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§ 3592. —  Mitigating and aggravating factors to be considered in determining whether a sentence of death is justified.



[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
  January 7, 2003 and December 19, 2003]
[CITE: 18USC3592]

 
                 TITLE 18--CRIMES AND CRIMINAL PROCEDURE
 
                       PART II--CRIMINAL PROCEDURE
 
                       CHAPTER 228--DEATH SENTENCE
 
Sec. 3592. Mitigating and aggravating factors to be considered 
        in determining whether a sentence of death is justified
        
    (a) Mitigating Factors.--In determining whether a sentence of death 
is to be imposed on a defendant, the finder of fact shall consider any 
mitigating factor, including the following:
        (1) Impaired capacity.--The defendant's capacity to appreciate 
    the wrongfulness of the defendant's conduct or to conform conduct to 
    the requirements of law was significantly impaired, regardless of 
    whether the capacity was so impaired as to constitute a defense to 
    the charge.
        (2) Duress.--The defendant was under unusual and substantial 
    duress, regardless of whether the duress was of such a degree as to 
    constitute a defense to the charge.
        (3) Minor participation.--The defendant is punishable as a 
    principal in the offense, which was committed by another, but the 
    defendant's participation was relatively minor, regardless of 
    whether the participation was so minor as to constitute a defense to 
    the charge.
        (4) Equally culpable defendants.--Another defendant or 
    defendants, equally culpable in the crime, will not be punished by 
    death.
        (5) No prior criminal record.--The defendant did not have a 
    significant prior history of other criminal conduct.
        (6) Disturbance.--The defendant committed the offense under 
    severe mental or emotional disturbance.
        (7) Victim's consent.--The victim consented to the criminal 
    conduct that resulted in the victim's death.
        (8) Other factors.--Other factors in the defendant's background, 
    record, or character or any other circumstance of the offense that 
    mitigate against imposition of the death sentence.

    (b) Aggravating Factors for Espionage and Treason.--In determining 
whether a sentence of death is justified for an offense described in 
section 3591(a)(1), the jury, or if there is no jury, the court, shall 
consider each of the following aggravating factors for which notice has 
been given and determine which, if any, exist:
        (1) Prior espionage or treason offense.--The defendant has 
    previously been convicted of another offense involving espionage or 
    treason for which a sentence of either life imprisonment or death 
    was authorized by law.
        (2) Grave risk to national security.--In the commission of the 
    offense the defendant knowingly created a grave risk of substantial 
    danger to the national security.
        (3) Grave risk of death.--In the commission of the offense the 
    defendant knowingly created a grave risk of death to another person.

The jury, or if there is no jury, the court, may consider whether any 
other aggravating factor for which notice has been given exists.
    (c) Aggravating Factors for Homicide.--In determining whether a 
sentence of death is justified for an offense described in section 
3591(a)(2), the jury, or if there is no jury, the court, shall consider 
each of the following aggravating factors for which notice has been 
given and determine which, if any, exist:
        (1) Death during commission of another crime.--The death, or 
    injury resulting in death, occurred during the commission or 
    attempted commission of, or during the immediate flight from the 
    commission of, an offense under section 32 (destruction of aircraft 
    or aircraft facilities), section 33 (destruction of motor vehicles 
    or motor vehicle facilities), section 37 (violence at international 
    airports), section 351 (violence against Members of Congress, 
    Cabinet officers, or Supreme Court Justices), an offense under 
    section 751 (prisoners in custody of institution or officer), 
    section 794 (gathering or delivering defense information to aid 
    foreign government), section 844(d) (transportation of explosives in 
    interstate commerce for certain purposes), section 844(f) 
    (destruction of Government property by explosives), section 1118 
    (prisoners serving life term), section 1201 (kidnapping), section 
    844(i) (destruction of property affecting interstate commerce by 
    explosives), section 1116 (killing or attempted killing of 
    diplomats), section 1203 (hostage taking), section 1992 (wrecking 
    trains), section 2280 (maritime violence), section 2281 (maritime 
    platform violence), section 2332 (terrorist acts abroad against 
    United States nationals), section 2332a (use of weapons of mass 
    destruction), or section 2381 (treason) of this title, or section 
    46502 of title 49, United States Code (aircraft piracy).
        (2) Previous conviction of violent felony involving firearm.--
    For any offense, other than an offense for which a sentence of death 
    is sought on the basis of section 924(c), the defendant has 
    previously been convicted of a Federal or State offense punishable 
    by a term of imprisonment of more than 1 year, involving the use or 
    attempted or threatened use of a firearm (as defined in section 921) 
    against another person.
        (3) Previous conviction of offense for which a sentence of death 
    or life imprisonment was authorized.--The defendant has previously 
    been convicted of another Federal or State offense resulting in the 
    death of a person, for which a sentence of life imprisonment or a 
    sentence of death was authorized by statute.
        (4) Previous conviction of other serious offenses.--The 
    defendant has previously been convicted of 2 or more Federal or 
    State offenses, punishable by a term of imprisonment of more than 1 
    year, committed on different occasions, involving the infliction of, 
    or attempted infliction of, serious bodily injury or death upon 
    another person.
        (5) Grave risk of death to additional persons.--The defendant, 
    in the commission of the offense, or in escaping apprehension for 
    the violation of the offense, knowingly created a grave risk of 
    death to 1 or more persons in addition to the victim of the offense.
        (6) Heinous, cruel, or depraved manner of committing offense.--
    The defendant committed the offense in an especially heinous, cruel, 
    or depraved manner in that it involved torture or serious physical 
    abuse to the victim.
        (7) Procurement of offense by payment.--The defendant procured 
    the commission of the offense by payment, or promise of payment, of 
    anything of pecuniary value.
        (8) Pecuniary gain.--The defendant committed the offense as 
    consideration for the receipt, or in the expectation of the receipt, 
    of anything of pecuniary value.
        (9) Substantial planning and premeditation.--The defendant 
    committed the offense after substantial planning and premeditation 
    to cause the death of a person or commit an act of terrorism.
        (10) Conviction for two felony drug offenses.--The defendant has 
    previously been convicted of 2 or more State or Federal offenses 
    punishable by a term of imprisonment of more than one year, 
    committed on different occasions, involving the distribution of a 
    controlled substance.
        (11) Vulnerability of victim.--The victim was particularly 
    vulnerable due to old age, youth, or infirmity.
        (12) Conviction for serious federal drug offenses.--The 
    defendant had previously been convicted of violating title II or III 
    of the Comprehensive Drug Abuse Prevention and Control Act of 1970 
    for which a sentence of 5 or more years may be imposed or had 
    previously been convicted of engaging in a continuing criminal 
    enterprise.
        (13) Continuing criminal enterprise involving drug sales to 
    minors.--The defendant committed the offense in the course of 
    engaging in a continuing criminal enterprise in violation of section 
    408(c) of the Controlled Substances Act (21 U.S.C. 848(c)), and that 
    violation involved the distribution of drugs to persons under the 
    age of 21 in violation of section 418 of that Act (21 U.S.C. 859).
        (14) High public officials.--The defendant committed the offense 
    against--
            (A) the President of the United States, the President-elect, 
        the Vice President, the Vice President-elect, the Vice 
        President-designate, or, if there is no Vice President, the 
        officer next in order of succession to the office of the 
        President of the United States, or any person who is acting as 
        President under the Constitution and laws of the United States;
            (B) a chief of state, head of government, or the political 
        equivalent, of a foreign nation;
            (C) a foreign official listed in section 1116(b)(3)(A), if 
        the official is in the United States on official business; or
            (D) a Federal public servant who is a judge, a law 
        enforcement officer, or an employee of a United States penal or 
        correctional institution--
                (i) while he or she is engaged in the performance of his 
            or her official duties;
                (ii) because of the performance of his or her official 
            duties; or
                (iii) because of his or her status as a public servant.

        For purposes of this subparagraph, a ``law enforcement officer'' 
        is a public servant authorized by law or by a Government agency 
        or Congress to conduct or engage in the prevention, 
        investigation, or prosecution or adjudication of an offense, and 
        includes those engaged in corrections, parole, or probation 
        functions.

        (15) Prior conviction of sexual assault or child molestation.--
    In the case of an offense under chapter 109A (sexual abuse) or 
    chapter 110 (sexual abuse of children), the defendant has previously 
    been convicted of a crime of sexual assault or crime of child 
    molestation.
        (16) Multiple killings or attempted killings.--The defendant 
    intentionally killed or attempted to kill more than one person in a 
    single criminal episode.

The jury, or if there is no jury, the court, may consider whether any 
other aggravating factor for which notice has been given exists.
    (d) Aggravating Factors for Drug Offense Death Penalty.--In 
determining whether a sentence of death is justified for an offense 
described in section 3591(b), the jury, or if there is no jury, the 
court, shall consider each of the following aggravating factors for 
which notice has been given and determine which, if any, exist:
        (1) Previous conviction of offense for which a sentence of death 
    or life imprisonment was authorized.--The defendant has previously 
    been convicted of another Federal or State offense resulting in the 
    death of a person, for which a sentence of life imprisonment or 
    death was authorized by statute.
        (2) Previous conviction of other serious offenses.--The 
    defendant has previously been convicted of two or more Federal or 
    State offenses, each punishable by a term of imprisonment of more 
    than one year, committed on different occasions, involving the 
    importation, manufacture, or distribution of a controlled substance 
    (as defined in section 102 of the Controlled Substances Act (21 
    U.S.C. 802)) or the infliction of, or attempted infliction of, 
    serious bodily injury or death upon another person.
        (3) Previous serious drug felony conviction.--The defendant has 
    previously been convicted of another Federal or State offense 
    involving the manufacture, distribution, importation, or possession 
    of a controlled substance (as defined in section 102 of the 
    Controlled Substances Act (21 U.S.C. 802)) for which a sentence of 
    five or more years of imprisonment was authorized by statute.
        (4) Use of firearm.--In committing the offense, or in 
    furtherance of a continuing criminal enterprise of which the offense 
    was a part, the defendant used a firearm or knowingly directed, 
    advised, authorized, or assisted another to use a firearm to 
    threaten, intimidate, assault, or injure a person.
        (5) Distribution to persons under 21.--The offense, or a 
    continuing criminal enterprise of which the offense was a part, 
    involved conduct proscribed by section 418 of the Controlled 
    Substances Act (21 U.S.C. 859) which was committed directly by the 
    defendant.
        (6) Distribution near schools.--The offense, or a continuing 
    criminal enterprise of which the offense was a part, involved 
    conduct proscribed by section 419 of the Controlled Substances Act 
    (21 U.S.C. 860) which was committed directly by the defendant.
        (7) Using minors in trafficking.--The offense, or a continuing 
    criminal enterprise of which the offense was a part, involved 
    conduct proscribed by section 420 of the Controlled Substances Act 
    (21 U.S.C. 861) which was committed directly by the defendant.
        (8) Lethal adulterant.--The offense involved the importation, 
    manufacture, or distribution of a controlled substance (as defined 
    in section 102 of the Controlled Substances Act (21 U.S.C. 802)), 
    mixed with a potentially lethal adulterant, and the defendant was 
    aware of the presence of the adulterant.

The jury, or if there is no jury, the court, may consider whether any 
other aggravating factor for which notice has been given exists.

(Added and amended Pub. L. 103-322, title VI, Sec. 60002(a), title 
XXXIII, Sec. 330021(1), Sept. 13, 1994, 108 Stat. 1960, 2150; Pub. L. 
104-132, title VII, Sec. 728, Apr. 24, 1996, 110 Stat. 1302; Pub. L. 
104-294, title VI, Secs. 601(b)(7), 604(b)(35), Oct. 11, 1996, 110 Stat. 
3499, 3508; Pub. L. 107-273, div. B, title IV, Sec. 4002(e)(2), Nov. 2, 
2002, 116 Stat. 1810.)

                       References in Text

    The Comprehensive Drug Abuse Prevention and Control Act of 1970, 
referred to in subsec. (c)(12), is Pub. L. 91-513, Oct. 27, 1970, 84 
Stat. 1236, as amended. Title II of the Act, known as the Controlled 
Substances Act, is classified principally to subchapter I (Sec. 801 et 
seq.) of chapter 13 of Title 21, Food and Drugs. Title III of the Act, 
known as the Controlled Substances Import and Export Act, is classified 
principally to subchapter II (Sec. 951 et seq.) of chapter 13 of Title 
21. For complete classification of this Act to the Code, see Short Title 
note set out under sections 801 and 951 of Title 21 and Tables.


                               Amendments

    2002--Subsec. (c)(1). Pub. L. 107-273 substituted ``section 37'' for 
``section 36''.
    1996--Subsec. (c)(1). Pub. L. 104-294, Sec. 601(b)(7), substituted 
``section 2332a (use of weapons of mass destruction)'' for ``section 
2339 (use of weapons of mass destruction)''.
    Subsec. (c)(12). Pub. L. 104-294, Sec. 604(b)(35), substituted 
``Comprehensive Drug Abuse Prevention and Control Act of 1970'' for 
``Controlled Substances Act''.
    Subsec. (c)(16). Pub. L. 104-132 added par. (16).
    1994--Subsec. (c)(1). Pub. L. 103-322, Sec. 330021(1), substituted 
``kidnapping'' for ``kidnaping''.


                    Effective Date of 1996 Amendment

    Amendment by section 604(b)(35) of Pub. L. 104-294 effective Sept. 
13, 1994, see section 604(d) of Pub. L. 104-294, set out as a note under 
section 13 of this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 3591, 3593, 3595 of this 
title.



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