In the USA can the death penalty be given if not requested by the prosecution?

Question

Can the death penalty be given as a sentence if not requested by the prosecutor? Or does prosecutorial discretion entitle the prosecutor to choose not to request the death penalty even if the law allows it?

Answer 1

No

The federal death penalty must be requested by the prosecution. Here is the relevant extract from The Federal Death Penalty System: Supplementary Data, Analysis and Revised Protocols for Capital Case Review:

To seek a capital sentence, a prosecutor must file a notice of intent to seek the death penalty. The notice must identify the aggravating factor or factors which the government proposes to prove as justifying a sentence of death. 18 U.S.C. 3593(a).

This is a consequence of the separation of powers. The decision is to be made by the executive, not the judiciary. To see the exact requirements, we can look at 18 U.S.C. 3593(a) directly which confirms the above (for clarity, the attorney for the government is used instead of the term prosecutor):

18 U.S.C. 3593(a)

Notice by the Government.— If, in a case involving an offense described in section 3591, the attorney for the government believes that the circumstances of the offense are such that a sentence of death is justified under this chapter, the attorney shall, a reasonable time before the trial or before acceptance by the court of a plea of guilty, sign and file with the court, and serve on the defendant, a notice—

(1)stating that the government believes that the circumstances of the offense are such that, if the defendant is convicted, a sentence of death is justified under this chapter and that the government will seek the sentence of death; and

(2)setting forth the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death.

The factors for which notice is provided under this subsection may include factors concerning the effect of the offense on the victim and the victim’s family, and may include oral testimony, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim’s family, and any other relevant information. The court may permit the attorney for the government to amend the notice upon a showing of good cause.

The same essential answer applies to state law too. The exact details will be different depending on the state, but the prosecutor must still request the death penalty if they want it to be considered as a sentence.

Answer 2

united-states

Can the death penalty be given as a sentence if not requested by the prosecutor?

No.

In general, a court can't impose punishment for an offense greater than was requested in an indictment (or whatever the state law equivalent is called), and a request for the death penalty is treated as a separate charge for this purpose (and typically is resolved in a secondary jury trial).

does prosecutorial discretion entitle the prosecutor to choose not to request the death penalty even if the law allows it?

Yes.

No state has a mandatory death penalty for any crime, and no prosecutor could be compelled to bring charges for that particular offense, even if it did.

Generally, criminal charges not seeking the death penalty can be withdrawn and refiled to seek the death penalty before jeopardy attached (usually when a jury has been sworn). But state rules regarding that question might differ.