1
The FDPA promulgated capital sentencing procedures and made them applicable to over 40 separately
numbered sections of the United States Code. However, because many of these sections define multiple offenses
(either in separately designated subsections or by listing different types of prohibited conduct in a single provision),
the precise number of "offenses" to which the FDPA applies depends on the definition of "offense." A list of the 59
separate sections of the United States Code that define offenses currently subject to the death penalty (including the
offenses added by the AEDPA) is set forth in Table 6 (page T-23).
THE FEDERAL DEATH PENALTY SYSTEM:
A STATISTICAL SURVEY
(1988-2000)
United States Department of Justice
Washington, D.C.
September 12, 2000
INTRODUCTION
This Survey provides information regarding the federal death penalty system since the
enactment of the first modern capital punishment statute in 1988. The Survey explains the
Department of Justice's internal decision-making process for deciding whether to seek the death
penalty in individual cases, and presents statistical information focusing on the racial/ethnic and
geographic distribution of defendants and their victims at particular stages of that decision-
making process.
The Supreme Court issued a ruling in 1972 that had the effect of invalidating capital
punishment throughout the United States – both in the federal criminal justice system and in all
of the states that then provided for the death penalty. While many state legislatures revised their
procedures relatively quickly to withstand constitutional scrutiny, the federal government did not
do so until November 18, 1988, when the President signed the Anti-Drug Abuse Act of 1988. A
part of this law, known as the Drug Kingpin Act (DKA), made the death penalty available as a
possible punishment for certain drug-related offenses. The availability of capital punishment in
federal criminal cases expanded significantly further on September 13, 1994, when the President
signed into law the Violent Crime Control and Law Enforcement Act. A part of this law, known
as the Federal Death Penalty Act (FDPA), provided that over 40 federal offenses could be
punished as capital crimes. The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), which went into effect on April 24, 1996, added another four federal offenses to the
list of capital crimes.
1
As the law governing the federal death penalty has changed, the Department of Justice
has modified its internal decision-making processes in capital cases. With the enactment of the
DKA in 1988, the Department instituted a policy that required United States Attorneys in the 94
2
There are 94 separate federal judicial districts in the United States. Twenty-six states, as well as the
District of Columbia, Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands, each comprise a
single federal district, while each of the remaining 24 states is divided into two or more federal districts. Each
district has a United States Attorney who is appointed by the President with the advice and consent of the Senate,
with the exception that the District of Guam and the District of the Northern Mariana Islands share a single United
States Attorney. Accordingly, there are total of 93 United States Attorneys. A list of the United States Attorneys'
Offices showing the locations of the principal offices in each district is provided in Table 4 (page T-10).
2
federal districts across the country
2
to submit to the Attorney General for review and approval
any case in which the United States Attorney affirmatively wished to seek the death penalty.
Under this policy, the decision not to seek the death penalty was left to the United States
Attorneys' discretion. From 1988 until the end of 1994, United States Attorneys sought approval
from Attorneys General to seek the death penalty 52 times and received it 47 times.
On January 27, 1995, the Department adopted the policy still in effect today – commonly
known as the death penalty "protocol" – under which United States Attorneys are required to
submit for review all cases in which a defendant is charged with a capital-eligible offense,
regardless whether the United States Attorney actually desires to seek the death penalty in that
case. The United States Attorneys' submissions are initially considered by a committee of senior
Department attorneys in Washington, D.C. known as the Attorney General's Review Committee
on Capital Cases (Review Committee), which makes an independent recommendation to the
Attorney General. From January 27, 1995 to July 20, 2000 – the close of the reporting period
for this Survey – United States Attorneys submitted a total of 682 cases for review and the
Attorney General ultimately authorized seeking the death penalty for 159 of those defendants.
While a case progresses through the Department's review process, it simultaneously
continues in the United States Attorney's Office and in the court system. Some cases submitted
by United States Attorney for review are subsequently withdrawn due to events outside the
review process. For example, the defendant and the United States Attorney may enter into a
plea agreement that disposes of the case and results in the imposition of a prison term. In other
cases, a judicial decision may result in the dismissal of either the entire case or the specific
charges that are punishable by death. As a result, the total number of cases considered by the
Review Committee is smaller than the total number submitted by the United States Attorneys,
and the total number of defendants considered by the Attorney General is smaller still.
Furthermore, not all defendants who proceed to trial receive the death penalty. As discussed
below, since 1988, federal juries returned death verdicts against fewer than half of the
defendants they found guilty of capital crimes. As of the date of this Survey, five defendants
who were authorized for the death penalty during the "pre-protocol" period (1988-1994) were
subject to a pending sentence of death; fourteen defendants authorized during the "post-protocol"
period (1995-2000) were also subject to a pending sentence of death.
Current Department policy provides that bias based on characteristics such as an
individual's race/ethnicity must play no role in a United States Attorney's decision to recommend
3
In presenting reasons why the death penalty should not be sought, defense counsel on occasion explicitly
provide information about the race/ethnicity of defendants or victims to the United States Attorneys, the Review
Committee, and the Attorney General.
4
As noted above, on January 27, 1995, the Attorney General revised the Department of Justice procedures
for deciding whether to seek the death penalty against defendants charged with capital offenses. This change in
policy was made by means of a formal amendment to the United States Attorneys' Manual. For ease of reference, the
"pre-protocol" period, when United States Attorneys submitted for review only recommendations to seek the death
penalty against defendants charged with violations of the DKA, is discussed as having lasted from 1988 to 1994,
despite the fact that the first 26 days of 1995 were also, strictly speaking within that period. Likewise, the "post-
protocol" period is described, during which United States Attorneys submitted recommendations both for and
against seeking the death penalty against defendants charged with a variety of capital offenses, is often described in
this Survey as encompassing the years 1995 to 2000.
5
This Survey refers to defendants and victims as "White," "Black," "Hispanic," or "Other," due in large part
to the way in which data regarding the federal death penalty has been collected. The last category – "Other" –
includes any person whose race is Asian, Pacific Islander, Native Ameri can, Aleut, Indian, or unknown. The Survey
uses "Hispanic" as a separate category to refer to persons of Hispanic ethnicity, regardless of race. As a result, the
terms "White," "Black," and "Other" as used in this Survey refer only to non-Hispanic members of those racial
groups.
3
the death penalty. Also, in some districts, the United States Attorney (as opposed to the
particular prosecutors handling a case) is likewise not informed of the defendant's race/ethnicity.
Moreover, the United States Attorney's Office may not provide information about the
race/ethnicity of the defendant to Review Committee members, to attorneys from the Criminal
Division's Capital Case Unit (CCU) who assist the Review Committee, or to the Attorney
General. As explained below, the only individuals in Washington, D.C. who are ordinarily privy
to race/ethnicity information are paralegal assistants in the CCU who collect these statistics
under separate cover from the United States Attorneys.
3
This information forms the pool from
which most of the federal data on race/ethnicity reported below are drawn.
This Survey presents a series of statistics regarding the federal death penalty process that
are broken down by time period (pre-protocol and post-protocol),
4
by participants in the
decision-making process (the United States Attorneys, the Review Committee, and the Attorney
General), and by the racial/ethnic groups of defendants and victims.
5
Part I presents highlights
of a statistical overview of the Department's decision-making process. Parts II to V each
presents highlights of data regarding particular stages of the process. In particular, Part II
presents highlights regarding recommendations made by United States Attorneys; Part III
presents highlights regarding recommendations made by the Review Committee; Part IV
presents highlights regarding decisions made by Attorneys General; and Part V presents
highlights regarding post-authorization activity (e.g., plea agreements, jury trials) in all cases in
which Attorneys General made decisions to seek the death penalty, with additional case-specific
information about the 19 defendants now under a federal death sentence. Finally, Part VI
presents highlights of data regarding the degree of consensus among United States Attorneys, the
Review Committee, and the Attorney General.
6
Prior to 1972, capital punishment was available and carried out in both the federal and state systems for
acts of murder and a variety of other crimes, such as rape, kidnaping, and treason. Today, while the vast majority of
crimes subject to the death penalty under federal law involve homicides, a few do not. See 18 U.S.C. §§ 794
(espionage); 2381 (treason); 3591(b)(1) (certain aggravated narcotics trafficking offenses). Nonetheless, the federal
government has not sought the death penalty in any such case since 1988 and all defendants now under a sentence of
death in the states were convicted of crimes specifically related to homicides.
4
The statistical information presented in the narrative of the Survey is based on the data
contained in the tables set forth at pages T-1 to T-355. For the reader's convenience, those tables
have been grouped together at the end of the Survey rather than interspersed within it. There are
a number of important notes accompanying those tables that explain the methods and terms used
in compiling the data, as well as the way in which anomalous cases have been treated in
presenting overall characterizations of the statistics. Those notes are set out at the beginning of
the tables (pages T-xi to T-xvii).
In evaluating the data presented in this Survey, the reader should bear in mind that the
vast majority of homicides in the Untied States, like most violent crimes, are investigated
exclusively by local police officers working hand-in-hand with local prosecutors, who file
charges against defendants in state courts, either as a capital case or non-capital case.
6
When a
homicide is prosecuted federally – either as a capital or non-capital case – it is often because of
the availability of certain federal laws or because of a federal initiative to address a particular
crime problem. Criminal organizations often operate in multiple jurisdictions, making it
difficult for any single local prosecutor to investigate or prosecute a case. Additionally, many
states lack the equivalent of the federal witness protection program and the ability to conduct
complex long-term investigations using resource intensive investigative techniques such as
court-ordered wiretaps and undercover operations.
Apart from these differences in laws and resources, which often affect whether a
particular homicide is prosecuted in state or federal court – either as a capital or non-capital case
– state and federal law enforcement officials often work cooperatively to maximize their overall
ability to prevent and prosecute violent criminal activity in their respective communities. Such
cooperation is a central feature of current federal law enforcement policy. In some areas, these
cooperative efforts lead to agreements that certain kinds of offenses, particularly violent crimes,
will be handled by federal authorities. In Puerto Rico, for example, the United States Attorney
has agreed with his local counterpart that the federal government will prosecute carjackings
involving death, which has led to a large number of homicides being handled by that particular
United States Attorney's Office. In some cities, a large number of cases involving multiple
murders by drug and other criminal organizations are investigated by joint federal and local task
forces and prosecuted federally due to some of the factors cited above, such as the geographic
reach of the organization and the availability of a witness protection program. In other areas, by
contrast, these cooperative efforts lead to a federal emphasis on crimes other than homicides.
These decisions are not, however, static ones. A given homicide that appears to be of purely
local interest may, upon further investigation months or years after the offense, prove to be
7
See Bureau of Justice Statistics, U.S. Department of Justice, Number of Persons Executed in the United
States, 1930 – 99, <http://www.ojp.usdoj.gov/bjs/glance/exe.txt>.
8
See Federal Death Penalty Information Center, Executions of Federal Prisoners 1927-1999
,
<http://www.deathpenaltyinfo.org/fedexec.html>.
5
related to organized multi-jurisdictional criminal activity that is being investigated by federal
law enforcement officials, who may seek to transfer the case from state prosecutors to federal
prosecutors. For these and other reasons, the factors that determine whether a particular
homicide will enter the state or federal criminal justice systems are complex and difficult to
quantify.
Overall, however, the federal government continues to play a relatively small role in
administering the death penalty in this country. From 1930 to 1999, state governments executed
over 4,400 defendants.
7
During the same time period, the federal government executed 33
defendants and has not carried out any executions since 1963.
8
Furthermore, the Department of
Justice's Bureau of Justice Statistics (BJS) reports that by the end of 1998 (the most recent year
for which this statistic is available), there were 3,433 defendants with pending death sentences in
the States, compared to 19 defendants with currently pending death sentences in the federal
system. Thus, despite the expansion of the availability of the federal death penalty since 1988,
federal defendants account for approximately one-half of one percent of all the defendants on
death row in the United States.
6
PART I: STATISTICAL OVERVIEW
Table Set I (pages T-1 to T-7) provides statistical summaries of the decision-making
process at the Department of Justice by its primary participants – the United States Attorneys,
the Review Committee, and the Attorney General – and how the decisions of those participants
affect members of four different racial/ethnic groups. Highlights of these summary tables are
presented below.
A. RACIAL/ETHNIC DISTRIBUTION OF DEFENDANTS
SUBMITTED BY THE UNITED STATES ATTORNEYS
! From 1988 to 1994, a total of 52 defendants were submitted by the United States
Attorneys under the Department's former decision-making procedures.
Total White Black Hispanic Other
Number
52 7 39 5 1
Percent
100% 13% 75% 10% 2%
! From 1995 to 2000, a total of 682 defendants were reviewed under the
Department's current death penalty decision-making procedures.
Total White Black Hispanic Other
Number
682 134 324 195 29
Percent
100% 20% 48% 29% 4%
B. RATES AT WHICH EACH PARTICIPANT RECOMMENDED/AUTHORIZED
THE DEATH P ENALTY WITH RESPECT TO EACH RACIAL/ETHNIC GROUP
Because cases continue to be litigated while the death-penalty decision-making process is
proceeding at the Department of Justice, not all of the defendants who are the subject of a
recommendation by a United States Attorney are considered by the Review Committee and the
Attorney General. The following highlights – which serve to allow a comparison of the rate at
which each participant in the decision-making process recommends or authorizes seeking the
death penalty – take that attrition into account by showing, for each racial/ethnic group, the rate
at which each participant recommended or authorized seeking the death penalty as a percentage
of the total number of defendants considered by that participant. Thus, the percentages below
7
reflect the number of defendants in a particular racial/ethnic group for which each participant in
the death penalty process recommended/authorized the death penalty, divided by the total
number of defendants of that racial/ethnic group that were considered by that participant.
! From 1988 to 1994, the Attorney General agreed with the United States Attorneys
in most cases. (The Review Committee was not yet in existence).
RATES AT WHICH EACH PARTICIPANT RECOMMENDED/
AUTHORIZED SEEKING THE DEATH PENALTY (1988-1994)
Overall White Black Hispanic Other
U.S.
Attorneys
100% 100% 100% 100% 100%
Attorney
General
90% 100% 87% 100% 100%
! From 1995 to 2000, when United States Attorneys submitted defendants with
recommendations both for and against seeking the death penalty, each participant
in the decision-making process (including the Review Committee)
recommended/authorized the death penalty against slightly less than one third of
the defendants that each participant considered.
RATES AT WHICH EACH PARTICIPANT RECOMMENDED/
AUTHORIZED SEEKING THE DEATH PENALTY (1995-2000)
Overall White Black Hispanic Other
U.S.
Attorneys
27% 36% 25% 20% 52%
Review
Comm.
30% 40% 27% 25% 50%
Attorney
General
27% 38% 25% 20% 46%
C. RATES AT WHICH THE DEPARTMENT OF JUSTICE SOUGHT THE
DEATH PENALTY WITH RESPECT TO EACH RACIAL/ETHNIC GROUP
The percentages below reflect the number of defendants in each racial/ethnic group that
the Attorney General authorized the death penalty, divided by the total number of defendants in
that particular racial/ethnic group that initially entered the Department's review process.
8
! From 1988 to 1994, the Department of Justice sought the death penalty against 90
percent of the defendants submitted for review by United States Attorneys with
recommendations exclusively in favor of seeking the death penalty.
Total White Black Hispanic Other
Total
submitted
52 7 39 5 1
Decision
to seek DP
47 7 34 5 1
Percent
90% 100% 87% 100% 100%
! From 1995 to 2000, the Department of Justice sought the death penalty against 23
percent of the defendants charged with crimes punishable by death and submitted
for review by United States Attorneys with recommendations for or against
seeking the death penalty.
Total White Black Hispanic Other
Total
submitted
682 134 324 195 29
Decision
to seek DP
159 44 71 32 12
Percent
23% 33% 22% 16% 41%
9
Under general Department policy, United States Attorneys must determine, in deciding whether
to accept a capital or non-capital case for federal prosecution, if there is a "substantial federal interest" in
doing so. In making this determination, United States Attorneys weigh a number of factors, including
federal law enforcement priorities, the seriousness of the particular offense, and issues specific to the
individual defendant, such as his or her willingness to cooperate in the investigation or prosecution of
others.
9
PART II: THE UNITED STATES ATTORNEYS
A. BACKGROUND
As discussed above, with the enactment of the DKA in 1988, the United States Attorneys
were required to submit to the Attorney General for review and approval only those cases in
which the United States Attorney affirmatively wished to seek the death penalty. With the
enactment of the new death penalty protocol on January 27, 1995, United States Attorneys were
required to submit to the Attorney General for review "all Federal cases in which a defendant is
charged with an offense subject to the death penalty, regardless of whether the United States
Attorney intends to request authorization to seek the death penalty." For the reasons set forth
below, this protocol does not require United States Attorneys to submit to the Attorney General
all potentially capital-eligible defendants in the federal system.
First, United States Attorneys are not required to submit to the Attorney General for
review cases in which the United States Attorney initially considered the case for federal
prosecution, but ultimately decided to defer prosecution to state authorities. For example, a
federal agent might arrest a defendant for committing a street robbery in which a homicide
occurred, but the prosecution might be turned over to the local district attorney because of the
lack of a substantial federal interest.
9
Second, United States Attorneys retain the discretion not to charge defendants facing
federal prosecution for a homicide with a capital-eligible offenses if they do not believe such a
charge could be sustained. For example, a United States Attorney might decide at the outset of a
particular case (e.g., a vehicular homicide on federal land) that he or she simply could not prove
to a jury beyond a reasonable doubt that the defendant had the requisite level of intent to be
charged with a capital-eligible offense.
Third, at any time, either before or after indictment, United States Attorneys have the
discretion to conclude a plea agreement with a defendant, which has the effect of foreclosing the
death penalty. For example, either before or after indicting several defendants for capital-
eligible offenses, a United States Attorney may decide to enter into a cooperation agreement
with one of the defendants, under which that defendant agrees to plead guilty to certain crimes
and testify against his co-defendants in exchange for consideration – including the dismissal of
10
Even when an offender commits an offense punishable by death, there are statutory limits on the
categories of persons who can be executed. Specifically, in expanding the scope of offenses for which the death
penalty is available, the FDPA added a provision prohibiting the execution of a pregnant woman or any person who
is mentally retarded. The same statute also prohibits the execution of any person who, as a result of mental
disability, lacks the mental capacity to understand the death penalty and why it was imposed on that person, and
further prohibits the imposition of the death sentence on any person who was less than 18 years of age at the time of
the offense. See 18 U.S.C. §§ 3591, 3596.
11
Since 1988, federal law has expressly required that, upon the request of an indigent capital defendant, a
federal judge shall appoint two attorneys to represent the defendant and make available sufficient funds for
reasonable investigative and expert services. The attorneys appointed to represent an indigent defendant must have
the "background, knowledge, or experience [that] would otherwise enable him or her to properly represent the
defendant, with due consideration to the seriousness of the possible penalty and to the unique and complex nature of
the litigation." See 21 U.S.C. § 848(q). Furthermore, a separate provision in effect since 1994 requires that at least
one defense attorney be "learned in the law of capital cases" (a prior version of that statute, in effect from 1948 to
1994, provided for all capital defendants to be represented by "learned counsel"). See 18 U.S.C. § 3005.
10
certain charges and a promise to inform the sentencing judge about the cooperation – that has the
effect of rendering the defendant ineligible for the death penalty. Likewise, United States
Attorneys have the discretion to enter plea agreements with a defendant before or after he has
been charged with capital-eligible offenses that do not require the defendants' cooperation. Such
decisions may be made for a variety of reasons, including eliminating the risk of an acquittal in a
difficult case, the unavailability of one or more key witnesses, or an unfavorable evidentiary
ruling by the court that significantly weakens the case. If any such plea agreement is reached
before a case has been submitted for review, the United States Attorney need not submit it
thereafter
10
There has been no centralized data collection process in place regarding these three
categories of potential capital-eligible cases. As a result, the data regarding submissions by
United States Attorneys that are reported in this Survey do not include information regarding the
entire pool of potential capital-eligible defendants in the federal system since 1988.
There are, nonetheless, a significant number of cases that United States Attorneys have
submitted to the Attorney General for review under the current protocol, namely, all cases in
which a United States Attorney charges a capital-eligible offense and does not enter into a plea
with the defendant before making a submission to the Attorney General. In submitting these
cases, the United States Attorney must recommend to the Attorney General whether he or she
believes that the death penalty should be authorized in that case. Prior to doing so, however, the
United States Attorney or his or her designee will meet with the defendant's attorneys and allow
them to make written and oral presentation as to why the death penalty should not be sought in
the case.
11
In addition, many United States Attorneys employ additional decision-making
procedures within their own offices; several have standing committees of senior prosecutors to
12
In some United States Attorneys' Offices, the United States Attorney, as well as members of the Office's
internal committee that advises the United States Attorney on whether to recommend seeking the death penalty, are
not informed by the prosecutors handling the case of the defendants' race/ethnicity.
11
review all potential capital cases, and others appoint such internal review committees on an ad
hoc basis.
12
Once a United States Attorney decides whether to seek authorization from the Attorney
General to pursue the death penalty, he or she is required to submit detailed information about
the case to the Criminal Division's CCU. In particular, the United States Attorney must submit a
comprehensive discussion of the theory of liability; the facts and evidence relating to the issue of
guilt or innocence; the facts and evidence relating to any aggravating factors (including victim
impact) or mitigating factors; the defendant's background and criminal history; the basis for
federal prosecution; and any other relevant information. The United States Attorney is also
required to submit any material received from defense counsel in opposition to the death penalty,
and other significant documents such as confessions, key witness statements, and autopsy and
crime scene reports.
B. STATISTICAL HIGHLIGHTS
The United States Attorneys submitted 52 cases for review during the pre-protocol period
and 682 cases during the post-protocol period. Detailed information about these submissions are
set forth in Table Set II (pages T-8 to T-126). This section provides highlights of the statistical
data regarding these submissions and is divided into three parts. First, drawing on the statistics
in Table Set II.A (pages T-9 to T-21), the cases are analyzed in terms of the defendants who
were charged by the United States Attorneys and submitted for review. Second, using statistics
from Table Set II.B (pages T-22 to T-56), the cases are analyzed in terms of the types of
offenses charged. Third, the cases are examined with an emphasis on the race/ethnicity of the
victims of the crimes charged against defendants, using the statistical compilations from Table
Set II.C (pages T-57 to T-126).
1. Defendants
a. Recommendations in favor of seeking the death penalty
! From 1995 to 2000, United States Attorneys recommended seeking the death
penalty for 183 defendants, out of a total of 682 submitted for review by the
Attorney General (27 percent).
13
Of these 23 districts that submitted only recommendations against seeking the death penalty during the
post-protocol period, four submitted at least one recommendation in favor of seeking the death penalty during the
pre-protocol period.
12
Total White Black Hispanic Other
Number
183 48 81 39 15
Percent
100% 26% 44% 21% 8%
! The 183 recommendations to seek the death penalty were made by the United
States Attorneys in 49 of the Nation's 94 districts.
! 10 of these 49 districts submitted only recommendations in favor of seeking the
death penalty. These 10 districts accounted for 31 of the 183 recommendations
against the death penalty in the post-protocol period (17 percent).
b. Recommendations against seeking the death penalty
! From 1995 to 2000, United States Attorneys recommended against seeking the
death penalty with respect to 494 defendants, out of 682 submitted for review by
the Attorney General (72 percent).
Total White Black Hispanic Other
Number
494 85 242 153 14
Percent
100% 17% 49% 31% 3%
! The 494 recommendations not to seek the death penalty were submitted by the
United States Attorneys in 62 of the Nation's 94 districts.
! 23 of the 62 districts submitted only recommendations against seeking the death
penalty.
13
These districts accounted for 87 of the 494 recommendations against
the death penalty in the post-protocol period (18 percent).
! Including the 21 districts that have never submitted a case for review by the
Attorney General, with a recommendation for or against the death penalty, there
are a total of 40 districts out of 94 that have never recommended seeking the
death penalty for any defendant.
13
2. Offenses
During the pre-protocol period, defendants were charged exclusively under the DKA.
With the enactment of the FDPA in late 1994, many other federal criminal offenses were
punishable by death. The following highlights therefore refer exclusively to the post-protocol
period. In considering statistics about the most frequently charged offenses, the reader should
bear in mind that a single defendant may be charged with more than one statutory offense
punishable by death.
The most frequently charged capital offenses were different for different racial/ethnic
groups, although there were some constants. In particular, the use of a gun to commit homicide
during and in relation to a crime of violence or drug trafficking crime, 18 U.S.C. § 924(j)
("firearms murder"), was always among the three most frequently charged capital offenses
against each group, and both murder in aid of racketeering activity, 18 U.S.C. § 1959(a)
("racketeering murder") and murder in furtherance of a continuing criminal narcotics enterprise,
21 U.S.C. § 848(e)(1)(A) ("CCE murder"), were generally among the most frequently charged.
Each of these crimes, and particularly firearms murder, can be charged in a wide array of
circumstances, and is therefore more likely to be available as a charging option in a given case
than more narrowly defined offenses such as kidnaping-related murder.
! Among the 134 White defendants submitted for review from 1995 to 2000 the
three offenses most frequently charged were:
S Murder within federal jurisdiction, 18 U.S.C. § 1111, which was charged
against 28 of the 134 submitted White defendants (21 percent);
S Firearms murder, which was charged against 22 of the 134 submitted
White defendants (16 percent); and
S Racketeering murder, which was charged against 20 of the 134 submitted
White defendants (15 percent).
! Among the 324 Black defendants submitted for review from 1995 to 2000 the
three offenses most frequently charged were:
S Firearms murder, which was charged against 105 of the 324 submitted
Black defendants (32 percent);
S CCE murder, which was charged against 85 of the 324 submitted Black
defendants (26 percent); and
S Racketeering murder, which was charged against 70 of the 324 submitted
Black defendants (22 percent).
14
! Among the 195 Hispanic defendants submitted for review from 1995 to 2000 the
three offenses most frequently charged were:
S Racketeering murder, which was charged against 60 of the 195 submitted
Hispanic defendants (31 percent);
S Firearms murder, which was charged against 53 of the 195 submitted
Hispanic defendants (27 percent); and
S Carjacking murder, 18 U.S.C. § 2119(3), which was charged against 34 of
the 195 submitted Hispanic defendants (17 percent).
! Among the 29 Other defendants submitted for review from 1995 to 2000 the three
offenses most frequently charged were:
S Firearms murder, which was charged against 6 of the 29 submitted Other
defendants (21 percent);
S Murder within federal jurisdiction, 18 U.S.C. § 1111, which was charged
against 5 of the 29 submitted Other defendants (17 percent); and
S Kidnaping murder, 18 U.S.C. § 1203(a), which was charged against 5 of
the 29 submitted Other defendants (17 percent).
! As a general matter, the offenses most frequently charged against a given
racial/ethnic group were also the most frequently charged against the members of
that racial/ethnic group for whom United States Attorneys recommended seeking
the death penalty.
3. Victims
a. Victims' race/ethnicity
! From 1988 to 1994, there were a total of 65 identified victims of the capital
offenses charged against defendants submitted for review by United States
Attorneys (as to whom the recommendation was to seek the death penalty).
Total White Black Hispanic Other
Number
65 6 49 9 1
Percent
100% 9% 75% 14% 2%
14
All of the victim-related statistics in this Survey are skewed to some degree by the large number of
victims involved in the bombing of the American embassies in Tanzania and Kenya, which resulted in the indictment
of several defendants in the Southern District of New York, and the bombing of the Alfred P. Murrah Federal
Building in Oklahoma City, which resulted in the indictment of two defendants in the Western District of Oklahoma.
A discussion of how the statistics are affected is set forth in the general explanatory notes to the statistical tables (see
page T-57)
15
Five defendants (all of them White) submitted for review during the post-protocol period were charged
with espionage offenses that did not involve any homicide.
15
! From 1995 to 2000, there were a total of 894 identified victims of the capital
offenses charged against defendants submitted for review by United States
Attorneys.
14
Total White Black Hispanic Other
Number
894 278 474 118 24
Percent
100% 31% 53% 13% 3%
! Of these 894 victims, 590 (66 percent) were victims of defendants for whom
United States Attorneys recommended seeking the death penalty.
Total White Black Hispanic Other
Number
590 202 345 29 14
Percent
100% 34% 58% 5% 2%
! Of the 894 victims, 302 (34 percent) were victims of defendants as to whom
United States Attorneys recommended against seeking the death penalty.
Total White Black Hispanic Other
Number
302 75 129 88 10
Percent
100% 25% 43% 29% 3%
b. Intraracial and interracial homicides
! Of the 677 homicide defendants submitted for review from 1995 to 2000,
15
500
(74 percent) were charged with intraracial homicides (i.e., each was of the same
race/ethnicity as all victims).
16
Of the 177 defendants charged in interracial homicide cases, 33 (19 percent) were charged with killing
more than one victim. In each of those cases, at least one victim was of the same race/ethnicity as the defendant.
Accordingly, if the definition of "intraracial" homicides included those in which at least one victim was of the same
race/ethnicity as the defendant, 33 defendants would be reported in the intraracial rather than interracial category.
16
Total White Black Hispanic Other
Number
500 109 227 150 14
Percent
100% 22% 45% 30% 3%
! United States Attorneys recommended seeking the death penalty for 24 percent of
the defendants charged with intraracial homicides (121 out of 500 defendants).
The rates at which they recommended seeking the death penalty for specific
racial/ethnic groups were as follows:
S 38 percent of White defendants (41 out of 109 defendants);
S 20 percent of Black defendants (46 out of 227 defendants);
S 17 percent of Hispanic defendants (26 out of 150 defendants); and
S 57 percent of Other defendants (8 out of 14 defendants).
! Of the 677 homicide defendants submitted for review from 1995 to 2000, 177 (26
percent) were charged with interracial homicides (i.e., each was of a different
race/ethnicity than at least one victim).
16
Total White Black Hispanic Other
Number
177 20 97 45 15
Percent
100% 11% 55% 25% 8%
! United States Attorneys recommended seeking the death penalty for 35 percent of
the defendants charged with interracial homicides (62 out of 177 defendants).
The rats at which they recommended seeking the death penalty for specific
racial/ethnic groups were as follows:
S 35 percent of White defendants (7 out of 20 defendants);
S 36 percent of Black defendants (35 out of 97 defendants);
S 29 percent of Hispanic defendants (13 out of 45 defendants); and
S 47 percent of Other defendants (7 out of 15 defendants).
c. Single- and multiple-victim cases
17
! Of the 677 homicide defendants submitted for review from 1995 to 2000, 520 (77
percent) faced capital charges involving only one victim.
Total White Black Hispanic Other
Number
520 103 240 153 24
Percent
100% 20% 46% 29% 5%
! United States Attorneys recommended seeking the death penalty for 23 percent of
the defendants charged in single-victim cases (117 out of 520 defendants). The
rates at which they recommended seeking the death penalty for specific
racial/ethnic groups were as follows:
S 31 percent of White defendants (32 out of 103 defendants);
S 20 percent of Black defendants (49 out of 240 defendants);
S 16 percent of Hispanic defendants (25 out of 153 defendants); and
S 46 percent of Other defendants (11 out of 24 defendants).
! Of the 677 homicide defendants submitted for review from 1995 to 2000, 157 (23
percent) faced capital charges involving more than one victim.
Total White Black Hispanic Other
Number
157 26 84 42 5
Percent
100% 17% 54% 27% 3%
! United States Attorneys recommended seeking the death penalty for 43 percent of
the defendants charged in multiple-victim cases (66 out of 157 defendants). The
rates at which they recommended seeking the death penalty for specific
racial/ethnic groups were as follows:
S 62 percent of White defendants (16 out of 26 defendants);
S 38 percent of Black defendants (32 out of 84 defendants);
S 33 percent of Hispanic defendants (14 out of 42 defendants); and
S 80 percent of Other defendants (4 out of 5 defendants).
18
PART III: THE REVIEW COMMITTEE
A. BACKGROUND
With the issuance of the new death penalty protocol on January 27, 1995, the Attorney
General created a permanent advisory panel, the Review Committee, to assist her in determining
whether to seek capital punishment in cases submitted for review by United States Attorneys.
The Review Committee currently has five members appointed by the Attorney General (with
three members required for a quorum), and includes, as a matter of practice, at least one
designee of the Deputy Attorney General and at least one designee of the Assistant Attorney
General for the Criminal Division.
For each case submitted by a United States Attorney, the Review Committee receives all
of the underlying materials that have been submitted by the United States Attorney, including
the materials from defense counsel. The Review Committee then meets with defense counsel
either in person or on video conference, along with attorneys from the United States Attorney's
Office and the CCU. During this meeting, defense counsel are invited to make an oral
presentation to the Review Committee as to why the Attorney General should not authorize the
United States Attorney to seek the death penalty. Thereafter, the Review Committee makes its
recommendation to the Attorney General (noting any dissenting views) as to why the death
penalty should, or should not, be sought in that case.
B. STATISTICAL HIGHLIGHTS
From the time of its establishment in 1995 until the close of the reporting period, the
Review Committee considered a total of 618 defendants. Detailed information about the results
of this consideration is set forth in Table Set III (pages T-127 to T-197). This section provides
highlights of the statistical data regarding these cases and is organized in the same manner as the
preceding Section concerning the United States Attorneys. The analysis of the pool of
defendants is based on the statistics in Table Set III.A (pages T-128 to T-132). The analysis of
offense data is set forth in Table Set III.B (pages T-133 to T-162). Victim-related statistics are
set forth in Table Set III.C (pages T-163 to T-197).
1. Defendants
! Of the 682 defendants submitted for review by United States Attorneys from
1995 to 2000, 15 were still under review as of July 20, 2000, and 49 others had
been withdrawn. The Review Committee considered the remaining 618.
17
There were also 15 defendants as to whom the Review Committee completed its review but did not
recommend either for or against seeking the death penalty. In some of these cases, the Review Committee
recommended that the Attorney General defer a decision (either because of the pendency of a state prosecution of the
same defendant or because the defendant was a fugitive), and in others the Review Committee was evenly divided as
to a recommendation.
19
Total White Black Hispanic Other
Number
618 120 300 172 26
Percent
100% 19% 49% 28% 4%
! From 1995 to 2000, the Review Committee recommended seeking the death
penalty for 183 defendants, out of a total of 618 it reviewed (30 percent).
17
Total White Black Hispanic Other
Number
183 47 80 43 13
Percent
100% 26% 44% 23% 7%
2. Offenses
The Review Committee's practices with respect to charging practices were
virtually identical to the trends reported above with respect to the recommendations of
the United States Attorneys. Accordingly, highlights of the statistical tables presenting
information on this topic are not discussed further here.
3. Victims
a. Victims' race/ethnicity
! From 1995 to 2000, there were a total of 853 identified victims of the capital
offenses charged against defendants considered by the Review Committee.
Total White Black Hispanic Other
Number
853 258 468 104 23
Percent
100% 30% 55% 12% 3%
! Of these 853 victims, 600 (70 percent) were victims of defendants for whom the
Review Committee recommended seeking the death penalty.
20
Total White Black Hispanic Other
Number
600 193 346 46 15
Percent
100% 32% 58% 8% 3%
! Of the 853 victims, 246 (29 percent) were victims of defendants as to whom the
Review Committee recommended against seeking the death penalty.
Total White Black Hispanic Other
Number
246 61 120 57 8
Percent
100% 25% 49% 23% 3%
b. Intraracial and interracial homicides
! Of the 613 homicide defendants the Review Committee considered from 1995 to
2000, 449 (73 percent) were charged with intraracial homicides (i.e., each was of
the same race/ethnicity as all victims).
Total White Black Hispanic Other
Number
449 94 211 131 13
Percent
100% 21% 47% 29% 3%
! The Review Committee recommended seeking the death penalty for 29 percent of
the defendants charged with intraracial homicides (129 out of 449 defendants).
The rates at which they recommended seeking the death penalty for specific
racial/ethnic groups were as follows:
S 43 percent of White defendants (40 out of 94 defendants);
S 23 percent of Black defendants (48 out of 211 defendants);
S 25 percent of Hispanic defendants (33 out of 131 defendants); and
S 63 percent of Other defendants (8 out of 13 defendants).
! Of the 613 homicide defendants the Review Committee considered from 1995 to
2000, 164 (27 percent) were charged with interracial homicides (i.e., each was of
a different race/ethnicity than at least one victim).
21
Total White Black Hispanic Other
Number
164 20 90 41 13
Percent
100% 12% 55% 25% 8%
! The Review Committee recommended seeking the death penalty for 33 percent of
the defendants charged with interracial homicides (54 out of 164 defendants).
The rates at which they recommended seeking the death penalty for specific
racial/ethnic groups were as follows:
S 35 percent of White defendants (7 out of 20 defendants);
S 36 percent of Black defendants (32 out of 90 defendants);
S 24 percent of Hispanic defendants (10 out of 41 defendants); and
S 38 percent of Other defendants (5 out of 13 defendants).
c. Single- and multiple-victim cases
! From 1995 to 2000, 468 of the 613 homicide defendants considered by the
Review Committee (76 percent) faced capital charges involving only one victim.
Total White Black Hispanic Other
Number
468 90 221 136 21
Percent
100% 19% 47% 29% 4%
! The Review Committee recommended seeking the death penalty for 25 percent of
the defendants charged in single-victim cases (115 out of 468 defendants). The
rates at which they recommended seeking the death penalty for specific
racial/ethnic groups were as follows:
S 36 percent of White defendants (32 out of 90 defendants);
S 20 percent of Black defendants (45 out of 221 defendants);
S 21 percent of Hispanic defendants (28 out of 136 defendants); and
S 48 percent of Other defendants (10 out of 21 defendants).
! From 1995 to 2000, 145 of the 613 homicide defendants considered by the
Review Committee (24 percent) faced capital charges involving more than one
victim.
22
Total White Black Hispanic Other
Number
145 24 80 36 5
Percent
100% 17% 55% 25% 3%
! The Review Committee recommended seeking the death penalty for 47 percent
of the defendants charged in multiple-victim cases (68 out of 145 defendants).
The rates at which they recommended seeking the death penalty for specific
racial/ethnic groups were as follows:
S 63 percent of White defendants (15 out of 24 defendants);
S 44 percent of Black defendants (35 out of 80 defendants);
S 42 percent of Hispanic defendants (15 out of 36 defendants); and
S 60 percent of Other defendants (3 out of 5 defendants).
18
In some instances, the Attorney General does not make a decision on a case submitted for review by a
United States Attorney. For example, the United States Attorney may enter into a plea agreement with a defendant
while the case is under consideration by the Attorney General (or the Review Committee). In other cases,
consideration of a given defendant may be indefinitely suspended if the defendant is a fugitive.
23
PART IV: THE ATTORNEY GENERAL
A. BACKGROUND
Before considering a particular case, the Attorney General receives the recommendation
of the United States Attorney, the recommendation of the Review Committee, and all of the
underlying materials that have been submitted by the United States Attorney, including the
materials from defense counsel. After discussing the case with the Review Committee and the
CCU attorneys (and with the United States Attorney for the case when he or she disagrees with
the recommendation of the Review Committee), and after careful review of all of the relevant
material (including, at times, additional information gathered at the Attorney General's request),
the Attorney General signs a letter to the United States Attorney either authorizing the filing of a
notice of intent to seek the death penalty or authorizing the United States Attorney not to file
such a notice.
18
B. STATISTICAL HIGHLIGHTS
The Attorney General completed the review of 52 defendants submitted during the pre-
protocol period and 588 defendants submitted during the post-protocol period. Detailed
information about the results of the consideration of those defendants is set forth in Table Set IV
(pages T-198 to T-304). This section provides highlights of the statistical data regarding these
cases and is organized in the same manner as the preceding sections concerning the United States
Attorneys and the Review Committee. The analysis of the pool of defendants is based on the
statistics in Table Set IV.A (pages T-199 to T107). The analysis of offense data is set forth in
Table Set IV.B (pages T-108 to T-235). Victim-related statistics are set forth in Table Set IV.C
(pages T-236 to T-304).
1. Defendants
! In the pre-protocol period from 1988 to 1994, the United States Attorneys
submitted 52 defendants for review. Attorneys General decided to seek the death
penalty for 47 of these defendants (90 percent).
24
Total White Black Hispanic Other
Number
47 7 34 5 1
Percent
100% 15% 72% 11% 2%
! In the post-protocol period from 1995 to 2000, the United States Attorneys
submitted 682 defendants for review. Of these, 31 were still pending review at
the close of the reporting period, and 63 had been withdrawn by the United States
Attorney. The Attorney General considered the remaining 588 defendants (86
percent).
Total White Black Hispanic Other
Number
588 115 287 160 26
Percent
100% 20% 49% 27% 4%
! From 1995 to 2000, the Attorney General decided to seek the death penalty for
159 defendants, out of a total of 588 considered (27 percent).
Total White Black Hispanic Other
Number
159 44 71 32 12
Percent
100% 28% 45% 20% 8%
2. Offenses
The Attorney General's practices with respect to charging practices were virtually
identical to the trends reported above with respect to the recommendations of the United States
Attorneys. Accordingly, highlights of the statistical tables presenting information on this topic
are not discussed further here.
3. Victims
a. Victims' race/ethnicity
! From 1995 to 2000, there were a total of 833 identified victims of the capital
offenses charged against defendants who were considered by the Attorney
General.
25
Total White Black Hispanic Other
Number
833 254 462 95 22
Percent
100% 30% 55% 11% 3%
! Of these 833 victims, 578 (69 percent) were victims of defendants for whom the
Attorney General decided to seek the death penalty.
Total White Black Hispanic Other
Number
578 190 340 35 13
Percent
100% 33% 59% 6% 2%
! Of the 833 victims, 252 (30 percent) were victims of defendants as to whom the
Attorney General decided not to seek the death penalty.
Total White Black Hispanic Other
Number
252 62 122 59 9
Percent
100% 25% 48% 23% 4%
b. Intraracial and interracial homicides
! Of the 583 homicide defendants whom the Attorney General considered from
1995 to 2000, 424 (73 percent) were charged with intraracial homicides (i.e., each
was of the same race/ethnicity as all victims).
Total White Black Hispanic Other
Number
424 90 200 121 13
Percent
100% 21% 47% 29% 3%
! The Attorney General decided to seek the death penalty for 25 percent of the
defendants charged with intraracial homicides (108 out of 424 defendants). The
rates at which the Attorney General decided to seek the death penalty for specific
racial/ethnic groups were as follows:
19
Of the 159 defendants charged in interracial homicide cases, 33 (21 percent) were charged with killing
more than one victim. In each of those cases, at least one victim was of the same race/ethnicity as the defendant.
Accordingly, if the definition of "intraracial" homicides included those in which at least one victim was of the same
race/ethnicity as the defendant, 33 defendants would be reported in the intraracial rather than interracial category.
26
S 41 percent of White defendants (37 out of 90 defendants);
S 21 percent of Black defendants (41 out of 200 defendants);
S 19 percent of Hispanic defendants (23 out of 121 defendants); and
S 54 percent of Other defendants (7 out of 13 defendants).
! Of the 583 homicide defendants whom the Attorney General considered from
1995 to 2000, 159 (28 percent) were charged with interracial homicides (i.e., each
was of a different race/ethnicity than at least one victim).
19
Total White Black Hispanic Other
Number
159 20 87 39 13
Percent
100% 13% 55% 25% 8%
! The Attorney General decided to seek the death penalty for 32 percent of the
defendants charged with interracial homicides (51 out of 159 defendants). The
rates at which the Attorney General decided to seek the death penalty for specific
racial/ethnic groups were as follows:
S 35 percent of White defendants (7 out of 20 defendants);
S 34 percent of Black defendants (30 out of 87 defendants);
S 23 percent of Hispanic defendants (9 out of 39 defendants); and
S 38 percent of Other defendants (5 out of 13 defendants).
c. Single- and multiple-victim cases
! From 1995 to 2000, 448 out of the 583 homicide defendants considered by the
Attorney General (77 percent) faced capital charges involving only one victim.
Total White Black Hispanic Other
Number
448 86 210 131 21
Percent
100% 19% 47% 29% 5%
! The Attorney General decided to seek the death penalty for 22 percent of the
defendants charged in single-victim cases (97 out of 448 defendants). The rates
27
at which the Attorney General decided to seek the death penalty for specific
racial/ethnic groups were as follows:
S 34 percent of White defendants (29 out of 86 defendants);
S 19 percent of Black defendants (40 out of 210 defendants);
S 14 percent of Hispanic defendants (18 out of 131 defendants); and
S 48 percent of Other defendants (10 out of 21 defendants).
! From 1995 to 2000, 135 out of the 583 homicide defendants considered by the
Attorney General (23 percent) faced capital charges involving more than one
victim.
Total White Black Hispanic Other
Number
135 24 77 29 5
Percent
100% 18% 57% 21% 4%
! The Attorney General decided to seek the death penalty for 46 percent of the
defendants charged in multiple-victim cases (62 out of 135 defendants). The
rates at which the Attorney General decided to seek the death penalty for specific
racial/ethnic groups were as follows:
S 63 percent of White defendants (15 out of 24 defendants);
S 40 percent of Black defendants (31 out of 77 defendants);
S 48 percent of Hispanic defendants (14 out of 29 defendants); and
S 40 percent of Other defendants (2 out of 5 defendants).
20
Although the exact list of aggravating factors varies depending on the nature of the offense, the statutory
list of factors generally includes: killing multiple victims; committing the capital offense against particularly
vulnerable victims or high-level public officials; paying someone else to commit the murder; committing the murder
for pecuniary gain; committing the murder while committing other serious crimes; causing a grave risk of death to
persons other than the actual victims; committing the offense in a particularly heinous manner; engaging in
substantial planning or premeditation in committing the murder; or having previous convictions for other serious
offenses. See 18 U.S.C. § 3592(b)-(d); 21 U.S.C. § 848(n).
21
The specific mitigating factors listed in the FDPA are impaired capacity, duress, minor participation,
equally culpable defendants who will not be punished by death, lack of a prior criminal record, mental or emotional
disturbance, and consent by the victim. 18 U.S.C. § 3592(a); see also 21 U.S.C. § 848(m) (similar list of mitigating
factors under DKA).
28
PART V: POST-AUTHORIZATION ACTIVITY
A. BACKGROUND
A decision by the Attorney General to seek the death penalty is always subject to
reconsideration until the jury has returned a sentencing verdict. Thus, even after such a decision
to seek the death penalty has been made, additional facts or arguments may always be brought to
the Attorney General's attention in support of a request to withdraw a notice of intent to seek the
death penalty. Such reconsideration can be sought by defense counsel, the United States
Attorney, the Review Committee, or the Attorney General herself. As explained above, the
Attorney General's decision to authorize the seeking of the death penalty can also be changed by
means of a cooperation or non-cooperation plea agreement between the United States Attorney
and the defendant that forecloses the possibility of capital punishment. Under Department
policy, such agreements do not require the Attorney General's prior authorization.
For those defendants who proceed to trial, there are two phases to the case. In the "guilt
phase," the jury must decide unanimously whether the prosecution proved beyond a reasonable
doubt that the defendant has committed the underlying death-eligible offense. If the jury finds
the defendant guilty, the case proceeds to the "sentencing phase." At the sentencing phase, in
order to meet legal requirements for the imposition of the death penalty, the prosecution must
prove beyond a reasonable doubt that the defendant committed the capital offense with a certain
level of intent. In addition, the prosecution must prove any aggravating factors beyond a
reasonable doubt, and must prove at least one from a list of specific factors set out in the
applicable statute.
20
In recommending a sentence, the jury may only consider aggravating
factors that it unanimously finds to have been proven beyond a reasonable doubt. Mitigating
factors can include any of several specific factors listed in the statute, as well as anything else "in
the defendant's background, record, or character or any other circumstance of the offense that
mitigate against imposition of the death sentence."
21
Mitigating factors need only be proven by a
preponderance of the evidence, and each juror can make an individual decision as to which
factors have been proven to his or her satisfaction. Both the prosecution and defense may, in the
22
Although federal law requires a judge to impose a sentence recommended by the jury in a capital case, the
relevant statutes refer to the jury's sentencing decision as a recommendation. For ease of reference, this Survey refers
to the determination made by a jury after a sentencing hearing as a "verdict."
29
judge's discretion, present information that might not be admissible as evidence in the guilt
phase of the trial (such as hearsay, for example); and may also rely on all of the evidence
submitted during the guilt phase without having to present it anew during the penalty phase.
At the end of the sentencing phase, the federal judge instructs the jurors that they must
each weigh the aggravating and mitigating factors and decide upon a sentence. The judge also
instructs the jury that they may not in any way consider the race, national origin, sex, or
religious beliefs of the defendant or the victim in reaching a verdict. Jurors are then given at
least two sentencing options: death or life in prison without any possibility of release. With
respect to certain offenses, jurors are also given a third option – to have the judge impose a
lesser sentence authorized by statute. Jurors are never required to return a verdict of death. In
reaching a verdict, which must be unanimous, each juror must certify that he or she did not, in
fact, consider the race, national origin, sex, or religious beliefs of the defendant or the victim in
reaching his or her determination and that his or her determination would have been the same
regardless of those factors. In all cases, the jury's decision is binding upon the judge.
22
After sentencing, a defendant subject to the death penalty is entitled to several forms of
review. As with all federal criminal defendants, a defendant subject to a sentence of death may
seek direct review of his or her conviction and sentence in the United States Court of Appeals
for the circuit in which he or she was convicted. In capital cases, however, federal law explicitly
requires the appellate court, in reviewing the case, to review the entire record and to address
certain specific issues, including whether the sentence of death "was imposed under the influence
of passion, prejudice, or any other arbitrary factor and whether the evidence supports the finding
of the existence of an aggravating factor . . . ." 18 U.S.C. § 3595(c)(1). If the Court of Appeals
affirms the conviction and sentence, the defendant may seek review in the United States
Supreme Court by filing a petition for a writ of certiorari (and the government may likewise
petition for a writ of certiorari if the conviction or sentence is reversed or vacated on appeal).
Although the defendant is entitled to review in the Court of Appeals, the Supreme Court has
discretion to decide whether to grant the petition for certiorari and review the case.
If the defendant fails to obtain relief on direct appeal, he or she may also seek collateral
review by filing a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C.
§ 2255 (which is sometimes described as a petition for a writ of habeas corpus). As with the
proceedings in the underlying criminal case, such collateral review goes through three levels of
the federal judiciary: the motion is made in the district court in which the defendant was
convicted. Regardless of whether the conviction is upheld or vacated, the district court's
resolution of the § 2255 motion is subject to direct appeal by the losing party. And, as with
direct review, the judgment by the Court of Appeals concerning the § 2255 motion is subject to
discretionary review by the Supreme Court.
23
While there are additional avenues of potential relief available under federal law, direct appeal and § 2255
review are the two most commonly used, and current Department policy is to await the completion of these two
forms of review, but not others, to set an execution date in a case in which a defendant has been sentenced to death.
A defendant seeking other forms of judicial relief once an execution date has been scheduled may also seek a judicial
order staying the execution to allow consideration of the merits of the pending claim.
24
Federal law provides that indigent defendants are entitled to appointed counsel throughout the appeal,
collateral review, and clemency processes.
30
If the defendant's sentence of death is upheld on both direct and collateral review, an
execution date is set.
23
Under current policy, the Department will provide the defendant at least
120 days' notice of the scheduled execution date. See 65 Fed. Reg. 48379, 48380 (Aug. 8,
2000). Once judicial proceedings have ended and the defendant has received notification of the
scheduled execution date, he or she may petition the President for a grant of executive clemency.
See 28 C.F.R. § 1.10 (advisory regulations concerning clemency in capital cases). The
Department reviews the case and makes a recommendation as to how it should be decided, but
pursuant to the Constitution, the decision to grant or deny clemency or to stay the execution
while a petition is under review is committed entirely to the discretion of the President.
24
B. STATISTICAL HIGHLIGHTS
This Survey does not include separate tables for specific decision-making stages that
occur after the Attorney General has authorized seeking the death penalty. However,
information about those stages is set forth in Table Set I (pages T-1 to T-7).
1. Plea Agreements
The statistical highlights regarding plea agreements reported in this Part reflect only
those cases in which defendants actually entered into an agreement resulting in a guilty plea after
the Attorney General authorized seeking the death penalty. They do not reflect the number of
times that United States Attorneys offered to enter into such agreements but were refused or,
conversely, the number of times that United States Attorneys declined to enter into agreements
offered by defendants and their counsel.
Moreover, because the decision to offer and accept a plea agreement may be affected by
many factors other than the Attorney General's decision about authorizing capital prosecution,
United States Attorneys and defendants can also decide to enter into plea agreements before the
Attorney General makes a decision, either before the case is indicted, or after indictment but
before the Department's decision-making process has been completed. Statistics that focus only
on plea agreements after the Attorney General authorizes seeking the death penalty thus may not
25
The statistics compiled for this Survey do not include the number of plea agreements that occurred in
cases after the Attorney General decided not to seek the death penalty. Further, as noted above in Part II, this Survey
does not account for plea agreements reached before submission by United States Attorneys.
26
Of the 682 defendants submitted by United States Attorneys for review from 1995 to 2000, a total of 58
entered into plea agreements before the Attorney General made a decision, including 8 (14 percent) who were White,
27 (47 percent) who were Black, 20 (34 percent) who were Hispanic, and 3 (5 percent) who were Other. None of the
defendants submitted for review during the pre-protocol period entered into plea-agreements before the Attorney
General decided whether to seek the death penalty.
31
accurately reflect the degree to which defendants charged with offenses punishable by death
avoid such punishment as the result of guilty pleas.
25
a. Pre-protocol cases
! From 1988 to 1994, the Attorney General authorized United States Attorneys to
seek the death penalty for a total of 47 defendants. Of these, 14 defendants (30
percent) entered into plea agreements as a result of which the government
withdrew the notice of intent to seek the death penalty.
Total White Black Hispanic Other
Number
14 3 10 1 0
Percent
100% 21% 71% 7% 0%
! The rate at which defendants authorized for the death penalty entered plea
agreements was 30 percent. The rates for individual racial ethnic groups were as
follows:
S 43 percent for White defendants (3 out of 7 authorized);
S 29 percent for Black defendants (10 out of 34 authorized);
S 20 percent for Hispanic defendants (1 out of 5 authorized); and
S 100 percent for Other defendants (1 out of 1 authorized).
b. Post-protocol cases
! From 1995 to 2000, the Attorney General authorized United States Attorneys to
seek the death penalty for a total of 159 defendants. Of these, 51 defendants (32
percent) entered into plea agreements as a result of which the government
withdrew the notice of intent to seek the death penalty.
26
32
Total White Black Hispanic Other
Number
51 21 18 9 3
Percent
100% 41% 35% 18% 6%
! The rate at which defendants authorized for the death penalty entered plea
agreements was 32 percent. The rates for individual racial ethnic groups were as
follows:
S 48 percent for White defendants (21 out of 44 authorized);
S 25 percent for Black defendants (18 out of 71 authorized);
S 28 percent for Hispanic defendants (9 out of 32 authorized); and
S 25 percent for Other defendants (3 out of 12 authorized).
2. Trial Results
a. Pre-protocol cases
! Of the 47 defendants as to whom the Attorney General authorized capital
prosecution from 1988 to 1994, 20 (43 percent) proceeded to trial. The notice of
intent to seek the death penalty was withdrawn as to 25 defendants, as the result
of either a plea agreement (14 defendants) or reconsideration by the Attorney
General (11 defendants). There were 2 defendants as to whom the notice to seek
the death penalty was dismissed or the prosecution otherwise terminated by
judicial action.
! Of the 20 defendants whose cases were tried, 16 (80 percent) were found guilty
beyond a reasonable doubt of at least one offense subject to the death penalty.
Total White Black Hispanic Other
Number
20 3 8 4 1
Percent
100% 19% 50% 25% 6%
! Of the 16 defendants convicted of capital offenses, juries returned non-death
penalty verdicts (or no verdicts) for 10 (65 percent).
33
Total White Black Hispanic Other
Number
10 1 5 3 1
Percent
100% 10% 50% 30% 10%
! Of the 16 defendants convicted of capital offenses, juries returned death penalty
verdicts for 6 (35 percent).
Total White Black Hispanic Other
Number
6 2 3 1 0
Percent
100% 33% 50% 17% 0%
! The rate at which juries returned death penalty verdicts was 35 percent for all
defendants. The rates for individual racial/ethnic groups were as follows:
S 67 percent for White defendants (2 out of 3 decided);
S 38 percent for Black defendants (3 out of 8 decided);
S 25 percent for Hispanic defendants (1 out of 4 decided); and
S 0 percent for Other defendants (0 out of 1 decided).
! At the close of the reporting period, one of the six defendants for whom juries
returned death penalty verdicts had his sentence vacated and was subsequently re-
sentenced to life in prison.
b. Post-protocol cases
! Of the 159 defendants as to whom the Attorney General authorized capital
prosecution from 1995 to 2000, 42 (26 percent) had been tried at the close of the
reporting period. The notice of intent to seek the death penalty was withdrawn as
to 62 defendants, as the result of either a plea agreement (51 defendants) or
reconsideration by the Attorney General (11 defendants). There were 4
defendants as to whom the notice to seek the death penalty was dismissed or the
prosecution otherwise terminated by judicial action. The remaining 51
defendants were awaiting trial as of July 20, 2000.
! Of the 42 defendants whose trials had been completed at the end of the reporting
period, 41 (98 percent) were found guilty beyond a reasonable doubt of at least
one offense subject to the death penalty.
34
Total White Black Hispanic Other
Number
41 11 25 2 3
Percent
100% 27% 61% 5% 7%
! Of the 41 defendants convicted of capital offenses, juries returned non-death
penalty verdicts (or no verdicts) for 21 (51 percent).
Total White Black Hispanic Other
Number
21 7 12 0 2
Percent
100% 33% 57% 0% 10%
! Of the 41 defendants convicted of capital offenses, juries returned death penalty
verdicts for 20 (49 percent).
Total White Black Hispanic Other
Number
20 4 13 2 1
Percent
100% 20% 65% 10% 5%
! The rate at which juries returned death penalty verdicts was 49 percent for all
defendants. The rates for individual racial/ethnic groups were as follows:
S 44 percent for White defendants (4 out of 11 decided);
S 52 percent for Black defendants (13 out of 25 decided);
S 100 percent for Hispanic defendants (2 out of 2 decided); and
S 33 percent for Other defendants (1 out of 3 decided).
! At the close of the reporting period, four of the 20 defendants for whom juries
returned death verdicts had their sentences vacated and were awaiting further
judicial proceedings (which may or may not result in the reinstatement of the
death sentence in each case); and two were awaiting the formal imposition of
sentence by the trial court.
3. Federal Defendants Sentenced to Death
Since 1988, federal juries have recommended the death sentence for a total of 26
defendants, of whom six were initially indicted before the protocol took effect on January 27,
27
In the case of the one defendant who had completed litigation of both direct appeal and the initial
collateral review (Juan Raul Garza), the President granted a reprieve and set a new execution date after the close of
the reporting period. Also, after the close of the reporting period, one defendant whose case had pending on direct
appeal as on July 20, 2000 (David Paul Hammer), successfully petitioned the appellate court to dismiss the appeal
and remand the case to the district court for the setting of an execution date.
35
1995. The sentences of four of these 26 defendants (one of whom is White, three of whom are
Black, and all of whom were indicted under the Department's current protocol) were vacated in
subsequent judicial proceedings; they are awaiting further proceedings in which their death
sentences may or may not be reinstated. The sentence of one additional White defendant
indicted in the pre-protocol period was vacated; this defendant was subsequently re-sentenced to
life in prison. In addition, two Hispanic defendants are currently awaiting formal sentencing
following the jury's recommendation of death. Thus, as of July 20, 2000, there were 19
defendants with pending federal death sentences, including eight who were litigating direct
appeals, ten who were litigating collateral claims pursuant to 28 U.S.C. § 2255, and one who had
completed both forms of post-verdict litigation and had been scheduled for execution.
27
28
This Survey generally does not attempt to document comparable state statistics regarding the death
penalty decision-making process. Nevertheless, to allow a very general comparison of the relative size of the state
and federal populations of death row, the following information compiled elsewhere by BJS is provided. As of
December 31, 1998, BJS reports that there were 3,433 state defendants awaiting execution after being sentenced to
death.
Total White Black Other
Number 3,433 1,900 1,473 60
Percent 100% 55% 43% 2%
Significantly, these state statistics do not distinguish between persons of Hispanic ethnicity and non-
Hispanic defendants in counting the total number of White, Black, and Other defendants. However, BJS also reports
that 314 defendants of all races (9 percent of the total population of 3,433) were of Hispanics ethnicity.
Furthermore, BJS reports that the states executed a total of 505 defendants from 1988 to 1999.
Total White Black Other
Number 505 317 177 11
Percent 100% 63% 35% 2%
BJS reports that 27 executed defendants of all races (7 percent of the total population of 505) were of Hispanic
ethnicity.
36
Information about the federal defendants who have been sentenced to death is set forth in
Table Set V (pages T-305 to T-309). This section provides highlights of the statistical data
regarding these defendants.
28
! As of July 20, 2000, 19 defendants were under a federal sentence of death.
Total White Black Hispanic Other
Number
19 4 13 1 1
Percent
100% 21% 68% 5% 5%
! These 19 defendants were prosecuted in 14 separate cases – 10 cases had one
defendant convicted of capital charges and sentenced to death, while 4 cases had
two or more capital defendants sentenced to death. The 14 cases were prosecuted
in 12 different judicial districts in 10 different states. Only two United States
Attorneys' Offices have prosecuted more than one capital case resulting in a death
sentence, and none has prosecuted more than two such cases.
29
The victim-related data in this Survey is based exclusively on the number of victims set forth in the
indictment against each defendant, which in some cases understates the actual number of victims who died as a result
of a defendant's crimes. Thus, for example, although there were a total of 168 victims who died as a result of the
bombing in Oklahoma City, the victim statistics in this survey include only 160 victims of that offense who at the
time of the indictment were known to have died inside the building.
30
This Survey reports statistics only relating to implementation of the federal death penalty since its re-
introduction in 1988. Prior to that year, the federal government had not executed any person since 1963.
Information about federal executions before 1963 has been published by the Death Penalty Information Center
(DPIC). Specifically, DPIC reports that there 34 federal defendants were executed between 1927 and 1963. Of
these, 28 (82 percent) were White, 3 (9 percent) were Black, 2 (6 percent) were Other, 1 (3 percent) was of unknown
race. DPIC does not separately report the number of executed federal defendants who were Hispanic. DPIC further
reports that 19 (56 percent) of these defendants were executed for murder, 6 (18 percent) for sabotage, 4 (12 percent)
for kidnapping, 2 (6 percent) for espionage, 2 (6 percent) for bank robbery, and 2 (6 percent) for rape. The total
37
! 10 of these 19 defendants (53 percent) had capital convictions related to only one
victim. 9 of the 19 defendants (47 percent) had capital convictions related to two
or more victims.
! 18 of these 19 defendants were sentenced to death for crimes involving a total of
27 victims.
Total White Black Hispanic Other
Number
27 7 16 3 1
Percent
100% 26% 59% 11% 4%
! The remaining defendant, Timothy McVeigh, was found responsible for the
deaths of 160 individuals of various races/ethnicities in connection with the 1995
bombing of the Alfred P. Murrah Federal Building in Oklahoma City,
Oklahoma.
29
! 13 of these 19 defendants (68 percent) were sentenced to death for crimes against
victims exclusively of the same race/ethnicity.
Total White Black Hispanic Other
Number
13 3 8 1 1
Percent
100% 23% 62% 8% 8%
! 6 of these 19 defendants (32 percent) were sentenced to death for crimes against
at least one victim of a different race/ethnicity. One of these 6 defendants was
White and five were Black.
30
exceeds 34 because some defendants were convicted of multiple capital offenses. See Federal Death Penalty
Information Center, Executions of Federal Prisoners 1927-1999, <http://www.deathpenaltyinfo.org/fedexec.html>.
38
PART VI: AGREEMENTS AND DISAGREEMENTS
IN THE FEDERAL DECISION-MAKING PROCESS
A. BACKGROUND
As suggested by the general similarity of the statistics reported about the
recommendations and decisions made by each participant in the Department's death penalty
review process, the United States Attorneys, the Review Committee, and the Attorney General
often come to the same conclusion about whether or not the government should seek the death
penalty for a given defendant. This Section provides information about the extent to which such
agreement has and has not occurred under the Department's review procedures.
B. STATISTICAL HIGHLIGHTS
Detailed information about the degree to which different participants in the federal
decision-making process agreed and disagreed with one another is set forth in Table Set VI
(pages T-310 to T-355). The tables first analyze agreements and disagreements among all three
participants in the decision-making process, i.e., the United States Attorneys, the Review
Committee, and the Attorney General (pages T-311 to T-327); and then focus on the extent to
which specific pairs of those participants agreed and disagreed with one another (pages T-328 to
T-355).
1. Three-party comparisons
! From 1995 to 2000, there were a total of 571 defendants who were considered by
all three participants in the decision-making process. The Attorney General, the
Review Committee and the United States Attorney all agreed with respect to 501
of these defendants (88 percent),
Total White Black Hispanic Other
Number
497 95 250 130 22
Percent
100% 19% 50% 26% 4%
! The rate of agreement was 88 percent (501 of 571 defendants as to whom the
Attorney General made a decision upon recommendations from both of the other
39
participants), including both decisions to seek the death penalty and decisions not
to seek it. With respect to specific racial/ethnic groups, the rates of agreement
were:
S 86 percent for White defendants (95 of 110 defendants);
S 89 percent for Black defendants (250 of 280 defendants);
S 83 percent for Hispanic defendants (130 of 156 defendants); and
S 88 percent for Other defendants (22 of 25 defendants).
! The rate of agreement specifically for decisions to seek the death penalty was 84
percent (133 of 159 defendants for whom the Attorney General decided to seek
the death penalty). With respect to specific racial/ethnic groups, the rates of
agreement were:
S 82 percent for White defendants (36 of 44 defendants);
S 89 percent for Black defendants (63 of 71 defendants);
S 69 percent for Hispanic defendants (22 of 32 defendants); and
S 100 percent for Other defendants (12 of 12 defendants).
! The rate of agreement specifically for decisions against seeking the death penalty
was 88 percent (368 of 417 defendants for whom the Attorney General decided
not to seek the death penalty). With respect to specific racial/ethnic groups, the
rates of agreement were:
S 87 percent for White defendants (59 of 68 defendants);
S 90 percent for Black defendants (191 of 212 defendants);
S 87 percent for Hispanic defendants (108 of 124 defendants); and
S 77 percent for Other defendants (10 of 13 defendants).
! In the 70 instances in which there was not overall agreement, the dissenting view
was most often held by the United States Attorney and least often by the Attorney
General.
! The United States Attorney held the dissenting view as to 50 defendants out of 70
as to whom there was a lack of consensus (71 percent), including 25
recommendations by United States Attorneys in favor of seeking the death
penalty and 25 recommendations against doing so. Of these 50 defendants:
Total White Black Hispanic Other
Number
50 13 17 18 2
Percent
100% 26% 34% 36% 4%
40
! The Review Committee held the dissenting view as to 18 defendants out of 70 as
to whom there was a lack of consensus (26 percent), all of which were
recommendations by the Review Committee in favor of seeking the death
penalty.
Total White Black Hispanic Other
Number
18 2 7 8 1
Percent
100% 11% 39% 44% 6%
! The Attorney General held the dissenting view as to 2 defendants out of 70 as to
whom there was a lack of consensus (3 percent), and decided in both cases
against seeking the death penalty. Both of these defendants were Black.
2. Two-party comparisons
a. The United States Attorneys and the Attorney General
! From 1995 to 2000, a total of 575 defendants facing capital-eligible charges were
the subjects of both a recommendation either for or against seeking the death
penalty by a United States Attorney and a decision by the Attorney General.
With respect to 522 of these defendants (91 percent), the United States Attorney
and the Attorney General agreed as to whether or not the death penalty should be
sought.
Total White Black Hispanic Other
Number
522 98 263 138 23
Percent
100% 19% 50% 26% 4%
! The overall rate of agreement was 87 percent (522 of 575 defendants), including
both decision to seek the death penalty and decisions not to seek it. With respect
to specific racial/ethnic groups, the overall rates of agreement were:
S 88 percent for White defendants (98 of 111 defendants);
S 93 percent for Black defendants (263 of 283 defendants);
S 88 percent for Hispanic defendants (138 of 156 defendants); and
S 92 percent for Other defendants (23 of 25 defendants).
! The rate of agreement specifically for decisions to seek the death penalty was 83
percent (133 of 160 defendants for whom the United States Attorney
31
The Attorney General deferred decision on one defendant, a fugitive who subsequently died.
41
recommended seeking the death penalty). With respect to specific racial/ethnic
groups, the rates of agreement were:
S 88 percent for White defendants (36 of 41 defendants);
S 84 percent for Black defendants (63 of 75 defendants);
S 73 percent for Hispanic defendants (22 of 30 defendants); and
S 86 percent for Other defendants (12 of 14 defendants).
! The rate of agreement specifically for decisions against seeking the death penalty
was 94 percent (389 of 415 defendants for whom the United States Attorney
recommended against seeking the death penalty). With respect to specific
racial/ethnic groups, the rates of agreement were:
S 89 percent for White defendants (62 of 70 defendants);
S 96 percent for Black defendants (200 of 208 defendants);
S 92 percent for Hispanic defendants (116 of 126 defendants); and
S 100 percent for Other defendants (11 of 11 defendants).
! The rate of agreement between the Attorney General and the United States
Attorneys as to cases in which the latter recommended seeking the death penalty
did not substantially change as a result of the adoption of the review protocol in
1995. In the pre-protocol period (when the United States Attorneys submitted
only recommendations in favor of seeking the death penalty), the cases of 51
defendants facing capital-eligible charges were submitted by the United States
Attorneys and decided by the Attorney General.
31
With respect to 47 of these
defendants (92 percent), the Attorney General and the United States Attorney
agreed that the death penalty should be sought.
Total White Black Hispanic Other
Number
47 7 34 5 1
Percent
100% 15% 72% 11% 2%
b. The United States Attorneys and the Review Committee
! From 1995 to 2000, a total of 602 defendants facing capital-eligible charges were
the subjects of recommendations either for or against seeking the death penalty by
both a United States Attorney and the Review Committee. With respect to 529 of
these defendants (88 percent), the United States Attorney and the Review
Committee agreed as to whether or not the death penalty should be sought.
42
Total White Black Hispanic Other
Number
529 98 268 141 22
Percent
100% 19% 51% 27% 4%
! The overall rate of agreement was 88 percent (529 of 602 defendants), including
both decision to seek the death penalty and decisions not to seek it. With respect
to specific racial/ethnic groups, the overall rates of agreement were:
S 86 percent for White defendants (98 of 114 defendants);
S 91 percent for Black defendants (268 of 295 defendants);
S 84 percent for Hispanic defendants (141 of 168 defendants); and
S 88 percent for Other defendants (22 of 25 defendants).
! The rate of agreement specifically for decisions to seek the death penalty was 84
percent (137 of 164 defendants for whom the United States Attorney
recommended seeking the death penalty). With respect to specific racial/ethnic
groups, the rates of agreement were:
S 88 percent for White defendants (36 of 41 defendants);
S 84 percent for Black defendants (65 of 77 defendants);
S 75 percent for Hispanic defendants (24 of 32 defendants); and
S 86 percent for Other defendants (12 of 14 defendants).
! The rate of agreement specifically for decisions against seeking the death penalty
was 89 percent (392 of 438 defendants for whom the United States Attorney
recommended against seeking the death penalty). With respect to specific
racial/ethnic groups, the rates of agreement were:
S 85 percent for White defendants (63 of 73 defendants);
S 93 percent for Black defendants (203 of 218 defendants);
S 86 percent for Hispanic defendants (117 of 136 defendants); and
S 91 percent for Other defendants (10 of 11 defendants).
c. The Review Committee and the Attorney General
! From 1995 to 2000, a total of 572 defendants facing capital-eligible charges were
the subjects of recommendations either for or against seeking the death penalty by
the Review Committee as well as a decision by the Attorney General. With
respect to 552 of these defendants (97 percent), the Attorney General and the
Review Committee agreed as to whether or not the death penalty should be
sought.
43
Total White Black Hispanic Other
Number
552 109 271 148 24
Percent
100% 20% 49% 27% 4%
! The overall rate of agreement was 97 percent (552 of 572 defendants), including
both decision to seek the death penalty and decisions not to seek it. With respect
to specific racial/ethnic groups, the overall rates of agreement were:
S 98 percent for White defendants (109 of 111 defendants);
S 97 percent for Black defendants (271 of 280 defendants);
S 95 percent for Hispanic defendants (148 of 156 defendants); and
S 96 percent for Other defendants (24 of 25 defendants).
! The rate of agreement specifically for decisions to seek the death penalty was 89
percent (158 of 178 defendants for whom the Review Committee recommended
seeking the death penalty). With respect to specific racial/ethnic groups, the rates
of agreement were:
S 96 percent for White defendants (44 of 46 defendants);
S 89 percent for Black defendants (70 of 79 defendants);
S 80 percent for Hispanic defendants (32 of 40 defendants); and
S 92 percent for Other defendants (12 of 13 defendants).
! The rate of agreement specifically for decisions against seeking the death penalty
was 100 percent (394 of 394 defendants for whom the Review Committee
recommended against seeking the death penalty). With respect to specific
racial/ethnic groups, the rates of agreement were:
S 100 percent for White defendants (65 of 65 defendants);
S 100 percent for Black defendants (201 of 201 defendants);
S 100 percent for Hispanic defendants (116 of 116 defendants); and
S 100 percent for Other defendants (12 of 12 defendants).
! The Attorney General has never disagreed with a recommendation by the Review
Committee that the death penalty should not be sought in a given case.
