§3592 — Title 18 Crimes and Criminal Procedure | U.S. Code

Summary

When deciding whether to give someone the death penalty, the judge or jury must look at any facts that make the person less blameworthy. These include things like a big mental or emotional problem that made the person unable to understand or control their actions, being under strong duress, having only a minor role when someone else did the act, co-defendants who are equally guilty but will not receive death, a lack of a serious criminal past, committing the crime while very upset or disturbed, the victim’s consent, and any other personal background, character, or case facts that argue against death. They must also weigh certain “aggravating” facts that make death more likely. Only aggravating facts that were officially noticed ahead of time can be considered. For one type of federal capital crime there are 3 listed aggravators, including a prior espionage or treason conviction punishable by life or death, creating a grave risk to national security, or creating a grave risk of death to another. For another type there are 16 listed aggravators covering things like prior violent or deadly convictions, multiple prior violent crimes, creating risk to people beyond the victim, especially cruel or torturous killing, payment or promise of payment, crimes for money, planning or premeditation or terrorism, drug-distribution or continuing criminal enterprise offenses (including 2 or more prior drug-distribution offenses or prior offenses punishable by 5 or more years), victim vulnerability (old, young, or infirm), crimes against high officials or public servants because of their duties, prior sexual-offense convictions for sexual crimes, and killing or attempting to kill more than one person. A third group has 8 aggravators focused on prior deadly convictions, multiple drug or violent convictions, firearm use or direction, and drug offenses that involved a lethal adulterant of which the defendant was aware.

Title 18, §3592

Crimes and Criminal Procedure — Source: USLM XML via OLRC

(a)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)The defendant’s capacity to appreciate the wrongfulness of the defendant’s conduct or to conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge.

(2)The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge.

(3)The defendant is punishable as a principal in the offense, which was committed by another, but the defendant’s participation was relatively minor, regardless of whether the participation was so minor as to constitute a defense to the charge.

(4)Another defendant or defendants, equally culpable in the crime, will not be punished by death.

(5)The defendant did not have a significant prior history of other criminal conduct.

(6)The defendant committed the offense under severe mental or emotional disturbance.

(7)The victim consented to the criminal conduct that resulted in the victim’s death.

(8)Other factors in the defendant’s background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.

(b)In determining whether a sentence of death is justified for an offense described in section 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)The defendant has previously been convicted of another offense involving espionage or treason for which a sentence of either life imprisonment or death was authorized by law.

(2)In the commission of the offense the defendant knowingly created a grave risk of substantial danger to the national security.

(3)In the commission of the offense the defendant knowingly created a grave risk of death to another person.

(c)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)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 (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 11 See References in Text note below. (wrecking trains), section 2245 (offenses resulting in death), 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).

(2)For any offense, other than an offense for which a sentence of death is sought on the basis of section 924(c), the defendant has previously been convicted of a Federal or State offense punishable by a term of imprisonment of more than 1 year, involving the use or attempted or threatened use of a firearm (as defined in section 921) against another person.

(3)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 imprisonment or a sentence of death was authorized by statute.

(4)The defendant has previously been convicted of 2 or more Federal or State offenses, punishable by a term of imprisonment of more than 1 year, committed on different occasions, involving the infliction of, or attempted infliction of, serious bodily injury or death upon another person.

(5)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)The defendant committed the offense in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim.

(7)The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value.

(8)The defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value.

(9)The defendant committed the offense after substantial planning and premeditation to cause the death of a person or commit an act of terrorism.

(10)The defendant has previously been convicted of 2 or more State or Federal offenses punishable by a term of imprisonment of more than one year, committed on different occasions, involving the distribution of a controlled substance.

(11)The victim was particularly vulnerable due to old age, youth, or infirmity.

(12)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)The defendant committed the offense in the course of engaging in a continuing criminal enterprise in violation of section 408(c) of the Controlled Substances Act (21 U.S.C. 848(c)), and that violation involved the distribution of drugs to persons under the age of 21 in violation of section 418 of that Act (21 U.S.C. 859).

(14)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-designate, or, if there is no Vice President, the officer next in order of succession to the office 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 employee of a United States penal or correctional institution—

(i)while he or she is engaged in the performance 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 public servant.

(15)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)The defendant intentionally killed or attempted to kill more than one person in a single criminal episode.

(d)In determining whether a sentence of death is justified for an offense described in section 3591(b), 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)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 imprisonment or death was authorized by statute.

(2)The defendant has previously been convicted of two or more Federal or State offenses, each punishable by a term of imprisonment 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 Controlled Substances Act (21 U.S.C. 802)) or the infliction of, or attempted infliction of, serious bodily injury or death upon another person.

(3)The defendant has previously been convicted of another Federal or State offense involving the manufacture, distribution, importation, or possession of a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) for which a sentence of five or more years of imprisonment was authorized by statute.

(4)In committing the offense, or in furtherance of a continuing criminal enterprise of which the offense was a part, the defendant used a firearm or knowingly directed, advised, authorized, or assisted another to use a firearm to threaten, intimidate, assault, or injure a person.

(5)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 committed directly by the defendant.

(6)The offense, 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 committed directly by the defendant.

(7)The offense, 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 committed directly by the defendant.

(8)The offense involved the importation, manufacture, or distribution of a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), mixed with a potentially lethal adulterant, and the defendant was aware of the presence of the adulterant.

Notes & Related Subsidiaries

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 Control 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 section 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 “section 37” for “section 36”. 1996—Subsec. (c)(1). Pub. L. 104–294, § 601(b)(7), substituted “section 2332a (use of weapons of mass destruction)” for “section 2339 (use of weapons of mass destruction)”. 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), substituted “kidnapping” for “kidnaping”.

Statutory Notes and Related Subsidiaries

Effective Date

of 1996 AmendmentAmendment by section 604(b)(35) of Pub. L. 104–294 effective Sept. 13, 1994, see section 604(d) of Pub. L. 104–294, set out as a note under section 13 of this title.

§3592 Mitigating and Aggravating Factors to Be Considered in Determining Whether a Sentence of Death Is Justified