Where concurrent jurisdiction exists with a State or local government, a Federal indictment for an offense subject to the death penalty should be obtained only when the Federal interest in the prosecution is more substantial than the interests of the State or local authorities. Section 9-10.070 of the United States Attorney's Manual. See also, Principles of Federal Prosecution, USAM 9-27.000 et seq.
"The decision whether there is a more substantial interest in Federal, as opposed to State, prosecution of the offense may take into account any factor that reasonably bears on the relative interests of the State and the Federal Government, including, but not limited to, the following:
A. The relative strength of the State's interest in prosecution. The Federal and State characteristics of the criminal conduct should be considered. One jurisdiction may have a particularly strong interest because of the nature of the offense; the identity of the offender or victim; the fact that the investigation was conducted primarily by its investigators or through its informants or cooperators; or the possibility that prosecution will lead to disclosure of violations which are peculiarly within the jurisdiction of either Federal or State authorities or will assist an ongoing investigation being conducted by one of them.
B. The extent to which the criminal activity reached beyond the local jurisdiction. The extent to which the criminal activity reached beyond the boundaries of a single local prosecutorial jurisdiction should be considered. The nature, extent, and impact of the criminal activity upon the jurisdiction, the number and location of any murders, and the need to procure evidence from other jurisdictions, in particular other States or foreign countries, are all relevant to this analysis.
C. The relative ability and willingness of the State to prosecute effectively. The relative likelihood of effective prosecution and appropriate punishment upon conviction in the State and Federal jurisdictions should be considered, including the ability and willingness of the authorities in each jurisdiction; the prosecutorial and judicial resources necessary to undertake prosecution promptly and effectively; legal or evidentiary problems that might attend prosecution; conditions, attitudes, relationships or other circumstances that enhance the ability to prosecute effectively, or alternatively, that cast doubt on the likelihood of a thorough and successful prosecution. "
Standards for Determination
In deciding whether it is appropriate to seek the death penalty, the United States Attorney, the Attorney General's Committee and the Attorney General may consider any legitimate law enforcement or prosecutorial reason that weighs for or against seeking the death penalty. USAM 9-10.080
"In determining whether or not the Government should seek the death penalty, the United States Attorney, the Attorney General's Committee, and the Attorney General must determine whether the statutory aggravating factors applicable to the offense and any non-statutory aggravating factors sufficiently outweigh the mitigating factors applicable to the offense to justify a sentence of death, or, in the absence of any mitigating factors, whether the aggravating factors themselves are sufficient to justify a sentence of death. To qualify for consideration in this analysis, an aggravating factor must be provable by admissible evidence beyond a reasonable doubt. Because there may be little or no evidence of mitigating factors available for consideration at the time of this determination, any mitigating factor reasonably raised by the evidence should be deemed established and weighed against the provable aggravating factors. The analysis employed in weighing the aggravating and mitigating actors that are found to exist should be qualitative, not quantitative: a sufficiently strong aggravating factor may outweigh several mitigating factors, and a sufficiently strong mitigating factor may outweigh several aggravating factors. Weak aggravating or mitigating factors may be accorded little or no weight. Finally, there must be substantial admissible and reliable evidence of the aggravating factors."
"The authorization process is designed to promote consistency and fairness. As is the case in all other actions taken in the course of Federal prosecutions, bias for or against an individual based upon characteristics such as race or ethnic origin may play no role in the decision whether to seek the death penalty."
