18 U.S.C. § 3593 — Special hearing to determine whether a

Page 825 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3593 (2) PREVIOUS CONVICTION OF OTHER SERIOUS OFFENSES.—The defendant has previously been convicted of two or more Federal or State of- fenses, each punishable by a term of imprison- ment of more than one year, committed on different occasions, involving the importation, manufacture, or distribution of a controlled substance (as defined in section 102 of the Con- trolled Substances Act (21 U.S.C. 802)) or the infliction of, or attempted infliction of, seri- ous bodily injury or death upon another per- son. (3) PREVIOUS SERIOUS DRUG FELONY CONVIC- TION.—The defendant has previously been con- victed of another Federal or State offense in- volving the manufacture, distribution, impor- tation, or possession of a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) for which a sen- tence of five or more years of imprisonment was authorized by statute. (4) USE OF FIREARM.—In committing the of- fense, or in furtherance of a continuing crimi- nal enterprise of which the offense was a part, the defendant used a firearm or knowingly di- rected, advised, authorized, or assisted an- other to use a firearm to threaten, intimidate, assault, or injure a person. (5) DISTRIBUTION TO PERSONS UNDER 21.—The offense, or a continuing criminal enterprise of which the offense was a part, involved conduct proscribed by section 418 of the Controlled Substances Act (21 U.S.C. 859) which was com- mitted directly by the defendant. (6) DISTRIBUTION NEAR SCHOOLS.—The of- fense, or a continuing criminal enterprise of which the offense was a part, involved conduct proscribed by section 419 of the Controlled Substances Act (21 U.S.C. 860) which was com- mitted directly by the defendant. (7) USING MINORS IN TRAFFICKING.—The of- fense, or a continuing criminal enterprise of which the offense was a part, involved conduct proscribed by section 420 of the Controlled Substances Act (21 U.S.C. 861) which was com- mitted directly by the defendant. (8) LETHAL ADULTERANT.—The offense in- volved the importation, manufacture, or dis- tribution of a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), mixed with a potentially le- thal adulterant, and the defendant was aware of the presence of the adulterant. The jury, or if there is no jury, the court, may consider whether any other aggravating factor for which notice has been given exists. (Added and amended Pub. L. 103–322, title VI, § 60002(a), title XXXIII, § 330021(1), Sept. 13, 1994, 108 Stat. 1960, 2150; Pub. L. 104–132, title VII, § 728, Apr. 24, 1996, 110 Stat. 1302; Pub. L. 104–294, title VI, §§ 601(b)(7), 604(b)(35), Oct. 11, 1996, 110 Stat. 3499, 3508; Pub. L. 107–273, div. B, title IV, § 4002(e)(2), Nov. 2, 2002, 116 Stat. 1810; Pub. L. 109–248, title II, § 206(a)(4), July 27, 2006, 120 Stat. 614.) Editorial Notes REFERENCES IN TEXT Section 1992 of this title, referred to in subsec. (c)(1), was repealed and a new section 1992 enacted by Pub. L. 109–177, title I, § 110(a), Mar. 9, 2006, 120 Stat. 205, and, as so enacted, section 1992 no longer relates only to the crime of wrecking trains. The Comprehensive Drug Abuse Prevention and Con- trol Act of 1970, referred to in subsec. (c)(12), is Pub. L. 91–513, Oct. 27, 1970, 84 Stat. 1236, as amended. Title II of the Act, known as the Controlled Substances Act, is classified principally to subchapter I (§ 801 et seq.) of chapter 13 of Title 21, Food and Drugs. Title III of the Act, known as the Controlled Substances Import and Export Act, is classified principally to subchapter II (§ 951 et seq.) of chapter 13 of Title 21. For complete classification of this Act to the Code, see Short Title note set out under sections 801 and 951 of Title 21 and Tables. AMENDMENTS 2006—Subsec. (c)(1). Pub. L. 109–248 inserted ‘‘section 2245 (offenses resulting in death),’’ after ‘‘section 1992 (wrecking trains),’’. 2002—Subsec. (c)(1). Pub. L. 107–273 substituted ‘‘sec- tion 37’’ for ‘‘section 36’’. 1996—Subsec. (c)(1). Pub. L. 104–294, § 601(b)(7), sub- stituted ‘‘section 2332a (use of weapons of mass destruc- tion)’’ for ‘‘section 2339 (use of weapons of mass de- struction)’’. Subsec. (c)(12). Pub. L. 104–294, § 604(b)(35), substituted ‘‘Comprehensive Drug Abuse Prevention and Control Act of 1970’’ for ‘‘Controlled Substances Act’’. Subsec. (c)(16). Pub. L. 104–132 added par. (16). 1994—Subsec. (c)(1). Pub. L. 103–322, § 330021(1), sub- stituted ‘‘kidnapping’’ for ‘‘kidnaping’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Amendment by section 604(b)(35) of Pub. L. 104–294 ef- fective Sept. 13, 1994, see section 604(d) of Pub. L. 104–294, set out as a note under section 13 of this title. § 3593. Special hearing to determine whether a sentence of death is justified (a) NOTICE BY THE GOVERNMENT.—If, in a case involving an offense described in section 3591, the attorney for the government believes that the circumstances of the offense are such that a sentence of death is justified under this chapter, the attorney shall, a reasonable time before the trial or before acceptance by the court of a plea of guilty, sign and file with the court, and serve on the defendant, a notice— (1) stating that the government believes that the circumstances of the offense are such that, if the defendant is convicted, a sentence of death is justified under this chapter and that the government will seek the sentence of death; and (2) setting forth the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death. The factors for which notice is provided under this subsection may include factors concerning the effect of the offense on the victim and the victim’s family, and may include oral testi- mony, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the vic- tim and the victim’s family, and any other rel- evant information. The court may permit the attorney for the government to amend the no- tice upon a showing of good cause. (b) HEARING BEFORE A COURT OR JURY.—If the attorney for the government has filed a notice Page 826 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3593 as required under subsection (a) and the defend- ant is found guilty of or pleads guilty to an of- fense described in section 3591, the judge who presided at the trial or before whom the guilty plea was entered, or another judge if that judge is unavailable, shall conduct a separate sen- tencing hearing to determine the punishment to be imposed. The hearing shall be conducted— (1) before the jury that determined the de- fendant’s guilt; (2) before a jury impaneled for the purpose of the hearing if— (A) the defendant was convicted upon a plea of guilty; (B) the defendant was convicted after a trial before the court sitting without a jury; (C) the jury that determined the defend- ant’s guilt was discharged for good cause; or (D) after initial imposition of a sentence under this section, reconsideration of the sentence under this section is necessary; or (3) before the court alone, upon the motion of the defendant and with the approval of the attorney for the government. A jury impaneled pursuant to paragraph (2) shall consist of 12 members, unless, at any time be- fore the conclusion of the hearing, the parties stipulate, with the approval of the court, that it shall consist of a lesser number. (c) PROOF OF MITIGATING AND AGGRAVATING FACTORS.—Notwithstanding rule 32 of the Fed- eral Rules of Criminal Procedure, when a de- fendant is found guilty or pleads guilty to an of- fense under section 3591, no presentence report shall be prepared. At the sentencing hearing, in- formation may be presented as to any matter relevant to the sentence, including any miti- gating or aggravating factor permitted or re- quired to be considered under section 3592. Infor- mation presented may include the trial tran- script and exhibits if the hearing is held before a jury or judge not present during the trial, or at the trial judge’s discretion. The defendant may present any information relevant to a miti- gating factor. The government may present any information relevant to an aggravating factor for which notice has been provided under sub- section (a). Information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its pro- bative value is outweighed by the danger of cre- ating unfair prejudice, confusing the issues, or misleading the jury. For the purposes of the pre- ceding sentence, the fact that a victim, as de- fined in section 3510, attended or observed the trial shall not be construed to pose a danger of creating unfair prejudice, confusing the issues, or misleading the jury. The government and the defendant shall be permitted to rebut any infor- mation received at the hearing, and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any aggravating or mitigating fac- tor, and as to the appropriateness in the case of imposing a sentence of death. The government shall open the argument. The defendant shall be permitted to reply. The government shall then be permitted to reply in rebuttal. The burden of establishing the existence of any aggravating factor is on the government, and is not satisfied unless the existence of such a factor is estab- lished beyond a reasonable doubt. The burden of establishing the existence of any mitigating fac- tor is on the defendant, and is not satisfied un- less the existence of such a factor is established by a preponderance of the information. (d) RETURN OF SPECIAL FINDINGS.—The jury, or if there is no jury, the court, shall consider all the information received during the hearing. It shall return special findings identifying any ag- gravating factor or factors set forth in section 3592 found to exist and any other aggravating factor for which notice has been provided under subsection (a) found to exist. A finding with re- spect to a mitigating factor may be made by 1 or more members of the jury, and any member of the jury who finds the existence of a mitigating factor may consider such factor established for purposes of this section regardless of the num- ber of jurors who concur that the factor has been established. A finding with respect to any aggravating factor must be unanimous. If no ag- gravating factor set forth in section 3592 is found to exist, the court shall impose a sentence other than death authorized by law. (e) RETURN OF A FINDING CONCERNING A SEN- TENCE OF DEATH.—If, in the case of— (1) an offense described in section 3591(a)(1), an aggravating factor required to be consid- ered under section 3592(b) is found to exist; (2) an offense described in section 3591(a)(2), an aggravating factor required to be consid- ered under section 3592(c) is found to exist; or (3) an offense described in section 3591(b), an aggravating factor required to be considered under section 3592(d) is found to exist, the jury, or if there is no jury, the court, shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. Based upon this consider- ation, the jury by unanimous vote, or if there is no jury, the court, shall recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence. (f) SPECIAL PRECAUTION TO ENSURE AGAINST DISCRIMINATION.—In a hearing held before a jury, the court, prior to the return of a finding under subsection (e), shall instruct the jury that, in considering whether a sentence of death is justified, it shall not consider the race, color, religious beliefs, national origin, or sex of the defendant or of any victim and that the jury is not to recommend a sentence of death unless it has concluded that it would recommend a sen- tence of death for the crime in question no mat- ter what the race, color, religious beliefs, na- tional origin, or sex of the defendant or of any victim may be. The jury, upon return of a find- ing under subsection (e), shall also return to the court a certificate, signed by each juror, that consideration of the race, color, religious be- liefs, national origin, or sex of the defendant or any victim was not involved in reaching his or her individual decision and that the individual juror would have made the same recommenda- Page 827 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3597 tion regarding a sentence for the crime in ques- tion no matter what the race, color, religious beliefs, national origin, or sex of the defendant or any victim may be. (Added Pub. L. 103–322, title VI, § 60002(a), Sept. 13, 1994, 108 Stat. 1964; amended Pub. L. 105–6, § 2(c), Mar. 19, 1997, 111 Stat. 12; Pub. L. 107–273, div. B, title IV, § 4002(e)(8), Nov. 2, 2002, 116 Stat. 1810.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Criminal Procedure, referred to in subsec. (c), are set out in the Appendix to this title. AMENDMENTS 2002—Subsec. (c). Pub. L. 107–273 substituted ‘‘rule 32’’ for ‘‘rule 32(c)’’ in first sentence. 1997—Subsec. (c). Pub. L. 105–6 inserted ‘‘For the pur- poses of the preceding sentence, the fact that a victim, as defined in section 3510, attended or observed the trial shall not be construed to pose a danger of creating un- fair prejudice, confusing the issues, or misleading the jury.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1997 AMENDMENT Amendment by Pub. L. 105–6 applicable to cases pend- ing on Mar. 19, 1997, see section 2(d) of Pub. L. 105–6, set out as an Effective Date note under section 3510 of this title. § 3594. Imposition of a sentence of death Upon a recommendation under section 3593(e) that the defendant should be sentenced to death or life imprisonment without possibility of re- lease, the court shall sentence the defendant ac- cordingly. Otherwise, the court shall impose any lesser sentence that is authorized by law. Not- withstanding any other law, if the maximum term of imprisonment for the offense is life im- prisonment, the court may impose a sentence of life imprisonment without possibility of release. (Added Pub. L. 103–322, title VI, § 60002(a), Sept. 13, 1994, 108 Stat. 1966.) § 3595. Review of a sentence of death (a) APPEAL.—In a case in which a sentence of death is imposed, the sentence shall be subject to review by the court of appeals upon appeal by the defendant. Notice of appeal must be filed within the time specified for the filing of a no- tice of appeal. An appeal under this section may be consolidated with an appeal of the judgment of conviction and shall have priority over all other cases. (b) REVIEW.—The court of appeals shall review the entire record in the case, including— (1) the evidence submitted during the trial; (2) the information submitted during the sentencing hearing; (3) the procedures employed in the sen- tencing hearing; and (4) the special findings returned under sec- tion 3593(d). (c) DECISION AND DISPOSITION.— (1) The court of appeals shall address all sub- stantive and procedural issues raised on the appeal of a sentence of death, and shall con- sider whether the sentence of death was im- posed under the influence of passion, preju- dice, or any other arbitrary factor and wheth- er the evidence supports the special finding of the existence of an aggravating factor re- quired to be considered under section 3592. (2) Whenever the court of appeals finds that— (A) the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (B) the admissible evidence and informa- tion adduced does not support the special finding of the existence of the required ag- gravating factor; or (C) the proceedings involved any other legal error requiring reversal of the sentence that was properly preserved for appeal under the rules of criminal procedure, the court shall remand the case for reconsider- ation under section 3593 or imposition of a sen- tence other than death. The court of appeals shall not reverse or vacate a sentence of death on account of any error which can be harm- less, including any erroneous special finding of an aggravating factor, where the Government establishes beyond a reasonable doubt that the error was harmless. (3) The court of appeals shall state in writ- ing the reasons for its disposition of an appeal of a sentence of death under this section. (Added Pub. L. 103–322, title VI, § 60002(a), Sept. 13, 1994, 108 Stat. 1967.) § 3596. Implementation of a sentence of death (a) IN GENERAL.—A person who has been sen- tenced to death pursuant to this chapter shall be committed to the custody of the Attorney Gen- eral until exhaustion of the procedures for ap- peal of the judgment of conviction and for re- view of the sentence. When the sentence is to be implemented, the Attorney General shall release the person sentenced to death to the custody of a United States marshal, who shall supervise implementation of the sentence in the manner prescribed by the law of the State in which the sentence is imposed. If the law of the State does not provide for implementation of a sentence of death, the court shall designate another State, the law of which does provide for the implemen- tation of a sentence of death, and the sentence shall be implemented in the latter State in the manner prescribed by such law. (b) PREGNANT WOMAN.—A sentence of death shall not be carried out upon a woman while she is pregnant. (c) MENTAL CAPACITY.—A sentence of death shall not be carried out upon a person who is mentally retarded. A sentence of death shall not be carried out upon a person who, as a result of mental disability, lacks the mental capacity to understand the death penalty and why it was imposed on that person. (Added Pub. L. 103–322, title VI, § 60002(a), Sept. 13, 1994, 108 Stat. 1967.) § 3597. Use of State facilities (a) IN GENERAL.—A United States marshal charged with supervising the implementation of