Last updated on: 9/12/2012 | Author:

What Are the Federal Rules Governing the Death Penalty?

General Reference (not clearly pro or con)

The US Constitution, Article III, Section 2, Clause 3 (ratified Sep. 17, 1787) states:

“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

Sep. 17, 1787 - US Constitution

The Fifth Amendment of the US Constitution (ratified Dec. 15, 1791) states:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Dec. 15, 1791 - US Constitution

The US Department of Justice’s 1997 “United States Attorneys’ Manual,” in Title 9, sections 68 and 69, available at, states:

“The death penalty under 21 U.S.C. 848(e)(1)(A)-(B) was enacted as part of the Anti-Drug Abuse Act of 1988 and became effective on November 18, 1988. See Pub. L. 100-690, Nov. 18, 1988, 102 Stat. 4181. In passing this legislation, Congress expressly intended to punish and deter anyone who intentionally kills or counsels, commands, induces, procures, or causes an intentional killing of: (A) any person while (1) engaging in or (2) working in furtherance of any continuing criminal enterprise, or (3) while engaging in a major Federal drug felony; or (B) any law enforcement officer during or in relation to a Federal drug felony. See 134 Cong. Rec. S. 16042 (daily ed. Oct. 14, 1988) (statement of Sen. D’Amato); see also 134 Cong. Rec. H. 7274 (daily ed. Sept. 8, 1988) (statement of Rep. Gekas). Offenses under 21 U.S.C. 848(e) include “any person” who commits or causes another to commit a drug-related intentional killing as defined by the statute, not just ‘drug kingpins.’

The Federal Death Penalty Act of 1994 was enacted as Title VI of the Violent Crime Control and Law Enforcement Act of 1994 and became effective on September 13, 1994. See Pub. L. 103-322, Title VI, Sections 60001-26, Sept. 13, 1994, 108 Stat. 1959 (codified at 18 U.S.C. 3591-3598). In passing this legislation, Congress established constitutional procedures for imposition of the death penalty for 60 offenses under 13 existing and 28 newly-created Federal capital statutes, which fall into three broad categories: (1) homicide offenses; (2) espionage and treason; and (3) non-homicidal narcotics offenses. Drug-related killings under 21 U.S.C. 848(e) and political assassinations under 18 U.S.C. 1751 (presidential and staff) and 18 U.S.C. 351 (congressional and cabinet, etc.) are not expressly included in the Act’s otherwise exhaustive listing of death penalty offenses. However, Section 3591(a)(2) of the Act expressly extends to “any other offense for which a sentence of death is provided.'”

1997 - US Department of Justice (USDOJ)

The US Department of Justice’s Apr. 2004, “Violent Crime Control and Law Enforcement Act of 1994 Fact Cheet,” available at, states”

“[The Violent Crime and Law Enforcement Act of 1994] Expand[ed] the Federal death penalty to cover about 60 offenses, including terrorist homicides, murder of a Federal law enforcement officer, large-scale drug trafficking, drive-by-shootings resulting in death and carjackings resulting in death.”

Apr. 2004 - US Department of Justice (USDOJ)

The Library of Congress Congressional Research Service’s official Apr. 15, 1996 summary “S.735 (104th): Antiterrorism and Effective Death Penalty Act of 1996,” available at, states:

“Section 108 –

Amends the Controlled Substances Act (CSA) to allow the court, upon a finding that investigative, expert, or other services are reasonably necessary for the representation of a defendant in a criminal action in which a defendant is charged with a crime punishable by death and in certain post-conviction proceedings, to authorize the defendant’s attorneys to obtain such services and order the payment of fees and expenses. Prohibits any ex parte proceeding, communication, or request (proceeding) from being considered unless a proper showing is made concerning the need for confidentiality. Requires that any such proceeding be transcribed and made a part of the record available for appellate review…

Subtitle B – Jurisdiction for Lawsuits Against Terrorist States

Amends the Federal judicial code to make exceptions to: (1) foreign sovereign immunity for certain cases in which money damages are sought against a foreign government for personal injury or death caused by an act of torture, extra judicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources to terrorists (but sets a ten-year statute of limitation, subject to equitable tolling principles, and directs the court to limit discovery that the Attorney General certifies will interfere with a criminal investigation or prosecution, or a national security operation, related to the incident that gave rise to the cause of action, subject to specified restrictions); and (2) immunity from attachment with respect to a foreign state or an agency or instrumentality of such state…

Section 725 –

Modifies prohibitions regarding the use of weapons of mass destruction to include threats to use such weapons and to specify that, to violate such prohibitions, such use must be without lawful authority and the results of such use (or threat) must affect (would have affected) interstate or foreign commerce. Includes within the definition of “weapon of mass destruction” any weapon designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals or their precursors. Imposes penalties (including the death penalty, if death results) upon any U.S. national who, without lawful authority and outside the United States, uses, threatens, attempts, or conspires to use a weapon of mass destruction…

Section 727 –

Sets penalties for: (1) killing or attempting to kill any U.S. officer engaged in, or on account of, the performance of official duties or any person assisting such an officer or employee; and (2) threatening to assault, kidnap, or murder former Federal officers and employees. Specifies that Federal criminal code provisions regarding influencing, impeding, or retaliating against a Federal official by threatening or injuring a family member shall not interfere with the investigative authority of the United States Secret Service. Revises a provision regarding the meaning of the term “deadly or dangerous weapon” in the prohibition against assaulting Federal officers or employees to include a weapon intended to cause death or danger but that fails to do so by reason of a defective component.”

Apr. 15, 1996 - US Library of Congress

Eileen M. Connor, JD, Proskauer Special Litigation Attorney at the New York Legal Assistance Group, in her June 7, 2010 article “The Undermining Influence of the Federal Death Penalty on Capital Policymaking and Criminal Justice Administration in the States,” available at, wrote:

“The concept of ‘appropriate punishment’ is mirrored in the Department’s policy regarding successive federal-state prosecutions. Because the Double Jeopardy Clause allows a federal prosecution following a state prosecution, the federal government may initiate a second prosecution in order to vindicate a substantial federal interest. Such prosecutions are governed by a second discretionary policy, the ‘Petite Policy.’ Both the capital charging policy and the Petite Policy imply that a state is capable of delivering full vindication of federal interests, so long as punishment is sufficiently severe. Where state laws, policies, or norms favor the same or greater level of punishment for a certain crime, the local norm is observed, either by virtue of a federal prosecution whose sentencing outcome is similar to that which would be attained in a state prosecution, or, more likely, by federal abstention from prosecution. Where state laws, policies, or norms favor less punishment, the norm may be supplanted by a successive or overriding federal prosecution.”

June 7, 2010 - Eileen M. Connor, JD