Procedural Provisions for Imposing the Death Penalty in Pending Legislation

Headnotes: 

The following memorandum comments on proposed legislation to bring the federal death penalty provisions into compliance with the constitutional standards identified by the Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972) and subsequent decisions. It identifies certain procedural provisions as likely to be subject to constitutional challenge, and indicates how the issues involved are likely to be resolved under existing case law. Among the issues discussed are: (1) whether the Constitution’s requirement of a unanimous jury extends to the sentencing phase of a capital case; (2) whether the jury’s consideration of mitigating factors may be limited; (3) whether evidence of aggravating factors may be admitted regardless of its admissibility under the rules of evidence; (4) whether the language specifying aggravating and mitigating factors is unconstitutionally vague; (5) whether the death penalty may be imposed for nonhomicidal crimes; and (6) whether appellate review only at the request of the defendant is an adequate safeguard against the random or arbitrary imposition of the death penalty.

Updated July 9, 2014