so unusual or so complex as described in subclause (II), but would
otherwise deny the applicant reasonable time to obtain counsel, would unreasonably
deny the applicant or the government continuity of counsel, or would deny counsel
for the applicant or the government the reasonable time necessary for effective
preparation, taking into account the exercise of due diligence. (iii) No delay in
disposition shall be permissible because of general congestion of the court's calendar.
(iv) The court shall transmit a copy of any order issued under clause (i) to the
Director of the Administrative Office of the United States Courts for inclusion in the
report under paragraph (5).
(2) The time limitations under paragraph (1) shall apply to – (A) an initial
application for a writ of habeas corpus; (B) any second or successive application for
a writ of habeas corpus; and (C) any redetermination of an application for a writ of
habeas corpus following a remand by the court of appeals or the Supreme Court for
further proceedings, in which case the limitation period shall run from the date the
remand is ordered.
(3)(A) The time limitations under this section shall not be construed to entitle
an applicant to a stay of execution, to which the applicant would otherwise not be
entitled, for the purpose of litigating any application or appeal. (B) No amendment
to an application for a writ of habeas corpus under this chapter shall be permitted
after the filing of the answer to the application, except on the grounds specified in
section 2244(b).
(4)(A) The failure of a court to meet or comply with a time limitation under this
section shall not be a ground for granting relief from a judgment of conviction or
sentence. (B) The State may enforce a time limitation under this section by
petitioning for a writ of mandamus to the court of appeals. The court of appeals shall
act on the petition for a writ of mandamus not later than 30 days after the filing of the
petition.
(5)(A) The Administrative Office of the United States Courts shall submit to
Congress an annual report on the compliance by the district courts with the time
limitations under this section. (B) The report described in subparagraph (A) shall
include copies of the orders submitted by the district courts under paragraph
(1)(B)(iv).
(c)(1)(A) A court of appeals shall hear and render a final determination of any
appeal of an order granting or denying, in whole or in part, an application brought
under this chapter in a capital case not later than 120 days after the date on which the
reply brief is filed, or if no reply brief is filed, not later than 120 days after the date
on which the answering brief is filed. (B)(i) A court of appeals shall decide whether
to grant a petition for rehearing or other request for rehearing en banc not later than
30 days after the date on which the petition for rehearing is filed unless a responsive
pleading is required, in which case the court shall decide whether to grant the petition
not later than 30 days after the date on which the responsive pleading is filed. (ii) If
a petition for rehearing or rehearing en banc is granted, the court of appeals shall hear
and render a final determination of the appeal not later than 120 days after the date
on which the order granting rehearing or rehearing en banc is entered.
(2) The time limitations under paragraph (1) shall apply to– (A) an initial
application for a writ of habeas corpus; (B) any second or successive application for
a writ of habeas corpus; and (C) any redetermination of an application for a writ of
habeas corpus or related appeal following a remand by the court of appeals en banc
or the Supreme Court for further proceedings, in which case the limitation period
shall run from the date the remand is ordered.
(3) The time limitations under this section shall not be construed to entitle an
applicant to a stay of execution, to which the applicant would otherwise not be
entitled, for the purpose of litigating any application or appeal.
(4)(A) The failure of a court to meet or comply with a time limitation under this
section shall not be a ground for granting relief from a judgment of conviction or
sentence. (B) The State may enforce a time limitation under this section by applying
for a writ of mandamus to the Supreme Court.
(5) The Administrative Office of the United States Courts shall submit to
Congress an annual report on the compliance by the courts of appeals with the time
limitations under this section.
2265. Application to State unitary review procedure
(a) For purposes of this section, a "unitary review" procedure means a State
procedure that authorizes a person under sentence of death to raise, in the course of
direct review of the judgment, such claims as could be raised on collateral attack.
This chapter shall apply, as provided in this section, in relation to a State unitary
review procedure if the State establishes by rule of its court of last resort or by statute
a mechanism for the appointment, compensation, and payment of reasonable
litigation expenses of competent counsel in the unitary review proceedings, including
expenses relating to the litigation of collateral claims in the proceedings. The rule
of court or statute must provide standards of competency for the appointment of such
counsel.
(b) To qualify under this section, a unitary review procedure must include an
offer of counsel following trial for the purpose of representation on unitary review,
and entry of an order, as provided in section 2261(c), concerning appointment of
counsel or waiver or denial of appointment of counsel for that purpose. No counsel
appointed to represent the prisoner in the unitary review proceedings shall have
previously represented the prisoner at trial in the case for which the appointment is
made unless the prisoner and counsel expressly request continued representation.
(c) Sections 2262, 2263, 2264, and 2266 shall apply in relation to cases
involving a sentence of death from any State having a unitary review procedure that
qualifies under this section. References to State "post-conviction review" and "direct
review" in such sections shall be understood as referring to unitary review under the
State procedure. The reference in section 2262(a) to "an order under section 2261(c)"
shall be understood as referring to the post-trial order under subsection (b)
concerning representation in the unitary review proceedings, but if a transcript of the
trial proceedings is unavailable at the time of the filing of such an order in the
appropriate State court, then the start of the 180-day limitation period under section
2263 shall be deferred until a transcript is made available to the prisoner or counsel
of the prisoner.
Capital Offenses Created by the Reauthorization Act.
18 U.S.C. 2282A. Devices or dangerous substances in waters of the United States
likely to destroy or damage ships or to interfere with maritime commerce
(a) A person who knowingly places, or causes to be placed, in navigable waters
of the United States, by any means, a device or dangerous substance which is likely
to destroy or cause damage to a vessel or its cargo, cause interference with the safe
navigation of vessels, or interference with maritime commerce (such as by damaging
or destroying marine terminals, facilities, or any other marine structure or entity used
in maritime commerce) with the intent of causing such destruction or damage,
interference with the safe navigation of vessels, or interference with maritime
commerce shall be fined under this title or imprisoned for any term of years, or for
life; or both.
(b) A person who causes the death of any person by engaging in conduct
prohibited under subsection (a) may be punished by death.
(c) Nothing in this section shall be construed to apply to otherwise lawfully
authorized and conducted activities of the United States Government.
(d) In this section:
(1) The term “dangerous substance” means any solid, liquid, or gaseous material
that has the capacity to cause damage to a vessel or its cargo, or cause interference
with the safe navigation of a vessel.
(2) The term “device” means any object that, because of its physical,
mechanical, structural, or chemical properties, has the capacity to cause damage to
a vessel or its cargo, or cause interference with the safe navigation of a vessel.
18 U.S.C. 2283. Transportation of explosive, biological, chemical, or radioactive
or nuclear materials
(a) In General- Whoever knowingly transports aboard any vessel within the
United States and on waters subject to the jurisdiction of the United States or any
vessel outside the United States and on the high seas or having United States
nationality an explosive or incendiary device, biological agent, chemical weapon, or
radioactive or nuclear material, knowing that any such item is intended to be used to
commit an offense listed under section 2332b(g)(5)(B), shall be fined under this title
or imprisoned for any term of years or for life, or both.
(b) Causing Death- Any person who causes the death of a person by engaging
in conduct prohibited by subsection (a) may be punished by death.
(c) Definitions- In this section:
(1) BIOLOGICAL AGENT- The term “biological agent” means any biological
agent, toxin, or vector (as those terms are defined in section 178).
(2) BY-PRODUCT MATERIAL- The term “by-product material” has the
meaning given that term in section 11(e) of the Atomic Energy Act of 1954 (42
U.S.C. 2014(e)).
(3) CHEMICAL WEAPON- The term “chemical weapon” has the meaning
given that term in section 229F(1).
(4) EXPLOSIVE OR INCENDIARY DEVICE- The term “explosive or
incendiary device” has the meaning given the term in section 232(5) and includes
explosive materials, as that term is defined in section 841(c) and explosive as defined
in section 844(j).
(5) NUCLEAR MATERIAL- The term “nuclear material” has the meaning
given that term in section 831(f)(1).
(6) RADIOACTIVE MATERIAL- The term “radioactive material” means –
(A) source material and special nuclear material, but does not include natural
or depleted uranium;
(B) nuclear by-product material;
(C) material made radioactive by bombardment in an accelerator; or
(D) all refined isotopes of radium.
(8) SOURCE MATERIAL- The term “source material” has the meaning given
that term in section 11(z) of the Atomic Energy Act of 1954 (42 U.S.C. 2014(z)).
(9) SPECIAL NUCLEAR MATERIAL- The term “special nuclear material” has
the meaning given that term in section 11(aa) of the Atomic Energy Act of 1954 (42
U.S.C. 2014(aa)).
18 U.S.C. 2291. Destruction of vessel or maritime facility
(a) Offense- Whoever knowingly –
(1) sets fire to, damages, destroys, disables, or wrecks any vessel;
(2) places or causes to be placed a destructive device, as defined in section
921(a)(4), destructive substance, as defined in section 31(a)(3), or an explosive, as
defined in section 844(j) in, upon, or near, or otherwise makes or causes to be made
unworkable or unusable or hazardous to work or use, any vessel, or any part or other
materials used or intended to be used in connection with the operation of a vessel;
(3) sets fire to, damages, destroys, or disables or places a destructive device or
substance in, upon, or near, any maritime facility, including any aid to navigation,
lock, canal, or vessel traffic service facility or equipment;
(4) interferes by force or violence with the operation of any maritime facility,
including any aid to navigation, lock, canal, or vessel traffic service facility or
equipment, if such action is likely to endanger the safety of any vessel in navigation;
(5) sets fire to, damages, destroys, or disables or places a destructive device or
substance in, upon, or near, any appliance, structure, property, machine, or apparatus,
or any facility or other material used, or intended to be used, in connection with the
operation, maintenance, loading, unloading, or storage of any vessel or any passenger
or cargo carried or intended to be carried on any vessel;
(6) performs an act of violence against or incapacitates any individual on any
vessel, if such act of violence or incapacitation is likely to endanger the safety of the
vessel or those on board;
(7) performs an act of violence against a person that causes or is likely to cause
serious bodily injury, as defined in section 1365(h)(3), in, upon, or near, any
appliance, structure, property, machine, or apparatus, or any facility or other material
used, or intended to be used, in connection with the operation, maintenance, loading,
unloading, or storage of any vessel or any passenger or cargo carried or intended to
be carried on any vessel;
(8) communicates information, knowing the information to be false and under
circumstances in which such information may reasonably be believed, thereby
endangering the safety of any vessel in navigation; or
(9) attempts or conspires to do anything prohibited under paragraphs (1) through
(8),
shall be fined under this title or imprisoned not more than 20 years, or both.
(b) Limitation- Subsection (a) shall not apply to any person that is engaging in
otherwise lawful activity, such as normal repair and salvage activities, and the
transportation of hazardous materials regulated and allowed to be transported under
chapter 51 of title 49.
(c) Penalty- Whoever is fined or imprisoned under subsection (a) as a result of
an act involving a vessel that, at the time of the violation, carried high-level
radioactive waste (as that term is defined in section 2(12) of the Nuclear Waste
Policy Act of 1982 (42 U.S.C. 10101(12)) or spent nuclear fuel (as that term is
defined in section 2(23) of the Nuclear Waste Policy Act of 1982 (42 U.S.C.
(d) Penalty When Death Results- Whoever is convicted of any crime prohibited
by subsection (a) and intended to cause death by the prohibited conduct, if the
conduct resulted in the death of any person, shall be subject also to the death penalty
or to a term of imprisonment for a period up to life.
(e) Threats- Whoever knowingly and intentionally imparts or conveys any threat
to do an act which would violate this chapter, with an apparent determination and
will to carry the threat into execution, shall be fined under this title or imprisoned not
more than 5 years, or both, and is liable for all costs incurred as a result of such
threat.
18 U.S.C. 2290. Jurisdiction and scope
(a) Jurisdiction- There is jurisdiction, including extraterritorial jurisdiction, over
an offense under this chapter if the prohibited activity takes place –
(1) within the United States and within waters subject to the jurisdiction of the
United States; or
(2) outside United States and –
(A) an offender or a victim is a national of the United States (as that term is
defined under section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C.
(B) the activity involves a vessel in which a national of the United States was
on board; or
(C) the activity involves a vessel of the United States (as that term is defined
under section 2 of the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1903).
(b) Scope- Nothing in this chapter shall apply to otherwise lawful activities
carried out by or at the direction of the United States Government.
Adam Walsh Child Protection and Safety Act Amendments.
(Provisions added in italics)
(Provisions repealed have been struck)
18 U.S.C. 2245. Sexual abuse resulting in death
(a) IN GENERAL. – A person who, in the course of an offense under this chapter
[18 U.S.C. 2241-2248 relating to sexual abuse], or section 1591 [sex trafficking of
children or by force, fraud, or coercion], 2251[sexual exploitation of children],
2251A [selling or buying children], 2260 [production of sexually explicit depictions
of a minor for importation into the U.S.], 2421 [transportation for illicit sexual
purposes], 2422 [coercion and enticement for illicit sexual purposes], 2423
[transportation for illicit sexual purposes involving minors], or 2425 [use of
interstate facilities to transmit information about a minor], murders an individual
engages in conduct that results in the death of a person shall be punished by death or
imprisoned for any term of years or for life.
18 U.S.C. 3592. Mitigating and aggravating factors to be considered in
determining whether a sentence of death is justified
* * *
(c) Aggravating factors for homicide. – In determining whether a sentence of
death is justified for an offense described in section 3591(c)(2), the jury, or if there
is no jury, the court, shall consider each of the following aggravating factors for
which notice has been given and determine which, if any, exist:
(1) Death during commission of another crime. – The death or injury
resulting in death, occurred during the commission or attempted commission of, or
during the immediate flight from the commission of , an offense under . . . section