In any case in which the United States Attorney or Assistant Attorney General is contemplating requesting authorization to seek the death penalty or otherwise believes it would be useful to the decision-making process to receive a submission from defense counsel, the United States Attorney or Assistant Attorney General shall give counsel for the defendant a reasonable opportunity to present information for the consideration of the United States Attorney or Assistant Attorney General which may bear on the decision whether to seek the death penalty.

After the conclusion of a reasonable period of time, the United States Attorney or Assistant Attorney General shall submit to the Assistant Attorney General for the Criminal Division through the Capital Case Section his or her recommendation whether to seek the death penalty, along with the materials described below. Once a submission has been received, the review process will proceed in accordance with JM 9-10.130. The contents of a non-expedited decision submission or an expedited decision submission under JM 9-10.070(A)(4) or (5) shall include the following:

1. A. Prosecution memorandum. This should be sufficiently detailed to fully inform reviewers of the basis for the United States Attorney's or Assistant Attorney General's recommendation. The prosecution memorandum should include:

   (1) Deadlines. Any deadline established by the Court for the filing of a notice of intent to seek the death penalty, trial dates, or other time considerations that could affect the timing of the review process should be noted on the first page of the memorandum.

   (2) A narrative delineation of the facts and separate delineation of the supporting evidence. Where necessary for accuracy, a chart of the evidence by offense and offender should be appended.

   (3) Discussion of relevant prosecutorial considerations.

   (4) Death penalty analysis. The analysis must identify applicable threshold intent factors under 18 U.S.C. § 3591, applicable statutory aggravating factors under 18 U.S.C. §§ 3592(b)-(d), and applicable mitigating factors under 18 U.S.C. § 3592(a). In addition, the United States Attorney or Assistant Attorney General should include his or her conclusion on whether all the aggravating factor(s) found to exist sufficiently outweigh all the mitigating factor(s) found to exist to justify a sentence of death, or in the absence of mitigating factors, whether the aggravating factor(s) alone are sufficient to justify a sentence of death. The analysis should also include a discussion of the standards for determination as set forth in JM 9-10.140.

   (5) Background and criminal record of the capital-eligible defendants.

   (6) Background and criminal record of the victim.

   (7) Victim impact. Views of the victim's family on seeking the death penalty and other victim impact evidence should be provided.

   (8) Discussion of the federal interest in prosecuting the case.

   (9) Foreign citizenship. The memorandum should include a discussion on whether the requirements of the Vienna Convention on Consular Relations have been satisfied (see JM 9-2.173 and Fed. R. Crim. Pro. 5(d)(1)(F) regarding consular notification when foreign nationals are arrested).

   (10) Recommendation of the United States Attorney or Assistant Attorney General on whether the death penalty should be sought.

2. B. Death-penalty evaluation form. The Department will specify a standardized death penalty evaluation form, which should be completed by the United States Attorney or Assistant Attorney General for each capital-eligible offense charged against each defendant.

3. C. Non-decisional information form. This form should be submitted in a sealed envelope clearly labeled as containing the non-decisional information.

4. D. Indictment. Copies of all existing and proposed indictments and superseding indictments should be attached. As described in JM 9-10.090, the indictments should include the special findings necessary for the death penalty to be authorized by statute.

5. E. Draft notice of intention to seek the death penalty. This document is to be included in the submission only if the United States Attorney or Assistant Attorney General recommends seeking the death penalty.

6. F. Materials provided by defense counsel. Any documents or materials provided by defense counsel to the United States Attorney or Assistant Attorney General in the course of the United States Attorney's Office's or Department component's death penalty review process should be provided. These materials should not be solicited or submitted in cases presented pursuant to JM 9-10.070.

7. G. Point-of-contact. The name of the assigned attorney in the United States Attorney's Office or Department component who is responsible for communicating with the Capital Case Section about the case should be provided.

8. H. Relevant court decisions. The first page of the memorandum should highlight court orders and deadlines. The point- of-contact in the United States Attorney's Office or Department component is under a continuing obligation to update the Capital Case Section about developments or changes in court scheduling or any other material aspect of the case.

The prosecution memoranda, death penalty evaluation forms, non-decisional information forms and any other internal memoranda informing the review process and the Attorney General's decision are not subject to discovery by the defendant or the defendant's attorney. See Fed. R. Crim. P. 16(a)(2).

[updated April 2018] [cited in JM 9-10.070] (reverted pursuant to the Attorney General’s February 5, 2025 memorandum)