                           Constitutionality of 18 U.S.C. § 1120
C o n g ress has clear constitutional au th o n ty to proscribe killings com m itted by escaped federal inm ates
     serving life sentences, as provided in 18 U S C §1120, w here the killings facilitate the escape
     or the av oidance o f recapture.

C o n g re ss’s p en ological and custodial interests in ensuring the incapacitation o f life-sentenced federal
     inm ates p rovide com pelling support for the constitutionality o f 18 U.S C. § 1 1 2 0 even when it
     is ap p lied w ith respect to a post-escape killing that is not related to the escape or subsequent
     effo rts to avoid recapture.

                                                                                                        August 31, 2000

                 M   em o ran d u m   O p in io n   for t h e   A s s is t a n t A t t o r n e y G e n e r a l
                                                C r im in a l D   iv is io n



   This memorandum responds to a request of the Criminal Division for our
opinion concerning the constitutionality of 18 U.S.C. § 1120 (2000), which makes
it a federal criminal offense, punishable by death in some cases, for an inmate
serving a life sentence in a federal correctional institution to kill a person fol­
lowing escape from such institution. See Memorandum for Dawn Johnsen, Acting
Assistant Attorney General, Office of Legal Counsel, from John C. Keeney,
Deputy Assistant Attorney General, Criminal Division, Re: Request Concerning
18 U.S.C. 1120 (July 6, 1998). You have asked whether this statute can survive
a constitutional challenge as lying beyond Congress’s Article I powers or whether,
to survive such challenge, it should be amended to require that the killing in ques­
tion be done to further the escape or to avoid recapture.
   Title 18, section 1120(b) provides: “ A person, having escaped from a Federal
correctional institution where the person was confined under a sentence for a term
of life imprisonment, kills another shall be punished as provided in sections 1111
and 1112.” 1 Section 1111 authorizes the death penalty or life imprisonment for
certain murders in the first degree and authorizes a term of years or life imprison­
ment for certain murders in the second degree, see 18 U.S.C. § 1111(b) (1994);
section 1112 provides terms of imprisonment and/or fines for certain
manslaughters. Id. § 1112(b).2

    1 Your inquiry refers to future killings or “ cnm inal act[s]” by an escaped federal pnsoner Because § 1120 applies
only to killings committed by federal escapees, our assessment is limited to that category of crimes
   2 Section 1120 was enacted as a small part o f the voluminous Violent C nm e Control and Law Enforcement Act
o f 1994, Pub. L. No. 103-322, § 60012(a), 108 Stat 1796, 1973, and we have found no pertinent legislative history
revealing the reasons prompting its passage See generally Violent C nm e Control and Law Enforcement Act of
1994 — Conference Report, 140 Cong Rec 23,929(1994)
   W e note that death sentences authorized under 18 U S C § 1120(b), like other federal death sentences, must con­
form to statutory standards for the consideration of individual aggravating and mitigating factors which have been
held to satisfy the requirements o f the Eighth Amendment See 18 U S.C. §§3591-3598 (1994 & West Supp 2000);
see, e.g., United States v. Webster, 162 F 3 d 308 (5th Cir. 1998), cert, denied, 528 U.S. 829 (1999) (upholding
constitutionality o f federal death penalty procedures). O ur analysis here does not address whether particular killings
covered by the statute may be eligible for the death penalty under Eighth Amendment standards, but focuses on
the question w hether such killings are a proper subject for federal criminal legislation in the first instance


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                                     Constitutionality o f 18 U.S.C. § 1120


   On its face, §1120 applies to all post-escape killings. We think it clear that
Congress has constitutional authority to proscribe those killings which assist in
either effectuating or prolonging the escape. Although the issue is novel, we also
believe there is a compelling argument that Congress may proscribe and punish
any other killing, even if not escape-related, that is committed by an escaped fed­
eral prisoner who has been sentenced to life imprisonment.

      I. GENERAL CONGRESSIONAL AUTHORITY TO ENSURE THE
       EFFECTIVE FUNCTIONING OF A FEDERAL PRISON SYSTEM

   The United States Constitution clearly contemplates that Congress will enact
a federal criminal code and provide for its administration. Several clauses refer
either to specific federal crimes or to classes thereof. See, e.g., U.S. Const, art.
Ill, § 3, cl. 1 (defining federal crime of treason); U.S. Const, amend. V (requiring
grand jury presentment or indictment for “ a capital, or otherwise infamous
crime” ). Other clauses refer to the procedures for prosecuting or trying such
crimes. See, e.g., U.S. Const, art. Ill, §2, cl. 3 (jury and venue requirements for
the “ Trial of all Crimes” ); U.S. Const, amend. V (prescribing procedural safe­
guards for criminal prosecutions); U.S. Const, amend. VI (same). O f course, Con­
gress has no blanket authority to enact a federal criminal code; rather, Congress
may enact specific criminal statutes only insofar as the power to do so is granted
or implied by Congress’s enumerated powers, see, e.g., United States v. Fox, 95
U.S. 670, 672 (1877) (“ Any act, committed with a view of evading the legislation
of Congress passed in the execution of any of its powers . . . may properly be
made an offence against the United States.” ),3 as supplemented by the Necessary
and Proper Clause,4 see, e.g., Knapp v. Schweitzer, 357 U.S. 371, 375 (1958)
(“ penal remedies may be provided by Congress under the explicit authority to
‘make all Laws which shall be necessary and proper for carrying into Execution’
the other powers granted by Art. I, § 8 ” ), or in some instances is implied by
the structure and history of other constitutional provisions.5 But whatever the

   3 Federal courts have upheld as within congressional authority numerous federal cnminal statutes protecting or
implementing a wide range o f national powers. See, e .g , United States v Lue, 134 F.3d 79, 84 (2d Cir. 1998)
(Congress validly enacted cnminal legislation against hostage taking to effectuate U.S. treaty obligations under the
Hostage Taking Convention); United States v. D ittrick, 100 F 3 d 84, 87 (8th Cir 1996) (statute making it a felony
to steal property from a federal Post Office “ is well within” congressional authority)
   4 Congress shall have power to “ make all Laws which shall be necessary and proper for carrying into Execution
the foregoing Powers.” U S Const, art I, § 8, cl. 18.
   s See, e.g.. Ex parte Garnett, 141 U S . 1, 12-15 (1891) (congressional power to enact or modify m antim e code,
as distinct from power to regulate interstate or foreign commerce, is fairly implied by histoncal inference and the
grant of admiralty and mantime jurisdiction to Article III courts); Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539,
615-22 (1842) (upholding congressional power to enact legislation enforcing Fugitive Slave Clause even though
Clause grants no express power to Congress); Burroughs v. United States, 290 U.S. 534, 544—49 (1934) (upholding
Federal Corrupt Practices Act based on implied congressional power to safeguard presidential elections); cf. United
States v. Eichman, 496 U S 310, 316 n 6 (1990) (conceding that “ the Government has a legitimate interest in
preserving the [United States] flag’s function as an ‘incident o f sovereignty,’ ” though holding that cnminalizing
flag-burning does not advance this interest).


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                     Opinions o f the Office o f Legal Counsel in Volume 24


particulars, the notion that Congress may establish a federal criminal code is firmly
grounded.
   It is equally well established that, in addition to enacting a federal criminal
code, Congress may create and maintain an effective criminal justice system to
prosecute and punish criminal conduct. This Office has previously opined that
Congress’s constitutional authority to provide for the housing and confinement
o f federal pre-trial detainees rests on a broader congressional authority ‘ ‘to provide
for an orderly federal system o f criminal justice.” See Congressional Authority
to Require the States to Lodge Federal Pre-Trial Detainees, 5 Op. O.L.C. 142,
142—43 (1981). As that opinion stated:

       Although this power is not expressly enumerated in Article I, § 8
       of the Constitution, the exercise of such power is necessary and
       proper, under Article I, §8, clause 18, to provide for an orderly
       federal system of criminal justice contemplated by several other
       provisions of the Constitution. See, e.g., Art. II, §3 [President’s
       authority to “ take care that the laws be faithfully executed” ]; Art.
       Ill, § 2, cl. 3 [provision for trial of crimes by jury in the State where
       committed]; Fifth Amendment [provisions for grand jury indict­
       ment, ban on double jeopardy, privilege against self-incrimination,
       and due process of law]; Sixth Amendment [right to speedy trial
       by impartial jury, compulsory process to obtain witnesses, assist­
       ance of counsel, and the Confrontation Clause]; Eighth Amendment
       [prohibitions against excessive bail and cruel and unusual punish­
       ment].

Id. This broad authority to establish and maintain an effective regime of criminal
law enforcement extends to the operation of federal correctional facilities. See,
e.g., Thornburgh v. Abbott, 490 U.S. 401, 415 (1989) (describing the legitimacy
of the federal government’s interest in maintaining the security of federal prisons
as “ beyond question” in upholding constitutionality of regulations restricting pris­
oner receipt o f pornography); Ponzi v. Fessenden, 258 U.S. 254, 262-63 (1922)
(acknowledging numerous federal statutes providing the Attorney General with
authority to secure and maintain the custody of inmates serving federal sentences);
United States v. Berrigan, 482 F.2d 171, 182 (3d Cir. 1973) (“ The power to
fashion rules governing the movement of contraband as it relates to the federal
prison system resides with Congress.” ); cf. Greenwood v. United States, 350 U.S.
366, 373-75 (1956) (the power to prosecute federal offenses entails the auxiliary
authority to provide for the secure detention o f an accused person who is mentally
incompetent to stand trial pending possible recovery of sufficient competence);
United States v. Perry, 788 F.2d 100, 111 (3d Cir. 1986) (where Congress has
the power to prescribe criminal activities, “ it has the auxiliary authority, under

                                             158
                                       Constitutionality o f 18 U.S.C. § 1120


the necessary and proper clause, to resort to civil commitment to prevent their
occurrence” ).
   The test for whether § 1120 lies within Congress’s implied authority is whether
it is “ plainly adapted” to support the legitimate ends of congressional regulation,
including the safe and effective functioning of the federal penal system as well
as the more specific ends (such as the regulation of interstate commerce) con­
templated by Congress’s enumerated powers.6 See, e.g., McCulloch v. M aryland,
17 U.S. (4 Wheat.) 316, 408 (1819) (affirming that a government granted specific
enumerated powers “ must also be intrusted with ample means for their execu­
tion” ); id. at 421 ( “ Let the end be legitimate . . . and all means which are appro­
priate, which are plainly adapted to that end . . . are constitutional.” ); Burroughs
v. United States, 290 U.S. 534, 547-48 (1934) ( “ If it can be seen that the means
adopted are really calculated to attain the end, the degree of their necessity, the
extent to which they conduce to the end, the closeness of the relationship between
the means adopted and the end to be attained, are matters for congressional deter­
mination alone.” ). The federal courts have long held that this standard requires
only “ that the effectuating legislation bear a rational relationship to a permissible
constitutional end.” Lue, 134 F.3d at 84.

n . SECTION 1120’S APPLICATION TO KILLINGS RELATED TO THE
   INITIAL ESCAPE OR SUBSEQUENT EFFORTS TO AVOID DETEC­
   TION AND RECAPTURE

   As a general matter, “ the federal government has a significant and substantial
interest in keeping prisoners confined and preventing them from escaping.” United
States v. Evans, 159 F.3d 908, 912 (4th Cir. 1998).7 Your request letter assumes
that Congress has the further power to criminalize killings committed by escaped
life-sentenced prisoners to effectuate their initial escape or to avoid subsequent

   6 Section 1120 cannot be defended in its entirety as an independent exercise of Congress’s expressly enumerated
power to regulate interstate commerce. Section 1120 contains no jurisdictional element ensuring that any prosecuted
killing affects interstate commerce, and it is difficult to argue that an escapee killing (or even escapee killings viewed
cumulatively) constitutes “ economic activity [that] substantially affects interstate commerce.” United Stales v Lopez,
514 U.S 549, 560 (1995). See United States v Morrison, 529 U S 598, 617 (2000) ( “ We accordingly reject the
argument that Congress may regulate noneconomic, violent cnminal conduct based solely on that conduct's aggregate
effect on interstate commerce.” )
   7 Accordingly, Congress has prosenbed escapes in section 7 5 1(a) o f title 18, which provides.
      Whoever escapes or attempts to escape from the custody of the Attorney General or his authonzed rep­
      resentative, or from any institution or facility in which he is confined by direction of the Attorney General,
      or from any custody under or by virtue of any process issued under the laws of the United States by
      any coun, judge, or commissioner, or from the custody of an officer or employee of the United States
      pursuant to lawful arrest, shall, if the custody or confinement is by virtue of an arrest on a charge of
      felony, o r conviction o f any offense, be fined under this title or imprisoned not more than five years,
      or both; o r if the custody, or confinement is for extradition, or for exclusion or expulsion proceedings
      under the immigration laws, or by virtue of an arrest or charge o f or for a misdemeanor, and pnor to
      conviction, be fined under this title or impnsoned not more than one year, or both.
18 U.S.C § 751(a) (1994)


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                            Opinions o f the Office o f Legal Counsel m Volume 24


recapture (“ escape-related” killings). We agree with this assumption, for the fol­
lowing reasons.
   First, Congress plainly has a legitimate interest in punishing federal inmates
who kill others (whether prison officials, law enforcement personnel, or private
citizens) during their initial escape. This application of §1120 is reasonably
adapted to deterring such inmates from using potentially deadly force in the course
of effecting and prolonging their escapes. Moreover, such legislation is reasonably
adapted to deterring federal inmates from attempting escape in the first place.
The need to commit violent acts that might result in death, at times, will be a
reasonably foreseeable consequence of an escape attempt; additional penalties for
such killings thus provide an added measure o f deterrence against such attempts.
Furthermore, Congress might reasonably determine that the imposition of death
and other severe penalties is an appropriate means to deter escape and escape-
related killings by inmates serving life sentences, for whom lesser sanctions would
have little force.8 Thus, as applied to killings that help to effectuate an escape,
§1120 rationally furthers Congress’s legitimate interest in maintaining the efficacy
and security of federal prisons.9
   Second, Congress has a legitimate interest in punishing escapees who kill others
(again, whether prison officials, law enforcement personnel, or private citizens)
as a means of forestalling subsequent recapture and return to prison. Absent the
threat of additional punishment, escapees who already face a “ natural life sen­
tence” 10 upon their return to the penitentiary will have much to gain and little
to lose by using lethal force to frustrate a recapture attempt. Moreover, inmates
considering an escape attempt can reasonably foresee the need to use lethal force
to avoid subsequent recapture even if their initial attempt is successful; additional
penalties for such killings thus assist in deterring such initial attempts.
   This interest in deterring recapture-avoiding killings is not limited to killings
that frustrate a specific effort by law enforcement officials to bring the escapee
into custody, but more broadly includes killings designed to prevent the escapee’s

   8 It rrught be argued that the deterrent effect of the non-capital penalties authonzed under § 1120 is only marginal
when applied to inmates already serving life sentences The imposition o f an additional sentence, however, may
have substantial impact where, for example, the inmate nurtures some hope of obtaining reversal of his first life
sentence through further appeals, or the inm ate nurtures some hope of early release The resulting deterrence thus
provides a rational basis for the non-capital penalties § 1120 provides
   9 lndeed, with respect to this application, §1120 largely overlaps with 18 U S C . § 1111 (1994), which makes
a killing committed during the “ perpetration of         . any      escape” a species of felony-murder when it occurs
“ [w juhin the special maritime and territorial jurisdiction o f the United States ” In 1984, Congress added escape
and some other cnm es to the statutory list o f felonies triggering the federal felony-murder rule precisely because
C ongress thought that escape and the other added cnmes “ pose as great if not a greater threat to human life than
the four already listed.” S. Rep. No 98-225, at 311 (1983)
   I0The statutory definition o f “ life imprisonment” includes “ a sentence for the term of natural life, a sentence
com m uted to natural life, an indeterminate term of a minimum of at least fifteen years and a maximum of life,
or an unexecuted sentence o f death.” 18 U.S C § 1120(a), id. § 1118(b) Thus some escapees could violate §1120
even though it had not been defimUvely determined at the time of the violation that they would remain incarcerated
for the rest o f their lives Some of § 1 120's deterrent effects discussed in the text do not apply as forcefully to
such individuals To clarify the discussion, we use the term “ natural life sentence” to refer to a sentence that
clearly requires an inmate to remain impnsoned for the rest of his life


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                                     Constitutionality o f J8 U.S.C §1120


status from even being discovered by such officials. Well after a successful escape,
an escapee might divulge his history and wanted status to a friend or co-worker,
and then later learn there is reason to fear the confidant will intentionally turn
him in or perhaps even unintentionally give his identity away. Or the escapee
might keep his identity and past a secret, but nevertheless worry that a friend
or co-worker has become suspicious and is on the verge of discovering his status
as a fugitive from justice. Perhaps most commonly, the escapee might subse­
quently engage in some illegal conduct (say, robbing a liquor store) and worry
that a witness’s description will lead to his arrest, which eventually will lead
authorities to discover his wanted status. In each of these and similar cir­
cumstances Congress might reasonably conclude that, absent § 1120, an escapee
already subject to a natural life sentence upon recapture would have little to lose
and much to gain by killing the friend, co-worker, or witness before she wittingly
or even unwittingly brings the escapee’s status to the attention of the authorities.
Indeed, this incentive to kill to avoid detection is a product of the federal sen­
tencing regime itself. Absent § 1120, the escapee would know that detection would
lead to his return to prison for life, and that a killing to avoid detection would
lead (as a practical matter) to the very same punishment under federal law; thus
absent § 1120 it would be rational for the escapee to kill in order to reduce the
risk of detection." Surely Congress has a legitimate interest in counteracting the
perverse incentive that life imprisonment terms otherwise create, by imposing an
additional sanction for detection-avoiding killings.
   Thus, Congress has an interest in proscribing escapee killings that are connected
to the initial effort to escape or subsequent efforts to remain at large. Criminal
regulation of killings in these circumstances falls comfortably within Congress’s
authority to protect and effectuate its enumerated Article I powers through mainte­
nance of an effective criminal justice and penal system.

HI. SECTION 1120’S APPLICATION TO KILLINGS UNRELATED TO
  THE INITIAL ESCAPE OR SUBSEQUENT EFFORTS TO AVOID DE­
  TECTION AND RECAPTURE

   Your inquiry concerns application of 18 U.S.C.A. §1120 to killings that are
unrelated to the initial effort to escape or subsequent efforts to avoid recapture
or remain undetected ( “ non-escape-related” or “ unrelated” killings). For
example, § 1120 could encompass a killing that occurs many years later during
a domestic dispute or a drunken barroom brawl. You have inquired whether
§ 1120’s application to such non-escape-related killings is constitutionally permis­
sible. The novel question presented is whether this statutory application is ration­

   11 This calculus could be different in circumstances where the escapee has strong reason to believe that his killing
to avoid detection would be punished by death pursuant to a state law criminal prosecution It is plainly reasonable,
however, for Congress to ensure that the federal sentencing scheme does not create incentives for escaped life pris­
oners to kill in those states that do not authonze the death penalty for such killings


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                             Opinions o f the Office o f Legal Counsel in Volume 24


ally related to a legitimate federal interest, or, if not, whether the statute’s
overbroad coverage can nevertheless be justified.12
   We note at the outset that the rationales discussed in Part II supporting congres­
sional authority to proscribe escape-related killings do not persuasively extend
to unrelated killings. For example, the deterrence justification supporting § 1120’s
application to killings that assist in the initial escape or thwart subsequent recap­
ture does not provide a plausible rationale for § 1120’s application to killings unre­
lated to escape. By definition, penalizing such unrelated killings will not encour­
age escapees to take greater precautions to avoid using deadly force during efforts
to escape or avoid recapture. Moreover, penalizing unrelated killings will likely
have little influence in discouraging federal inmates from attempting to escape
in the first place. While inmates might reasonably foresee the need to use deadly
force while escaping and forestalling recapture, they are less likely to foresee a
need to use deadly force outside of these moments, and thus the extra sanction
for doing so would not form part of their escape-planning calculus. Unlike addi­
tional sanctions for escape-related killings, then, additional sanctions for unrelated
killings would likely have little effect on either decisions to escape or the use
of care in doing so.
   Moreover, federal life sentences do not create any perverse incentive for
escapees to commit non-escape-related killings when they are otherwise minding
their own business and not in fear of being detected and subsequently recaptured.
To the contrary, a successful escapee has every incentive not to kill unless his
detection is imminent, because the killing itself would attract attention and make
discovery of his fugitive status more likely. Accordingly, § 1120’s sanctions for
such unrelated killings cannot be upheld on the theory that they eliminate a per­
verse incentive to kill otherwise created by a natural life sentence.
   Nevertheless, we believe a compelling case can be made that the federal govern­
ment has a legitimate penological interest in ensuring that an escaped life-sen­

   12 If a particular defendant charged with violating § 1120 has committed an escape-related killing, a court will
probably not allow that defendant to challenge § 1120 on the ground that it is unconstitutional as applied to non-
escape-related killings. Outside o f the First Amendment and perhaps a few other contexts where courts are particularly
concerned about an overbroad statute’s chilling effect on constitutionally protected behavior, “ [t]he traditional rule
is that 'a person to whom a statute may constitutionally be applied may not challenge that statute on the ground
that it may conceivably be applied unconstitutionally to others in situations not before the C ourt.’ ” Los Angeles
Police Dept, v United Reporting Publ’g Corp., 528 U S 32, 38 (1999) (citations omitted). The Supreme Court
has applied this approach in cases concerning congressional pow er as well as those concerning individual nghts
See, e.g.. United States v. Raines, 362 U.S 17, 20-22 (1960) (precluding state official from challenging C ongress’s
authonty pursuant to Section Tw o of the Fifteenth Amendment to proscnbe race-based interference with statutory
voting rights on the ground that the proscription unconstitutionally applied to private citizens as well as state officials),
Salinas v. United States, 522 U S. 52, 61 (1997) (when application of statutory provision in a specific case “ did
not extend federal power beyond its proper bounds,” Court did not inquire whether provision exceeded Congress’s
pow er with respect to its “ application in other cases” )
   However, a defendant whose conduct arguably is non-escape-related may challenge the statute as lying beyond
C ongress’s authonty, such a defendant would be arguing that the statute cannot constitutionally be applied to him
personally As a practical matter, since § 1120 does not now require a prosecutor to prove as an element of the
offense that the killing is escape-related, it may be unclear whether the killing can be so descnbed (unless, for
exam ple, the evidence demonstrates clearly th at the killing occurred dunng the initial pnson break) If it is unclear,
the defendant would likely have standing to challenge § 1120’s breadth


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                                       Constitutionality o f 18 U.S.C. § 1120


tenced prisoner does not threaten the public’s safety through violent criminal
behavior during the entire period he remains at large. Once an individual has
been charged, tried, and duly convicted of a federal offense, the federal govern­
ment acquires a strong penological interest in regulating that individual’s subse­
quent behavior so as to promote society’s welfare. Congress may authorize the
executive to seek, and the judiciary to impose, a wide range of criminal sentences
designed to achieve such diverse goals as retribution, rehabilitation, general deter­
rence, specific deterrence, and incapacitation. This latter interest in incapacitation
is designed to protect the public from further criminal activity by the particular
inmate during his term of punishment. See, e.g., United States v. Brown, 381 U.S.
437, 458 (1965) (“ One of the reasons society imprisons those convicted of crimes
is to keep them from inflicting future harm . . . .” ). This interest is particularly
strong with respect to a life-sentenced inmate, since Congress and other actors
in the criminal justice system have deemed it appropriate to sequester him from
the public for the remainder of his life.13
   The federal government’s powerful interest in preventing a life-sentenced inmate
from endangering the public does not dissipate simply because the inmate manages
to escape the confines of federal custody. To the contrary, all of Congress’s legiti­
mate penological objectives are undermined each and every day that an escaped
federaJ prisoner remains at large, since each day free undermines the sentence’s
retributive, rehabilitative, and deterrent value and, most relevantly, directly thwarts
the goal of public protection through incapacitation. For this very reason, the
Supreme Court has characterized escape from federal prison as a “ continuing
offense” rather than one which is completed the moment escape is effectuated:

          [W]e think it clear beyond peradventure that escape from                                  federal
          custody as defined in § 751(a) is a continuing offense and                                that an
          escapee can be held liable for failure to return to custody                               as well
          as for his initial departure. Given the continuing threat to                              society

   l3This point holds even for those inmates for whom it had not been definitively determined that they would
remain incarcerated for the rest of their natural lives ( l e , inmates not subject to a "natural life sentence,” see
supra note 10). For such inmates, society has still determined that their cnm es ment a maximum o f life imprisonment,
and their sentences would permit the possibility o f such a fate
   One might query w hether Congress has a legitimate interest in protecting the public from all violent recidivism
or only from those violent acts that independently violate federal (as opposed to state) law While we have found
no case law directly on point, we think the better view is that, once a person is duly charged and convicted of
a federal offense. C ongress’s valid penological interests in incapacitating, deterring, and even rehabilitating that per­
son extend to all dangerous aspects of her behavior We note that federal courts have long considered state-law
offenses as relevant factors in determining the appropriate sentence for federal criminal activity, see. e .g , United
States v Carroll, 3 F 3d 98, 101-03 (4th Cir. 1993), and similarly federal courts have long required federal convicts
sentenced to probation or released on parole to refrain from subsequent state-law offenses as a condition of their
continued release.
   Moreover, as a practical matter, federal prosecution and incarceration often preempt state prosecution and incarcer­
ation of the same offender for the same or related conduct If the federal govemment had not incarcerated (and
then let escape) a particular offender, she might well have been incarcerated in state prison during the penod of
the federal escape and thus have been incapable o f committing state-law cnm es Arguably, the preemptive effect
of federal prosecution gives Congress an interest in and even responsibility to prevent that offender from engaging
in further harmful conduct that violates state law dunng her federal term of impnsonment.


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                            Opinions o f the Office o f Legal Counsel in Volume 24


          p o sed by an escaped prisoner, “ the nature of the crime involved
          is such that Congress m ust assuredly have intended that it be treated
          as a continuing one.”

United States v. Bailey, 444 U.S. 394, 413 (1980) (emphasis added; citation
omitted). Thus, “ every day away from custody serves as a ‘continuing threat to
society,’ and until recapture or surrender is an ongoing act of escaping.” 14
   The continuing nature of the relationship between the escapee and the federal
government can be viewed from the government’s perspective as well. “ A pris­
oner who has escaped from the custody of a sovereign remains in the ‘constructive
custody’ of that sovereign.” P otter v. Ciccone, 316 F. Supp. 703, 706 (W.D. Mo.
 1970). Not only does this constructive custodial relationship give the government
a continuing interest in the escapee’s activities, but the government’s earlier failure
to maintain its physical custody over the inmate arguably places it under a special
responsibility to recapture the escapee and to ensure the public’s safety during
the interim.
   We believe that this confluence of penological and custodial interests supports
the conclusion that Congress has the constitutional authority to proscribe and
punish all killings by escaped life-sentenced prisoners, even those lacking a direct
nexus to either the initial effort to flee or subsequent attempts to avoid detection
and recapture. Every killing committed by an escaped life-sentenced prisoner frus­
trates the original life sentence’s purpose of protecting the public from dangerous
recidivism through incapacitation — and does so in the most egregious manner
possible. Moreover, both the convict’s continued commission of the escape and
the federal government’s initial failure in maintaining physical custody are contrib­
uting causes in the event of any subsequent killing by the escapee. Under these
circumstances, the government’s ongoing constructive-but-no-longer-physical cus­
tody gives it strong reason to secure its penological objectives pending recapture.
As a result, Congress has a legitimate interest in deterring such escapee killings,
and prosecuting and punishing such killings as federal crimes distinct from the
underlying and continuing offense of escape is plainly adapted to that end.
   A supportive, albeit imperfect, analogy can be drawn between Congress’s
interest in proscribing escapee killings by life-sentenced inmates and Congress’s
well-established interest in imposing release conditions on inmates given lesser
sentences. Congress has long authorized courts to sentence certain offenders to

    14 United States v. Audinot, 901 F2d 1201, 1203 (3d Cir. 1990) (citation omitted); see also, e .g , United States
v Tapia\ 981 F.2d 1194, 1196 (11th Cir. 1993) (same); United States v. Lopez, 885 F 2 d 1428, 1435 (9th Cir.
1989) (same).
    W e do not mean to suggest that, given this characterization of escape as a “ continuing offense,” every post­
escape killing is properly considered an instance o f felony-murder on the theory that the killing occurred “ during”
the escape. For purposes o f 18 U S C § 1 1 1 1 , which includes a felony-murder provision criminalizing “ [elvery
murder . . . committed in the perpetration of, or attempt to perpetrate, any               escape,” the temporal duration
o f an escape’s “ perpetration” may not extend this far. The “ continuing offense” characterization does, however,
appropriately em phasize the extent to which each day o f unlawful freedom undermines the penological objectives
o f the original sentence, particularly the objective o f protecting the public from dangerous recidivist acts


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                                      Constitutionality o f 18 U.S.C. § 1120


terms of probation, subject to their compliance with various conditions on their
conduct; violation of these conditions can result in revocation of the offenders’
probationary status.15 Congress has also long authorized periods of supervised
release (formerly called parole) following the completion of a term of imprison­
ment, again subject to various conditions on behavior.16 One condition that must
be imposed under either release regime is that the released offender commit no
further state or local (as well as federal) crimes.17 In addition, sentencing courts
frequently impose discretionary conditions on particular offenders that might well
lie beyond Congress’s authority to impose on the general population.18 Imposing
such discretionary conditions is considered appropriate where doing so furthers
the federal government’s legitimate penological interests in deterrence, incapacita­
tion, and rehabilitation.19 Given the historical pedigree of these release regimes,
we believe that Congress’s authority to impose such conditions as part of a general
sentencing scheme is beyond serious dispute and may safely serve as a benchmark
for the scope of congressional power.20 The assumed constitutional foundation
for the regimes is that Congress acquires a legitimate penological interest in regu­
lating the behavior of federal convicts released on probation or parole, even if
absent the conviction Congress could not similarly regulate the same behavior.

   15 Permissible probation conditions are currently specified by section 3563(b) of the Sentencing Reform Act of
1984, Pub. L No. 9 8 ^ 7 3 , 98 Stat. 1993 (1984) (codified as amended 18 U S C . §§3551-3742 (1994 & West
S u p p ))
   ,6 Section 3583 o f the Sentencing Reform Act o f 1984 codifies sentencing courts’ authority to impose discretionary
conditions o f supervised release following imprisonment Under the earlier parole system, the parole board could
release an inmate on a supervised basis before the inmate’s sentence was fully served, but any conditions o f release
terminated when the inmate’s original sentence terminated. Under the newer system of supervised release, an inmate
must serve the full term of imprisonment as originally sentenced, und if the sentencing court deems it ncccssary,
an additional term of supervised release.
   17See 18 U S C §3563(a) (“ The court shall provide, as an explicit condition of a sentence of probation — (1)
for a felony, a misdemeanor, or an infraction, that the defendant not commit another Federal, state, or local cnme
during the term of probation ” ), id § 3583(d) ( “ The court shall order, as an explicit condition o f supervised release,
that the defendant not commit another Federal, State, or local cnm e during the term of supervision . . .” ). C f
Johnson v United States, 529 U S 694 (2000) (case involving supervised release revocation when offender committed
state-law forgery offenses)
   ls See, e.g.. United States v. Tonry, 605 F.2d 144 (5th Cir 1979) (upholding condition preventing offender from
running for state political office); United States v M artinez, 988 F. Supp 975 (E.D. Va 1998) (upholding condition
restricting offender's driving activities).
   195ee, e.g., United States v Schave, 186 F.3d 839, 841 (7th Cir. 1999):
      The district court may impose a specific condition o f supervision so long as the condition. (1) is reasonably
       related to specified sentencing factors, namely the nature and circumstances of the offense and the history
       and characteristics o f the defendant; (2) is reasonably related to the need to afford adequate deterrence,
      to protect the public from further cnmes o f the defendant, and to provide the defendant with needed edu­
      cation or vocational training, medical care, or other correctional treatment in the most effective manner,
       (3) involves no greater depnvation o f liberty than is reasonably necessary to achieve these goals; and
       (4) is consistent with any pertinent policy statements issued by the Sentencing Commission.
See also id. at 844 (condition is permissible if it “ reasonably serves the aim of preventing [the offender] from
repeating his criminal activities and o f protecung the public from potential recidivism” ).
   20 We have found no case considering a challenge to Congress’s Article 1 power to authonze a sentencing court
to impose the “ violate no state law” condition or another condition that Congress could not impose on the general
public A few cases have rejected more specific federalism-based challenges to the imposition of probation or release
condiuons. See, eg ., Tonry, 605 F.2d at 148-50 (rejecting claim that condition prohibiting offender from running
for state political office unconstitutionally intruded upon state’s prerogative to supervise its own elections) Such
cases at least imply that the imposition of such conditions lies within Congress’s Article I authority.


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    This benchmark supports the constitutionality of § 1120. If Congress has a legiti­
 mate penological interest in regulating the conduct of convicts who are lawfully
released either instead of or after serving a prescribed term of imprisonment, a
fo rtio ri Congress has a legitimate penological interest in regulating the conduct
of convicts who unlawfully release themselves prior to completion of their impris­
 onment terms. Escaped convicts pose the same if not greater dangers to public
 safety during their period of unlawful release, and the fact that any future killing
occurs during their ongoing commission of the “ continuing offense” of escape
makes the federal interest in deterring such behavior seem all the more substantial.
   W e recognize that § 1120 and the probation and supervised release regimes are
not on all fours. When an offender violates a condition of her probation or release,
 she does not thereby (necessarily or even usually) commit a new federal crime,
 and the revocation of her probation or release is not considered a punishment
for such new misconduct. Rather, the “ additional” penalty imposed is considered
part of the original, conditional sentence for the underlying offense.21 The source
of congressional power to impose this “ additional” penalty, therefore, is the same
 as the source of congressional power to impose the fixed aspects of the original
 sentence, to wit: either an enumerated or implied power to govern individual con­
duct or the Necessary and Proper Clause applied in relation thereto. See supra
Part I. For example, Congress’s power to impose both imprisonment and probation
conditions on an offender convicted of counterfeiting stem directly from
Congress’s Article I authority to “ provide for the Punishment of counterfeiting
the Securities and current Coin o f the United States.” U.S. Const, art. I, §8, cl.
6. By contrast, §1120 makes post-escape killing an entirely new crime subject
to a new criminal sanction, rather than a post conviction event that modifies the
original life sentence for the original crime. One might argue, therefore, that
Congress’s power to punish post-escape killings cannot similarly be considered
to flow directly from its power to impose the underlying life sentence in the first
place. If so, then unlike the probation and supervised release statutes, § 1120 must
be defended as an appropriate means of serving a generalized penological
interest — precluding escapes from thwarting the incarceration objectives of life
imprisonment — rather than as an appropriate means of serving the specific
penological objective of punishing the original underlying offense. In this sense,
while both § 1120 and the probation and supervised release statutes operate to
regulate the outside-prison conduct of persons serving federally imposed sentences
(including some conduct that lies beyond Congress’s ability to regulate for the
population at large), the argument for congressional authority over federal convicts
in the §1120 context may be somewhat more attenuated. But even though the

   21 See, e.g., Johnson, 529 U S. at 700 (characterizing “ postrevocation sanctions as part o f the penalty for the
initial offense” rather than “ construing revocation and reunpnsonm ent as punishment for the violation of the condi­
tions o f supervised release” ), U nited States v. M eeks, 25 F 3 d 1117, 1120-23 (2d Cir 1994) (canvassing arguments
and concluding that “ any provision for punishment for a violation o f supervised release is an increased punishment
for the underlying offense” )


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                              Constitutionality o f 18 U.S.C. § 1120


  analogy is imperfect, we believe the interests underlying Congress’s well-estab-
  lished practice of authorizing release conditions, including compliance with state
  criminal laws, supports our conclusion that Congress has a legitimate penological
  interest in regulating the conduct of escaped life-sentenced prisoners sufficient
  to justify federal proscription of all post-escape killings.
     We recognize that both United States v. Lopez, 514 U.S. 549 (1995), and United
  States v. Morrison, 529 U.S. 598 (2000), reflect a heightened judicial sensitivity
  to the breadth of federal regulatory power. We do not, however, read these
  decisions as calling into serious question this particular justification for § 1120’s
  application to non-escape-related killings. In embracing a more restrictive view
  of Congress’s Commerce Clause power than that reflected in prior case law, the
  Court expressed its concern that allowing Congress to “ pile inference upon
  inference,” Lopez, 514 U.S. at 567, in order to connect an intrastate activity to
  interstate commerce would ‘ ‘convert congressional authority under the Commerce
  Clause to a general police power of the sort retained by the States,” id., and
  threaten to obliterate the “ distinction between what is truly national and what
  is truly local.” Morrison , 529 U.S. at 617-18. The Court was particularly con­
  cerned that an expansive understanding of the commerce power would threaten
  the states’ traditional authority to regulate intrastate criminal activity. See Lopez,
  514 U.S. at 561 n.3 (“ Under our federal system, the ‘States possess primary
  authority for defining and enforcing the criminal law.’ ” ) (citation omitted); M orri­
 son, 529 U.S. at 618 (“ [W]e can think of no better example of the police power,
  which the Founders denied the National Government and reposed in the States,
 than the suppression of violent crime and vindication of its victims.” ).
     The context in which these concerns were voiced was quite different, however,
 and such concerns have significantly less force as applied to § 1120’s proscription
 of non-escape-related killings by escapees from life imprisonment. First, one need
 not “ pile inference upon inference” in any troublesome manner to justify this
 proscription. As explained in Part I, Congress’s authority to construct and operate
 a criminal justice system in general and a penal regime in particular is well
 grounded and unquestioned. Sustaining § 1120’s application to non-escape-related
 killings requires only one additional step, the recognition that even such killings
 undermine Congress’s legitimate penological and custodial interests in protecting
 the public from violent federal convicts who should be in prison rather than at
 large.
     Second, the justification for upholding this application of §1120 would not
 come close to supporting a general congressional police power. To be sure, the
®broadest conception of this justification might give one pause. Taken to its
 extreme, this incapacitation rationale could permit Congress to punish any public-
 threatening conduct by any federal escapee, whether the conduct is life-threatening
 or not, whether the escapee is a felon or a misdemeanant, and whether the frus­
 trated prison sentence is a term of life or a term of months. Indeed, this rationale

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might extend as well to some or perhaps even all federal convicts placed on proba­
tion or supervised release, since they might also pose some threat to public safety
during their terms of sentence. Thus perhaps Congress could extend the rationale
offered here for § 1120’s application to non-escape-related killings to criminalize
(with appropriate due process protections) a great deal of conduct by probationers
or parolees that heretofore has been governed solely by state law.
   But this concern about the incapacitation rationale’s potential breadth does not
counsel strongly against §1120’s constitutionality, for two reasons. First, even
the largest class of persons plausibly subject to federal regulation under this
rationale — all federal convicts during the entire period of their sentences —
 remains relatively small, encompassing only those persons who have already been
prosecuted, convicted, and sentenced for violating a valid federal criminal statute.
Thus the broadest possible application of this justification for § 1120 would hardly
approach a general police power of the sort rejected by the Court in Lopez and
M orrison. Second, the rationale might not extend so broadly. Arguably, the shorter
the sentence and the less serious the post-release conduct, the less that conduct
contravenes Congress’s penological and custodial interests. The rationale for fed­
eral criminal proscription of such conduct might extend only to serious misconduct
by those serving long custodial sentences. This would limit the ultimate scope
of Congress’s regulatory authority over federal convicts and assuage the concerns
reflected in Lopez and Morrison, and nevertheless such authority would still cover
all of the conduct proscribed by § 1120, since Congress’s penological and custodial
interests are clearly at their zenith when applied to the narrow realm of killings
by life-sentenced escapees. When a life-sentenced federal prisoner escapes and
kills, the federal government’s failure to maintain physical custody is indisputably
a but-for cause of the death, no matter when or why it occurs, and Congress’s
interest in ensuring that society is permanently protected from a dangerous felon
has been frustrated in the most egregious manner possible.22

   22 Assuming arguendo that a court found this defense unpersuasive and concluded that § 1120’s application to
non-escape-related killings does not itself serve legitimate federal interests, this application might nevertheless be
defended on the ground that m ost o f the statute’s applications are constitutional and thus § 1120 is not so overbroad
as to w arrant invalidation. One might argue that a high percentage o f escapee killings are escape-related; indeed,
if the category o f “ killings to avoid detection” is very broadly defined, perhaps most killings could plausibly be
characterized as lying within it. Moreover, Congress might believe that even in those cases where a sufficient connec­
tion between a killing and recapture- or detection-avoidance exists to justify federal jurisdiction, the connection
will frequently be quite difficult for prosecutors to prove Thus § 1120’s application to all killings might be defended
on the ground that this coverage is only slightly overbroad, and its overbreadth is justified as enabling prosecutors
to avoid facing som e difficult proof problems. C f Westfall v. United States, 274 U.S. 256, 259 (1927) (“ [W]hen
it is necessary in order to prevent an evil to m ake the law embrace more than the precise thing to be prevented C
it may do so.” )
   This defense, while plausible, also raises som e difficulties First, the fact that Congress has neither articulated
this rationale nor made findings about its em pirical plausibility will likely give courts some pause. A court might
be reluctant to assume that most escapee killings are escape-related without any congressional findings to that effect.
Moreover, it is uncertain w hether a.court would characterize the desire to avoid making the prosecutor prove facts
that otherwise seem necessary to establish federal jurisdiction as a legitimate federal interest.


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                           Constitutionality o f 18 U.S.C. § 1120


                                IV. CONCLUSION

   Congress has clear constitutional authority to proscribe killings by escaped life-
sentenced inmates which either effectuate or prolong the escape. Whether Con­
gress has power to proscribe killings that are unrelated to such efforts presents
a novel question. We believe that Congress’s penological and custodial interests
in ensuring the incapacitation of life-sentenced inmates notwithstanding their
escape from prison provide a compelling argument for upholding § 1120’s con­
stitutionality even with respect to non-escape-related killings.

                                                           RANDOLPH D. MOSS
                                                    Acting Assistant Attorney General
                                                         Office o f Legal Counsel




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