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Regulations
& Codified CSA > USC > Subchapter
I, Part D > Section 848
Section 848. Continuing Criminal Enterprise
Penalties; forfeitures
(a) Any person who engages in a continuing criminal enterprise shall be sentenced to a term of
imprisonment which may not be less than 20 years and which may be up to life imprisonment, to
a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18,
or $2,000,000 if the defendant is an individual or $5,000,000 if the defendant is other than an
individual, and to the forfeiture prescribed in section 853 of this title; except that if any person
engages in such activity after one or more prior convictions of him under this section have
become final, he shall be sentenced to a term of imprisonment which may not be less than 30
years and which may be up to life imprisonment, to a fine not to exceed the greater of twice the
amount authorized in accordance with the provisions of Title 18, or $4,000,000 if the defendant
is an individual or $10,000,000 if the defendant is other than an individual, and to the forfeiture
prescribed in section 853 of this title.
Conditions for life imprisonment for engaging in continuing criminal enterprise
(b) Any person who engages in a continuing criminal enterprise shall be imprisoned for life and
fined in accordance with subsection (a) of this section, if --
(1) such person is the principal administrator, organizer, or leader of the enterprise
or is one of several such principal administrators, organizers, or leaders; and
(2) (A) the violation referred to in subsection (d)(1) of this section involved at
least 300 times the quantity of a substance described in subsection
841(b)(1)(B) of this title, or
(B) the enterprise, or any other enterprise in which the defendant was the
principal or one of several principal administrators, organizers, or leaders,
received $10 million dollars in gross receipts during any twelve-month
period of its existence for the manufacture, importation, or distribution of a
substance described in section 841(b)(1)(B) of this title.
Continuing criminal enterprise defined
(c) For purposes of subsection (a) of this section, a person is engaged in a continuing criminal
enterprise if --
(1) he violates any provision of this subchapter or subchapter II of this chapter the
punishment for which is a felony, and
(2) such violation is a part of a continuing series of violations of this subchapter or
subchapter II of this chapter --
Suspension of sentence and probation prohibited
(d) In the case of any sentence imposed under this section, imposition or execution of such
sentence shall not be suspended, probation shall not be granted, and the Act of July 15, 1932
(D.C.Code, secs. 24-203 to 24-207), shall not apply.
Death penalty
(e) (1)<FN1> In addition to the other penalties set forth in this section --
(A) any person engaging in or working in furtherance of a continuing
criminal enterprise, or any person engaging in an offense punishable under
section 841(b)(1)(A) of this title or section 960(b)(1) who intentionally kills
or counsels, commands, induces, procures, or causes the intentional killing
of an individual and such killing results, shall be sentenced to any term of
imprisonment, which shall not be less than 20 years, and which may be up
to life imprisonment, or may be sentenced to death; and
(B) any person, during the commission of, in furtherance of, or while
attempting to avoid apprehension, prosecution or service of a prison
sentence for, a felony violation of this subchapter or subchapter II of this
chapter who intentionally kills or counsels, commands, induces, procures, or
causes the intentional killing of any Federal, State, or local law enforcement
officer engaged in, or on account of, the performance of such officer's
official duties and such killing results, shall be sentenced to any term of
imprisonment, which shall not be less than 20 years, and which may be up
to life imprisonment, or may be sentenced to death.
(2) As used in paragraph (1)(b), the term "law enforcement officer" means a public
servant authorized by law or by a Government agency or Congress to conduct or
engage in the prevention, investigation, prosecution or adjudication of an offense,
and includes those engaged in corrections, probation, or parole functions.
Hearing required with respect to the death penalty
(g) A person shall be subjected to the penalty of death for any offense under this section only if a
hearing is held in accordance with this section.
Notice by the Government in death penalty cases
(h) (1) Whenever the Government intends to seek the death penalty for an offense under this
section for which one of the sentences provided is death, the attorney for the Government,
a reasonable time before trial or acceptance by the court of a plea of guilty, shall sign and
file with the court, and serve upon the defendant, a notice --
(A) that the Government in the event of conviction will seek the sentence of
death; and
(B) setting forth the aggravating factors enumerated in subsection (n) of this
section and any other aggravating factors which the Government will seek
to prove as the basis for the death penalty.
(2) The court may permit the attorney for the Government to amend this notice for
good cause shown.
Hearing before court or jury
(i) (1) When the attorney for the Government has filed a notice as required under subsection
(h) of this section and the defendant is found guilty of or pleads guilty to an offense under
subsection (e) of this section, the judge who presided at the trial or before whom the
guilty plea was entered, or any other judge if the judge who presided at the trial or before
whom the guilty plea was entered is unavailable, shall conduct a separate sentencing
hearing to determine the punishment to be imposed. The hearing shall be conducted --
(A) before the jury which determined the defendant's guilt;
(B) before a jury impaneled for the purpose of the hearing if --
(i) the defendant was convicted upon a plea of guilty;
(ii) the defendant was convicted after a trial before the court sitting without a jury;
(iii) the jury which determined the defendant's guilt has been discharged for good cause; or
(iv) after initial imposition of a sentence under this section, redetermination of the sentence under
this section is necessary; or
(C) before the court alone, upon the motion of the defendant and with the
approval of the Government.
(2) A jury impaneled under paragraph (1)(B) shall consist of 12 members, unless, at
any time before the conclusion of the hearing, the parties stipulate with the approval
of the court that it shall consist of any number less than 12.
Proof of aggravating and mitigating factors
(j) Notwithstanding rule 32(c) of the Federal Rules of Criminal Procedure, when a defendant is
found guilty of or pleads guilty to an offense under subsection (e) of this section, no presentence
report shall be prepared. In the sentencing hearing, information may be presented as to matters
relating to any of the aggravating or mitigating factors set forth in subsections (m) and (n) of this
section, or any other mitigating factor or any other aggravating factor for which notice has been
provided under subsection (h)(1)(B) of this section. Where information is presented relating to
any of the aggravating factors set forth in subsection (n) of this section, information may be
presented relating to any other aggravating factor for which notice has been provided under
subsection (h)(1)(B) of this section. Information presented may include the trial transcript and
exhibits if the hearing is held before a jury or judge not present during the trial, or at the trial
judge's discretion. Any other information relevant to such mitigating or aggravating factors may
be presented by either the Government or the defendant, regardless of its admissibility under the
rules governing admission of evidence at criminal trials, except that information may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury. The Government and the defendant shall be
permitted to rebut any information received at the hearing and shall be given fair opportunity to
present argument as to the adequacy of the information to establish the existence of any of the
aggravating or mitigating factors and as to appropriateness in that case of imposing a sentence of
death. The Government shall open the argument. The defendant shall be permitted to reply. The
Government shall then be permitted to reply in rebuttal. The burden of establishing the existence
of any aggravating factor is on the Government, and is not satisfied unless established beyond a
reasonable doubt. The burden of establishing the existence of any mitigating factor is on the
defendant, and is not satisfied unless established by a preponderance of the evidence.
Return of findings
(k) The jury, or if there is no jury, the court, shall consider all the information received during the
hearing. It shall return special findings identifying any aggravating factors set forth in subsection
(n) of this section, found to exist. If one of the aggravating factors set forth in subsection (n)(1)
of this section and another of the aggravating factors set forth in paragraphs (2) through (12) of
subsection (n) of this section is found to exist, a special finding identifying any other aggravating
factor for which notice has been provided under subsection (h)(1)(B) of this section, may be
returned. A finding with respect to a mitigating factor may be made by one or more of the
members of the jury, and any member of the jury who finds the existence of a mitigating factor
may consider such a factor established for purposes of this subsection, regardless of the number
of jurors who concur that the factor has been established. A finding with respect to any
aggravating factor must be unanimous. If an aggravating factor set forth in subsection (n)(1) of
this section is not found to exist or an aggravating factor set forth in subsection (n)(1) of this
section is found to exist but no other aggravating factor set forth in subsection (n) is found to
exist, the court shall impose a sentence, other than death, authorized by law. If an aggravating
factor set forth in subsection (n)(1) of this section and one or more of the other aggravating
factors set forth in subsection (n) of this section are found to exist, the jury, or if there is no jury,
the court, shall then consider whether the aggravating factors found to exist sufficiently outweigh
any mitigating factor or factors found to exist, or in the absence of mitigating factors, whether the
aggravating factors are themselves sufficient to justify a sentence of death. Based upon this
consideration, the jury by unanimous vote, or if there is no jury, the court, shall recommend that a
sentence of death shall be imposed rather than a sentence of life imprisonment without possibility
of release or some other lesser sentence. The jury or the court, regardless of its findings with
respect to aggravating and mitigating factors, is never required to impose a death sentence and
the jury shall be so instructed.
Imposition of sentence
(l) Upon the recommendation that the sentence of death be imposed, the court shall sentence the
defendant to death. Otherwise the court shall impose a sentence, other than death, authorized by
law. A sentence of death shall not be carried out upon a person who is under 18 years of age at
the time the crime was committed. A sentence of death shall not be carried out upon a person
who is mentally retarded. A sentence of death shall not be carried out upon a person who, as a
result of mental disability --
(1) cannot understand the nature of the pending proceedings, what such person was
tried for, the reason for the punishment, or the nature of the punishment; or
(2) lacks the capacity to recognize or understand facts which would make the
punishment unjust or unlawful, or lacks the ability to convey such information to
counsel or to the court.
Mitigating factors
(m) In determining whether a sentence of death is to be imposed on a defendant, the finder of fact
shall consider mitigating factors, including the following:
(1) 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) 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) The defendant is punishable as a principal (as defined in section 2 of Title 18) 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) The defendant could not reasonably have foreseen that the defendant's conduct
in the course of the commission of murder, or other offense resulting in death for
which the defendant was convicted, would cause, or would create a grave risk of
causing, death to any person.
(5) The defendant was youthful, although not under the age of 18.
(6) The defendant did not have a significant prior criminal record.
(7) The defendant committed the offense under severe mental or emotional
disturbance.
(8) Another defendant or defendants, equally culpable in the crime, will not be
punished by death.
(9) The victim consented to the criminal conduct that resulted in the victim's death.
(10) That other factors in the defendant's background or character mitigate against
imposition of the death sentence.
Aggravating factors for homicide
(n) If the defendant is found guilty of or pleads guilty to an offense under subsection (e) of this
section, the following aggravating factors are the only aggravating factors that shall be
considered, unless notice of additional aggravating factors is provided under subsection (h)(1)(B)
of this section:
(1) The defendant --
(i) the defendant knew would create a grave risk of death to a person, other than one of the
participants in the offense; and
(ii) resulted in the death of the victim.
(2) The defendant has been convicted of another Federal offense, or a 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.
(3) The defendant has previously been convicted of two or more State or Federal
offenses punishable by a term of imprisonment of more than one year, committed
on different occasions, involving the infliction of, or attempted infliction of, serious
bodily injury upon another person.
(4) The defendant has previously been convicted of two 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.
(5) In the commission of the offense or in escaping apprehension for a violation of
subsection (e) of this section, the defendant knowingly created a grave risk of death
to one or more persons in addition to the victims of the offense.
(6) The defendant procured the commission of the offense by payment, or promise
of payment, of anything of pecuniary value.
(7) The defendant committed the offense as consideration for the receipt, or in the
expectation of the receipt, of anything of pecuniary value.
(8) The defendant committed the offense after substantial planning and
premeditation.
(9) The victim was particularly vulnerable due to old age, youth, or infirmity.
(10) The defendant had previously been convicted of violating this subchapter or
subchapter II of this chapter for which a sentence of five or more years may be
imposed or had previously been convicted of engaging in a continuing criminal
enterprise.
(11) The violation of this subchapter in relation to which the conduct described in
subsection (e) of this section occurred was a violation of section 845 of this title.
(12) 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.
Right of the defendant to justice without discrimination
(o) (1) In any hearing held before a jury under this section, the court shall instruct the jury that
in its consideration of whether the sentence of death is justified it shall not consider the race,
color, religious beliefs, national origin, or sex of the defendant or the victim, and that the jury is
not to recommend a sentence of death unless it has concluded that it would recommend a
sentence of death for the crime in question no matter what the race, color, religious beliefs,
national origin, or sex of the defendant, or the victim, may be. The jury shall return to the court a
certificate signed by each juror that consideration of the race, color, religious beliefs, national
origin, or sex of the defendant or the victim was not involved in reaching his or her individual
decision, and that the individual juror would have made the same recommendation regarding a
sentence for the crime in question no matter what the race, color, religious beliefs, national
origin, or sex of the defendant, or the victim, may be.
(2) Not later than one year from November 18, 1988, the Comptroller General shall
conduct a study of the various procedures used by the several States for determining
whether or not to impose the death penalty in particular cases, and shall report to
the Congress on whether or not any or all of the various procedures create a
significant risk that the race of a defendant, or the race of a victim against whom a
crime was committed, influence the likelihood that defendants in those States will
be sentenced to death. In conducting the study required by this paragraph, the
General Accounting Office shall --
Sentencing in capital cases in which death penalty is not sought or imposed
(p) If a person is convicted for an offense under subsection (e) of this section and the court does
not impose the penalty of death, the court may impose a sentence of life imprisonment without
the possibility of parole.
Appeal in capital cases; counsel for financially unable defendants
(q) (1) In any case in which the sentence of death is imposed under this section, the sentence of
death shall be subject to review by the court of appeals upon appeal by the defendant. Notice of
appeal must be filed within the time prescribed for appeal of judgment in section 2107 of Title
28. An appeal under this section may be consolidated with an appeal of the judgment of
conviction. Such review shall have priority over all other cases.
(2) On review of the sentence, the court of appeals shall consider the record, the
evidence submitted during the trial, the information submitted during the
sentencing hearing, the procedures employed in the sentencing hearing, and the
special findings returned under this section.
(3) The court shall affirm the sentence if it determines that --
(A) the sentence of death was not imposed under the influence of passion,
prejudice, or any other arbitrary factor; and
(B) the information supports the special finding of the existence of every
aggravating factor upon which the sentence was based, together with, or the
failure to find, any mitigating factors as set forth or allowed in this section.
In all other cases the court shall remand the case for reconsideration under this section. The court
of appeals shall state in writing the reasons for its disposition of the review of the sentence.
(4) A) Notwithstanding any other provision of law to the contrary, in every
criminal action in which a defendant is charged with a crime which may be
punishable by death, a defendant who is or becomes financially unable to
obtain adequate representation or investigative, expert, or other reasonably
necessary services at any time either --
(i) before judgment; or
(ii) after the entry of a judgment imposing a sentence of death but before the execution of that
judgment; shall be entitled to the appointment of one or more attorneys and the furnishing of
such other services in accordance with paragraphs (5), (6), (7), (8), and (9).
(B) In any post conviction proceeding under section 2254 or 2255 of Title
28, seeking to vacate or set aside a death sentence, any defendant who is or
becomes financially unable to obtain adequate representation or
investigative, expert, or other reasonably necessary services shall be entitled
to the appointment of one or more attorneys and the furnishing of such other
services in accordance with paragraphs (5), (6), (7), (8), and (9).
(5) If the appointment is made before judgment, at least one attorney so appointed
must have been admitted to practice in the court in which the prosecution is to be
tried for not less than five years, and must have had not less than three years
experience in the actual trial of felony prosecutions in that court.
(6) If the appointment is made after judgment, at least one attorney so appointed
must have been admitted to practice in the court of appeals for not less than five
years, and must have had not less than three years experience in the handling of
appeals in that court in felony cases.
(7) With respect to paragraphs (5) and (6), the court, for good cause, may appoint
another attorney whose background, knowledge, or experience would otherwise
enable him or her to properly represent the defendant, with due consideration to the
seriousness of the possible penalty and to the unique and complex nature of the
litigation.
(8) Unless replaced by similarly qualified counsel upon the attorney's own motion
or upon motion of the defendant, each attorney so appointed shall represent the
defendant throughout every subsequent stage of available judicial proceedings,
including pretrial proceedings, trial, sentencing, motions for new trial, appeals,
applications,<FN2> for writ of certiorari to the Supreme Court of the United States,
and all available post-conviction process, together with applications for stays of
execution and other appropriate motions and procedures, and shall also represent
the defendant in such competency proceedings and proceedings for executive or
other clemency as may be available to the defendant.
(9) Upon a finding in ex parte proceedings that investigative, expert or other
services are reasonably necessary for the representation of the defendant, whether in
connection with issues relating to guilt or sentence, the court shall authorize the
defendant's attorneys to obtain such services on behalf of the defendant and shall
order the payment of fees and expenses therefore, under paragraph (10). Upon a
finding that timely procurement of such services could not practicably await prior
authorization, the court may authorize the provision of and payment for such
services nunc pro tunc.
(10) Notwithstanding the rates and maximum limits generally applicable to criminal
cases and any other provision of law to the contrary, the court shall fix the
compensation to be paid to attorneys appointed under this subsection and the fees
and expenses to be paid for investigative, expert, and other reasonably necessary
services authorized under paragraph (9), at such rates or amounts as the court
determines to be reasonably necessary to carry out the requirements of paragraphs
(4) through (9).
Refusal to participate by State and Federal correctional employees
(r) No employee of any State department of corrections or the Federal Bureau of Prisons and no
employee providing services to that department or bureau under contract shall be required, as a
condition of that employment, or contractual obligation to be in attendance at or to participate in
any execution carried out under this section if such participation is contrary to the moral or
religious convictions of the employee. For purposes of this subsection, the term "participation in
executions" includes personal preparation of the condemned individual and the apparatus used
for execution and supervision of the activities of other personnel in carrying out such activities.
(Pub.L. 91-513, Title II, 408, Oct. 27, 1970, 84 Stat. 1265; Pub.L. 98-473, Title II, 224(b),
305, Oct. 12, 1984, 98 Stat. 2030, 2050; Pub.L. 98-473, 224(b), formerly 224(c), as amended
Pub.L. 99- 570, Title I, 1005(b)(2), Oct. 27, 1987, 100 Stat. 3207-6; Pub.L. 99- 570, Title I,
1252, 1253, Oct. 27, 1986, 100 Stat. 3207-14, 3207-15; Pub.L. 100-690, Title VI, 6481, Title
VII, 7001, Nov. 18, 1988, 102 Stat. 4382, 4387, 4388.)
<FN1> See Codification note.
<FN2> The phrase "applications, for writ of certiorari" so in original subsec. (q)(8).
Subsec. (d) of this Section Applicable to Offenses Committed Prior to Nov. 1, 1987
Subsec. (d) of this section as in effect prior to amendment by Pub.L. 98-473, 224(b), read as
follows:
Suspension of sentence and probation prohibited
(e) In the case of any sentence imposed under this section, imposition or execution of such
sentence shall not be suspended, probation shall not be granted, and section 4202 of Title 18 and
the Act of July 15, 1932 (D.C.Code, secs. 24-203 to 24-207), shall not apply.
For applicability of sentencing provisions to offenses, see Effective Date and Savings Provisions,
etc., note, section 235 of Pub.L. 98-473, as amended, set out under section 3551 of Title 18,
Crimes and Criminal Procedure.
EDITORIAL NOTES
References in Text. "This subchapter", referred to in text, was in the original "this title" which is
Title II of Pub.L. 91-513, Oct. 27, 1970, 84 Stat. 1242, as amended, and is popularly known as
the "Controlled Substances Act". For complete classification of Title II to the Code, see Short
Title note set out under section 801 of this title and Tables.
"Subchapter II of this chapter", referred to in text, was in the original "title III", meaning Title III
of Pub.L. 91-513, Oct. 27, 1970, 84 Stat. 1285. Part A of Title III comprises subchapter II of this
chapter. For classification of Part B, consisting of sections 1101 to 1105 of Title III, see Tables.
The Civil Rights Act of 1964, referred to in subsec. (o)(2)(A), is Pub.L. 88-352, July 2, 1964, 78
Stat. 252, as amended. Title VII of the Civil Rights Act of 1964 is classified to subchapter VI
(section 2000e et seq.) of chapter 21 of Title 42, The Public Health and Welfare. For complete
classification of this Act to the Code, see Short Title note set out under section 2000a of Title 42
and Tables.
The Act of July 15, 1932 (D.C.Code, secs. 24-203 to 24-207), referred to in subsec. (d), is not
classified to the U.S.C.A. Codification. The language of section 7001(a)(1) of Pub.L. 100-690
directing the redesignation of subsec. (e) as (f), was incapable of execution in view of a prior
redesignation of subsec. (e) as (d) by section 6481(b) of Pub.L. 100-690, leaving this section
without a subsec. (f).
Effective Date and Savings Provisions of 1984 Amendment. Amendment by Pub.L. 98-473,
224(b), effective on the first day of first calendar month beginning thirty six months after Oct.
12, 1984, applicable only to offenses committed after taking effect of sections 211 to 239 of
Pub.L. 98-473, and except as otherwise provided for therein, see section 235 of Pub.L. 98-473, as
amended, set out as a note under section 3551 of Title 18, Crimes and Criminal Procedure.
GAO Study of the Cost of Executions. Section 7002 of Pub.L. 100-690 provided that:
"(a) Study. -- No later than three years after the date of the enactment of this Act [Nov. 18, 1988],
the Comptroller General shall carry out a study to review the cost of implementing the
procedures for imposing and carrying out a death sentence prescribed by this title [Title VII,
subtitles A-O, of Pub.L. 100-690. See Tables volume for classifications to the Code].
"(b) Specific Requirement. -- Such study shall consider, but not be limited to, information
concerning impact on workload of the Federal prosecutors and judiciary and law enforcement
necessary to obtain capital sentences and executions under this Act [see Short Title of 1988
Amendment note under section 1501 of this title].
"(c) Submission of Report. -- Not later than four years after date of the enactment of this Act
[Nov. 18, 1988], the Comptroller General shall submit to Congress a report describing the results
of the study."
Code of Federal Regulations
Classification of inmates, see 28 CFR 524.10 et seq.
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