38 USC § 2411 - Prohibition against interment or memorialization in the National Cemetery Administration or Arlington National Cemetery of persons committing Federal or State capital crimes

(a)

(1) In the case of a person described in subsection (b), the appropriate Federal official may not—

(A) inter the remains of such person in a cemetery in the National Cemetery Administration or in Arlington National Cemetery; or

(B) honor the memory of such person in a memorial area in a cemetery in the National Cemetery Administration (described in section 2403 (a) of this title) or in such an area in Arlington National Cemetery (described in section 2409 (a) of this title).

(2) In the case of a person described in subsection (b)(1) or (b)(2), the prohibition under paragraph (1) shall not apply unless written notice of a conviction referred to in subsection (b)(1) or (b)(2), as the case may be, is received by the appropriate Federal official before such official approves an application for the interment or memorialization of such person. Such written notice shall be furnished to such official by the Attorney General, in the case of a Federal capital crime, or by an appropriate State official, in the case of a State capital crime.

(b) A person referred to in subsection (a) is any of the following:

(1) A person who has been convicted of a Federal capital crime and whose conviction is final (other than a person whose sentence was commuted by the President).

(2) A person who has been convicted of a State capital crime and whose conviction is final (other than a person whose sentence was commuted by the Governor of a State).

(3) A person who—

(A) is found (as provided in subsection (c)) to have committed a Federal capital crime or a State capital crime, but

(B) has not been convicted of such crime by reason of such person not being available for trial due to death or flight to avoid prosecution.

(c) A finding under subsection (b)(3) shall be made by the appropriate Federal official. Any such finding may only be made based upon a showing of clear and convincing evidence, after an opportunity for a hearing in a manner prescribed by the appropriate Federal official.

(d) For purposes of this section:

(1) The term “Federal capital crime” means an offense under Federal law for which a sentence of imprisonment for life or the death penalty may be imposed.

(2) The term “State capital crime” means, under State law, the willful, deliberate, or premeditated unlawful killing of another human being for which a sentence of imprisonment for life or the death penalty may be imposed.

(3) The term “appropriate Federal official” means—

(A) the Secretary, in the case of the National Cemetery Administration; and

(B) the Secretary of the Army, in the case of Arlington National Cemetery.

Source

(Added Pub. L. 105–116, § 1(a),Nov. 21, 1997, 111 Stat. 2381; amended Pub. L. 105–368, title IV, § 403(d)(1),Nov. 11, 1998, 112 Stat. 3339; Pub. L. 107–330, title II, § 202,Dec. 6, 2002, 116 Stat. 2824; Pub. L. 109–163, div. A, title VI, § 662(a),Jan. 6, 2006, 119 Stat. 3314.)

Amendments

2006—Subsec. (b)(1). Pub. L. 109–163, § 662(a)(1)(A), substituted “and whose conviction is final (other than a person whose sentence was commuted by the President)” for “for which the person was sentenced to death or life imprisonment”.

Subsec. (b)(2). Pub. L. 109–163, § 662(a)(1)(B), substituted “and whose conviction is final (other than a person whose sentence was commuted by the Governor of a State)” for “for which the person was sentenced to death or life imprisonment without parole”.

Subsec. (d)(1). Pub. L. 109–163, § 662(a)(2)(A), substituted “a sentence of imprisonment for life or the death penalty may be imposed” for “the death penalty or life imprisonment may be imposed”.

Subsec. (d)(2). Pub. L. 109–163, § 662(a)(2)(B), substituted “a sentence of imprisonment for life or the death penalty may be imposed” for “the death penalty or life imprisonment without parole may be imposed”.

2002—Subsec. (a)(2). Pub. L. 107–330substituted “In the case of a person described in subsection (b)(1) or (b)(2), the prohibition” for “The prohibition” and “referred to in subsection (b)(1) or (b)(2), as the case may be,” for “or finding under subsection (b)”.

1998—Pub. L. 105–368, § 403(d)(1), substituted “Administration” for “System” in section catchline.

Subsecs. (a)(1)(A), (B), (d)(3)(A). Pub. L. 105–368, § 403(d)(1), substituted “Administration” for “System”.

Effective Date of 2006 Amendment

Amendment by Pub. L. 109–163applicable with respect to funerals and burials that occur on or after Jan. 6, 2006, see section 662(e) ofPub. L. 109–163, set out as a note under section 985 of Title 10, Armed Forces.

Effective Date

Section 1(c) ofPub. L. 105–116provided that: “Section 2411 of title 38, United States Code, as added by subsection (a), shall apply with respect to applications for interment or memorialization made on or after the date of the enactment of this Act [Nov. 21, 1997].”

Regulations

Pub. L. 109–163, div. A, title VI, § 662(d)(1),Jan. 6, 2006, 119 Stat. 3315, provided that: “The Secretary of Veterans Affairs shall prescribe regulations to ensure that a person is not interred in any cemetery in the National Cemetery System unless a good faith effort has been made to determine whether such person is ineligible for such interment or honors by reason of being a person described in section 2411 (b) of title 38, United States Code, or is otherwise ineligible for such interment under Federal law.”