Standards for Determination

Capital punishment is an essential tool for deterring and punishing those who commit the most heinous crimes and acts of lethal violence. The Department has a responsibility to ensure that the laws authorizing capital punishment are respected and faithfully implemented. A request for authorization to seek the death penalty must include consideration of the applicable aggravating and mitigating factors and legitimate law enforcement and prosecutorial considerations weighing for or against a capital prosecution.

(A)

Sentencing Factors.

Recommendations and decisions whether to seek the death penalty shall be informed primarily by the FDPA’s sentencing provisions. Prosecutors should engage in a qualitative, not quantitative, weighing of sentencing factors. Specifically, they should identify aggravating factors that can be proven beyond a reasonable doubt against mitigating factors that can be proven by a preponderance of the evidence and determine whether the aggravators sufficiently outweigh the mitigators to justify a death sentence.

(1)

Statutory Aggravating Factors

. The FDPA sets forth the “statutory” aggravating factors that prosecutors must consider in determining whether a defendant is eligible for capital punishment.  Prosecutors should examine the statute for the elements of each aggravator, but the factors applicable to homicides are as follows (18 U.S.C. § 3592(c)(1)-(16)):

(i) Death during commission of another crime;

(ii) Previous conviction of violent felony involving firearm;

(iii) Previous conviction of offense for which a sentence of death or life imprisonment was authorized;

(iv) Previous conviction of other serious offenses;

(v) Grave risk of death to additional persons;

(vi) Heinous, cruel, or depraved manner of committing offense;

(vii) Procurement of offense by payment;

(viii) Pecuniary gain;

(ix) Substantial planning and premeditation;

involving firearm;

(iii) Previous conviction of offense for which a sentence of death or life imprisonment was authorized;

(iv) Previous conviction of other serious offenses;

(v) Grave risk of death to additional persons;

(vi) Heinous, cruel, or depraved manner of committing offense;

(vii) Procurement of offense by payment;

(viii) Pecuniary gain;

(ix) Substantial planning and premeditation;

(x) Conviction for two felony drug offenses;

(xi) Vulnerability of victim;

(xii) Conviction for serious Federal drug offenses;

(xiii) Continuing criminal enterprise involving drug sales to minors;

(xiv) Killing of high public officials, including federal law enforcement officers;

(xv) Prior conviction of sexual assault or child molestation; and

(xvi) Multiple killings or attempted killings.

(2)

Non-statutory Aggravating Factors.

If at least one statutory aggravating factor is provable beyond a reasonable doubt, prosecutors should consider whether any non-statutory aggravating factors exist. Examples include, but are not limited to:

(i) Killing of state/local law enforcement officers;

(ii) Killing of witnesses or cooperators to obstruct justice;

(iii) Killings motivated by the actual or perceived race, color, religion, national origin, sex, sexual orientation, or disability of the victim;

(iv) Whether a defendant engaged in criminal activity for which he has not been held responsible;

(v) Whether a defendant poses a risk of future dangerousness, particularly while imprisoned; and

(vi) Effect of the crime on the victim and the victim’s family/friends/colleagues.

(3)

Mitigating Factors.

Death penalty recommendations and decisions also require consideration of all relevant mitigating factors. Again, prosecutors should consult the FDPA, at 18 U.S.C. § 3592(a)(1)-(8), for the full language of available statutory mitigating factors but the list of the statutory mitigating factors is as follows:

(i) Impaired capacity;

(ii) Duress;

(iii) Minor participation;

(iv) Equally culpable defendants;

lty recommendations and decisions also require consideration of all relevant mitigating factors. Again, prosecutors should consult the FDPA, at 18 U.S.C. § 3592(a)(1)-(8), for the full language of available statutory mitigating factors but the list of the statutory mitigating factors is as follows:

(i) Impaired capacity;

(ii) Duress;

(iii) Minor participation;

(iv) Equally culpable defendants;

(v) No prior criminal record;

(vi) Severe mental or emotional disturbance; and

(vii) Victim's consent.

(4)

Non-Statutory Mitigating Factors

. The FDPA at 18 U.S.C. § 3592(a)(viii) allows for “other factors” weighing against seeking capital punishment, which are sometimes referred to as “non-statutory mitigation.” Examples include, but are not limited to:

(i) Defendants who suffered particularly damaging childhoods;

(ii) Youthful defendants;

(iii) Defendants who demonstrate an ability to be incarcerated without posing an undue threat to prison staff and other inmates; and

(iv) Defendants who have accepted responsibility as demonstrated by a willingness to plead guilty and accept a life or near-life sentence.

(B)

Law Enforcement and Prosecutorial Considerations.

The United States Attorney or Assistant Attorney General should also consider any legitimate law enforcement or prosecutorial reason weighing for or against pursuing capital punishment. Priority should be given to cases involving the murder of a law enforcement officer or capital crimes committed by defendants illegally present in the United States. Other relevant considerations include, but are not limited to:

(1) The strength and nature of the evidence;

(2) Whether the victim engaged in criminal activity that was a relevant circumstance of the offense; and

(3) Whether the defendant is already serving a substantial sentence such that an additional sentence of incarceration would have little punitive effect.

[Updated June 2026] [cited in

J.M. § 9-10.080

]