      Constitutionality of Statute Imposing Death Penalty for
             Attempted Assassination of the President

U nder applicable Supreme C ourt precedent, a statute making it a capital offense to
  attem pt to assassinate the President would be unlikely to survive constitutional chal­
  lenge, unless it were narrowly drawn to include only cases in which the defendant’s
  intent was unambiguous and the attempt nearly successful.
Both historical precedent and contem porary practice in this and other countries suggest
  that death would ordinarily be regarded by a court as an excessive punishment for the
 crime of attempted murder. O n the other hand, the unique position of the President in
 our constitutional system, coupled with the threat to the national security which an
 assault on his person would constitute, may warrant subjecting the crime of attempted
 assassination of the President to the death penalty

                                                                                    April 30, 1981
MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY
         GENERAL, CRIMINAL DIVISION

  This responds to your request for the views of this Office with
respect to the constitutionality of a proposed statute imposing the death
penalty for the offense of attempted assassination of the President.1 For
the reasons that follow, we believe that such a statute, if drafted
narrowly and with extreme care, might well be upheld by the Supreme
Court. We must caution, however, that the question is an extremely
close and difficult one on which the Supreme Court has given little
guidance, and that the outcome of a challenge to the law may well
depend on the particular factual context to which it is applied.
                                          I. Background

  Prior to considering the issues raised, it may be helpful briefly to
review recent Supreme Court decisions on capital punishment. In
Furman v. Georgia, 408 U.S. 238 (1972), a five-Justice majority ruled in
a per curiam opinion that the imposition of the death penalty in the

   1A variety of federal statutes currently impose the death penalty See 18 U.S C. § 34 (destruction of
m otor vehicles or m otor vehicle facilities where death results); 18 US.C. §351 (assassination or
kidnapping o f a Member of Congress); 18 U S.C. § 794 (gathering or delivering defense information to
aid a foreign government); 18 U S .C . § 1111 (murder in the first degree within the special maritime
and territorial jurisdiction of the United States), 18 U.S.C. § 1716 (causing death of another by mailing
injurious articles); 18 U.S.C. § 1751 (m urder or kidnapping of a President or Vice President); 18 U S C.
§2031 (rape within the special maritime or territorial jurisdiction of the United States), 18 U.S.C
§ 2381 (treason); 49 U.S.C. § 1472(i) (aircraft piracy w here death results).

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cases before the Court would constitute cruel and unusual punishment
in violation of the Eighth and Fourteenth Amendments.2 Two of those
Justices were of the opinion that capital punishment is per se unconstitu­
tional.3 The remaining three Justices did not reach the question
whether the death penalty is unconstitutional in all circumstances. Jus­
tice Douglas concluded that the discretionary statutes in question were
“pregnant with discrimination” in their operation and thus violated the
Equal Protection Clause of the Fourteenth Amendment.4 Justice Stew­
art objected to the penalty being applied “so wantonly and so freak­
ishly.” 5 Justice White concluded that as the statutes were administered,
they violated the Eighth Amendment because the penalty was so infre­
quently imposed that the threat of execution was too attenuated to be
of substantial service to criminal justice.6
   In Gregg v. Georgia, 428 U.S. 153 (1976), the Court reviewed the
Georgia statute enacted in response to Furman and found it sufficient to
overcome Eighth Amendment objections. 428 U.S. at 207.7 Justices
Stewart, Powell, and Stevens found four features of the statute to be
particularly important: (1) the sentencer’s attention was drawn to the
particularized circumstances of the crime and of the defendant by
reference to aggravating and mitigating factors; (2) the discretion of the
sentencer was controlled by clear and objective standards; (3) the
sentencer was provided with all the relevant evidence during a separate
sentencing hearing, while prejudice to the defendant was avoided by
restricting information on aggravating circumstances to that comport­
ing with the rules of evidence; and (4) there was a system of appellate
review of the sentence to guard against arbitrariness, excessiveness, and
disproportionality. In a separate opinion, Chief Justice Burger and Jus­
tices White and Rehnquist concurred in the judgment. 428 U.S. at 207.
   In Lockett v. Ohio, 438 U.S. 586 (1978) and the companion case, Bell
v. Ohio, 438 U.S. 637 (1978), the Court again considered the constitu­
tionality of a state statute enacted in response to Furman. The Ohio
statute at issue also set forth the aggravating and mitigating factors to
be considered in the imposition of the death penalty. If the case went to
trial, however, the law provided that only three mitigating factors
could be considered. Without a finding of one of these factors, and with
a finding of an aggravating factor, imposition of the death penalty was
mandatory. While the Court by a vote of seven to one found the
imposition of the death penalty in this case to be unconstitutional, again
there was no majority opinion.

   1Furman v Georgia. 408 U.S. 238. 239-40(1972).
   3408 U.S. at 257 (Brennan, J., concurring), 408 U.S. at 314 (Marshall, J., concurring)
   4408 U.S. at 256-57
   *408 U S . at 310.
   6408 U.S. at 312-13.
   1In companion cases, Woodson v. North Carolina, 428 U.S. 280 (1976), and Roberts v Louisiana, 428
U.S 325 (1976), a plurality ruled that imposition of mandatory death sentences violated the prohibition
against cruel and unusual punishment under the Eighth and Fourteenth Amendments.

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   Chief Justice Burger and Justices Stewart, Powell, and Stevens based
their decision on the conclusion that “the Eighth and Fourteenth
Amendments require that the sentencer, in all but the rarest kind of
capital case, not be precluded from considering as a mitigating factor,
any aspect of a defendant’s character or record and any of the circum­
stances of the offense that the defendant proffers as a basis for a
sentence less than death.” 8 Justice Marshall adhered to his view that
the death penalty is unconstitutional in all circumstances. Justice
Blackmun found that the application of the penalty to an aider and
abettor without regard to a specific mens rea in relation to the killing
would be cruel and unusual. He also found that the statute violated the
rule set down in United States v. Jackson, 390 U.S. 570 (1968), in that it
permitted a judge who accepted a guilty plea to avoid imposing the
death penalty “in the interests of justice,” but authorized consideration
of only three mitigating factors if a defendant asserted his constitutional
right to a trial.9 Finally, Justice White objected to the Ohio statute
because it included an aider and abettor within the scope of the death
penalty without a finding that the defendant “engaged in conduct with
the conscious purpose of producing death.” 10
   The Court has also held that, in addition to requiring certain proce­
dural safeguards for imposition of the death penalty, the Eighth
Amendment bars the death penalty if it is excessive in relation to the
crime committed. Coker v. Georgia, 433 U.S. 584 (1977). In Coker,
discussed in more detail below, the Court concluded that the death
sentence for rape of an adult woman when death did not result was
disproportionate to the crime. 433 U.S. at 592.
   Recently, the Court again reviewed a death sentence imposed under
the Georgia statute. In Godfrey v. Georgia, 446 U.S. 420 (1980), the
Court considered whether the Georgia Supreme Court had adopted
such a broad and vague construction of one of the statutory aggravat­
ing circumstances as to violate the Eighth and Fourteenth Amend­
ments. The statute provided that a person could be sentenced to death
if the offense was “outrageously or wantonly vile, horrible or inhuman
in that it involved torture, depravity of mind, or an aggravated battery
to the victim.” Ga. Code Ann. § 27-2534.1(b)(7) (Supp. 1975). In the
plurality opinion written by Justice Stewart, joined by Justices
Blackmun, Powell, and Stevens, the Court ruled that in upholding
Godfrey’s sentence, the Georgia Supreme Court did not apply a consti­
tutional construction of (b)(7). Justice Stewart stated: “There is no
principled way to distinguish this case, in which the death penalty was
imposed, from the many cases in which it was not.” 446 U.S. at 433. In
a concurring opinion, Justice Marshall, joined by Justice Brennan, ad­

  8Lockett v. Ohio, 438 U.S. 586, 604 (1978).
  9438 U.S. at 613-14, 618-19.
  ' “438 U.S. at 627-28.

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hered to his view that the dealth penalty is unconstitutional in all cases,
and, in addition, agreed with the plurality that the Georgia Supreme
Court’s construction of (b)(7) in this case was unconstitutionally vague.
He suggested that the sentencing procedures of the type approved in
Gregg are doomed to failure because the criminal system is incapable of
guaranteeing objectivity and evenhandedness in application of the death
penalty. Chief Justice Burger and Justices Rehnquist and White dis­
sented, warning that the Court should not put itself in the role of
second-guessing state judges and juries.
                    II. Constitutionality of the Proposed Statute

   The Court’s ruling in Coker, that the death penalty is unconstitution­
ally excessive in relation to the crime of rape of an adult woman, raises
the question whether the death penalty is excessive in relation to any
crime in which death does not result.11
   In Coker, Justice White, speaking for the plurality, characterized the
test first enunciated in Gregg as: (1) whether the sentence makes a
measurable contribution to acceptable goals of punishment; and (2)
whether the sentence is grossly out of proportion to the crime. 433 U.S.
at 592. The plurality examined the position taken by those states which
had reinstated the death penalty after Furman and concluded that the
modem approach was not to impose the death penalty for rape. It then
brought its own judgment to bear on the question of the acceptability
of the death penalty under the Eighth Amendment. It reasoned:
         Rape is without doubt deserving of serious punishment;
         but in terms of moral depravity and of injury to the
         person and to the public, it does not compare with
         murder, which does involve the unjustified taking of
         human life. Although it may be accompanied by another
         crime, rape by definition does not include the death o f or
         even the serious injury to another person. The murderer
         kills; the rapist, if no more than that, does not. Life is
         over for the victim of the murderer; for the rape victim,
         life may not be nearly so happy as it was, but it is not
         over and normally is not beyond repair. We have the
         abiding conviction that the death penalty, which “is
         unique in its severity and irrevocability,” Gregg v. Geor­
         gia, 428 U.S. at 187, is an excessive penalty for the rapist
         who, as such, does not take human life.

   11 In his dissent in Coker, Chief Justice Burger wrote: “The clear implication of today’s holding
appears to be that the death penalty may be properly imposed only as to crimes resulting in death of
the victim. This casts serious doubt upon the constitutional validity of statutes imposing the death
penalty for a variety o f conduct which, though dangerous, may not necessarily result in any immediate
death, e.g., treason, airplane hijacking, and kidnapping.” Coker v. Georgia, 433 U.S. 584, 621 (1978).

                                               119
433 U.S. at 598 (emphasis added). The fact that one of the statutory
aggravating circumstances had to be found before the death penalty
could be imposed did not convince the plurality that the penalty was
not excessive. It wrote that the aggravating circumstances “do not
change the fact that the instant crime being punished is a rape not
involving the taking of life.” 433 U.S. at 599.
   Justices Brennan and Marshall concurred separately, reiterating their
views that the death penalty is unconstitutional per se. Justice Powell
concurred in the judgment that the death penalty was not appropriate
in this case but dissented from that portion of the plurality opinion
which suggested that the death penalty for rape would be excessive in
all cases. Chief Justice Burger and Justice Rehnquist joined in dissent.
   Under the analysis suggested in Coker, in order to determine whether
the imposition of the death penalty is constitutional with respect to the
offense of attempted assassination of the President, one must determine,
first, whether it makes a measurable contribution to acceptable goals of
punishment and, second, whether it is excessive in proportion to the
crime. While there is as yet no final resolution of the debate over the
deterrent effect of the death penalty, we believe that a court would
give deference to the legislative judgment on the deterrent effect as
long as this judgment appears reasonable.
   The second part of the test, whether the punishment is excessive with
respect to the crime, is more difficult to apply. In Coker, the Court
looked to the consensus among the states and the practice of juries in
modern times, as well as to historic practice, to assess the relationship
between the penalty and the offense. This inquiry is more difficult with
respect to a crime as rare as attempted assassination of the President.
We approach the issue by considering five factors that bear on the
inquiry mandated by Coker. Those factors are: (1) the general definition
of “attempt”; (2) the historical approach to “attempt” crimes, especially
murder; (3) the federal and state practice with respect to attempted
murder of the President; (4) the international treatment of attempted
assassination of national leaders; and (5) the special position of the
President of the United States.
   A. Definition o f attempt. We do not have before us a definition of the
kinds of attempts on the life of the President to which the death penalty
would be applied. A wide range of conduct might constitute an at­
tempted murder. Different mental states and different conduct, marking
varying degrees of progress toward the completion of the crime, might
be comprehended within the definition. See S. Kadish & M. Paulsen,
Criminal Law and its Processes: Cases and Materials 368-410 (1969).
Under the Model Penal Code, for example, “A person is guilty of an
attempt to commit a crime if, acting with the kind of culpability
otherwise required for commission of the crime, he:
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         (a) purposely engages in conduct which would consti­
      tute the crime if the attendant circumstances were as he
      believes them to be; or
         (b) when causing a particular result is an element of the
      crime, does . . . anything with the purpose of causing or
      with the belief that it will cause such result, without
      further conduct on his part; or
         (c) purposely does . . . anything which, under the cir­
      cumstances as he believes them to be, is an act or omis­
      sion constituting a substantial step in a course of conduct
      planned to culminate in his commission of the crime.
Model Penal Code, Proposed Official Draft § 5.01(1), (1962). To consti­
tute a “substantial step” under § (l)(c), the step must be “strongly
corroborative of the actor’s criminal purpose.”
   In our view, a statute making it a capital offense to attempt to
assassinate the President will be much more likely to be held constitu­
tional if it covers a limited category of situations in which the attempt
has nearly succeeded and the defendant’s intent is unmistakable. See
Lockett v. Ohio, U.S. 438 at 627-28 (White, J., concurring) (intent to
murder must be shown to justify imposition of death sentence). For this
reason, we believe that the Court would be much more likely to uphold
the application of the death penalty to conduct falling within categories
(a) and (b) above than (c). At the same time, we do not exclude the
possibility that conduct falling within (a) or (b) might itself not be
subject to capital punishment under the Eighth Amendment, especially
if the crime was not in fact nearly completed. For purposes of the
following discussion, we assume that any statute to be enacted by
Congress would be narrowly drawn and limited to cases of unambig­
uous motive and near-completion of the assassination effort.
   B. Attempted murder in general. Anglo-American law has traditionally
subjected crimes of attempt, including attempted murder, to a lower
penalty than the completed crime. At common law, all attempts were
classified as misdemeanors. W. Clark & W. Marshall, A Treatise on the
Law of Crimes 178 (2d ed. 1905). Under current statutory provisions,
an attempt is ordinarily punishable by a reduced factor of the punish­
ment for the completed crime. S. Kadish & M. Paulsen, supra, at 368
(1969). A few states make the punishment for the completed crime the
same as for attempts, but even those states reduce an attempt to commit
a capital offense to a term of imprisonment. Id. Under the Model Penal
Code, an attempt is generally a crime of the same grade and degree as
the substantive offense, but an attempt to commit a capital crime or a
first-degree felony is a felony of the second degree. Model Penal Code
§ 5.05(1) (Proposed Official Draft 1962). Our review indicates that none
of the states now having capital punishment laws classifies attempted
murder as an offense subject to the death penalty.
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   This pattern apparently reflects a deeply seated social conception that
attempted crimes should not be punished as severely as substantive
offenses. That conception has been said to result from a number of
factors. First, if the purpose of punishment is retribution, that purpose
points toward a less severe sanction for attempts. See Waite, The
Prevention of Repeated Crime 8-9 (1943). Second, if the act has not
been carried out, there is inevitably some room for uncertainty as to the
actor’s true motives. Finally, it has been doubted whether the threat of
punishment for attempts will add significantly to the deterrent effect of
the sanction threatened for the substantive offense which, by hypothe­
sis, the actor has ignored. Model Penal Code, comments to § 5.05
(Tent. Draft No. 10, 1950).
   These factors, when considered in conjunction with the historical
practice of penalizing attempts less severely than substantive offenses,
suggest that, under Coker, a capital punishment law for attempted
murder may well be invalidated. The objective factors relied on by the
Court indicate that the retributive and deterrent goals of punishment
point toward a more severe penalty for murder than for attempted
murder.
   It should be noted, however, that attempted murder of the head of
state was punished quite severely at common law. In England, an
attempt on the life of the King was regarded as a form of common law
treason and thus punishable by death. W. Burdick, The Law of Crime,
§231 (1946); R. Perkins, Criminal Law 441 (1969); W. Clark & W.
Marshall, supra, at 7. The Statute of Treasons, enacted in 1351, included
a manifested desire for the death of the King as an act of high treason.
The American Constitution, however, contains provisions designed to
limit the definition of the crime, stating, “Treason against the United
States, shall consist only in levying War against them, or in adhering to
their Enemies, giving them Aid and Comfort.” U.S. Const., Art. Ill,
§ 3. The offense of attempting to assassinate the President has not, to
our knowledge, been thought to fall within this language.
   C. Historical practice in America. The first federal statute making it a
federal crime to assassinate or to attempt to assassinate the President
was passed in 1965. 18 U.S.C. 1751. Under that provision, the maximum
sentence for an attempt on the life of the President is life imprisonment.
Accordingly, the federal government has not, as an historical matter,
made it a capital offense to attempt to assassinate the President. This
factor would be cited to support the argument that a death penalty for
such an attempt is unconstitutional under the Eighth Amendment. It is
not, however, dispositive. Moreover, since no provision of federal law
prior to 1965 governed assassination of the President, Congress did not
before that time conclude that a person convicted of an attempted
assassination should not be subject to the death penalty.
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   Since no federal law governed assassination or attempted assassina­
tion of the President before 1965, several states enacted provisions on
the subject. Our preliminary 12 research indicates, however, that very
few states made it a capital offense to attempt to assassinate the Presi­
dent. Only Connecticut, Ohio, and probably New Jersey had such laws
in 1967, before the Furman decision. H. Bedau, The Death Penalty in
America 48-52 (rev. ed. 1967). There is, therefore, only minor support
for the position that, in the United States, attempted assassination of the
President has been regarded as a crime for which the death penalty is
appropriate.
   D. International practice. The Economic and Social Council of the
United Nations undertakes a report on the capital punishment laws of
its members every five years. The last report, completed in 1980,
contains somewhat vague and incomplete data compiled on the basis of
the replies from 74 member states (of a total current membership of
154). Of the countries responding, only nine stated with clarity that
those committing the offense of attempted assassination of the head of
state were subject to capital punishment: Morocco, Tunisia, Indonesia,
Belgium, Mozambique, Philippines, Thailand, Nepal, and France.13 If
correct, these data suggest that a small percentage of the nations with
capital punishment laws apply those laws to attempts on the head of
state. Although not binding on the Court’s interpretation of the U.S.
Constitution, that fact would count as a factor in determining whether
an attempted assassination of the President may be subjected to capital
punishment, for it suggests a general international position that a person
who has only attempted to assassinate a head of state should not be
executed.
   E. Nature o f crime. Finally, we consider the nature of the crime
involved here: An attempted assassination of the President. As the most
powerful and visible of the Nation’s leaders, the President maintains a
unique position within the federal government. As Commander-in-Chief
of the Armed Forces, he discharges unique responsibilities for the
security of the country. As head of the Executive Branch, he is en­
trusted with the authority of coordinating and executing all laws of the
United States. For these reasons, an assault on the President threatens
the national security in a distinctive fashion. Even if the attempt is
unsuccessful, it may produce a national sense of embarrassment, fear, or
trauma. An attempt on the life of the President is, as a result, different
in kind, not merely in degree, from an attempt on the life of any other

   12Since the available historical materials are generally vague, we cannot exclude the possibility that
our data is incomplete.
   13 Numerous others, however, included treason as a capital offense. If treason were defined to
include attempted assassination of the head of state, the number would be significantly higher. That
information, however, is not currently available. U N. Economic and Social Council, Capital Punish’
ment: Report o f the Secretary General, para. 34, U.N. Doc E /1980/9 (1980); para. 4, U.N. Doc E /
! 980/9/A dd 1 (1980)

                                                  123
public or private citizen. In this respect, the President is a “legitimate
class of one.” Nixon v. Administrator o f General Services, 433 U.S. 425,
472 (1977).
   We believe that the unique nature of the office of the President of the
United States furnishes support for the view that an attempted assassi­
nation of the President can be subjected to the death penalty. More
than any other attempt crime, an attempt on the life of the President
causes injury to the country even if it is unsuccessful. There is a
substantial governmental interest in avoiding the national injury that is
produced simply by virtue of an attempt on the President’s life.
                             III. Conclusion
   The foregoing discussion suggests that, under Coker, a statute making
it a capital offense to attempt to assassinate the President would raise
quite serious constitutional questions. Throughout American history,
attempt crimes have been punished less severely than substantive of­
fenses. Although an assassination attempt was within the definition of
treason in England, it has not been so regarded in the United States. No
American jurisdiction currently applies the death penalty to an at­
tempted murder. The only federal statute governing attempted assassi­
nation of the President was enacted in 1965 and carries a maximum
sentence of life imprisonment. On the basis of the evidence now avail­
able to us, it appears that only a handful o f states applied the death
penalty to attempt on the life of the President before Furman. Finally,
although the evidence is somewhat vague, it seems that relatively few
countries, even among those that retain the death penalty, punish with
death the offense of attempting to assassinate the head of state.
   On the other hand, such an attempt is undoubtedly a grave offense
and amounts to an assault on the security o f the Nation; this indicates
that a narrowly drawn statute might be upheld against an attack on the
basis of Coker.
   Taken together, these factors suggest that a broadly drawn death
penalty for attempts on the life of the President would be unlikely to
survive constitutional challenge. Any such statute should be narrowly
drafted to include cases in which the defendant’s intent was unambig­
uous and the crime was almost completed. Such a statute would be
more likely to be upheld if an element of the crime was the actual
commission of some bodily injury to the President.
   We believe that, if a capital punishment statute were drafted to
include such injury as part of the offense, or possibly even if it were
otherwise narrowly confined to nearly successful attempts, the statute
might well be found constitutional. The fact that England and a number
of other countries have historically applied the death penalty to an
attempted murder of the head of state, together with the distinctive
responsibilities of the President in our constitutional scheme, do, in our
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view, provide support for a conclusion that the death penalty for an
attempt on the life of the President is not disproportionate within the
meaning of Coker. We must caution, however, that the constitutional
question is a serious and difficult one, and that our position is necessar­
ily tentative in light of the inconclusive nature of the Supreme Court’s
guidance.
                                            T h e o d o r e B. O l so n
                                          Assistant Attorney General
                                           Office o f Legal Counsel




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