Federal Capital Offenses: An Overview of Substantive and Procedural Law

Charles Doyle
Senior Specialist in American Public Law

Murder is a federal capital offense if committed in any of more than 50 jurisdictional settings. The Constitution defines the circumstances under which the death penalty may be considered a sentencing option. With an eye to those constitutional boundaries, the Federal Death Penalty Act and related statutory provisions govern the procedures under which the death penalty is imposed.

Some defendants are ineligible for the death penalty regardless of the crimes for which they are accused. Children and those incompetent to stand trial may not face the death penalty; pregnant women and the mentally retarded may not be executed.

There is no statute of limitations for murder, and the time constraints imposed by the due process and speedy trial clauses of the Constitution are rarely an impediment to prosecution. On the other hand, the decision to seek or forgo the death penalty in a capital case must be weighed by the Justice Department’s Capital Review Committee and approved by the Attorney General.

Defendants convicted of murder are death-eligible only if they are found at a separate sentencing hearing to have acted with life threatening intent. Among those who have, capital punishment may be imposed only if the sentencing jury unanimously concludes that the aggravating circumstances that surround the murder and the defendant outweigh the mitigating circumstances to an extent that justifies execution.

The Federal Death Penalty Act provides several specific aggravating factors, such as murder of a law enforcement officer or multiple murders committed at the same time. It also permits consideration of any relevant “non-statutory aggravating factors.” Impact on the victim’s family and future dangerousness of the defendant are perhaps the most commonly invoked non-statutory aggravating factors. The jury must agree on the existence of at least one of the statutory aggravating factors if the defendant is to be sentenced to death.

The Federal Death Penalty Act permits consideration of any relevant mitigating factor, and identifies a few, such as the absence of prior criminal record or the fact that a co-defendant, equally or more culpable, has escaped with a lesser sentence.

The Federal Death Penalty Act recognizes other capital offenses that do not necessarily involve murder: treason, espionage, large-scale drug trafficking, and attempted murder to obstruct a drug kingpin investigation. The constitutional standing of these is less certain or at least different.

This report is available in an abridged form as CRS Report R42096, Federal Capital Offenses: An Abridged Overview of Substantive and Procedural Law, without the footnotes or attribution of authority or for quotations found here.


Date of Report: November 17, 2011
Number of Pages: 14
Order Number: R42095
Price: $29.95

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