18 U.S.C. § 3592 — Mitigating and aggravating factors to be

Page 823 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3592 1 See References in Text note below. prise or an offense involved in the enterprise, attempts to kill or knowingly directs, advises, authorizes, or assists another to attempt to kill any public officer, juror, witness, or mem- bers of the family or household of such a per- son, shall be sentenced to death if, after consider- ation of the factors set forth in section 3592 in the course of a hearing held pursuant to section 3593, it is determined that imposition of a sen- tence of death is justified, except that no person may be sentenced to death who was less than 18 years of age at the time of the offense. (Added Pub. L. 103–322, title VI, § 60002(a), Sept. 13, 1994, 108 Stat. 1959.) Statutory Notes and Related Subsidiaries SHORT TITLE Pub. L. 103–322, title VI, § 60001, Sept. 13, 1994, 108 Stat. 1959, provided that: ‘‘This title [enacting this chapter and sections 36, 37, 1118 to 1121, 2245, 2280, 2281, and 2332a of this title, amending sections 34, 241, 242, 245, 247, 794, 844, 924, 930, 1091, 1111, 1114, 1116, 1117, 1201, 1203, 1503, 1512, 1513, 1716, 1958, 1959, 1992, 2113, 2119, 2251, 2332, 2340A, 3005, and 3432 of this title and section 1324 of Title 8, Aliens and Nationality, renumbering former section 2245 of this title as 2246, repealing section 46503 of Title 49, Transportation, and enacting provisions set out as notes under this section and sections 36, 37, and 2280 of this title] may be cited as the ‘Federal Death Penalty Act of 1994’.’’ APPLICABILITY TO UNIFORM CODE OF MILITARY JUSTICE Pub. L. 103–322, title VI, § 60004, Sept. 13, 1994, 108 Stat. 1970, provided that: ‘‘Chapter 228 of title 18, United States Code, as added by this title, shall not apply to prosecutions under the Uniform Code of Mili- tary Justice (10 U.S.C. 801).’’ § 3592. Mitigating and aggravating factors to be considered in determining whether a sen- tence of death is justified (a) MITIGATING FACTORS.—In determining whether a sentence of death is to be imposed on a defendant, the finder of fact shall consider any mitigating factor, including the following: (1) IMPAIRED CAPACITY.—The defendant’s ca- pacity to appreciate the wrongfulness of the defendant’s conduct or to conform conduct to the requirements of law was significantly im- paired, regardless of whether the capacity was so impaired as to constitute a defense to the charge. (2) DURESS.—The defendant was under un- usual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge. (3) MINOR PARTICIPATION.—The defendant is punishable as a principal in the offense, which was committed by another, but the defend- ant’s participation was relatively minor, re- gardless of whether the participation was so minor as to constitute a defense to the charge. (4) EQUALLY CULPABLE DEFENDANTS.—An- other defendant or defendants, equally cul- pable in the crime, will not be punished by death. (5) NO PRIOR CRIMINAL RECORD.—The defend- ant did not have a significant prior history of other criminal conduct. (6) DISTURBANCE.—The defendant committed the offense under severe mental or emotional disturbance. (7) VICTIM’S CONSENT.—The victim consented to the criminal conduct that resulted in the victim’s death. (8) OTHER FACTORS.—Other factors in the de- fendant’s background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sen- tence. (b) AGGRAVATING FACTORS FOR ESPIONAGE AND TREASON.—In determining whether a sentence of death is justified for an offense described in sec- tion 3591(a)(1), 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) PRIOR ESPIONAGE OR TREASON OFFENSE.— The defendant has previously been convicted of another offense involving espionage or trea- son for which a sentence of either life impris- onment or death was authorized by law. (2) GRAVE RISK TO NATIONAL SECURITY.—In the commission of the offense the defendant knowingly created a grave risk of substantial danger to the national security. (3) GRAVE RISK OF DEATH.—In the commis- sion of the offense the defendant knowingly created a grave risk of death to another per- son. The jury, or if there is no jury, the court, may consider whether any other aggravating factor for which notice has been given exists. (c) AGGRAVATING FACTORS FOR HOMICIDE.—In determining whether a sentence of death is jus- tified 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 ag- gravating 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 at- tempted commission of, or during the imme- diate flight from the commission of, an offense under section 32 (destruction of aircraft or air- craft facilities), section 33 (destruction of motor vehicles or motor vehicle facilities), section 37 (violence at international airports), section 351 (violence against Members of Con- gress, Cabinet officers, or Supreme Court Jus- tices), an offense under section 751 (prisoners in custody of institution or officer), section 794 (gathering or delivering defense informa- tion to aid foreign government), section 844(d) (transportation of explosives in interstate commerce for certain purposes), section 844(f) (destruction of Government property by explo- sives), section 1118 (prisoners serving life term), section 1201 (kidnapping), 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 1 (wrecking trains), section 2245 (offenses resulting in death), section 2280 (maritime violence), sec- tion 2281 (maritime platform violence), section 2332 (terrorist acts abroad against United States nationals), section 2332a (use of weap- ons of mass destruction), or section 2381 (trea- Page 824 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3592 son) of this title, or section 46502 of title 49, United States Code (aircraft piracy). (2) PREVIOUS CONVICTION OF VIOLENT FELONY INVOLVING FIREARM.—For any offense, other than an offense for which a sentence of death is sought on the basis of section 924(c), the de- fendant has previously been convicted of a Federal or State offense punishable by a term of imprisonment of more than 1 year, involv- ing the use or attempted or threatened use of a firearm (as defined in section 921) against another person. (3) PREVIOUS CONVICTION OF OFFENSE FOR WHICH A SENTENCE OF DEATH OR LIFE IMPRISON- MENT WAS AUTHORIZED.—The defendant has previously been convicted of another Federal or State offense resulting in the death of a person, for which a sentence of life imprison- ment or a sentence of death was authorized by statute. (4) PREVIOUS CONVICTION OF OTHER SERIOUS OFFENSES.—The defendant has previously been convicted of 2 or more Federal or State of- fenses, punishable by a term of imprisonment of more than 1 year, committed on different occasions, involving the infliction of, or at- tempted infliction of, serious bodily injury or death upon another person. (5) GRAVE RISK OF DEATH TO ADDITIONAL PER- SONS.—The defendant, in the commission of the offense, or in escaping apprehension for the violation of the offense, knowingly created a grave risk of death to 1 or more persons in addition to the victim of the offense. (6) HEINOUS, CRUEL, OR DEPRAVED MANNER OF COMMITTING OFFENSE.—The defendant com- mitted the offense in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the vic- tim. (7) PROCUREMENT OF OFFENSE BY PAYMENT.— The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value. (8) PECUNIARY GAIN.—The defendant com- mitted the offense as consideration for the re- ceipt, or in the expectation of the receipt, of anything of pecuniary value. (9) SUBSTANTIAL PLANNING AND PREMEDITATION.—The defendant committed the offense after substantial planning and premeditation to cause the death of a person or commit an act of terrorism. (10) CONVICTION FOR TWO FELONY DRUG OF- FENSES.—The defendant has previously been convicted of 2 or more State or Federal of- fenses punishable by a term of imprisonment of more than one year, committed on different occasions, involving the distribution of a con- trolled substance. (11) VULNERABILITY OF VICTIM.—The victim was particularly vulnerable due to old age, youth, or infirmity. (12) CONVICTION FOR SERIOUS FEDERAL DRUG OFFENSES.—The defendant had previously been convicted of violating title II or III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 for which a sentence of 5 or more years may be imposed or had previously been convicted of engaging in a continuing criminal enterprise. (13) CONTINUING CRIMINAL ENTERPRISE IN- VOLVING DRUG SALES TO MINORS.—The defend- ant committed the offense in the course of en- gaging in a continuing criminal enterprise in violation of section 408(c) of the Controlled Substances Act (21 U.S.C. 848(c)), and that vio- lation involved the distribution of drugs to persons under the age of 21 in violation of sec- tion 418 of that Act (21 U.S.C. 859). (14) HIGH PUBLIC OFFICIALS.—The defendant committed the offense against— (A) the President of the United States, the President-elect, the Vice President, the Vice President-elect, the Vice President-des- ignate, or, if there is no Vice President, the officer next in order of succession to the of- fice of the President of the United States, or any person who is acting as President under the Constitution and laws of the United States; (B) a chief of state, head of government, or the political equivalent, of a foreign nation; (C) a foreign official listed in section 1116(b)(3)(A), if the official is in the United States on official business; or (D) a Federal public servant who is a judge, a law enforcement officer, or an em- ployee of a United States penal or correc- tional institution— (i) while he or she is engaged in the per- formance of his or her official duties; (ii) because of the performance of his or her official duties; or (iii) because of his or her status as a pub- lic servant. For purposes of this subparagraph, a ‘‘law enforcement officer’’ is a public servant au- thorized by law or by a Government agency or Congress to conduct or engage in the pre- vention, investigation, or prosecution or ad- judication of an offense, and includes those engaged in corrections, parole, or probation functions. (15) PRIOR CONVICTION OF SEXUAL ASSAULT OR CHILD MOLESTATION.—In the case of an offense under chapter 109A (sexual abuse) or chapter 110 (sexual abuse of children), the defendant has previously been convicted of a crime of sexual assault or crime of child molestation. (16) MULTIPLE KILLINGS OR ATTEMPTED KILLINGS.—The defendant intentionally killed or attempted to kill more than one person in a single criminal episode. The jury, or if there is no jury, the court, may consider whether any other aggravating factor for which notice has been given exists. (d) AGGRAVATING FACTORS FOR DRUG OFFENSE DEATH PENALTY.—In determining whether a sen- tence of death is justified for an offense de- scribed in section 3591(b), the jury, or if there is no jury, the court, shall consider each of the fol- lowing aggravating factors for which notice has been given and determine which, if any, exist: (1) PREVIOUS CONVICTION OF OFFENSE FOR WHICH A SENTENCE OF DEATH OR LIFE IMPRISON- MENT WAS AUTHORIZED.—The defendant has previously been convicted of another Federal or State offense resulting in the death of a person, for which a sentence of life imprison- ment or death was authorized by statute. 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