70. Consultation Prior To Seeking The Death Penalty

A submission to the Assistant Attorney General for the Criminal Division is required in any case in which an offense subject to the death penalty has been, or could be, or will be charged. Early consultation with attorneys in the Capital Case Unit is encouraged so that prosecutors can receive timely advice and assistance in preparing and presenting a potential capital case for Department review and decision by the Attorney General to seek, or not to seek, the death penalty (JM Chapter 9-10.000). The death penalty protocol review process is also required for plea agreements that preclude imposition of the death penalty, and for consent to a bench trial in cases where the United States Attorney has been authorized to seek the death penalty.

Before obtaining an indictment for an offense subject to the death penalty, the United States Attorney or Assistant United States Attorney assigned to the case should consult with the Capital Case Unit of the Criminal Division regarding the inclusion in the indictment of the statutory factors that render the offense death penalty-eligible. Prior to filing or amending a notice of intent to seek the death penalty in a case in which the Attorney General has decided to seek the death penalty, the Capital Case Unit must approve the notice or the proposed amendment.

Attorneys in the Capital Case Unit and other appropriate sections can alert prosecutors to current issues in the prosecution of capital cases and provide them with resources that will assist in the preparation for trial and for the punishment hearing.

[updated November 2003]