            Constitutionality of the Death Penalty Provision
                           of 18 U.S.C. § 1111

Because of the unfettered discretion conferred on the sentencing authority by 18 U.S.C.
  §1111, the death penalty may not constitutionally be imposed under that statute.
In the absence o f express legislative authorization, federal district judges have no power
  to devise procedures which would satisfy the requirements dictated by the Supreme
  C ourt’s death penalty decisions.

                                                                                       July 17, 1981

                        M EM ORANDUM O PIN IO N FOR
                  T H E ASSOCIA TE A T TO R N EY G EN ER A L

   This memorandum responds to your request for the views of this
Office as to whether the government may seek the death penalty under
18 U.S.C. § 1111 1 in the manner and under the circumstances set forth
in your memorandum and in the materials attached thereto. For the
reasons stated below, w e believe that 18 U.S.C. §1111 is unconstitu­
tional under governing decisions of the Supreme Court, and that the
constitutional infirmities can be remedied only through legislation, not
through executive or judicial action.

                                           I. Introduction

  This Office has recently surveyed the recent decisions of the Su­
preme Court on the death penalty, and we will not discuss those
decisions in detail here.2 In Furman v. Georgia, 408 U.S. 238 (1972), the
C ourt struck down a state statute providing for the death penalty on
the ground that it did not provide sufficient guidance to ensure against
arbitrary infliction of capital punishment.3 In Gregg v. Georgia, 428 U.S.

    Mn relevant part, 18 U.S.C. § 1111(b) provides, “W hoever is guilty of murder in the first degree,
shall suffer death unless the jury qualifies its verdict by adding thereto 'w ithout capital punishment,’ in
which event he shall be sentenced to imprisonment for life.”
    2 See M emorandum Opinion o f April 30, 1981, for the Assistant Attorney General, Criminal
Division from Theodore B Olson, Assistant A ttorney General, Office of Legal Counsel. “Constitu­
tionality o f Statute Imposing D eath Penalty for Attem pted Assassination of the President” [N o t e : The
A pril 30, 1981 Memorandum Opinion is reprinted in this volume at p. 116 supra. Ed.]
    3Justice Douglas concluded th at the statutes were “ pregnant with discrimination,” 408 U.S. at 256—
 57; Justice Stew art believed th at under the statutes, capital punishment was “so wantonly and so
freakishly imposed,” 408 U.S. at 310; and Justice White emphasized that the penalty was too infre*
quentJy imposed to serve the ends o f criminal justice, 408 U.S. at 312—13-

                                                   224
153 (1976), the Court upheld a Georgia statute enacted in response to
Furman. The plurality of three Justices emphasized four features of the
statute: (1) the sentencer’s attention was drawn to the particular circum­
stances of the crime and of the defendant by reference to certain
specified aggravating and mitigating factors; (2) the discretion of the
sentencer was controlled by clear and objective standards; (3) the
sentencer was provided with all relevant evidence during a separate
sentencing hearing; and (4) there was a system of appellate review to
guard against arbitrariness. 428 U.S. at 158 (Stewart, Powell, & Stevens,
JJ.). Tw o other Justices expressed the view that the death penalty was
in all circumstances cruel and unusual punishment prohibited by the
Eighth Amendment. 428 U.S. at 227 (Brennan, J., dissenting); 428 U.S.
at 231 (Marshall, J., dissenting). The Gregg decision requires a state or
federal court to conduct a separate sentencing hearing in death penalty
cases in which the sentencer’s discretion is confined within relatively
narrow limits specified in statute and administered by the trial judge.
The Court has been careful to ensure that trial courts comply with the
strict requirements of Gregg. See Godfrey v. Georgia, 446 U.S. 420
(1980); Lockett v. Ohio, 438 U.S. 586 (1978). Nonetheless, the Court has
upheld statutes that are different in a variety o f ways from the Georgia
statute; all such statutes provide for a “bifurcated” proceeding, but the
precise nature o f the proceeding is allowed to vary substantially. See
Proffitt v. Texas, 428 U.S. 242, 248-57 (1976); Jurek v. Texas, 428 U.S.
262, 267-68 (1976).

                              II. Discussion

   The question presented here is whether 18 U.S.C. §1111 could be
found constitutional if a district court were, despite the absence of
express statutory authorization, to conduct a separate sentencing hear­
ing in compliance with Gregg. The statute itself, which was passed in
1948, provides for no such hearing, and its language suggests that a
separate hearing is not contemplated (“unless the jury qualifies its
verdict . . . .”) 18 U.S.C. § 1111(b) (emphasis added). There is nothing
in the statute’s legislative history to suggest that such a hearing is
required or permitted. In these circumstances, the question is basically a
mixed one of statutory construction and “inherent” judicial authority:
whether, under 18 U.S.C. §1111, Congress intended to authorize a
district court to devise procedures complying with Gregg, or whether
the courts have inherent power to devise such procedures.
   It bears emphasis that the development of procedures for a bifurcated
proceeding for the imposition of the death penalty would require con­
siderable creativity on the part of the district court. The court would
have to devise an entirely separate sentencing proceeding and to elect
among the various procedures that the Court has upheld in such pro­
ceedings. F or example, the court might compose an elaborate list of
                                   225
mitigating and aggravating circumstances, see Gregg v. Georgia, supra,
or determine that particular questions should be asked of the jury
relating to the defendant’s capacity for future acts o f violence, see Jurek
v. Texas, supra. No statute, of course, presently provides, federal judges
w ith guidance for making these determinations. As a result, each fed­
eral district court would fashion its own procedures, leading to incon­
sistency on an issue that basically requires uniformity. That alone might
doom the procedure under Furman.
   T he decision of the Supreme Court in United States v. Jackson, 390
U.S. 570 (1968), strongly suggests that 18 U.S.C. § 1111 does not grant
such broad-ranging powers to federal district judges. At issue in Jack­
son was the constitutionality of the Federal Kidnapping Act, 18 U.S.C.
§ 1210(a), which provided a death penalty for certain kidnappers “if the
verdict o f the jury shall so recommend.” The defendant argued that
this provision impermissibly penalized his assertion of the right to trial
by jury: if the defendant pleaded guilty or waived a jury trial, no death
penalty could be imposed; but if the defendant exercised his constitu­
tional right to such a trial, the death penalty might be available. The
Governm ent responded that, to avoid the constitutional infirmity, the
statute should be construed to allow the judge “to convene a special
ju ry for the limited purpose of deciding whether to recommend the
death penalty.” 390 U.S. at 572. The Court characterized as “unten­
able” the suggestion that the A ct “authorizes a procedure unique in the
federal system—that of convening a special jury, without the defend­
ant’s consent, for the sole purpose of deciding whether he should be
put to death.” 390 U.S. at 576-77. In terms apparently applicable here,
the Court stated:
       The Government would have us give the statute this . . .
       meaning without the slightest indication that Congress
       contemplated any such scheme. Not a word in the legisla­
       tive history so m uch as hints that a conviction . . . might
       be followed by a separate sentencing proceeding before a
       penalty jury. . . . [E]ven on the assumption that the fail­
       ure of Congress to [authorize the requested procedure]
       was wholly inadvertent, it would hardly be the province
       of the courts to fashion a remedy. . . . It is one thing to
       fill a m inor gap in a statute—to extrapolate from its gen­
       eral design details that were inadvertently omitted. It is
       quite another thing to create from whole cloth a complex
       and completely novel procedure and to thrust it upon
       unwilling defendants for the sole purpose of rescuing a
       statute from a charge of unconstitutionality.
390 U.S. at 578-80.
   In our view, Jackson strongly suggests that, in the absence of affirma­
tive statutory language o r history to the contrary, a federal statute will

                                    226
not be construed to authorize a federal district judge to conduct a
separate sentencing hearing. This general rule would be particularly
likely to be accepted in this context. If 18 U.S.C. § 1111 were to be
saved through adoption of the Gregg procedures, the district judge
would be required, not merely to hold a separate hearing, but also to
devise an elaborate set of procedural safeguards to comply with the
Supreme Court’s rulings in the death penalty area. As Jackson con­
cludes, the creation of such safeguards is a legislative task. In the
absence of congressional authorization, we believe that it is extremely
unlikely that a death penalty would be upheld pursuant to a judicially
created ad hoc exercise of that pow er.4
   Moreover, even those decisions that suggested before Jackson that a
separate sentencing proceeding is in some contexts within judicial au­
thority would not, in all likelihood, allow a court to devise, under 18
U.S.C. §1111, a proceeding to comply with Gregg. In the context
under discussion, the task would not be simply one of bifurcating a
trial, with reasonably clear standards set down by the legislature to
govern each stage; the task would, rather, entail the far more difficult
step of conducting a separate sentencing proceeding under standards
and procedures that must in substantial part be developed by the dis­
trict court. In light of the Jackson decision and the heretofore unani­
mous views of the Executive, Legislative, and Judicial Branches with
respect to the unconstitutionality o f 18 U.S.C. § 1111, we do not believe
that the courts would be permitted to “rescue” that provision through
their own creativity even if the establishment of a separate proceeding
would be permissible under standards laid down by Congress.
   This conclusion is buttressed by the apparent unanimity in the views
of all three branches that the dealth penalty may not be sought under
18 U.S.C. § 1111. At least six courts have expressly so declared. United
States v. Denson, 588 F.2d 1112, 1119 n.6 (5th Cir. 1979), rev'd on other
grounds, 603 F. 2d 1143 (5th Cir. 1979) (en banc); United States v.
Weddell, 567 F.2d 767, 770 (8th Cir. 1977), cert, denied, 436 U.S. 919
(1978); United States v. Kaiser, 545 F.2d 467 (5th Cir. 1977); United
States v. Woods, 484 F.2d 127, 138 (4th Cir. 1973) cert, denied. 415 U.S.
979 (1974); United States v. Collins, 395 F. Supp. 629, 635 n.8 (M.D.
Pa. 1975), affd, 523 F.2d 1051 (3d Cir. 1975); United States v. Freeman,
380 F. Supp. 1004 (D.N.D. 1974).
   The Kaiser decision is illustrative. In that case, the court construed
§ 1111 as conferring “unfettered discretion on the sentencing author­

   4 Before the Court’s decision in Jackson, there was some uncertainty in the lower courts as to
whether and under what circumstances a separate penalty proceeding could be ordered. See United
States v. Curry. 358 F.2d 904 (2d C ir), cert, denied, 385 U.S. 873 (1966), Frady v. United States, 348
F.2d 84 (D C . Cir.), cert, denied. 382 U.S. 909 (1965) See also Spencer v. Texas, 385 U.S. 554, 567 n.12
(1967) (noting “questionable desirability of this untested technique” but allowing it to be left “to the
discretion of the trial court")- In a footnote in Jackson, the Court observed that “[i]t is not surprising
that courts confronted with such problems have concluded that their solution requires ‘comprehensive
legislative and not piecemeal judicial action * ” 390 U.S. at 580 n.17 (citation omitted).

                                                 227
ity,” thus running afoul o f Furman. 545 F.2d at 471. The court noted
that it had been unable to find a reported case in which a United States
A ttorney had sought the death penalty under § 1111, and observed that
in United States v. Watson, 496 F.2d 1125, 1126, n.3 (4th Cir. 1973), the
Governm ent conceded “ that any death penalty imposed under § 1111
would be void.” 545 F.2d at 471. See also United States v. Johnson, 425
F. Supp. 986 (E.D. La. 1976), in which the court stated that the federal
death penalty for rape was unconstitutional because “the statute sets
forth no guidelines for the trial judge to follow in determining whether
or not the death penalty should be imposed. This lack of any require­
ment of consideration by the Court o f mitigating or aggravating cir­
cumstances compels a finding that the federal statute does not conform
to the type of statute approved [by the Court] . . .; and, accordingly,
that portion o f [the statute] which leaves the imposition of the death
penalty completely to the discretion o f the trial court is unconstitu­
tional.” 425 F. Supp. at 986.5
   Similarly, the activity o f Congress in the death penalty area suggests
an understanding on its part that legislation would be necessary in
order to provide for a federal death penalty after Furman. The
Antihijacking A ct of 1974, 49 U.S.C. §§ 1472 & 1473, was enacted after
Gregg and places considerable constraints on the jury’s discretion. The
legislative history indicates that Congress understood that Furman in­
validated a number of federal death penalty provisions, including
§1111. H.R. Rep. No. 885, 93rd Cong., 2d Sess. 14-15 (1974). Congres­
sional action to reinstitute the death penalty only with respect to the
Antihijacking A ct in light of knowledge that § 1111 was unconstitu­
tional may be found significant. A number of additional bills have been
introduced to restore the federal death penalty. The most recent, S. 550
in the 97th Congress, would attempt to comply with Gregg by imposing
the necessary procedural safeguards.
   Finally, as noted above, we are informed that the Department of
Justice, through the Criminal Division, has taken the position that the
death penalty may not be sought under 18 U.S.C. § 1111. The consist­
ent interpretation of a statute by the institution charged with its en­
forcement is accorded considerable deference by the courts. See United
States v. Kaiser, 545 F.2d 467.
   This unanimity of view among the three branches of government
strongly supports the conclusion that § 1111 does not authorize a dis­
trict court to undertake the essentially legislative task of composing its
ow n procedural safeguards in order to comply with Gregg.

   5 T o be sure, the prosecutor did not m any of these cases request the court to conduct a bifurcated
proceeding o f the sort upheld in Gregg. Nonetheless, the courts' unanimous view that the statutes were
unconstitutional under Furman is not encouraging for the view that judicial “amendment" of the
statute to conform to Gregg would be permissible.

                                                228
                            III. Conclusion

  Neither the language nor the legislative history of 18 U.S.C. § 1111
suggests that district judges have been authorized to devise a separate
sentencing hearing with procedures complying with the Supreme
Court’s death penalty decisions. Indeed, the Court’s ruling in Jackson
suggests that courts do not ordinarily have the authority to establish
such procedures. The apparent unanimity of views among the three
branches since Furman —that 18 U.S.C. § 1111 is unconstitutional in its
current form—supports this conclusion. For these reasons, we believe
that the death penalty may not be sought under 18 U.S.C. §1111.

                                        T h e o d o r e B. O l s o n
                                    Assistant Attorney General
                                     Office o f Legal Counsel




                                  229
