Death Penalty - Federal

Do We Remember There is a Federal Death Penalty Statute? 

There is such a focus these days on the various states in discussions on capital punishment, that many may not realize that there is an active federal death penalty process, and that the Department of Justice’s Office of the Attorney General can seek death in federal prosecutions all over the country. 

Federal Death Penalty Law

It will not matter if the state in which the federal court resides does not support capital punishment. Under federal law, if the defendant is being tried at the federal courthouse, then he or she may be sentenced to die.

The federal death penalty statute is found in Chapter 228 of Title 18 of the United States Crimes and Criminal Procedures Code.

Specifically, under 18 USC 3591:

(a)A defendant who has been found guilty of—

(1) an offense described in section 794 or section 2381; or

(2)any other offense for which a sentence of death is provided, if the defendant, as determined beyond a reasonable doubt at the hearing under section 3593

(A) intentionally killed the victim;

(B) intentionally inflicted serious bodily injury that resulted in the death of the victim;

(C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or

(D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act,

shall be sentenced to death if, after consideration of the factors set forth in section 3592 in the course of a hearing held pursuant to section 3593, it is determined that imposition of a sentence of death is justified, except that no person may be sentenced to death who was less than 18 years of age at the time of the offense.

(b)A defendant who has been found guilty of—

(1) an offense referred to in section 408(c)(1) of the Controlled Substances Act (21 U.S.C. 848(c)(1)), committed as part of a continuing criminal enterprise offense under the conditions described in subsection (b) of that section which involved not less than twice the quantity of controlled substance described in subsection (b)(2)(A) or twice the gross receipts described in subsection (b)(2)(B); or

(2) an offense referred to in section 408(c)(1) of the Controlled Substances Act (21 U.S.C. 848(c)(1)), committed as part of a continuing criminal enterprise offense under that section, where the defendant is a principal administrator, organizer, or leader of such an enterprise, and the defendant, in order to obstruct the investigation or prosecution of the enterprise or an offense involved in the enterprise, attempts to kill or knowingly directs, advises, authorizes, or assists another to attempt to kill any public officer, juror, witness, or members of the family or household of such a person,

shall be sentenced to death if, after consideration of the factors set forth in section 3592 in the course of a hearing held pursuant to section 3593, it is determined that imposition of a sentence of death is justified, except that no person may be sentenced to death who was less than 18 years of age at the time of the offense.

A variety of statutes provide for capital punishment in federal cases, from crimes like espionage or the assassination of a federal judge. The Death Penalty Information Center has created a table that lists death penalty references found in various federal statutory codes

Deciding on Death

This does not mean that every federal prosecution eligible for capital punishment will have the defendant facing the possibility of the death penalty. As in Florida state prosecutions, the decision on whether or not to seek death resides with the prosecutor.

For instance, this week it was announced by the Department of Justice that the Office of the Attorney General will not be asking for the death penalty in the case of Esteban Santiago, who pled guilty in a Miami federal courtroom to killing 5 people in the January 2017 shooting at the Fort Lauderdale-Hollywood International Airport.

For details, read “Fort Lauderdale airport shooter will plead guilty in deal to avoid death penalty,” written by Jay Weaver and published in the Miami Herald on May 1, 2018.

Read the Federal Indictment of Esteban Santiago here.

The jury has made its decision in the case of Dylann Roof, charged with the shooting deaths of nine people attending church in Charleston, South Carolina.  Roof has been sentenced to death.

Federal Hate Crime Death Sentence

As the Associated Press reports, this is the first time that an individual has been sentenced to death in this country for what has been designated as a "hate crime." 

Roof represented himself before the jury.  Read details of his statements prior to sentencing in the CBS News coverage, " Dylann Roof sentenced to death for Charleston church shooting."

Moratorium on Federal Death Penalty

Right now, there is a federal moratorium on the death penalty.  There are 62 Federal Death Row Inmates on the federal government’s Death Row.  Dylann Roof apparently will be number 63, joining Death Row inmates like Dzhokhar Tsarnaev, the Boston Marathon Bomber. 

Will Federal Moratorium on Death Penalty End?

What will happen during the new Presidential Administration?  Some suggest that Trump will change the moratorium and federal executions will proceed. 


When convicted Boston Marathon Bomber, Dzhokhar Tsarnaev, was condemned to die recently, he learned that his new address would be federal death row in Terre Haute, Indiana. Because of the lengthy appeals process, it may be decades before he’s executed. Despite 74 people having been sentenced to death in federal cases since the 1988 reinstatement of the federal death penalty, only three — Timothy McVeigh, Juan Raul Garza and Louis Jones — have been executed. Prior to McVeigh’s 2001 execution, the federal government had not put anyone to death since 1963.

Many people lobbied for Tsarnaev to be spared death and instead sentenced to life imprisonment without the possibility of parole. With the speed that the wheels of American justice turn, it may turn out that in the end his sentence will amount to life in prison.

Due primarily to appeals, the length of time an inmate is on death row has increased. The period of time prisoners spend on death row before their executions have emerged as a subject of debate surrounding capital punishment.  The discussion began in earnest in 1976 when the U.S. Supreme Court reinstated the death penalty as an option to life imprisonment.

The debate got louder when Connecticut death row inmate Michael Ross was executed after having spent 17 years waiting for his sentence to be carried out. It’s a discourse that still continues.

In the US, death row inmates typically spend over ten years waiting for execution. Some prisoners have been waiting for rover 20 years.

In 1984, the average time between sentencing and execution was 74 months. By 2012 that gap had widened to 190 months according to the Bureau of Justice Statistics.

Judicial Paradox

The US Supreme Court has yet to accept any case based on the length of time an inmate is held on death row. Justices Breyer and Stevens though have questioned the constitutionality of the long delays.

Writing in a 1995 case, Stevens was the first to broach the subject. In writing the minority opinion in Lackey v. Texas, Stevens urged lower courts to act as a laboratory of sorts for examining whether executing inmates after long periods on death row may violate the Eighth Amendment, which prohibits cruel and unusual punishment

While some justices argued the other side, Breyer stood firm and wrote that the “astonishingly long delays” which the inmates experienced were not the result of frivolous appeals on their part, but instead they were because of “constitutionally defective death penalty procedures.”

In 2009, the Court declined to intervene in Thompson v. McNeil. Three justices issued strong statements about the legal issue of time spent on death row. 

Thompson had been on Florida’s death row for 32 years and claimed the excessive amount of time spent on death row was cruel and unusual punishment and violated his constitutional rights.

In 2011, Manual Valle was executed by Florida after spending 33 years on death row. When Valle’s lawyers appealed to the Supreme Court on the issue of Valle’s length of stay prior to execution, the Court allowed the execution to move forward. Breyer, who again dissented from the decision, wrote, “I have little doubt about the severity of so long a period of imprisonment under penalty of death.”

Currently there is a challenge of reconciling the imposition of the death penalty with procedures necessary to make sure the wrong person is not executed.

Why Does It Take So Long?

The first appeal is typically about the case and verdict itself. During this petition, questions are raised about the conclusions and rulings delivered by the trial judge.

The appeals court rarely endorses every ruling the trial judge made, but only infrequently decides that the ruling amounts to reversible error. Most errors recognized by the appeals court are considered “harmless errors,” meaning that a different decision would still have given way to the same result.

Most jurisdictions — state and federal level — have multiple tiers, or levels, of appellate courts. If the appeal doesn’t end in a reversal at one level, the defense tries again at a different level.

If all the appeals fail, then the offender may seek to get an appeals court to rule that his trial attorney was incompetent. Undoubtedly, the convicted would need to get another attorney for this, but the levels of appellate courts are equal and the process begins all over.

Another tactic the converted my try is to obtain a ruling that he has been mistreated while on death row.

Longest on Death Row

It’s not possible to point to a specific individual with certainty and say that they are the one who has spent the most time going through the appeals process. A good indicator though, would be to look at the length of time someone has been on death row. As a person isn’t executed before their appeals run out, a safe assumption is that several individuals had a lengthy appeals process before being executed. Complete records are not easily obtainable, however some information can be pulled from the Bureau of Justice reports.

Among individuals serving the longest time on death row before being executed, are:

Ronald Arthur Gray 26 years (longest on the military’s death row)

David Carpenter, 30 years on death row
Albert Greenwood Brown, 33 years
Lawrence Bittaker, 34 years
Johnny Paul Penry, 35 years


Even individuals who were innocent have spent decades on death row before being found innocent, or not guilty, and released. The year in which they were convicted is shown and each of the individuals listed were set free in 2014:

Kwame Ajamu (formerly Ronnie Bridgeman), 1975
Reginald Griffin, 1983
Joe D’Ambrosio, 1984
Glenn Ford, 1984
Henry Lee McCollum, 1984
Leon Brown, 1984

Maybe the world record holder for time spent incarcerated for murder, and later set free, is Steven Truscott, a Canadian. Truscot was convicted of murder, and sentenced to die, in 1959. On January 22, 1960 his death sentence was commuted to life imprisonment. Eventually released on parole, Truscott’s conviction was overturned in 2007.


This article was written by New York-based criminal attorney Arkady Bukh, a frequent media contributor and published author.  

Mr. Bukh served as defense counsel for Azamat Tazhayakov of Boston Bomber Marathon case. 

His article has been published here as provided by attorney Bukh without change.



There is an interesting case being played out in Iowa right now – interesting because not only does it involves a woman on Death Row facing the death penalty, but also because it involves the federal death penalty statute.

Here’s what’s going on.

Last week, United States District Judge Mark Bennett, setting on the U.S. District Court Bench for the Northern District of Iowa, removed Angela Johnson – one of the two women setting on federal death row – from a death sentence, and gave a big, basic reason for his action as part of a 448-page ruling (that’s a ream of paper to give his decision, imagine that):

the trial lawyers defending the woman in a trial where she was found guilty of the execution-style murders of five people did not present mitigating evidence about her troubled mental state that could have spared her from capital punishment.

(For more about mitigating evidence, read our earlier post on the subject, or delve into details about how mitgation works by reading Terry’s case book/memoir shown in the left sidebar, where he describes case after case and the realities of mitigation evidence.)

Judge Bennett does not mince words: he tossed out  the death penalty sentence finding that her criminal defense attorneys had been "… alarmingly dysfunctional…." during the trial.

Read Judge Bennett’s Ruling – all 448 pages of it — online here.

What happens next?

Angela Johnson made the history books when she was given the death penalty because she was the first woman to be sentenced to death in the federal system since the U.S. Supreme Court reinstated the death penalty back in 1976.

She’s still guilty of the crime, that hasn’t changed.  Judge Bennett did not erase the conviction — and under the law, Angela Johnson is still – in the words of Judge Bennett – overwhelmingly guilty of going with her then-boyfriend, alleged to be the leading methamphetamine dealer in the Midwest, to kill and then bury the bodies of federal informants (and drug dealers) Terry DeGeus and Greg Nicholson, along with Nicholson’s girlfriend, Lori Duncan and her young daughters, Kandi, 10, and Amber, 6. 

Attorney General Eric Holder must make a decision.  The U.S. Attorney General has to decide if the federal government will try and get the death penalty again for Angela Johnson, or not.  They’ve got a 60 day deadline.  They can appeal this judge’s ruling (and with that ream of paper, sounds like the judge is expecting this) or they can go back to trial and there would then be evidence presented once again regarding her sentencing. 

If that’s the path that’s taken by the U.S. Attorney, then the mitigating factors that upset Judge Bennett will come before the court … and for the first time, evidence about her mental health will be a consideration in deciding whether or not she should be executed. 


Jared Loughner is accused of violating federal laws that carry with them the death penalty, and he’s already been charged with capital murder in a Phoenix federal courtroom.  (Read the federal indictment here.) Arizona law has also been violated in this horrific crime, and the State of Arizona is planning its own separate prosecution of Loughner for capital crimes in violation of state law.

It’s not two bites at the apple. 

No, it’s not double jeopardy because there are separate crimes, in separate jurisdictions.  The fact that lots of money is going to be spent in this media-intense case in two systems as efforts are made to sentence this man to death seems to be acceptable to both prosecutors.  Two bites at the apple arguments aren’t legally valid here. 

Meanwhile, while lots of media attention is being given to the attempted murder of Congresswoman Giffords, the assassination of federal judge John Roll should not be discounted.  It’s not often that federal judges are killed in the line of duty, and federal prosecutors will be fierce in their efforts here. 

However, given the state of capital punishment today it may well be that Arizona has a better possibility of a death sentence for Loughner under Arizona law, where he undoubtedly will be tried for the death of a 9-year-old child.  This may be the stronger death case, from a prosecution perspective. 

Death Penalty Sought By US Attorney and Arizona Prosecutor Is a Given

In fact, it is so immediately clear that the death penalty will be sought by the U.S. Attorney that the federal public defender already moved the court to appoint death-qualified indigent defense counsel to the case.

High Profile Death Qualified Defense Counsel Appointed

His request was that these defense attorneys be appointed from outside of Arizona, not only because the public defender’s office was not available to take the appointment but also because every other death-qualified Arizona defense attorney either had a conflict of interest in representing Loughner or they turned down the representation.  Accordingly, the federal PD moved for the appointment of California defense attorneys Judy Clarke and Mark Fleming to be appointed by the judge.

Clarke has already appeared in court for Loughner.  She is a litigator experienced with this level of trial-by-media case having already represented Ted Kaczynski, the Unibomber;  and Susan Smith, the South Carolina mother who committed filicide, killing her two small boys by driving her car into a lake.  None of her high-profile clients (see the USA Today list) has been given the death penalty. 

And while the Arizona process is a step behind the federal system (as the state systems always are), it is to be expected that Jared Loughner will soon appear in a Phoenix courtroom again, this time for a state proceeding where it’s likely that indigent appointments will once again be for his current defense counsel to represent him in the state proceedings. 

There’s no one better than Judy Clarke — good luck to her in this massive undertaking.

Earlier, we posted an organized list of the mitigating factors recognized by the various states still imposing the death penalty, and that effort has received a good response. It’s been helpful. 

Accordingly, In tandem with that state list, we provide an itemized list (hopefully user-friendly) of the corresponding mitigating factors – as well as aggravating factors – that are recognized in federal death penalty cases (non-military).

Federal Death Penalty Statutes – Overview

Federal law provides for the sentence of death when a wide variety of crimes have been committed.  Under federal law, you can be executed without having yourself killing anyone.  For a complete list of the various federal statutes allowing for the death penalty, please refer to the excellent resource list provided by the Death Penalty Information Center.  There’s over 40 listed there, at last count. 

In federal death penalty cases, the defense must have two attorneys, and one of them must be death-penalty qualified.  After guilt has been adjudicated, there is a separate trial to determine first if capital punishment is legally an option; thereafter, evidence is presented on the aggravating factors and the mitigators. 

Mitigating circumstances need only be proven by a preponderance of the evidence; however, the prosecution must establish its aggravating circumstances beyond a reasonable doubt.  The federal death penalty jury cannot sentence a defendant to death unless the vote is unanimous. 

Mitigating Factors In Federal Death Penalty Cases

(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.

Aggravating Factors in Federal Death Penalty Cases

Federal law defines different aggravating factors depending upon the crime involved: treason, for example, has a different set of aggravating factors than homicide or a drug conviction.  The aggravating factors in federal capital punishment cases are as follows:

Continue Reading Terry Lenamon’s List of Federal Death Penalty Aggravating Factors and Mitigating Circumstances

News coverage of Timothy O’Reilly’s murder trial this week is providing an example of what occurs during the penalty phase of a death penalty case, specifically one in the federal system, as the Detroit federal courtroom hears testimony from both prosecution and defense in the Timothy O’Reilly case. 

A jury has just returned a guilty verdict in the matter, finding that Timothy O’Reilly committed the crime of murdering Norman Stephens, 30, during an armed robbery of the Dearborn Federal Credit Union in Dearborn. Michigan.  This week, the penalty phase began.

Aggravating Factors – Prosecution’s Argument to the Jury that O’Reilly Should Get Death Penalty

It’s reported that many have cried as the victim’s wife, daughter, niece and nephews testified about the slain armored car guard.  The victim’s family spoke today about the loss they have experienced in the eight years since their loved one died.  The prosecution’s remaining aggravated evidence is from tape-recorded jailhouse conversations between O’Reilly, his family, and other prisoners. 

Mitigators – Defense’s Evidence to the Jurors Against O’Reilly Receiving Capital Punishment

Tomorrow, O’Reilly’s defense team is expected to give mitigating evidence to the jury that will include evidence on abnormalities in Mr. O’Reilly’s brain function as well as the troubled childhood that he suffered.  They will ask the jury to forego the penalty of death, and opt for a life sentence in the case.

Mitigation evidence should take the rest of this week, with jurors making their decision as soon as next week, after formal deliberations begin.  And, these Michigan men and women will need to have some time to consider everything they’ve heard as they decide whether or not they will be merciful.  The federal death penalty decision must be a unanimous one.

What is the Penalty Phase in a Trial?

As we’ve discussed here before, during the trial phase of any capital punishment case it is guilt that is at issue.  Judgment is the focus.  If the defendant is adjudged guilty, as O"Reilly has been found, then mercy takes the place of judgment for the decision-maker.

First, the prosecution provides evidence of factors it believes supports its request for death as the appropriate punishment for this man.  Afterwards, the defense produces evidence of mitigating circumstances that argue against the ultimate price for the adjudicated crime. 

Michigan?  Yes, The O’Reilly Case is a Death Penalty Case Out of Michigan.

We’ve posted about this case earlier, since it is very unusual to be discussing a capital punishment case coming out of Michigan.  The State of Michigan removed the death penalty from its books over a hundred years ago (1846). 

However, Tim O’Reilly was charged and is being tried under federal law, in federal court — and of course, the death penalty is still an option under federal law.  Occasionally, the federal death penalty will come into play: recent examples include the Oklahoma trial of Timothy McVeigh and the recent Florida trial in the Turnpike killings

And the truth remains:  had this man been charged under state law instead of federal, he would have been tried in a state courtroom close to the district court in which his fate resides, with jurors theoretically chosen out of the same population as sets in the federal trial today.  Death?  If he were in the Michigan courthouse, of course, it wouldn’t be on the table. 

[The following post is being republished here with the permission of its author, James Clark, field organizer for the ACLU, Southern California.  It was previously published on the Huffington Post on June 28, 2010.]

California’s governor has proposed closing the state’s $20 billion budget gap with a drastic cuts-only approach; slashing funding for vital human services without working to increase revenue. Yet one state program seems to be immune from these cuts: the death penalty.

We think the time has come to CUT THIS. (see video below) 

California spends vast amounts of money prosecuting death penalty cases and supporting death row. To avoid executing an innocent person, the death penalty process is long, complicated, and expensive. Each prosecution seeking death costs approximately $1.1 million more than a trial seeking permanent imprisonment, and with more than 700 inmates, California’s death row is by far the largest and most costly in the nation. In total, California’s death penalty system costs taxpayers $137 million per year.

Contrast that with just $11 million per year if we replace the death penalty with permanent imprisonment. Top that off with $400 million saved if we don’t build a new death row, needed because the existing one is so old and overcrowded.

Today, if Gov. Arnold Schwarzenegger were to convert the sentences of all those on death row to permanent imprisonment, the state would save $1 billion over the next five years without releasing a single prisoner.

But the death penalty is not on the chopping block. Rather than cutting the death penalty, the governor has focused on cutting the "rehabilitation" side of the California Department of Corrections and Rehabilitation. Programs emphasizing education, rehabilitation, and addiction treatment have all seen cuts to their budgets, while death penalty prosecutions continue statewide. 

Continue Reading Guest Post: Cut This: The Death Penalty by James Clark

Yesterday, former Harvard Law School dean Elena Kagan began answering questions from members of the Senate Judiciary Committee as confirmation hearings started on her nomination to the United States Supreme Court. 

Elena Kagan is young at 50 years old and her presence on the High Court could impact the law of the land for several decades.  Already, there’s rumblings about Kagan never having served as a judge on any court, her scant past experience arguing before an appellate court  — and many are wondering exactly what her stand is on several social issues.  Like the death penalty.

Where does Elena Kagan stand on capital punishment?

Supreme Court justices only have a single vote each – but they can be eloquent and powerful even when outnumbered in the voting.  Interestingly, Elena Kagan once clerked for Justice Thurgood Marshall. 

You’ll remember that Justice Marshall, together with fellow Justice William Brennan, concluded in Furman v. Georgia that the death penalty was unconstitutional — and afterwards, the two men teamed to dissent (one joining the other) in every single death penalty case that came before the U.S. Supreme Court after Furman, Gregg v. Georgia notwithstanding (in Gregg, the majority held that capital punishment was constitutional). 

Thurgood Marshall Questioning of Kagan Begins on the First Day of Confirmation Hearings

It’s no surprise, then, that Elena Kagan is being grilled on her past history with Justice Thurgood Marshall — nor that she got hit with this questioning right out of the gate.  Betcha Kagan wasn’t surprised either.

However, what we’re all still wondering:  what exactly does Elena Kagan think of the death penalty?  Will she take up the reins of Marshall and Brennan? 

The Texas Moratorium Network has collected statements made by Elena Kagan on the subject of capital punishment.  Read them here

Meanwhile, questioning of Judge Kagan continues the rest of this week. You can watch them live, and online, at Rod 2.0. 

Late last month, we published a list of Supreme Court precedent over at JD Supra, in a .pdf format (Terry Lenamon’s List of Major United States Supreme Court Death Penalty Cases:Furman v. Georgia (1972) to Harbison v. Bell (2009)). 

Suddenly, over at Twitter, my fellow Tweeters @Joachim65 (aka Joachim Kubler of Germany, blogging at Todesstrafe USA (use GoogleTranslate!)) and @TheOptimistClub (founded by Kathy Brown, blogging at The Optimist Club) had already found the list, and were spreading the word in the Twitter Universe.  @OdellaWilson was giving @TerryLenamon praise (wow) and things were getting Retweeted … which was all very amazing and complimentary and wonderful. 

So, looks like this list may be helpful, right?  Good!  Here it is again, placed here in the blog, where it’s searchable and NOT in a .pdf format, however helpful that might be.  For instance, the links to the full opinions show up in the .pdf format, but maybe they are easier to use in the blog site (maybe?). 

For a full search on all things death penalty by the U.S. Supreme Court (or any other topic, for that matter), Cornell University provides a great search tool with its online library.  Cases are even divided into majority opinion vs dissents, etc.  Very handy. 

Now, here’s the list.  Caveat:  it’s not every case where the High Court deals with capital punishment, nor is it the only list that deals with US Supreme Court cases on the death penalty.  What is hopefully helpful here is that this list: (1) culls out the overturned cases and (2) provides the links to the full opinions so you can jump there to read the case itself. 

Terry Lenamon’s List of Major United States Supreme Court Death Penalty Cases:Furman v. Georgia (1972) to Harbison v. Bell (2009)

In 1972, the United States Supreme Court effectively halted the death penalty in this country with its opinion in Furman v. Georgia. However, the moratorium was short-lived and four years later, the government was again free to kill its citizens as punishment for certain crimes. 


For easy reference, here are the major High Court’s decisions dealing with the death penalty from Furman forward (excluding those that have been overruled by later precedent), hyperlinked to the full opinion:



Furman v. Georgia

Requires consistency in execution, i.e., consistency in the states’ application of death.



Gregg v. Georgia

Reaffirmed use of the death penalty after the states had passed legislation that met the Furman requirements.



Coker v. Georgia

Under 8th Amendment, death penalty is not acceptable (i.e., constitutional) punishment for crime of rape of an adult woman when murder not involved, i.e., the victim is not killed. Effectively set the standard that capital punishment should only be imposed when the underlying crime involved the death of another. 



Lockett v. Ohio

Sentencing authorities cannot be limited to a list of factors when deciding on imposing capital punishment; constitutionally, they are to have the ability to consider all mitigating factors.



Enmund v. Florida

No death penalty for someone who does participate in a felony but not involved in killing – no intent to kill, no attempt (successful or not) to do so.



Glass v. Louisiana

Death penalty by electric chair (electrocution) is constitutionally acceptable.



Ford v. Wainwright

No death penalty for insane persons.



Tison v. Arizona

Death penalty acceptable for defendant convicted of felony murder, who was a major participant and who shows an “extreme indifference to human life.”



Lowenfield v. Phelps

State’s determination of which individuals are eligible for the death penalty can be done by statute (legislature decision) or by findings of aggravating circumstances (courtroom decision).



Thompson v. Oklahoma

No Death Penalty for children who are 15 years old or younger at the time that the crime is committed.



Morgan v. Illinois

In jury selection, the defense can challenge for cause anyone in the jury pool who says they would vote for death penalty in every case.



Ring v. Arizona

Death Penalty cannot be imposed unless there is a jury (not judge) determination of the necessary aggravating factors because this is a part of the defendant’s constitutional right to a jury trial. (In 2004, Schriro v. Summerlin refused to apply this retroactively.)



Atkins v. Virginia

No Death Penalty of mentally retarded defendants.



Tennard v. Dretke

In capital punishment case, all mitigating factors must be considered in both the guilt phase and the penalty (sentencing) phase.



Roper v. Simmons

No death penalty for anyone who was under 18 years old when the crime was committed, i.e., juvenile offenders.



Oregon v. Guzek

It is constitutional for a judge to limit the sentencing phase evidence of a defendant’s innocence to that which was presented in the trial phase.



Kansas v. Marsh

Death penalty can be imposed even though both mitigating and aggravating factors exist.



House v. Bell

On appeal, post-conviction DNA forensic evidence can be presented in death penalty cases.



Baze v. Rees

Lethal injection (three drug) method acceptable form of execution.



Kennedy v. Louisiana

No death penalty for any crime "where the victim’s life was not taken."



Harbison v. Bell

When the state refuses to provide habeas counsel in post-conviction clemency proceedings, the constitutional right to counsel mandates that federally-funded legal counsel be provided to indigent death row inmates.