These federal capital cases have been prosecuted, since 1988, pursuant to  21 U.S.C. § 848 (e) et seq., the Anti-Drug Abuse Act of 1988, and, since 1994, pursuant to 18 U.S.C. § 3591 et seq., the Federal Death Penalty Act of 1994. Commonly referred to as the "drug king-pin" statute, the 1988 passage of § 848(e)-(q) ushered in the modern federal death penalty era. Enactment of the 1994 statute marked an unprecedented expansion of the federal death penalty and revived every pre-Furman death penalty provision still in existence.

     As a result of the Federal Death Penalty Act of 1994, virtually every homicide occurring within federal jurisdiction is now death-eligible. Other statutes relating to the prosecution of capital cases include 18 U.S.C. § 3005 (appointment of two attorneys for defense in capital cases); 18 U.S.C. § 3599 (authorization of reasonably necessary investigative, expert and other expenses); 18 U.S.C. § 3235 (venue in capital cases); 18 U.S.C. § 3281 (no time limitation on instituting proceedings in capital cases) and 18 U.S.C. § 3432 (requiring disclosure of government witnesses and list of venire men at least three days before trial).

Appointment of Counsel; Role of Federal Defender

     A person indicted in federal court for any death-eligible offense is entitled to appointment of two attorneys, one of whom must be "learned in the law of capital cases." 18 U.S.C. § 3005 . Judicial Conference policy is that "[o]rdinarily, 'learned counsel' should have distinguished prior experience in the trial, appeal, or post-conviction review of federal death penalty cases, or distinguished prior experience in state death penalty trials, appeals, or post-conviction review that, in combination with co-counsel, will assure high quality representation." Recommendation 1(b), Subcommittee on Federal Death Penalty Cases, Committee on Defender Services Judicial Conference of the United States, Federal Death Penalty Cases: Recommendations Concerning The Cost And Quality of Defense (approved September 15, 1998). More than two attorneys can be appointed to represent a defendant in a capital case. 21 U.S.C. § 848 (q)(4). Additionally, the statute provides a role for the federal defender in the recruitment of qualified counsel, and instructs the court to "consider the recommendation of the federal defender organization . . . ." 18 U.S.C. § 3005 .

     In addition to the "learned counsel" requirement of § 3005, minimum experience standards for attorneys appointed in capital cases are set forth in 21 U.S.C. § 848 (q). Procedures for appointment of counsel and attorney qualification requirements are further detailed in Volume 7, Chapter VI, section 6.01 of the Guide to Judiciary Policies and Procedures.

     Highly skilled and experienced counsel is critical at every stage of a federal death penalty proceeding, and it is important from the outset of a case that death qualified counsel be appointed to provide representation to defendants charged with a capital crime. Attorneys faced with the possible of appointment to a death-eligible case are urged to consult with their local Federal Defender Office and the Federal Death Penalty Resource Counsel Project for resources and legal support. Project numbers and e-mail addresses are included here.

Department of Justice Authorization Procedures

     The Department of Justice authorization procedures are set forth in section 9-10.000 of the United States Attorney's Manual. Promulgated in early 1995, the Department of Justice Death Penalty Guidelines and Procedures are intended to set forth the criteria to be utilized by local United States Attorneys and the DOJ in deciding whether to seek the imposition of the death penalty under federal law. The procedures also outline certain procedural steps to which United States Attorneys and Main Justice are supposed to adhere in considering death penalty authorization requests.

     The following is a summary of the Department of Justice policy and procedures in 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.

• The local United States Attorney's Office cannot seek the death penalty without prior written authorization of the Attorney General. A detailed death penalty evaluation memo must be prepared and sent to DOJ by the United States Attorney’s Office in every death-eligible case, whether or not the United States Attorney wishes to seek the death penalty
  
  
• The United States Attorney must give notice and an opportunity to be heard to defense counsel before deciding to request death penalty authorization from the Attorney General. Defense counsel has the opportunity to present facts, including mitigating factors, to the United States Attorney for consideration.
  
  
• Within the Department of Justice, a review committee has been established to review each death-eligible case and to recommend to the Attorney General whether the death penalty should be sought. The DOJ review committee is appointed by the Attorney General and includes representatives of the Deputy Attorney General and the Assistant Attorney General for the Criminal Division. Members of a newly-created Capital Crimes Unit within the Criminal Division participate in the review process, but are not voting members of the committee.
  
  
• Defense counsel is provided the opportunity to present to the DOJ review committee, orally or in writing, reasons why the death penalty should not be sought. The Attorney General will conduct a review and make the final decision about whether the death penalty will be sought by the government.
  
  
• The Department will reconsider decisions to authorize the death penalty whenever changed circumstances are brought to its attention. These may include newly-discovered evidence bearing on guilt or sentence, non-capital dispositions for equally culpable co-defendants, etc.

Federal Death Penalty Resource Counsel Project (FDPRCP)

    Established in early 1992 by the Administrative Office of the United States Courts, Defender Services Division (now the Office of Defender Services), the Federal Death Penalty Resource Counsel Project is comprised of four veteran capital defense attorneys: David I. Bruck, Kevin McNally, Richard Burr and Michael Burt. Created for the benefit of court-appointed CJA panel attorneys, federal defenders, and the judiciary, the Project serves as a national clearinghouse for information which might be helpful to defense counsel appointed in federal capital cases.

     The Project monitors all federal death penalty cases and consults with counsel in areas ranging from the DOJ authorization process to developing mitigation and working with experts. All four resource counsel attorneys are experienced capital trial litigators. Their specific responsibilities also include:

• Identification and recruitment of qualified defense counsel for possible appointment;
  
  
• Development of capital litigation training programs and materials to assist federal defenders and court-appointed private counsel;
  
  
• Responding to judicial inquiries concerning appointment of counsel, case budgeting, and the defense function in federal capital cases;
  
  
• Responding to Congressional inquiries directed at the federal defender system relating to proposed capital punishment legislation, and,
  
  

• maintaining a liaison between the federal public defender system and responsible officials of the Department of Justice regarding the administration of federal death penalty statutes.

     The Project produces materials related to defending federal capital prosecutions, including the authorization process, as well as a mitigation handbook. The Project also provides sample pleadings on recurring issues such as defense funding, continuance, jury voir dire, discovery, government mental status exams, severance, penalty phase instructions, etc. These materials are made available at no cost to appointed counsel. Project attorneys also provide case telephone and on-site consultation as requested by appointed counsel.

OTHER Capital Governing Provisions Statutory Cases

While most of the provisions governing capital cases are set out in 18 U.S.C. § 3005, 18 U.S.C. § 3591 et seq. and 21 U.S.C. § 848(e)-(q), two other provisions govern particular aspects of capital cases: