Any decision by government to seek (or to decline to seek) the death penalty in a federal criminal case must be personally approved in writing by the Attorney General. Such approval occurs only after a number of procedural steps at both the local (US Attorney’s Office) and Main Justice levels.
The procedures applicable to such cases are set forth in Sections 9-10.000 et seq. of the United States Attorney’s Manual (“Capital Crimes”). First promulgated in early 1995, and revised and expanded several times since then, these procedures (sometimes referred to as the DOJ “death penalty protocol’) set forth the criteria to be utilized by local United States Attorneys and the DOJ in deciding whether to seek imposition of the death penalty under federal law. The protocol also sets out procedural steps to which United States Attorneys and Main Justice are supposed to adhere in considering whether the death penalty should be sought. These steps normally include opportunities for defense counsel to be heard, and to make written submissions, before the government decides to seek the death penalty in a given case.
Additional information and materials concerning the government’s death-penalty authorization procedures, and the role of defense counsel in the process, may be found here. Defense counsel should consult the Project Memo in the “Authorization” Litigation Guide here.