     Procedural Provisions for Imposing the Death Penalty in
                       Pending Legislation

[T h e fo llo w in g m em o ran d u m co m m e n ts o n p ro p o sed legislation to b rin g th e federal d eath
  p e n a lty p ro v isio n s in to c o m p lia n c e w ith th e c o n stitu tio n a l sta n d a rd s identified by the
  S u p re m e C o u rt in Furman v. Georgia, 408 U .S. 238 (1972) an d su b seq u en t decisions. It
  id entifies c e rtain p ro c e d u ra l p ro v isio n s as likely to be su b je ct to co n stitu tio n al c h a l­
  lenge, an d in d icates h o w th e issues in v o lv ed are likely to be reso lv ed u n d er existing
  case law . A m o n g th e issues discussed are: (1) w h e th e r th e C o n s titu tio n ’s req u irem en t o f
  a u n an im o u s ju r y ex ten d s to th e se n ten cin g phase o f a capita) case; (2) w h e th e r the
  j u r y ’s c o n sid e ra tio n o f m itig atin g fa c to rs m ay be lim ited; (3) w h e th e r e v id e n c e o f
  a g g ra v a tin g fa c to rs m ay be ad m itte d reg a rd le ss o f its adm issibility u n d er the ru les o f
  ev id en ce; (4) w h e th e r th e lan g u ag e sp e cify in g a g g ra v a tin g an d m itig atin g fa c to rs is
  u n co n stitu tio n ally vag u e; (5) w h e th e r th e d e a th p e n a lty m ay be im posed for non-
  h o m icid al crim es; an d (6) w h e th e r a p p e lla te rev iew o n ly at th e req u est o f th e d efen d an t
  is an ad e q u a te safeg u ard ag ain st th e ran d o m o r a rb itra ry im position o f th e d eath
  pen alty .]


                                                                                                May 30, 1980

          M EM ORANDUM FOR T H E A TTORNEY G EN ER A L

   At the request of the Deputy Attorney General, this Office has
prepared the following analysis of the constitutional issues raised by
S. 114, a bill to establish procedures for the imposition of the sentence
of death for certain federal crimes.* The death penalty is presently an
authorized sentence upon conviction o f at least ten federal offenses,
including murder, treason, espionage, rape, air piracy and several other
felonies if death results from the crim e.1 Since the Supreme Court’s
decision in Furman v. Georgia, 408 U.S. 238 (1972), the constitutionality
of these sections has been in doubt because they lack guidelines for the
exercise of sentencing discretion.

   * N o t e : T h e text o f S. 114 as introduced in the Senate in 1979 appears at 125 C ong. Rec. 782-83
(January 23, 1979). Ed.
   1 See 18 U.S.C. § 34 (destruction o f m otor vehicles o r m o to r vehicle facilities w here death results);
18 U.S.C. § 351 (assassination o r kidnapping o f a M em ber o f C ongress); 18 U.S.C. § 794 (gathering or
delivering defense inform ation to aid a foreign governm ent); 18 U.S.C. § 1111 (m urder in the first
degree w ithin the special m aritim e and territorial jurisdiction o f the U nited States); 18 U.S.C. § 1716
(causing death o f an o th er by mailing injurious articles); 18 U.S.C. § 1751 (m urder o r kidnapping o f a
President o r Vice President); 18 U.S.C. §2031 (rape w ithin the special maritim e or territorial jurisdic­
tion o f the U nited States); 18 U.S.C. § 2381 (treason); 49 U.S.C. § 1472(i) (aircraft piracy). S. 114
w ould make some changes in these provisions, including deletion o f the death penalty for rape not
resulting in death (see Coker v. Georgia, 433 U.S. 584 (1977)) and kidnapping in the course o f a bank
robbery not resulting in death. T he bill w ould add a provision authorizing the death penalty for
m urder o f a foreign official.


                                                       652
   Prior to considering the issues raised by S. 114, it may be helpful
briefly to review the recent Supreme Court decisions on capital punish­
ment. In Furman, a five-Justice majority ruled in a per curiam opinion
that the imposition of the death penalty in the cases before the Court
would constitute cruel and unusual punishment in violation of the
Eighth and Fourteenth Amendments.2 Tw o of those Justices were of
the opinion that capital punishment is per se unconstitutional.3 The
remaining three Justices did not reach the question whether the death
penalty is unconstitutional in all circumstances. Justice Douglas con­
cluded that the discretionary statutes in question were “pregnant with
discrimination" in their operation and thus violated the Equal Protec­
tion Clause of the Fourteenth Amendment.4 Justice Stewart objected to
the penalty being applied in “so wantonly and so freakishly” a
manner.5 Justice White concluded that as the statutes were adminis­
tered, they violated the Eighth Amendment because the penalty was
“so infrequently imposed that the threat of execution is 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. Id. 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 aggra­
vating 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 comporting with the
rules of evidence; and (4) there was a system of appellate review of the
sentence to guard against arbitrariness, excessiveness, and dispro-
portionality. These conclusions were summarized as follows:
           [T]he concerns expressed in Furman that the penalty of
         death not be imposed in an arbitrary or capricious manner
         can be met by a carefully drafted statute that ensures that
         the sentencing authority is given adequate information
         and guidance. As a general proposition these concerns are
         best met by a system that provides for a bifurcated pro­
         ceeding at which the sentencing authority is apprised of

   * 408 U.S. at 239-40.
   3 Id. at 257 (Brennan, J., concurring); id. at 314 (M arshall, J., concurring).
  4 Id. at 256-57.
   8 Id. at 310.
  8 Id. at 312-13.
  7     In com panion cases, Woodson v. North Carolina, 428 U.S. 280 (1976), and Roberts v. Louisiana, 428
U.S. 325 (1976), a plurality ruled that imposition o f m andatory death sentences violated the prohibition
against cruel and unusual punishm ent under the E ighth and Fou rteen th Am endm ents.


                                                 653
          the information relevant to the imposition of sentence and
          provided with standards to guide its use of the informa­
          tion.
Id. at 195. In a separate opinion, Justices White, Burger, and Rehnquist
concurred in the judgment. Id. at 211-27.
   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, only three mitigating factors could be considered. With­
 out a finding of one of these factors, and with a finding of an aggravat­
 ing 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.
    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 per se. 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 to 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 interest of
justice, but authorized consideration of only three mitigating factors if a
defendant went to trial. 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.” 9
    The Court also has held that in addition to requiring certain proce­
dural safeguards for imposition of the death penalty, the Eighth
Amendment bars use of the death penalty if it is excessive in relation to
the crime committed. Coker v. Georgia, 433 U.S. 584 (1977). In Coker,
the Court concluded that the death sentence for rape of an adult
woman when death did not result was disproportionate to the crime.
Id. at 592.

  8 Lockett v. Ohio, 438 U.S. at 604.
  9 Id. at 627-28.

                                        654
    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 aggravating circumstance in question 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). The Court previously had held in Gregg v.
 Georgia, 428 U.S. 153 (1976), that this statutory aggravating circum­
 stance is not unconstitutional on its face. In the plurality opinion in
 Godfrey, 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 satisfy the § (b)(7) criteria
the Georgia high court itself had laid out in its prior cases. In light of
the facts and circumstances of Godfrey’s offense, the Court concluded
that the Georgia Supreme Court did not apply a constitutional con­
struction 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, adhered to his
view that the death 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 justice system is incapable of
guaranteeing objectivity and evenhandedness. Chief Justice Burger and
Justices Rehnquist and White dissented, warning that the Court should
not put itself in the role of second-guessing state judges and juries.
   S. 114 seeks to establish constitutional procedures for the imposition
of the death sentence upon conviction of federal crimes for which the
death penalty is authorized. The bill would amend Title 18 of the
United States Code, rather than the Federal Rules of Criminal Proce­
dure, as some previous bills have proposed.10 It provides that after
conviction of a capital offense the defendant shall be subject to the
death penalty only if a hearing is held in accordance with specified
procedures. The hearing would be conducted before the jury which
determined the defendant’s guilt, unless, under specified circumstances,
a new jury must be impaneled or the parties agree that the court alone
conduct the hearing. At this sentencing hearing, information would be
presented as to any matter relevant to the sentence, including matters

   10   S. 114 is not coordinated w ith S. 1722, the bill to revise T itle 18 o f the U nited States C ode. In its
present form, S. 1722 does not authorize the penalty o f death for any crim e. See S. 1722, P art II I—
Sentences.


                                                    655
 relevant to specified aggravating and mitigating factors. The jury, or if
 there is no jury, the court, is required to return special findings identi­
 fying any aggravating and mitigating factors found to exist. The burden
of establishing the existence of any aggravating factors is on the gov­
ernment, and is not satisfied unless established beyond a reasonable
doubt. The burden of establishing the existence of any mitigating factor
is on the defendant, and is not satisfied unless established by a prepon­
derance of the information.
   If none of the specified aggravating factors are found to exist, the
court must impose an authorized sentence other than death. If one or
more of the aggravating factors are found to exist, then it must be
determined whether the aggravating factors outweigh the mitigating
factors, or, in the absence of mitigating factors, whether the aggravat­
ing factors are sufficient in themselves to justify a sentence of death.
Upon a jury finding that a sentence of death is justified, the court is
required to sentence the defendant to death. The sentence of death is
subject to review by the court of appeals.
   There have been previous attempts to bring the federal death penalty
provisions into compliance with the constitutional standards identified
by the Court in Furman, Gregg, and Lockett. S. 114 is very similar to S.
 1382, which was introduced in the 95th Congress by the late Senator
McClellan for himself and others. Prior to introducing S. 1382, Senator
McClellan requested the Department of Justice to review the draft bill
and comment with respect to its constitutionality in light of the recent
Supreme Court decisions. Form er Attorney General Bell responded to
Senator McClellan by letter dated March 25, 1977. The letter stated
that “the procedures set forth in the draft bill are consistent with the
decision in the Furman case, and are also consistent with the opin­
ions of the Supreme Court in Gregg v. Georgia . . . and Proffitt v.
Florida. . . .” 11 Attorney General Bell’s letter concluded: “We believe
that the proposed bill would be found by the Supreme Court to meet
constitutional requisites” and “I support your efforts to bring it to the
attention of the Senate.”
   The following year, hearings were held on S. 1382 and H.R. 13360, a
House bill to amend the Federal Rules of Criminal Procedure to pro­
vide for sentencing procedures in capital cases. A representative of this
Department testified on both bills, generally concluding that, although
the Court is unusually divided on these issues and any analysis thus is
necessarily speculative, the bills probably satisfied the standards of the
case law .12

   11 In Proffitt v. Florida, 428 U.S. 242 (1976), a case decided w ith Gregg and Jurek v. Texas, 428 U.S.
262 (1976), a plurality upheld a F lo rid a statute w hich d irected the trial ju d g e to w eigh eight
aggravating factors against seven m itigating factors to determ ine w hether to impose the death penalty.
   12 In 1977, M ary L aw ton, D eputy Assistant A tto rn ey G eneral, O ffice o f Legal Counsel, testified on
S. 1387 before the Senate Subcom m ittee on Crim inal L aw s and Procedures o f the Senate Judiciary
                                                C ontinued


                                                    656
   S. 114 was introduced by Senator DeConcini for himself and Senator
Thurmond on January 23, 1979. It was referred to the Committee on
the Judiciary which, on January 17, 1980, reported favorably thereon
with minor technical amendments. S. Rep. No. 554, 96th Cong., 2d
Sess. 1 (1980). No hearings were held by the Committee. In the Senate
report, Senators Kennedy, Culver, and Leahy set forth their individual
views’opposing S. 114 and urging that “capital punishment is wrong in
principle, wrong as a matter of policy, and wrong as drafted in S. 114.”
Id. at 33. Senator Baucus also presents his individual views. He states
that the bill “is flawed by its precipitous method of passage by the
Senate Judiciary Committee, its overly broad application to non-
homicidal Federal crimes, and serious constitutional inadequacies,” and
recommends that the Senate recommit S. 114 to the Judiciary Commit­
tee. Id. at 34-5.13 On March 7, 1980, 22 Senators, including Senators
on both sides of the death penalty issue, signed a “Dear Colleague”
letter, stating that they will move to recommit S. 114 or any similar bill
to the Judiciary Committee so that it may be presented to the Senate
“only after full hearings and debate.” It is against this background that
we analyze the constitutional issues raised by S. 114.

                                           I. Discussion

   Because of the controversy surrounding the death penalty, and the
several recent Supreme Court decisions which failed to command a
clear majority, any death penalty legislation is bound to raise difficult
constitutional questions. Some of the questions identified below were
raised by prior legislation and have been the subject of extensive testi­
mony before congressional committees. Other issues discussed here are
raised by provisions in S. 114 which did not appear in the prior
legislation. As with the prior bills, it is not possible to state definitively
how the Court would resolve each of the issues raised by S. 114. We
have attempted to identify provisions likely to be challenged as consti­
tutionally inadequate and to indicate where possible how we think these
issues would be resolved under the case law to date.

I. Determination by Majority Vote o f Aggravating and Mitigating Factors

  Both S. 1382 and H.R. 13360 required unanimity in all jury findings.
S. 114, however, provides that the jury’s findings of aggravating or

Com m ittee. She again testified on S. 1382 on A pril 27, 1978. before the Senate Judiciary C om m ittee
itself. O n July 17, 1978, after the Lockett decision, she testified on H .R . 13360 before the Subcom m it­
tee on Criminal Justice o f the H ouse Judiciary Com m ittee. T h e re have been no hearings in the Senate
on death penalty legislation since the Lockett decision w as issued.
    13    Senator Baucus notes that although the issue o f capital punishm ent has been considered by the
Senate Judiciary Com m ittee in the past, S. 114 was not discussed o r evaluated by the C om m ittee in
the 96th Congress. H e notes that new mem bers o f the Senate have not had an opportunity to consider
the bill in hearings and none o f the m embers o f the Com m ittee have considered the changes in the bill
m ade prior to introduction this session. S. Rep. No. 5S4, 96th C ong., 2d Sess. 34 (1980).


                                                  657
mitigating factors “shall be made by majority vote.” If one or more
aggravating factors are found to exist, the jury must then consider
whether the aggravating factor(s) sufficiently outweigh any mitigating
factors, or, in the absence of mitigating factors, whether the aggravat­
ing factor(s) is itself sufficient to justify a sentence of death. Based upon
these considerations, the jury must return a finding by unanimous vote
as to whether a sentence of death is justified.
   A criminal defendant’s right to trial by jury is guaranteed both in
Article III, §2, clause 3, and in the Sixth Amendment. Rule 31(a) of
the Federal Rules of Criminal Procedure requires that the verdict be
unanimous. The Supreme Court has determined that this unanimity
requirement in federal criminal cases is constitutionally based. See John­
son v. Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon, 406 U.S. 404
(1972). See also United States v. Scalzitti, 578 F.2d 507, 512-13 (3d Cir.
 1978); United States v. Gipson, 553 F.2d, 453, 456 (5th Cir. 1977). The
question raised here is whether this requirement of a unanimous verdict
extends to the sentencing phase of a capital case.14 This question has
never been directly addressed by the Court.
   In Andres v. United States, 333 U.S. 740 (1948), the Court suggested
that unanimity is required in all federal jury verdicts. In Andres, the
petitioner had been sentenced to death upon conviction of first degree
murder. The determinative statute provided that where the accused is
convicted of murder in the first degree the jury may qualify its verdict
by adding the words “without capital punishment,” in which event the
punishment must be imprisonment. The government contended that the
statute required that the jury first unanimously decide guilt or inno­
cence, and, having done so, then consider whether to recommend
mercy, but that if they failed to reach a unanimous agreement to
recommend mercy, the guilty verdict without a recommendation
should stand as the verdict of the jury. The petitioner contended that
the proper construction should be that unanimity is required both as to
guilt and punishment, and therefore, if the jury were not unanimous as
to the death penalty, he should not be condemned. The Court con­
cluded that the statute required that the ju ry ’s decision on both guilt
and whether the punishment of death should be imposed must be
unanimous. As to the constitutionality of non-unanimous verdicts, the
Court wrote:

    14     A related question that could be raised relates to S. 114's provision that a ju ry impaneled for the
sentencing hearing “shall consist o f tw elve m em bers, but, at any time before the conclusion o f the
hearing, the parties may stipulate w ith the approval o f the c o u rt that it shall consist o f any num ber less
than tw e lv e /’ T h e same provision w as included in S. 1382, and a similar provision appeared in H.R.
 13360. In testim ony on these bills in 1978, this D epartm ent noted that, w hile stipulation o f the parties
is norm ally adequate to avoid a claim o f denial o f Sixth A m endm ent rights, the C ourt may consider
this provision impermissible in cases in w hich a death sentence may be imposed. W ithout stating that
the provision is constitutionally inadequate, it was suggested that, given the C o u rt's close scrutiny o f
pro ced u res used to impose the d eath penalty, th e co m m ittee m ight wish to consider w hether a sm aller
ju ry is w arranted. See generally Ballew v. Georgia, 435 U.S. 223, 232-39 (1978); Williams v. Florida, 399
U.S. 78, 103 (1970).


                                                    658
            Unanimity in jury verdicts is required where the Sixth
         and Seventh Amendments apply. In criminal cases this
         requirement of unanimity extends to all issues—character
         or degree of the crime, guilt and punishment—which are
         left to the jury. A verdict embodies in a single finding the
         conclusions by the jury upon all the questions submitted
         to it.
Id. at 748. The Court noted that its construction of the statute was
more consonant with the history of the Anglo-American jury system
than the construction urged by the government.
   This issue has not been discussed in the recent cases upholding death
penalty statutes. In Gregg v. Georgia, jury unanimity was required as to
a finding of an aggravating circumstance. 428 U.S. 153, 207-08. In
Proffitt v. Florida, 428 U.S. 242 (1976), the statute provided that the
jury’s verdicts could be determined by majority vote, but the verdict is
advisory only; the actual sentence is determined by the trial judge. Id.
at 248-49. In Jurek v. Texas, 428 U.S. 262 (1976), the Court noted that
the Texas law is unclear as to the procedure to be followed in the event
that the jury is unable to answer the questions regarding aggravating
circumstances, but does require that the jury findings as to aggravating
circumstances be unanimous. Id. at 269 n.5.
   The Court has often repeated that the penalty of death is qualita­
tively different from any other sentence and calls for a greater degree
of reliability in sentencing. Even if a majority vote would be permissi­
ble for determination of sentences less than death, it may not be permis­
sible for capital punishment decisions. Concerns expressed by the Court
in Ballew v. Georgia, 435 U.S. 223, 232-36 (1978), regarding compara­
tive unreliability of verdicts reached by smaller juries, also arise when
one contrasts majority votes with unanimous votes.
   The procedure established by S. 114 also runs the risk of being
labeled arbitrary. The Court has emphasized that it is of vital impor­
tance to the defendant and to the community that any decision to
impose the death sentence be, and appear to be, based on reason rather
than caprice or emotion. Gardner v. Florida, 430 U.S. 349, 358 (1977).
Under S. 114, it is possible that only seven jurors would find that there
is a reason to impose the death sentence but that all twelve would
nevertheless approve the death penalty. This raises serious questions as
to the actuality, as well as the appearance, of arbitrary decisionmaking
 rather than decisionmaking based on reason.15

   15    Even if unanimity is not generally required in ju ry sentencing verdicts, it could be argued that
for sentencing in capital cases, at least some o f the aggravating factors rise to the level o f elem ents o f
the crim e and thus must be found to exist by unanimous vote. In Jurek v. Texas, 428 U.S. 262 (1976),
the C ourt approved the statute in question although it did not list aggravating circum stances to be
considered, because Texas had limited the categories o f m urders for w hich a death sentence could be
imposed and thus accom plished the same result. Jurek could be read to suggest that the findings as to



                                                  659
2. Lim iting Consideration o f M itigating Factors

    S. 114 provides that at the sentence hearing, information may be
 presented as to any matter relevant to the sentence. It further provides
 that in addition to the trial transcript and exhibits, any other informa­
 tion relevant to any mitigating or aggravating factor, including those
 set forth in the bill, may be presented by either the government or the
 defendant. In the subsection concerning the return of findings, how­
 ever, the bill provides: “It shall return special findings identifying any
 aggravating and mitigating factors, set forth in subsections (f), (g), and
 (h), found to exist. ” (Emphasis added.) It is directed to weigh against
 any aggravating factors “any mitigating factors found to exist. . . . ”
 (Emphasis added.) There is, therefore, considerable ambiguity with
 respect to whether the drafters of S. 114 intended to circumscribe the
jury’s consideration of mitigating factors. The summary Senate Com­
 mittee Report is unilluminating on this point.
    In Lockett v. Ohio, 438 U.S. 586, 604 (1978), the Court held that the
sentencer cannot 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. Chief Justice Burger, writing for the Court,
noted that the nonavailability of corrective or modifying mechanisms
with respect to an executed capital sentence underscores the need for
individualized consideration as a constitutional Orequirement in impos­
ing the death sentence. In Lockett, the statute at issue provided that if a
verdict of aggravated murder with specifications was returned, the trial
judge must impose a death sentence unless, after “considering the
nature and circumstances of the offense” and the defendant’s “history,
character, and condition,” he found by a preponderance of the evidence
that one of three mitigating factors were present. The Court rejected
the contention that the language allowing the judge to consider other
factors in determining whether any of the mitigating circumstances
existed corrected the statute’s deficiency because, although these other
factors could be considered, one of the enumerated factors had to be
found to avoid imposition of the death penalty. Similarly, although S.
 114 allows the sentencer to consider all information received during the
hearing, it appears that its findings may include only those mitigating
factors listed in subsection (f), and it is only these mitigating factors
that can be weighed against the aggravating factors found to exist. If
the intent of the bill is to limit the mitigating factors which may be
considered, it seems to violate the rule set forth in Lockett. If this is not
the intent of the bill, this ambiguity should be clarified.

aggravating circum stances may be com pared for som e purposes to the findings o f the elem ents o f the
crim e. Compare Muilaney v. Wilbur, 421 U.S. 684, 697-98 (1975) with Patterson v. New York, 432 U.S.
197 (1977).


                                                 660
3. Allowing Admission o f all Relevant Evidence Regardless o f Its
   Admissibility Under the Rules o f Evidence
   S. 114 provides that either the Government or the defendant may
present any information relevant to the sentence “regardless of its
admissibility under the rules governing admission of evidence at crimi­
nal trials.” This modifies the section of S. 1382 which provided that any
information relevant to any mitigating factor may be presented regard­
less of its admissibility under the rules governing admission of evidence
at criminal trials, but that the admissibility of information relevant to
any aggravating factor must be governed by such rules. H.R. 13360
also provided that the rules of evidence would govern admission of
evidence regarding aggravating circumstances.
   In Gardner v. Florida, 430 U.S. 349 (1977), the Court ruled that the
petitioner was denied due process when a judge, overruling the jury’s
recommendation of a life sentence, imposed a death sentence based on
information contained in a confidential presentence report. Justice
Stevens, writing for a plurality, emphasized that the opportunity to
challenge the accuracy or materiality of sentencing information is essen­
tial. Id. at 356. Although the practice in Gardner is distinguishable from
the practice here questioned, the case raises questions as to the validity
of eliminating the evidentiary requirements.
   The Georgia statute approved in Gregg provides that the sentencing
hearing is subject to the laws of evidence and that the jury or judge
shall hear “evidence in extenuation, mitigation, and aggravation of
punishment, including the record of any prior criminal convictions and
pleas of guilty or pleas of nolo contendere of the defendant, or the
absence of any such prior criminal convictions and pleas. . . .” See 428
U.S. at 209 n.2. In discussing the requirement that a jury be given
guidance in its decisionmaking, Justice Stewart noted that the provision
of relevant information under “fair procedural rules” is one of the ways
to guarantee that the information provided at the sentencing hearing
will be properly used. Id. at 192. In rejecting petitioner’s objection to
the wide scope of evidence and argument allowed at presentence hear­
ings, the Court wrote:
         We think that the Georgia court wisely has chosen not to
         impose unnecessary restrictions on the evidence that can
         be offered at such a hearing and to approve open and far-
         ranging argument. (Citation omitted.) So long as the
         evidence introduced and the arguments made at the pre­
         sentence hearing do not prejudice a defendant, it is prefer­
         able not to impose restrictions. We think it desirable for
         the jury to have as much information before it as possible
         when it makes the sentencing decision.
Id.   at 203-04.
                                     661
   The current federal rules place no restriction on the type of informa­
tion a court may consider in arriving at a sentencing determination.
Section 3577 of Title 18 provides: “ No limitation shall be placed on the
information concerning the background, character, and conduct of a
person convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate sen­
tence.” It is clear under Lockett that the sentencer may not be
precluded from consideration of any mitigating factor. It is also clear,
however, that fair procedural rules and a resulting greater degree of
reliability are required in capital cases. This suggests that requiring
adherence to the rules of evidence, at least for purposes of receiving
information regarding aggravating circumstances, may be advisable.
The Court’s discussion in Gregg makes it clear that open and far-
ranging argument is possible even when the rules of evidence are
observed. The Judiciary Committee report on the bill does not state
why this change was made. S. Rep. No. 554, 96th Cong., 2d Sess. 15
(1980). It merely notes that both parties are permitted to present argu­
ments as to the adequacy of the information.

4. Vagueness o f Language Specifying Aggravating and Mitigating Factors

    S. 114 specifies that one of the aggravating factors the sentencer shall
 consider is whether “the defendant committed the offense in an espe­
 cially heinous, cruel, or depraved manner.” The issue raised by this
 language is whether it is so broad and vague as to give no guidance to
 the jury, yielding an arbitrary result and thus violating the Eighth
 Amendment. A similar challenge was made to certain statutory lan­
guage in Gregg. Petitioner in Gregg challenged the language of three
aggravating factors in the Georgia statute: (1) the section that author­
izes the jury to consider whether a defendant has a “substantial history
of serious assaultive criminal convictions” (Ga. Code Ann. § 27-
2534.1(b)(1) (Supp. 1975)); (2) the section that speaks of creating a
 “great risk of death to more than one person” (Ga. Code Ann. § 27-
2534.1(b)(3) (Supp. 1975)); and (3) the section authorizing the jury to
consider whether the “offense of murder, rape, armed robbery, or
kidnapping was outrageously or wantonly vile, horrible, or inhuman in
that it involved torture, depravity of the mind, or an aggravated battery
to the victim” (Ga. Code Ann. § 27-2534.1(b)(7) (Supp. 1975)). As to
the first section, Justice Stewart noted that the Supreme Court of
Georgia held this provision impermissibly vague in Arnold v. State, 236
Ga. 534, 540, 224 S.E.2d 386, 391 (1976), because it did not provide the
jury with sufficiently clear and objective standards. As to the second
section, the Court conceded that the language of subsection (b)(3)
might be susceptible to an overly broad interpretation, but stated that
the Supreme Court of Georgia had not so construed it. The third
section challenged, subsection (b)(7), most closely parallels the language
                                    662
 in question in S. 114, which is arguably even more vague than § (b)(7).
 The petitioner challenged § (b)(7) as both overbroad and impermissibly
 vague. Again relying on narrow constructions of the language by the
Georgia courts, these challenges were rejected. 428 U.S. at 201,
202 n.54.
   The language defining the aggravating circumstances in the Florida
statute approved in Proffitt v. Florida, 428 U.S. 242, 255-57 (1976), also
 was asserted to be so vague and so broad that virtually any person
convicted of a capital crime would be eligible for the death penalty. In
particular, the petitioner attacked the language authorizing the death
 penalty if the crime is “especially heinous, atrocious, or cruel” or if
 “ft]he defendant knowingly created great risk of death to many per­
sons.” Fla. Stat. Ann. § 921.141 (5)(c)(h) (Supp. 1976-1977). The Court
again looked to interpretations by the state courts and decided that it
could not conclude that the language “as so construed, provides inad­
equate guidance to those charged with the duty of recommending or
imposing sentences in capital cases.” Id. at 255-56.
   The Court has put all lower courts on notice, however, that it
carefully will scrutinize application of these ambiguous provisions. In
Godfrey v. Georgia, supra, the Court adhered to its ruling in Gregg that
§ (b)(7) was not unconstitutional on its face. The plurality’s reading of
the Georgia court’s interpretations of § (b)(7) led them to the conclu­
sion, however, that the § (b)(7) circumstance cannot be found to exist
absent serious physical abuse of the victim before death. Because no
claim was made that Godfrey physically abused his victims before
murdering them, the Court ruled that § (b)(7), as interpreted by the
Georgia Supreme Court, had not been properly applied by that court in
this case. Their decision was overturned because they did not constitu­
tionally apply § (b)(7) to the facts and circumstances of the offense and
the state of mind of the defendant.
   The language of S. 114, referring to commission of the offense “in an
especially heinous, cruel, or depraved manner,” is even broader than
§ (b)(7) of the Georgia statute. It does not qualify these general terms
by requiring a finding of “torture, depravity of mind, or an aggravated
battery to the victim” as does the Georgia statute. Because any murder
could be described as “heinous, cruel or depraved,” the provision,
without additional qualifications, probably does not meet the constitu­
tional requirements repeated in Godfrey, that the sentencer’s discretion
be channeled by “clear and objective standards,” that provide “specific
and detailed guidance,” and that “make rationally reviewable the proc­
ess for imposing a sentence of death.” 446 U.S. at 428 (footnotes
omitted).16

   16   O ne o f the statutory m itigating factors also may be too vague. S. 114 requires that the ju ry
consider w h eth er the defendant w as “ youthful at the time o f the crim e.” T his vague phrase could
                                            C ontinued


                                                663
5. Imposition o f the Death Penalty f o r N on-H om icidal Crimes

   S. 114 itself does not specify the sentences that may be imposed for
capital crimes. It does, however, amend some of the substantive sec­
tions that do specify the elements of the crimes and the authorized
sentences. Most of the crimes included must result in the death of the
victim before the death penalty is authorized. There are two exceptions,
however, for espionage (18 U.S.C. § 794(a)) and treason (18 U.S.C.
§ 2381). The Court’s ruling in Coker, that the death penalty is unconsti­
tutionally 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.17
   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 practice in other countries and the
position taken by those states which had reinstated the death penalty
after Furman and concluded that the modern 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 of 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. .

easily be am ended to specify below w hat age a defendant should be considered ‘'y o u th fu l/' T he
Internationa] C ovenant on C ivil and Political R ights, signed on D ecem ber 19, 1966, and entered into
force on M arch 3, 1976, provides in A rticle 6, § 5, that the death sentence shall not be imposed for
crim es com m itted by persons below 18 years o f age. T his C ovenant was transm itted by the President
to the C ongress on Feb ru ary 23, 1978. T h e C ongress has held hearings on the C ovenant but has not
yet acted. Four Treaties Pertaining to Human Rights: Message from the President o f the United States,
S. Exec. D oc. C, D , E, F, 95th C ong., 2d Sess. 25 (1978); International Human Rights Treaties:
Hearings on Exec. Doc. C, D, E, and F. 95-2. Four Treaties Relating to Human Rights Before the Senate
Committee on Foreign Relations, 96th C ong.. 1st Sess. (1979).
  17    In his dissent in Coker. C h ief Justice B urger w rote: “T h e clear im plication o f today's holding
appears to be that the death penalty may be pro p erly imposed only as to crim es resulting in death o f
the victim . T his casts serious doubt upon th e constitutional validity o f statutes imposing the death
penalty for a variety o f c o n d u ct w hich, th o u g h dangerous, m ay not necessarily result in any immediate
death, e.g, treason, airplane hijacking, and kidnapping.” 433 U.S. at 621.


                                                     664
       Georgia, 428 U.S. at 187, is an excessive penalty for the
       rapist who, as such, does not take human life.
 433 U.S. at 598. The fact that one of the statutory aggravating circum­
 stances 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.”
 Id. 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. Justices Burger and Rehnquist joined in dissent.
    While S. 114 would eliminate the death penalty for rape, it would
 permit imposition of the penalty for treason and espionage if one of
 three aggravating factors was found to exist: (1) prior conviction of
 treason or espionage punishable by death or life imprisonment; (2)
 knowingly creating a grave risk of substantial danger to the national
security; or (3) knowingly creating a grave risk of death to another
 person. In addition, the bill limits the instances in which the death
 penalty may be applied for espionage to those in which the information
 furnished involves nuclear weapons, spacecraft or satellites, early warn­
 ing systems, or similar protections against large-scale attack, or war
plans, communications intelligence, cryptographic information, or infor­
mation on major weapons systems or defense strategy.
    To determine whether the imposition of the death penalty is constitu­
tional with respect to these offenses, one must determine whether it
makes a measurable contribution to acceptable goals of punishment and
whether it is excessive in proportion to the crime. While there as yet is
no satisfactory resolution of the debate over the deterrent effect of the
death penalty, it is reasonable to assume that a court will give deference
to the legislative judgment on the deterrent effect as long as this
judgment appears rational.
    The second part of the test, whether the punishment is excessive with
respect to the crime, is more difficult to assess. In Coker, the Court
looked to the consensus among the states and the international commu­
nity 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 is more difficult with respect to crimes as rare as treason and
espionage of the magnitude covered in S. 114.
    Reference to the practice of the states is not particularly instructive
in this instance. While some states include provisions relating to espio­

                                   665
 nage or treason within their criminal codes,18 the crimes have gener­
 ally been considered federal in nature. Thus, the judgment of state
 legislatures as to whether the death penalty is appropriate would seem
 to carry less weight with respect to these crimes than was the case with
 respect to rape.
    Federal law has permitted the death penalty for treason since 1790
and for espionage since 1917. However, of the 33 federal executions
carried out from 1930 to 1970, only two were for espionage—the
Rosenbergs—and there were none for treason although the imposition
of the death penalty for treason was specifically upheld in Kawakita v.
 United States, 343 U.S. 717, 745 (1952). There were also six executions
for the related crime of sabotage in 1942. The federal experience, then,
is limited in practice and provides little guidance apart from the consist­
ency with which statutory law has authorized the penalty.
    The attitude of the international community demonstrates some con­
sistency in viewing the death penalty as appropriate for these particular
crimes. In a report on capital punishment to the United Nations, the
Secretary General noted that many nations which have generally abol­
ished capital punishment retain it for a few exceptional crimes such as
those related to the security of the state. U.N. Economic and Social
Council, Capital Punishment: Report o f the Secretary General, para. 18,
U.N. Doc. E/5242 (1973). More specifically, the report notes, “The
most common exceptional crimes punishable by death are treason and
crimes relating to the security of the State.” Id. at para. 32. Tables
appended to the report show that the majority of member nations of
the United Nations retaining capital punishment—about 100—and that
 15 other nations, while abolishing capital punishment for ordinary
crimes, retain it for exceptional crimes. Id. at Annex 1, 2-3. A 1975
update of this report shows that the picture remains largely unchanged.
U.N. Economic and Social Council, Capital Punishment: Report o f the
Secretary General, U.N. Doc. E/5616 (1975) Annex 1, 2-3. While the
practice in other nations is not conclusive in interpreting the require­
ments of our own Constitution, it does constitute a factor which courts
may well consider in determining whether the penalty of death is
excessive as applied to treason or espionage.
   Approaching the question as did the Court in Coker, the consistent
view of Congress from the earliest days of the nation, and the agree­
ment of most nations in the world today that treason warrants the
death penalty in some cases, strongly argues for the conclusion that the
penalty is not grossly disproportionate to the offense. This is particu­
larly true in light of the aggravating factors in S. 114 that must be
proved beyond a reasonable doubt before the penalty could be imposed.
Applying these same criteria, it is likely that a court would find the

   16    A s reported in Bedau, D eath Penalty in A m erica, p. 43 (1967), 21 states included treason am ong
capital crimes.

                                                  666
death penalty for treason to be constitutional if imposed in accordance
with the procedures established in S. 114.
   Although the result is less clear with respect to the offense of espio­
nage, as it is limited in S. 114, it too would likely be upheld. The
espionage laws, however, do have an attribute not common to other
capital offenses. In this particular area there are numerous reasons why
the government might elect not to prosecute even the most aggravated
act. Prosecution might require the disclosure of sensitive foreign intelli­
gence and counterintelligence surveillance techniques. Or, it might
compromise confidential informants or liaison relationships with foreign
governments. At least until comprehensive “graymail” legislation is
passed, there is also the significant possibility that prosecution will be
frustrated by requirements that highly classified information be dis­
closed in court, or that the truth or falsity of sensitive information be
confirmed by the government. Apart from evidentiary problems, espio­
nage prosecutions invariably raise questions of foreign policy, and in
some cases prosecution will be eschewed in favor of some political
accommodation with a foreign government as proved recently to be the
case with Soviet spies. These and other reasons render espionage pros­
ecutions rare, and raise a question whether on close examination the
Supreme Court would find the imposition of capital punishment for this
crime to be so rare—and so “freakish”—as to run afoul of the Furman
reasoning.
   In addition to treason and espionage, disproportionality questions
may arise as to those crimes in which a death unintentionally results.
S. 114, as did the prior legislation, retains authorization for imposition
of the death penalty for a number of federal felonies in which death
results, even if there is no finding that the defendant committed the
crime with the conscious purpose of causing death. That a legislature
has authority to enact felony-murder statutes is beyond constitutional
challenge. But, as Chief Justice Burger pointed out in Lockett, “the
definition of crimes generally has not been thought automatically to
dictate what should be the proper penalty.” 438 U.S. at 602. Together
with Coker, Justice White’s opinion in Lockett (concurring in part and
dissenting in part) raises questions as to the use of capital punishment
for these crimes. In concurring in the judgment of the Court, Justice
White states that he would hold that death may not be inflicted for
killing consistent with the Eighth Amendment without a finding that
the defendant engaged in conduct with the conscious purpose of pro­
ducing death.19 He explained:

   19    If Justice W hite’s analysis w ere to be adopted, the requirem ent in S. 114 that the defendant prove
by a preponderance o f the evidence the m itigating factor that he “could not reasonably have foreseen
that his conduct in the course o f the commission o f m urder, o r o th er offense . . . w ould cause, or
w ould create a grave risk o f causing, death to any person” also may raise constitutional issues. See
Mullaney v. Wilbur, supra note 15.

                                                   667
        The value of capital punishment as a deterrent to those
        lacking a purpose to kill is extremely attenuated. W hat­
        ever questions may be raised concerning the efficacy of
        the death penalty as a deterrent to intentional murders—
       and that debate rages on—its function in deterring indi­
       viduals from becoming involved in ventures in which
       death may unintentionally result is even more doubtful.
       Moreover, whatever legitimate purposes the imposition of
       death upon those who did not intend to cause death might
       serve if inflicted with any regularity is surely dissipated
       by society’s apparent unwillingness to impose it upon
       other than an occasional and erratic basis. . . .
          Under those circumstances the conclusion is unavoid­
       able that the infliction of death upon those who had no
       intent to bring about the death of the victim is not only
       grossly out of proportion to the severity of the crime but
       also fails to contribute significantly to acceptable or,
       indeed, any perceptible goals of punishment.
438 U.S. at 625-26.
   Justice Blackmun, commenting on Justice White’s analysis, conceded
that it might be that to inflict the death penalty in some such situations
would skirt the limits of the Eighth Amendment proscription against
gross disproportionality, but doubted that the Court could arrive at a
workable disproportionality approach. The plurality, in view of its
holding that Lockett was not sentenced in accord with the Eighth
Amendment, did not address her contention that the death penalty is
constitutionally disproportionate for one who has not been proved to
have taken life, or to have attempted to take life, or to have intended to
take life. Id. at 609 n.16.
6. Lack o f Automatic Appellate Review

   S. 114 would add a new section to Title 18—§ 3742—which would
provide that the sentence of death shall be subject to review by the
court of appeals upon appeal by the defendant. Such review would
have priority over all other cases. S. 1382 contained a similar provision;
H.R. 13360 provided for automatic review of all death sentences. In
light of the Court’s emphasis on the automatic review provision in
Gregg, and the broadened discretion exercised by sentencers under
Lockett, the question arises whether review at the behest of the defend­
ant is an adequate safeguard against the random or arbitrary imposition
of the death penalty.
   In Gregg, the plurality stated that the requirement that the state
supreme court review every death sentence is an added safeguard that
the penalty will not be imposed on a capriciously selected group of
convicted defendants. In particular, the Court noted that the propor­
                                   668
tionality review substantially eliminates the possibility that a person will
be sentenced to die by the action of an aberrant jury. 428 U.S. at 206.
In his concurrence, Justice White, joined by the Chief Justice and
Justice Rehnquist, stated that the provision for appellate review is an
important aspect of the legislative scheme. He noted that to assist it in
deciding whether to sustain the death penalty, the state supreme court
is supplied, in every case, with a report from the trial judge in the form
of a standard questionnaire. The Texas statute at issue in Jurek, how­
ever, provided for review by appeal of the defendant. In concluding
that the Texas capital sentencing procedures do not violate the Eighth
and Fourteenth Amendments, the Court stated that “[b]y providing
prompt judicial review of the jury’s decision in a court with statewide
jurisdiction, Texas has provided a means to promote the evenhanded,
rational, and consistent imposition of death sentences under law.” 428
U.S. at 276.
   In our view, it is unlikely that the Court would overturn a statute
because it failed to provide for automatic review. The need to ensure
that the death penalty is not “wantonly and freakishly” imposed even if
the defendant refuses to appeal, and the need to review all death
sentences in the jurisdiction adequately to determine disproportionality,
are, however, important congressional considerations.20
   These are the central constitutional questions which would likely be
raised in litigation should S. 114 be enacted. They are also the issues
that should be explored if the Department elects to urge the Senate to
submit this bill to the Judiciary Committee for further review.

                                                        L a r r y A. H a m m o n d
                                                Deputy Assistant Attorney General
                                                    Office o f Legal Counsel




   20   T h e critical role o f appellate review is underscored by the Godfrey decision, in w hich the C ourt
followed the principle set dow n in Gregg, that arguably vague and ov erbroad language is not facially
unconstitutional because it cannot be assumed that a state suprem e c o u rt will adopt an open-ended
construction. In addition. Justice M arshall noted in his concurrence in Godfrey that since Gregg only
three persons have been executed and tw o o f them made no efTort to challenge their sentence.

                                                  669
