[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



                          TERRORIST PENALTIES 
                        ENHANCEMENT ACT OF 2003

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                                   ON

                               H.R. 2934

                               __________

                             APRIL 21, 2004

                               __________

                             Serial No. 87

                               __________

         Printed for the use of the Committee on the Judiciary


    Available via the World Wide Web: http://www.house.gov/judiciary


                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee        ZOE LOFGREN, California
CHRIS CANNON, Utah                   SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama              MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana          MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin                WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida                  ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania        TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana                  ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia            LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee

             Philip G. Kiko, Chief of Staff-General Counsel
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

                 HOWARD COBLE, North Carolina, Chairman

TOM FEENEY, Florida                  ROBERT C. SCOTT, Virginia
BOB GOODLATTE, Virginia              ADAM B. SCHIFF, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
MARK GREEN, Wisconsin                MAXINE WATERS, California
RIC KELLER, Florida                  MARTIN T. MEEHAN, Massachusetts
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia

                      Jay Apperson, Chief Counsel

                        Elizabeth Sokul, Counsel

                          Katy Crooks, Counsel

                     Bobby Vassar, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             APRIL 21, 2004

                           OPENING STATEMENT

                                                                   Page
The Honorable Howard Coble, a Representative in Congress From the 
  State of North Carolina, and Chairman, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     1
The Honorable Robert C. Scott, a Representative in Congress From 
  the State of Virginia, and Ranking Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................     2

                               WITNESSES

The Honorable John R. Carter, a Representative in Congress From 
  the State of Texas
  Oral Testimony.................................................     5
  Prepared Statement.............................................     6
The Honorable Johnny Sutton, U.S. Attorney, Western District of 
  Texas, U.S. Department Of Justice
  Oral Testimony.................................................     7
  Prepared Statement.............................................     8
Dr. Joanna Shepherd, PhD., Visiting Assistant Professor, Emory 
  Law School
  Oral Testimony.................................................     9
  Prepared Statement.............................................    11
Mr. Timothy H. Edgar, Legislative Counsel, American Civil 
  Liberties Union
  Oral Testimony.................................................    17
  Prepared Statement.............................................    19

                                APPENDIX
               Material Submitted for the Hearing Record

Post-hearing questions and responses from the Honorable Johnny 
  Sutton.........................................................    43
Letter from Professors in the Department of Criminology and 
  Criminal Justice at The University of Memphis..................    50
Letter from Michael Israel, Editor, Criminal Justice Washington 
  Letter.........................................................    52
Letter from Robert M. Sanger, Certified Criminal Law Specialist, 
  Sanger & Swysen................................................    54
Letter from Wanda D. Foglia, J.D., Ph.D., Professor of Law and 
  Justice Studies, Rowan University..............................    56

 
                          TERRORIST PENALTIES 
                        ENHANCEMENT ACT OF 2003

                              ----------                              


                       WEDNESDAY, APRIL 21, 2004

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2 p.m., in 
Room 2141, Rayburn House Office Building, Hon. Howard Coble 
(Chair of the Subcommittee) presiding.
    Mr. Coble. Good afternoon, ladies and gentlemen. The 
hearing will come to order. Good to have all of you with us. 
Monday, April 19, 2004 marked the 9-year anniversary of the 
Oklahoma City bombing. 168 people were killed in that bombing 
which shocked the American public and was then called perhaps 
the greatest act of terrorism in United States history. 
Oklahoma City was a horrific act that showed us the evilness of 
these criminals and the links they are willing to go. Sadly, 
however, we have now seen that terrorists have the capability 
and the desire to sink to even lower depths and cause even 
greater loss of human life. Oklahoma City, it turned out, was 
simply the tip of the iceberg. We are now fighting terrorism on 
a much larger scale and we need to utilize every possible 
weapon in our arsenal to protect our American citizens from 
experiencing this type of tragedy again.
    Today, the Subcommittee on Crime, Terrorism, and Homeland 
Security is conducting a hearing and a markup on legislation 
that will give us one more weapon, H.R. 2934, the Terrorist 
Penalties Enforcement Act of 2003. This hearing will examine 
this legislation as which provides enhanced penalties for 
terrorist offenses that result in the death of another person 
and the denial of Federal benefits to anyone who has committed 
a ``Federal crime of terrorism.'' Federal and State officials 
continue to diligently attempt to prevent further terrorist 
attacks on U.S. soil. However, despite some changes to the law 
to increase penalties after the deadly terrorist attacks, the 
jury is still denied the ability to consider a sentence of 
death or life imprisonment for terrorists in many cases, even 
when the attack results in death and the court believes it is 
necessary to prevent further harm to our citizens.
    For example, in a case in which a terrorist caused massive 
loss of life by sabotaging a nuclear power plant or a national 
defense installation, there would be no possibility of imposing 
the death penalty under the statutes defining those offenses 
because they contain no death penalty authorizations. In 
contrast, dozens of other Federal violent crime provisions 
authorize up to life imprisonment or the death penalty in cases 
where victims were killed.
    Because the potential tragedy here is so obvious in cases--
strike that. Because the potential tragedy is so obvious, we 
must hope that changing this law to allow a sentence of death 
or life imprisonment will serve at least as a deterrent to 
would-be terrorists. It is one more tool, it seems to me, for 
the arsenal. In addition, current law allows Federal courts to 
deny Federal benefits to persons who have been convicted of 
drug-related crimes. As a result, these convicts can be 
prohibited for periods up to life from receiving grants, 
contracts, loans, professional licenses or commercial licenses 
that are provided by a Federal agency.
    Yet, despite the fact that terrorism is at least as 
dangerous to the U.S. National security as drug offenses, there 
is no present legal authority to deny Federal benefits to those 
convicted of terrorism. It doesn't make sense, at least it 
seems to me that it doesn't make sense, that someone who would 
harm the American taxpayers should be allowed, on the other 
hand, to benefit from them in the end result. Unfortunately, 
terrorism has been thrust upon us, upon our Nation's 
consciousness and upon us generally, and we must respond with 
new ways to combat it.
    Today, we will discuss the additional steps that need to be 
taken to continue this fight. I thank the witnesses for being 
here today. Look forward to your testimony. And I am now 
pleased to recognize the distinguished gentleman from Virginia, 
the Ranking Member, Mr. Bobby Scott.
    Mr. Scott. Thank you very much, Mr. Chairman, for 
scheduling the hearing on the Terrorist Penalties Enhancement 
Act. This bill provides for massive expansion of the Federal 
death penalty both for crimes that supporters of the death 
penalty might think warrant the death penalty as well as many 
crimes which one would not expect to be associated with the 
death penalty. The bill not only creates 23 new death penalties 
by making all 43 Federal crimes of terror under 18 U.S.C. 2332 
B(g)(5) now death penalty eligible, but it also adds a sweeping 
provision that makes any felony that meets the broad definition 
of either domestic terrorism or ``international terrorism'' 
under the code section a death penalty eligible, crime should 
death occur in the conduct of such a crime.
    Moreover, the bill makes attempts and conspiracies to 
commit such crimes death penalty eligible. In addition to 
deaths that occur as a result of an attempt, intent or 
conspiracy to murder, maim, kidnap or destroy a nuclear 
facility or other such heinous crimes, crimes such as material 
support of terrorism organizations, injury, not just 
destruction, injury to Federal buildings or property, blocking 
access to abortion clinics and other acts of civil disobedience 
are also included. And anyone who participates in such crimes 
or conspires or attempts to do so could receive the death 
penalty under this bill if death results, even if it was not 
specifically an intended result. This is tantamount to a 
Federal felony murder rule which presents constitutional issues 
as well as the appropriateness of the death penalty under these 
circumstances.
    And the provision of the bill will be duplicative of many 
State jurisdictional provisions in many instances and actually 
conflicting in some. One such conflict would be when residents 
of a particular State have chosen not to institute capital 
punishment and the Federal Government imposes it as a 
consequence of a State seeking or having imposed upon it 
Federal involvement in the conduct of an investigation and 
prosecution of a terrorist crime that occurs within its 
jurisdiction.
    Another area of conflict and difficulty will arise in our 
efforts to further international cooperation in pursuing 
suspected terrorists. We are already experiencing difficulties 
in securing the cooperation of the rest of the civilized world 
in bringing terrorists to justice due to our existing 
proliferation of death penalty offenses. When these 
difficulties over controversial issues such as whether someone 
who supports an organization's social or humanitarian program 
knows it has been designated as a terrorist organization, 
moreover crimes connected to protest or issues of conscience, 
can only exacerbate such difficulties and further undermine 
U.S. Efforts.
    It is interesting to note that even countries that have 
experienced decades of deaths at the hands of terrorists have 
not seen fit to apply the death penalty to capture terrorists. 
While we already have death penalties for a large number of 
terrorist-related as well as other crimes, the wholesale 
expansion of the death penalty offenses only diminishes our 
posture as a leader of the civilized world.
    Another concern with our expansion of the death penalty is 
our frequent error rate in applying it in this country. A 23-
year study conducted by Professor James Sliven of Columbia 
University involving over 4,500 capital cases in 34 States 
reveal that the courts found serious reversible error in 68 
percent of the capital cases. In the last 10 years more than 
100 people on death row have been found factually innocent of 
the crime for which they had actually received the death 
penalty.
    With this kind of record in administering the death penalty 
that we have, we should fix the system to diminish the prospect 
of innocent people being sentenced to death before adding new 
death penalties. A bill to do so has passed the House and is 
pending in the Senate. And yet another concern is the clear 
connection between race, ethnicity and poverty in determining 
who receives the death penalty, including connections 
established by a study of the Subcommittee of this Judiciary 
Committee.
    Despite my criticisms and concerns about the bill, it does 
strike me that some will see it as actually protecting abortion 
clinic access because it seems to apply to such crimes as 
illegally blocking access to an abortion clinic.
    Since we have seen deaths in abortion clinics in connection 
with illegal protests, I will be curious to see whether or not 
the threat of the death penalty for those who participate in 
such protests or conspire or attempt to do so will deter them 
from blocking or protesting access for fear that someone will 
go too far and death will result. I am also curious to see how 
far the conspiracy application will go; for example, will the 
Web master who develops information on the organization's Web 
site targeting the clinic and encouraging participation in the 
protest be subject to the death penalty as a co-conspirator? 
These things are not clear to me from the bill.
    Mr. Chairman, I look forward to the testimony of our 
witnesses for clarification on some of these issues and on 
whether such a wholesale expansion of the death penalty is 
helpful or harmful to our anti-terrorism efforts.
    Mr. Coble. I thank the gentleman. And we have been joined 
by the distinguished gentleman from Florida. Mr. Keller, good 
to have you with us.
    Mr. Keller. Thank you, Mr. Chairman.
    Mr. Coble. Let me advise the uninformed in case there are 
uninformed in the audience about the credentials that our 
witnesses bring to the table today. Today we have four 
distinguished witnesses. Our first one to introduce, 
Representative John Carter, who is a Member of the full 
Committee, not a Member of this Subcommittee. Mr. Carter was 
elected to the 108th Congress in 2002. He was chosen by his 
fellow freshmen to represent them on the House Republican 
Steering Committee, which is responsible for the placement of 
Republican Members on Committees. He has since been appointed 
to serve on the Judiciary, Government Reform and the 
Educational Workforce Committees.
    Prior to becoming a congressional candidate, Mr. Carter was 
appointed judge of the 277 district court of Williamson County 
where he served in that capacity for 20 years. Mr. Carter began 
his career with a successful law practice and continued to 
practice law while serving as a municipal judge in Round Rock 
until 1980. Mr. Carter graduated from the University of Texas 
School of Law in 1969 after earning a degree in history from 
Texas Tech University.
    Our second witness is Mr. Johnny Sutton. In 2001, Mr. 
Sutton was nominated by President Bush to--and confirmed by the 
United States Senate to serve as the United States attorney for 
the western district of Texas. As such, Mr. Sutton represents 
the United States in criminal and civil matters within that 
district. Prior to becoming United States attorney, Mr. Sutton 
served as an associate deputy Attorney General at the U.S. 
Department of Justice in Washington and as a policy coordinator 
for the Bush-Cheney transition team assigned to the Department 
of Justice. Mr. Sutton also served as the criminal justice 
policy director for then-Governor George W. Bush from 95 to 
2000, advising the Governor on all criminal justice issues with 
specific oversight in the areas of criminal law, prison 
capacity and management, parole operation and legislative 
initiatives.
    Prior to his service in the governor's office, Mr. Sutton 
worked as a criminal trial prosecutor in the Harris County 
district attorney's office for 8 years. Mr. Sutton graduated 
from the University of Texas at Austin where he earned a 
bachelor's degree in international business in 1983 and the 
University of Texas School of Law where he earned his JD degree 
in 1987.
    Our third witness today is Dr. Joanna Shepherd. Dr. 
Shepherd has recently joined the faculty at the Emory School of 
Law. Prior to going to Emory, Dr. Shepherd was an assistant 
professor of economics at Clemson University, John E. Walker, 
Department of Economics, where she had done numerous papers and 
presentations on the subject of capital punishment and its 
deterrent effects. Her research includes econometric studies 
with a focus on law and economics, industrial organization and 
the economics of crime.
    Prior to joining the Clemson University faculty, Dr. 
Shepherd served as a visiting assistant professor at Georgia 
State university and as an instructor at Emory University. She 
earned her Ph.D. in economics from Emory University and was 
graduated Summa Cum Laude from Baylor University with a BA in 
economics and international business.
    Our final witness today is Mr. Timothy Edgar, who is 
joining us from the American Civil Liberties Union where he 
serves as a legislative counsel in the Washington national 
office. He is responsible for defending and promoting civil 
liberties in the areas of national security, terrorism and 
immigration. Mr. Edgar is a Harvard law school graduate where 
he served as an editor of the Harvard Law Review and former 
clerk with Judge Sandra Lynch of the U.S. Circuit Court of 
Appeals for the First Circuit. Prior to joining the ACLU, Mr. 
Edgar worked at the law firm of Shay & Gardner. He has also 
worked pro bono for a small nonprofit organization. And in 
2003, Mr. Edgar was named pro bono attorney of the year by the 
American Arab anti-discrimination committee for his work 
defending civil liberties after September 11.
    It is good to have all of you with us. We have your written 
statements and they have been examined and will be reexamined. 
And I ask unanimous consent to submit them into the record in 
their entirety. As we have requested of you all prior to your 
appearance here today, folks, we operate on the 5-minute rule. 
When the red light appears on your panel in front of you, that 
means Mr. Scott and I may come after you if you don't wind down 
fairly quickly. I say that, of course, with tongue in cheek. 
But in the interest of time, the amber light will come on first 
to let you know that the red light is forthcoming. So keep your 
eye, judge, on that panel in front of you and we will start 
with Mr. Carter.

STATEMENT OF THE HONORABLE JOHN R. CARTER, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF TEXAS

    Mr. Carter. Thank you, Chairman Coble, Ranking Member Scott 
for holding this important hearing. I am honored to be here to 
discuss a bill I introduced, H.R. 2934, the ``Terrorist 
Penalties Enhancement Act of 2003,'' which will provide new and 
expanded penalties for those who commit fatal acts of 
terrorism. I am pleased that 83 of my colleagues have agreed to 
cosponsor H.R. 2934, and I would like to share my interest in 
this matter. As a former State district judge for over 20 
years, I presided over five capital murder trials, three of 
which have resulted in the death penalty. I have a unique 
perspective on the criminal system, and I understand the 
importance of safety and the need for America to be tough on 
criminals. We must protect our neighborhoods from the threat of 
violent crimes which unfortunately, in today's world, includes 
the threat of terrorist attacks.
    Congress must act to protect U.S. citizens from such 
attacks and to bring justice to those who threaten our freedom. 
It is unimaginable to think that a convicted terrorist 
responsible for American deaths could serve his sentence and be 
released back into the American streets free to act as he 
chooses. My straightforward legislation will make any terrorist 
who kills eligible for the Federal death penalty. This 
legislation will also deny the same terrorists any Federal 
benefits they otherwise may have been eligible to receive. In 
my experience as a judge, I have witnessed the death penalty 
used as an important tool for deterring crime and saving lives. 
I believe it is a tool that can deter acts of terrorism and 
serve as a tool for the prosecutors when negotiating sentences. 
I am pleased that President George W. Bush has expressed his 
support for this legislation.
    In a speech at the FBI Academy, President Bush said for the 
sake of the American people, Congress should change the law and 
give law enforcement officials the same tools they have to 
fight terror or that they have to fight other crimes.
    This past Monday in Hershey, Pennsylvania, President Bush 
again emphasized the inequity in current law. I agree with 
President Bush. We ought to be sending a strong signal. If you 
sabotage a defense installation or a nuclear facility in a way 
that takes an innocent life, you ought to get the Federal death 
penalty. I decided to run for Congress in response to the 
greatest domestic terrorist attack on September 11, 2001. I am 
sponsoring this legislation today to put all would-be 
terrorists on notice that they will receive the ultimate 
justice, should they decide to plan and execute a future 
attack.
    Mr. Chairman, I thank you for the interest in this 
legislation. I look forward to continuing to work together on 
this very important issue. Thank you.
    [The prepared statement of Mr. Carter follows:]
Prepared Statement of the Honorable John R. Carter, a Representative in 
                    Congress From the State of Texas
    Thank you Chairman Coble and Ranking Member Scott for holding this 
important hearing. I am honored to be here today to discuss a bill I 
have introduced, H.R. 2934, The Terrorist Penalties Enhancement Act of 
2003, which will provide new and expanded penalties to those who commit 
fatal acts of terrorism. I am pleased that 83 of my colleagues have 
agreed to cosponsor H.R. 2934, and I would like to share my interest in 
this matter.
    As a former State District Judge for over 20 years, I have a unique 
perspective on the criminal system. I understand the importance of 
safety and the need for America to be tough on its criminals. We must 
protect our neighborhoods from the threat of violent crimes which, 
unfortunately in today's world, includes the threat of terrorist 
attacks. Congress must act to protect U.S. citizens from such attacks 
and to bring justice to those who threaten our freedom.
    It is unimaginable to think that a convicted terrorist responsible 
for American deaths could serve his sentence and be released back onto 
the American streets, free to act as he chooses. My straight-forward 
legislation will make any terrorist who kills eligible for the federal 
death penalty. This legislation will also deny these same terrorists 
any federal benefits they otherwise may have been eligible to receive. 
In my experience as a Judge, I have witnessed the death penalty used as 
an important tool in deterring crime and saving lives. I believe it is 
also a tool that can deter acts of terrorism. It protects witnesses in 
capital punishment cases, and it serves as a tool for prosecutors when 
negotiating sentences.
    I am pleased that President George W. Bush has leant his support 
towards my legislation. In a speech to the FBI Academy, President Bush 
said, ``For the sake of the American people, Congress should change the 
law, and give law enforcement officials the same tools they have to 
fight terror that they have to fight other crime.'' This past Monday in 
Hershey, Pennsylvania, President Bush again emphasized the inequity in 
current law. I agree with President Bush, ``We ought to be sending a 
strong signal: If you sabotage a defense installation or nuclear 
facility in a way that takes an innocent life, you ought to get the 
death penalty, the federal death penalty.''
    I decided to run for Congress in response to the greatest domestic 
terrorist attack in history on September 11, 2001. I am sponsoring this 
legislation today to put all would-be terrorists on notice that they 
will receive the ultimate justice should they decide to plan a future 
attack.
    Mr. Chairman, thank you for your interest in this legislation. I 
look forward to continuing to work together on this important issue.

    Mr. Coble. You must have taken my admonition.
    Mr. Carter. I am scared to death of you, Mr. Chairman.
    Mr. Coble. Mr. Sutton.

   STATEMENT OF THE HONORABLE JOHNNY SUTTON, U.S. ATTORNEY, 
     WESTERN DISTRICT OF TEXAS, U.S. DEPARTMENT OF JUSTICE

    Mr. Sutton. Mr. Chairman, Ranking Member Scott, Members of 
the Subcommittee, thank you for the opportunity to appear 
before you today to discuss H.R. 2934 and the importance of the 
death penalty in terrorism prosecutions. Judge Carter, on 
behalf of the Department of Justice, I especially want to thank 
you for your leadership on this issue and for introducing this 
important piece of legislation. In the war on terrorism, 
prosecutors must be equipped with every possible weapon that 
can help to prevent and deter terrorist conduct before it 
occurs. We need to be able to severely punish terrorism when it 
does happen and help victims whose lives have been affected by 
this crime find justice.
    Following the tragedy of September 11, Congress wisely 
acted to improve and enhance the capabilities of Federal law 
enforcement to fight terrorism by overwhelmingly passing the 
USA PATRIOT Act. On a variety of fronts, the PATRIOT Act has 
provided tremendous tools for preventing terrorist acts and 
prosecuting terrorists. The PATRIOT Act has effectively removed 
obstacles that prevented crucial information sharing between 
intelligence and law enforcement officers. It has brought 
Federal law enforcement, Federal criminal law to date with new 
technology, thus leveling the playing field for investigators 
and prosecutors. And it has increased the maximum sentences for 
a number of terrorist-related offenses.
    Despite these positive developments, more can and should be 
done, including the passage of this bill. H.R. 2934 is 
important because it will ensure that all terrorists who cause 
death in the course of their terroristic acts will be eligible 
for the death penalty if the facts warrant such a punishment. 
Under current law, some terrorist offenses that could result in 
the death of American citizens do not provide for the death 
penalty or even for a sentence of life in prison as an 
available punishment.
    For example, a terrorist who is convicted of attacking a 
nation defense installation, sabotaging a nuclear facility or 
destroying a power plant cannot receive the death penalty even 
if his crime results in mass casualties. H.R. 2934 would change 
the law to make the perpetrator of all terrorist acts resulting 
in death, including the ones I just mentioned, eligible for the 
death penalty. Increasing the potential penalties for all 
crimes of terrorism will send a clear message to would-be 
terrorists that the murder of innocent Americans will be 
punished to the full extent allowed under our Constitution.
    Because the consequences of these cases are so serious and 
the stakes are so high, lawmakers must always approach any 
expansion of the death penalty with caution and careful 
deliberation. As an experienced prosecutor, both at the State 
and Federal level in my home State of Texas, I have had 
significant experience in dealing with death penalty cases. As 
a local prosecutor, I personally tried 3 capital murder cases 
in which the death penalty was imposed. Also during those 
years, I considered a number of cases in which the State 
decided not to seek the death penalty. I have personally 
witnessed an execution. I understand the gravity of the 
ultimate punishment on the perpetrator and victims of these 
crimes. During my time as U.S. Attorney in the western district 
of Texas, my office has considered 25 defendants charged with 
crimes eligible for the death penalty. My office has sought the 
death penalty in only one of those cases. In that case, the 
defendant was convicted and the jury imposed a sentence of 
death.
    Seeking and applying the death penalty is serious and 
sobering business. There is a great responsibility in the 
exercise of prosecutorial discretion in this area. The 
Department of Justice has taken this responsibility seriously. 
Through its formal review process, the Department carefully 
reviews the applicability of the death penalty in every 
possible case all the way up to the Attorney General himself.
    H.R. 2934 will not change this. I do not favor liberally 
expanding the number or the types of crimes that may be 
punished by death. But in the fight against terrorism where 
there are real dangers of mass casualties, we should have every 
appropriate tool at our disposal for dealing with those who 
commit or would commit such horrible crimes of violence against 
our Nation and our citizens. H.R. 2934 is an important 
contribution to that end.
    Mr. Chairman, thank you again for inviting me to appear 
before the Subcommittee today. On behalf of the Department of 
Justice, I cannot thank you and your colleagues enough for your 
leadership and support that you all have provided on the war on 
terror. It is my pleasure to support House bill 2934 and I look 
forward to the opportunity to respond to any questions you may 
have.
    Mr. Coble. Thank you, Mr. Sutton.
    [The prepared statement of Mr. Sutton follows:]

                  Prepared Statement of Johnny Sutton

    Mr. Chairman, Ranking Member Scott, members of the subcommittee, 
thank you for the opportunity to appear before you today to discuss 
H.R. 2934, the ``Terrorist Penalties Enhancement Act of 2003,'' and the 
importance of the death penalty in terrorism prosecutions. Mr. Carter, 
on behalf of the Department of Justice, I especially want to thank you 
for your leadership on this issue and for introducing this important 
piece of legislation.
    In the war on terrorism, prosecutors must be equipped with every 
possible weapon that can help to prevent and deter terrorist conduct 
before it occurs, severely punish such conduct when it does occur, and 
help find justice for those whose lives have been affected by crimes of 
terror.
    Following the tragedy of 9/11, Congress wisely acted to improve and 
enhance federal law enforcement's terrorism fighting capabilities by 
overwhelmingly passing the USA PATRIOT Act. On a variety of fronts, the 
PATRIOT Act has provided tremendous tools for preventing terrorist acts 
and prosecuting terrorists. Among other things, the PATRIOT Act has 
effectively removed obstacles to crucial information-sharing between 
intelligence and law enforcement professionals, it has brought federal 
criminal law up-to-date with new technology, thus leveling the playing 
field for investigators and prosecutors, and it has increased the 
maximum sentences for a number of terrorism-related offenses. Despite 
these positive developments, more can and should be done, including the 
passage of H.R. 2934.
    H.R. 2934 is important, because it will ensure that all terrorists 
who cause death in the course of their terroristic acts will be 
eligible for the death penalty if the facts warrant such a punishment. 
Under current law, some terrorist offenses that result in the death of 
American citizens do not provide for the death penalty or even for a 
sentence of life in prison as an available punishment. For example, a 
terrorist who is convicted of attacking a national defense 
installation, sabotaging a nuclear facility, or destroying a power 
plant cannot receive the death penalty, even if his crime results in 
mass casualties. As the President stated just two days ago, on April 
19, 2004, this ``makes no sense to me. We ought to be sending a strong 
signal: if you sabotage a defense installation or nuclear facility in a 
way that takes an innocent life, you ought to get the death penalty, 
the federal death penalty.''
    H.R. 2934 would change the law to make the perpetrators of all 
terrorist acts resulting in death, including these, eligible for the 
death penalty. Increasing the potential penalties for all crimes of 
terrorism will serve as a reminder to would-be terrorists that the 
murder of innocent Americans will be punished to the fullest extent 
allowed under our Constitution.
    As an experienced prosecutor at both the state and federal levels 
in my home state of Texas, I have had significant experience with death 
penalty cases. As a local prosecutor, I have personally tried three 
cases in which the death penalty was imposed, and considered a number 
of cases in which the State decided not to seek the death penalty. I 
have personally witnessed an execution, and understand the gravity of 
the ultimate punishment on both the perpetrator and victims of crime. 
During my tenure as the U.S. Attorney for the Western District of 
Texas, my office has considered 25 defendants charged with crimes 
eligible for the death penalty. My office has sought the death penalty 
in only one of those cases. In that case, the defendant was convicted, 
and the jury imposed the death penalty. Seeking and applying the death 
penalty is serious and sobering business. There is great responsibility 
in the exercise of prosecutorial discretion in this area. The 
Department of Justice has taken this responsibility seriously. Through 
its formal review process, the Department carefully reviews the 
applicability of the death penalty in every possible case, all the way 
up to the Attorney General. H.R. 2934 would not change this. I do not 
favor liberally expanding the number and types of crimes that may be 
punished by death. But in the fight against terrorism, we should have 
every tool at our disposal for dealing with those who commit or would 
commit such horrendous crimes of violence against our nation and our 
citizens. H.R. 2934 is an important contribution to that end.
    Mr. Chairman, again, thank you for inviting me to appear before 
your Subcommittee today. On behalf of the Department of Justice, I 
cannot thank you and your colleagues enough for the leadership and 
support you have provided in the war on terror. It is my pleasure to 
support H.R. 2934, and I look forward to the opportunity to respond to 
any questions that you might have.

    Mr. Coble. Dr. Shepherd.

    STATEMENT OF JOANNA SHEPHERD, PhD., VISITING ASSISTANT 
                  PROFESSOR, EMORY LAW SCHOOL

    Ms. Shepherd. Chairman Coble, Ranking Member Scott and 
Members of the Subcommittee, thank you for having me here today 
to discuss the issues relating to H.R. 2934. As a Ph.D. 
Economist, the primary focus of my research has been the 
empirical analysis of crime. I have studied the deterrent 
effect of capital punishment extensively. I have three 
published studies on the topic and I am currently working on 
another study and a book.
    Today I am going to briefly speak about three things: First 
I will speak on the early studies on whether capital punishment 
had a deterrent effect. The studies produced mixed results. 
Some found deterrence and others did not. Second, I will 
describe the modern studies from the past decade including my 
own studies. There have been 13 modern economic studies on the 
deterrent effect of capital punishment. All find that 
executions significantly deter murders. Finally, I will discuss 
what existing studies might be able to tell us about whether 
capital punishment could deter terrorism. Let me add that this 
testimony will only address deterrence. It will not consider 
any of the other possible issues of capital punishment such as 
moral problems, the socioeconomic patterns of who is executed 
or the dangers of executing innocent people.
    First the early studies: The debate and the economics 
literature began with Isaac Ehrlich's two papers in the 1970's. 
Ehrlich was the first to study capital punishment's deterrent 
effect using multivariate regression analysis. Multivariate 
regression analysis allowed Ehrlich to separate the effects on 
murder of many different factors such as the racial and age 
composition of the population, average income, unemployment, 
and the execution rate. Ehrlich's first paper used time series 
analysis, 36 years of overall U.S. data from 1933 to 1969. His 
second paper used cross-section analysis, 1 year of data from 
all 50 States.
    Both of Ehrlich's studies found significant deterrent 
effects. In fact, he estimated each execution resulted in about 
8 fewer murders. Ehrlich's finding was controversial and loosed 
a flood of interest in statistical analysis of capital 
punishment. The papers that immediately followed Ehrlich used 
his original data or slight extensions and slightly different 
statistical methods. Many found that executions deter murder 
but others did not. The results were mixed. However, almost all 
of the early studies suffered from major flaws because they 
either used time series data or cross-section data. For 
technical reasons that economists agree on, these types of data 
are imperfect for measuring deterrence. The techniques have 
been become obsolete in situations where better panel data are 
available.
    Panel data are data from several units like the 50 States 
or all U.S. counties over several years. Panel data techniques 
fix many of the problems associated with the data that early 
studies used. Now let's talk about the modern studies. 13 
economic studies on capital punishment's deterrent effect have 
been conducted in the past decade. Most use new improved panel 
data and modern statistical techniques. They all use 
multivariate regression analysis to separate the effect on 
murder, of executions, demographics, economic factors, et 
cetera.
    The studies are unanimous. All 13 of them find a deterrent 
effect. I have conducted three of these studies. My first study 
used 20 years of data from all U.S. counties to measure the 
effect of county differences on murder. My second paper used 
monthly data from all U.S. States for 22 years to measure the 
short-term effect of capital punishment. This paper also looks 
at different categories of murder to determine which kinds of 
murder are deterred by executions. The third study looks at the 
effect on murders of the 1970's Supreme Court moratorium on 
executions. All of my papers find a deterrent effect.
    Moreover, I find that all categories of murder are deterred 
by the death penalty, even so-called crimes of passion. My 
results predict that each execution deters somewhere between 3 
and 18 murders. The other 10 modern economics papers used 
different methods and different data than my own, but all find 
a significant deterrent effect.
    Finally, let's talk about what if anything the studies 
might be able to tell us about whether capital punishment 
deters terrorism. Unfortunately, there is not yet any empirical 
research specifically on capital punishment and terrorism. Some 
people might think that all terrorists are undeterrable 
fanatics. In fact, it might even be suggested that capital 
punishment could increase terrorism if potential terrorists 
view executions as their ticket to holy martyrdom.
    However, the indirect evidence from the other studies 
suggest that this may not be the case for three reasons: First, 
research shows that capital punishment deters every kind of 
murder that has been studied. This includes many kinds of 
murderers like terrorists who might not seem to be deterrable. 
My own paper found the death penalty has a deterrent effect on 
all categories of murder including crimes of passion and 
intimate murders that many people think are undeterrable. 
Second, capital punishment could have an overall deterrent 
effect on terrorism even if many terrorists are not influenced 
by capital punishment. To give a deterrent effect, all that is 
necessary is that a small fraction of terrorists are deterred. 
Obviously, the death penalty does not deter all murders, but it 
does deter a small important fraction of them. Third, although 
there are exceptions, news accounts----
    Mr. Coble. Dr. Shepherd, if you could wrap up.
    Ms. Shepherd. News accounts are replete with accounts of 
alleged terrorists who fight strenuously in court to get life 
imprisonment instead of the death penalty. These terrorists 
obviously view executions as a worse penalty than life in 
prison. If executions are a harsher penalty, then some 
terrorists should be deterred by them. Thanks again for having 
me, and I look forward to answering any questions you may have.
    [The prepared statement of Ms. Shepherd follows:]

                Prepared Statement of Joanna M. Shepherd

                      I. INTRODUCTION AND SUMMARY

    Recent research on the relationship between capital punishment and 
crime has created a strong consensus among economists that capital 
punishment deters crime. Early studies from the 1970s and 1980s reached 
conflicting results. However, recent studies have exploited better data 
and more sophisticated statistical techniques. The modern studies have 
consistently shown that capital punishment has a strong deterrent 
effect, with each execution deterring between 3 and 18 murders. This is 
true even for crimes that might seem not to be deterrable, such as 
crimes of passion.
    No research has yet focused specifically on whether capital 
punishment deters terrorism. It is conceivable that some terrorists are 
undeterrable, as are some who commit other murders. Indeed, the 
application of the death penalty might conceivably induce some 
terrorist acts, as terrorists seek martyrdom. However, the pervasive 
consistency of capital punishment's deterrence of other kinds of murder 
suggests that capital punishment would deter at least some terrorist 
murders.
    One caution: that capital punishment deters murder does not 
necessarily demonstrate that imposing capital punishment is good 
policy. In addition to the benefits from deterrence, other factors must 
also be considered, such as capital punishment's morality, the socio-
economic patterns with which executions are imposed, and the dangers of 
executing the innocent. These other factors are beyond this testimony's 
scope.
    I proceed as follows. After Part II explains my qualifications, 
Part III discusses early research on whether capital punishment deters 
crime. Part IV describes modern studies, and Part V discusses the 
degree to which current research can be applied to terrorism.

                 II. MY BACKGROUND AND QUALIFICATIONS.

    I received my Ph.D. in Economics from Emory University in 2002, 
with fields of specialization in Law & Economics and Econometrics. 
Since then, I have been on the faculty at the John E. Walker Department 
of Economics at Clemson University, in Clemson, South Carolina. I am 
currently beginning an appointment at the Emory University School of 
Law, in Atlanta, Georgia. I will also teach in Emory's economics 
department. I have frequently published articles in peer-reviewed 
journals, and I have published a book.
    The primary focus of my research has been the empirical analysis of 
crime. One of my research interests has been on whether capital 
punishment deters crime. I have published three articles on the topic 
in peer-reviewed journals, and I have another working paper underway. I 
am also in the process of creating a related book. I have presented 
this research widely around the country at seminars and professional 
meetings. I have also discussed the work frequently in the popular 
media, including internationally on BBC radio. My research on capital 
punishment and deterrence places me among the leading experts on the 
issue.

      III. EARLY LITERATURE ON CAPITAL PUNISHMENT AND DETERRENCE.

    In the U.S., the deterrence issue has been a topic of hot debate 
for decades. The initial participants in the debate were psychologists 
and criminologists. Their research was either theoretical or based on 
comparisons of crime patterns in states with and without capital 
punishment. However, because they did not use multiple-regression 
statistical techniques, the analyses were unable to distinguish the 
effect on murder of capital punishment from the effects of other 
factors. 1
---------------------------------------------------------------------------
    \1\ For example, J.T. Sellin, J. T., The Death Penalty (1959); H. 
Eysenck, Crime and Personality (1970).
---------------------------------------------------------------------------
    The debate in the economics literature began with Isaac Ehrlich's 
two papers in 1975 and 1977.\2\ Ehrlich was the first to study capital 
punishment's deterrent effect using multivariate regression analysis. 
In contrast to earlier methods, this approach allowed Ehrlich to 
separate the effects of many different factors on murder.
---------------------------------------------------------------------------
    \2\ Isaac Ehrlich, The Deterrent Effect of Capital Punishment: A 
Question of Life and Death, 65 Am. Econ. Rev. 397 (1975); Isaac 
Ehrlich, Capital Punishment and Deterrence: Some Further Thoughts and 
Additional Evidence, 85 J. Pol. Econ. 741 (1977)
---------------------------------------------------------------------------
    Ehrlich's 1975 paper examined U.S time-series data for the period 
1933-1969. Time-series data are data for one unit (for Ehrlich, for the 
entire U.S.) over several time periods. He tested the effect on 
national murder rates of deterrent variables (the probabilities of 
arrest, conviction, and execution), demographic variables (population, 
fraction of nonwhites, fraction of people age 14-24), economic 
variables (labor force participation, unemployment rate, real per 
capita permanent income, per capita government expenditures, and per 
capita expenditures on police), and a time variable. He found a 
statistically significant negative relationship between the murder rate 
and execution rate, indicating a deterrent effect. Specifically, he 
estimated that each execution resulted in approximately seven or eight 
fewer murders.
    Ehrlich's 1977 paper studied cross-sectional data from the fifty 
states in 1940 and 1950. That is, instead of his first paper's approach 
testing how the total U.S. murder rate changed across time as the 
execution rate changed, Ehrlich now explored the relationship during a 
single year between each of the states' execution rates and their 
murder rates. Cross-sectional data are data from several units (here, 
the fifty states) for one time period (1940 or 1950).
    Again, Ehrlich used multivariate regression analysis to separate 
the effect on murder of different factors. He included deterrent 
variables (probabilities of conviction and execution, median time spent 
in prison, and a dummy variable distinguishing executing states from 
non-executing states), demographic variables (state population, urban 
population, percent of nonwhites, and percent of people age 15-24 and 
25-34), and economic variables (median family income and percent of 
families with income below half of the median income). Again, his 
findings indicated a substantial deterrent effect of capital punishment 
on murder.
    Ehrlich's finding loosed a flood of interest in econometric 
analysis of capital punishment and deterrence. The papers that 
immediately followed Ehrlich used his original data (1933-1969 national 
time-series or 1940 and 1950 state level cross section) and variants of 
his econometric model. Many found a deterrent effect of capital 
punishment, but others did not. For example, using Ehrlich's data, all 
of the following found a deterrent effect: Yunker, Cloninger, and 
Ehrlich and Gibbons.\3\ In contrast, Bowers and Pierce; Passel and 
Taylor; and Hoenack and Weiler find no deterrence when they use the 
same data with alternative specifications.\4\ Similarly, McAleer and 
Veall, Leamer, and McManus, find no deterrent effect when different 
variables are included over the same sample period.\5\ Finally, Black 
and Orsagh find mixed results depending on the cross-section year they 
use.\6\
---------------------------------------------------------------------------
    \3\ James A. Yunker, Is the Death Penalty a Deterrent to Homicide? 
Some Time Series Evidence, 5 Journal of Behavioral Economics 45 (1976); 
Dale O. Cloninger, Deterrence and the Death Penalty: A Cross-Sectional 
Analysis, 6 Journal of Behavioral Economics 87 (1977); Isaac Ehrlich & 
Joel Gibbons, On the Measurement of the Deterrent Effect of Capital 
Punishment and the Theory of Deterrence, 6 Journal of Legal Studies 35 
(1977).
    \4\ W. J. Bowers & J.L. Pierce, The Illusion of Deterrence in Isaac 
Ehrlich's work on Capital Punishment, 85 Yale Law Journal 187 (1975); 
Peter Passell & John B. Taylor, The Deterrent Effect of Capital 
Punishment: Another View, 67 American Economic Review 445 (1977); 
Stephen A. Hoenack & William C. Weiler, A Structural Model of Murder 
Behavior and the Criminal Justice System, 70 American Economic Review 
327 (1980).
    \5\ Michael McAleer & Michael R. Veall, How Fragile are Fragile 
Inferences? A Re-Evaluation of the Deterrent Effect of Capital 
Punishment, 71 Review of Economics and Statistics 99 (1989); Edward E. 
Leamer, Let's Take the Con out of Econometrics, 73 American Economic 
Review 31 (1983); Walter S. McManus, Estimates of the Deterrent Effect 
of Capital Punishment: The Importance of the Researcher's Prior 
Beliefs, 93 Journal of Political Economy 417 (1985).
    \6\ T. Black & T. Orsagh, New Evidence on the Efficacy of Sanctions 
as a Deterrent to Homicide, 58 Social Science Quarterly 616 (1978).
---------------------------------------------------------------------------
    In the late 1980s and 1990s, a second-generation of econometric 
studies extended Ehrlich's national time-series data or used more 
recent cross-sectional data. As before, some papers found deterrence 
while others did not. For example, Layson and Cover and Thistle use an 
extension of Ehrlich's national time-series data, covering up to 
1977.\7\ Although Layson finds a significant deterrent effect of 
executions, Cover and Thistle correct for data flaws--nonstationarity--
and find no deterrent effect. Chressanthis employs national time-series 
data covering 1966 through 1985 and finds a deterrent effect.\8\ In 
contrast, Grogger uses daily data for California during 1960-1963 and 
finds no deterrent effect.\9\
---------------------------------------------------------------------------
    \7\ Stephen A. Layson, Homicide and Deterrence: A Reexamination of 
the United States Time-Series Evidence, 52 Southern Economic Journal 68 
(1985); James P. Cover & Paul D. Thistle, Time Series, Homicide, and 
the Deterrent Effect of Capital Punishment, 54 Southern Economic 
Journal 615 (1988).
    \8\ George A. Chressanthis, Capital Punishment and the Deterrent 
Effect Revisited: Recent Time-Series Econometric Evidence, 18 Journal 
of Behavioral Economics 81 (1989).
    \9\ Jeffrey Grogger, The Deterrent Effect of Capital Punishment: An 
Analysis of Daily Homicide Counts, 85 J. of the American Statistical 
Association 295 (1990).
---------------------------------------------------------------------------
    However, most of the early studies--both the first wave and the 
second generation--suffered from fundamental flaws: they suffered 
important data limitations because they used either national time-
series or cross-section data. Using national time-series data created a 
serious aggregation problem. Any deterrence from an execution should 
affect the crime rate only in the executing state; one state's high 
execution rate would not be expected to change the rate in nearby 
states, where the first state's laws and courts lack criminal 
jurisdiction.
    Aggregation dilutes such distinct effects, creating ``aggregation 
bias.'' For example, suppose that the following happens concurrently: 
the murder rate in a state with no executions randomly increases at the 
same time that the murder rate drops in a state with many executions. 
Aggregate data might incorrectly lead to an inference of no deterrence; 
the aggregate data, with the two states lumped together, would show an 
increase in executions leading to no change in the murder rate.
    Cross-sectional studies also suffer serious problems. Most 
importantly, they preclude any consideration of what happens to crime, 
law enforcement, and judicial processes over time. Cross-section data 
also prevent researchers from controlling for jurisdiction-specific 
characteristics that could be related to murder, such as a violent 
culture in southern states.\10\
---------------------------------------------------------------------------
    \10\ Technically, cross-sectional studies are affected by 
unobserved heterogeneity that cannot be controlled for in the absence 
of time variation. The heterogeneity is caused by jurisdiction-specific 
characteristics that may correlate with other variables of the model, 
resulting in biased, incorrect estimates.
---------------------------------------------------------------------------
    Several authors expressed similar data concerns with time-series 
and cross-section data and called for new research using panel data, as 
I now discuss.\11\
---------------------------------------------------------------------------
    \11\ See, e.g., Samuel Cameron, A Review of the Econometric 
Evidence on the Effects of Capital Punishment, 23 Journal of Socio-
Economics 197 (1994) and K.L. Avio, Capital Punishment, in The New 
Palgrave Dictionary of Economics and the Law (Peter Newman, ed. 1998).
---------------------------------------------------------------------------
      IV. MODERN STUDIES OF CAPITAL PUNISHMENT'S DETERRENT EFFECT.

    Most recent studies have overcome the fundamental problems 
associated with national time-series and cross-section data by using 
panel-data techniques. Panel data are data from several units (the 
fifty states or all U.S. counties) over several different time periods; 
that is, panel data follow a cross-section over time. For example, a 
panel dataset might include data on each of the fifty states, or even 
on each U.S. county, for a series of years.
    These improved data allow researchers to capture the demographic, 
economic, and jurisdictional differences among U.S. states or counties, 
while avoiding aggregation bias. Furthermore, panel data produce many 
more observations than cross-section or time-series data, enabling 
researchers to estimate any deterrent effect more precisely. In 
addition to enjoying the benefits of panel data, recent studies have 
access to more recent data that make conclusions more relevant for the 
current environment.
    Using improved data and more sophisticated regression techniques, 
thirteen papers have been written in the economics literature in the 
past decade. Their conclusion is unanimous: all of the modern papers 
find a significant deterrent effect.
    I now briefly discuss the modern research in the economics 
literature from the past decade, beginning with the studies in which I 
have been involved. I group the papers into those that use panel-data 
techniques and those using other techniques.

A. Modern Papers using Panel-Data Techniques.
    1. Hashem Dezhbakhsh, Paul H. Rubin, and I examine whether 
deterrence exists using county-level panel data from 3,054 U.S. 
counties over the period 1977 to 1996.\12\ This is the only study to 
use county-level data, allowing us to estimate better the demographic, 
economic, and jurisdictional differences among U.S. counties that can 
affect murder rates. Moreover, the large number of county-level 
observations extends the empirical tests' reliability.\13\
---------------------------------------------------------------------------
    \12\ Hashem Dezhbakhsh, Paul Rubin, and Joanna M. Shepherd, Does 
Capital Punishment Have a Deterrent Effect? New Evidence from 
Postmoratorium Panel Data, 5 American Law and Economics Review 344 
(2003).
    \13\ Technically, it extends the analysis' degrees of freedom, 
increases variability, and reduces colinearity among variables.
---------------------------------------------------------------------------
    We find a substantial deterrent effect; both death row sentences 
and executions result in decreases in the murder rate. A conservative 
estimate is that each execution results in, on average, 18 fewer 
murders. Our main finding, that capital punishment has a deterrent 
effect, is robust to many different ways of performing the statistical 
analysis.\14\
---------------------------------------------------------------------------
    \14\ The deterrent effect remains with different choices of 
functional form (double-log, semi-log, or linear), state-level vs. 
county-level analysis, sampling period, endogenous vs. exogenous 
probabilities, and level vs. ratio specification of the main variables.
---------------------------------------------------------------------------
    2. In another paper, I use state-level, monthly panel data from 
1977-1999 to examine two important questions in the capital punishment 
literature.\15\ First, I investigate the types of murders deterred by 
capital punishment. Some people in the debate on capital punishment's 
deterrent effect believe that certain types of murder are not 
deterrable. They claim that murders committed during interpersonal 
disputes, murders by intimates, or noncontemplated crimes of passion 
are not intentionally committed and are therefore nondeterrable. Others 
argue that the brutality of executions incites criminals and increases 
the rates of stranger murders.
---------------------------------------------------------------------------
    \15\ Joanna M. Shepherd, Murders of Passion, Execution Delays, and 
the Deterrence of Capital Punishment, 33 Journal of Legal Studies 
(forthcoming 2004).
---------------------------------------------------------------------------
    To the contrary, I find that the combination of death row sentences 
and executions deters all types of murders: murders between intimates, 
acquaintances, and strangers, crime-of-passion murders and murders 
committed during other felonies, and murders of African-American and 
white people.\16\ I estimate that each death row sentence deters 
approximately 4.5 murders and that each execution deters approximately 
3 murders.
---------------------------------------------------------------------------
    \16\ Intimates are defined as spouses, common-law spouses, parents, 
children, siblings, in-laws, step-relations, and other family. Crime-
of-passion murders include lovers' triangles, murders by babysitters, 
brawls under alcohol, brawls under drugs, arguments over money, other 
arguments, and abortion-murders (abortions performed during the murder 
of the mother).
---------------------------------------------------------------------------
    The second important issue that I address is the impact on 
deterrence of execution delays. In 1996, Congress passed the Anti-
Terrorism and Effective Death Penalty Act of 1996 that limits federal 
habeas review in capital cases. If criminals prefer lengthy death row 
waits to short ones, as their numerous appeals and requests for stays 
suggest, then shortening the time until execution could increase the 
death penalty's deterrent impact.
    I find that shorter waits on death row increase deterrence. 
Specifically, one extra murder is deterred for every 2.75-years 
reduction in the death-row wait before each execution.
    3. Hashem Dezhbakhsh and I use state-level panel data from 1960-
2000 to examine capital punishment's deterrent effect.\17\ This is the 
only study to use data from before, during, and after the 1972-1976 
Supreme Court moratorium on executions. Our study advances the 
deterrence literature by exploiting an important characteristic that 
other studies overlooked: the experimental nature of the Supreme Court 
moratorium.
---------------------------------------------------------------------------
    \17\ Hashem Dezhbakhsh and Joanna M. Shepherd, The Deterrent Effect 
of Capital Punishment: Evidence from a ``Judicial Experiment,'' (Emory 
University Working Paper, 2003).
---------------------------------------------------------------------------
    First, we perform before-and-after moratorium comparisons by 
comparing the murder rate for each state immediately before and after 
it suspended or reinstated the death penalty. These before-and-after 
comparisons are informative because many factors that affect crime--
e.g., law enforcement, judicial, demographic, and economic variables--
change only slightly over a short period of time. In addition, the 
moratorium began and ended in different years in different states. 
Considering the different start and end dates, the duration of the 
moratorium varied considerably across states, ranging from four to 
thirty years. Observing similar changes in murder rates immediately 
after the same legal change in different years and in various states 
provides compelling evidence of the moratorium's effect on murder.
    The before-and-after comparisons reveal that as many as 91 percent 
of states experienced an increase in murder rates after they suspended 
the death penalty. In about 70 percent of the cases, the murder rate 
dropped after the state reinstated the death penalty.
    We supplement the before-and-after comparisons with time-series and 
panel-data regression analyses that, unlike many existing studies, uses 
both pre- and postmoratorium data. The regressions disentangle the 
impact of the moratorium itself on murder from the effect of actual 
executions on murder; we find that the moratorium has a significant 
positive effect on murder and that executions have significant negative 
effects on murder. These estimates suggest that both adopting a capital 
statute and exercising it have strong deterrent effects.\18\
---------------------------------------------------------------------------
    \18\ We also confirm that our results hold up to changes in our 
choice of regressors, estimation method, and functional form. The 
deterrent variables' coefficients are remarkably consistent in sign and 
significance across 84 different regression models. In addition, we 
verify that the negative relationship between the death penalty and 
murder is not a spurious finding. Before-and-after moratorium 
comparisons and regressions reveal that the death penalty does not 
cause a decrease in property crimes, suggesting that the deterrent 
effect is not reflecting general trends in crime.
---------------------------------------------------------------------------
    4. John R. Lott, Jr. and William M. Landes use state-level panel 
data from 1977 to 1995 to examine whether right-to-carry concealed 
handgun laws deter multiple-victim public shootings.\19\ Included in 
their analysis are tests of the deterrent effect of executions on 
murder. The authors find that right-to-carry concealed handgun laws do 
result in fewer multiple victim public shootings. They also find that 
executions have a significant deterrent effect on the overall murder 
rate. Specifically, a one percent increase in the execution rate is 
associated with a seven percent decline in the overall murder rate.
---------------------------------------------------------------------------
    \19\ John R. Lott, Jr. & William M. Landes, Multiple Victim Public 
Shootings, Bombings, and Right-to-Carry Concealed Handgun Laws: 
Contrasting Private and Public Law Enforcement, (John M. Olin Law & 
Economics Working paper No. 73, University of Chicago Law School, 2000)
---------------------------------------------------------------------------
    5 and 6. Two papers by FCC economist Paul Zimmerman find a 
deterrent effect.\20\ Zimmerman uses state-level panel data from 1978 
to 1997 to examine the relationship between state execution rates and 
murder rates. In a second paper, he employs state-level panel data from 
1978-2000 to examine which execution methods have the strongest 
deterrent effects. In both papers, Zimmerman finds a significant 
deterrent effect of capital punishment. He estimates that each 
execution deters an average of 14 murders and that executions by 
electrocution have the strongest impact.
---------------------------------------------------------------------------
    \20\ Paul R. Zimmerman, Estimates of the Deterrent Effect of 
Alternative Execution Methods in the United States: 1978-2000, American 
Journal of Economics and Sociology (forthcoming); Paul R. Zimmerman, 
State Executions, Deterrence, and the Incidence of Murder, Journal of 
Applied Economics (forthcoming).
---------------------------------------------------------------------------
    7. H. Naci Mocan and R. Kaj Gittings use state-level panel data 
from 1977 to 1997 to examine the relationship between executions, 
commutations, and murder.\21\ Again, the authors find a significant 
deterrent effect; they estimate that each execution deters an average 
of 5 murders. Their results also indicate that both commuting death-row 
prisoners' sentences and removing them from death row cause increases 
in murder. Specifically, each commutation results in approximately five 
extra murders and each removal from death row generates one additional 
murder.
---------------------------------------------------------------------------
    \21\ H. Naci Mocan and R. Kaj Gittings, Getting Off Death Row: 
Commuted Sentences and the Deterrent Effect of Capital Punishment, 46 
Journal of Law and Economics 453 (2003).
---------------------------------------------------------------------------
    8. Another recent paper by Lawrence Katz, Steven D. Levitt, and 
Ellen Shustorovich uses state-level panel data covering the period 1950 
to 1990 to measure the relationship between prison conditions, capital 
punishment, and crime rates.\22\ They find that the death rate among 
prisoners (a proxy for prison conditions) has a significant, negative 
relationship with overall violent crime rates and property crime rates. 
As expected, the execution rate has no statistically significant 
relationship with overall violent crime rates (which consist mainly of 
robbery and aggravated assault rates) and property crime rates; that 
is, executions have no effect on non-capital crimes. In several 
estimations, both the prison death rate and the execution rate are 
found to have significant, negative relationships with murder rates. 
The deterrent effect of executions is especially strong in the 
estimations that control for the economic and demographic differences 
among states.\23\
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    \22\ Lawrence Katz, Steven D. Levitt, & Ellen Shustorovich, Prison 
Conditions, Capital Punishment, and Deterrence, 5 American Law and 
Economics Review 318 (2003).
    \23\ The authors' accompanying commentary focuses on other aspects 
of their results.
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B. Modern Papers Using Other Techniques
    9. Instead of a panel-data study, Dale O. Cloninger and Roberto 
Marchesini conduct a portfolio analysis in a type of controlled group 
experiment: the Texas unofficial moratorium on executions during most 
of 1996.\24\ They find that the moratorium appears to have caused 
additional homicides and that murder rates significantly decreased 
after the moratorium was lifted.
---------------------------------------------------------------------------
    \24\ Dale O. Cloninger & Roberto Marchesini, Execution and 
Deterrence: A Quasi-Controlled Group Experiment, 35 Applied Economics 
569 (2001).
---------------------------------------------------------------------------
    10. Harold J. Brumm and Dale O. Cloninger use cross-sectional data 
covering 58 cities in 1985 to distinguish between criminals' perceived 
risk of punishment and the ex-post risk of punishment measured by 
arrest rates, conviction rates, or execution rates.\25\ They find that 
the perceived risk of punishment, including the probability of 
execution, is negatively and significantly correlated with the homicide 
commission rate.
---------------------------------------------------------------------------
    \25\ Harold J. Brumm and Dale O. Cloninger, Perceived Risk of 
Punishment and the Commission of Homicides: A Covariance Structure 
Analysis, 31 Journal of Economic Behavior and Organization 1 (1996).
---------------------------------------------------------------------------
    11. James A. Yunker tests the deterrence hypothesis using two sets 
of post-moratorium data: state cross-section data from 1976 and 1997 
and national time-series data from 1930-1997.\26\ He finds a strong 
deterrent effect in the time-series data that disappears when the data 
are limited to the 1930-1976 period. Therefore, he concludes that 
postmoratorium data is critical in testing of the deterrence 
hypothesis.
---------------------------------------------------------------------------
    \26\ James A. Yunker, A New Statistical Analysis of Capital 
Punishment Incorporating U.S. Postmoratorium Data, 82 Social Science 
Quarterly 297 (2002).
---------------------------------------------------------------------------
    12 and 13. Two other papers, one by Isaac Ehrlich and Zhiqiang Liu 
and the other by Zhiqiang Liu, use Ehrlich's original state-level, 
cross-section data.\27\ The study by Ehrlich and Liu offers a theory-
based sensitivity analysis of estimated deterrent effects and finds 
that executions have a significant deterrent effect. Liu's study uses 
switching regression techniques in estimations that take into account 
the endogenous nature of the status of the death penalty. He also finds 
a strong deterrent effect.
---------------------------------------------------------------------------
    \27\ Isaac Ehrlich & Zhiqiang Liu, Sensitivity Analysis of the 
Deterrence Hypothesis: Lets Keep the Econ in Econometrics, 42 Journal 
of Law and Economics 455 (1999); Zhiqiang Liu, Capital Punishment and 
the Deterrence Hypothesis: Some New Insights and Empirical Evidence, 
Eastern Economic J. (forthcoming)
---------------------------------------------------------------------------
              V. APPLICATION OF THE RESEARCH TO TERRORISM.

    To predict perfectly whether the Terrorist Penalties Enhancement 
Act of 2003 (H.R. 2934) will decrease terrorist acts, we would need 
research that focuses specifically on the application of capital 
punishment to terrorists. Unfortunately, this research does not yet 
exist. However, it is still worth discussing indirect evidence about 
whether terrorists, like other potential murderers, can be deterred.
    It is probable that capital punishment cannot deter some 
terrorists. For example, the death penalty would not have deterred the 
September 11 terrorists or suicide bombers. Similarly, the death 
penalty does not deter all potential perpetrators of any type of 
murder; in states with the death penalty for first-degree murder, 
people still commit many murders in the first degree.
    Even if the death penalty does not deter all terrorists, it can 
still have an overall deterrent effect if it deters some terrorists. 
Although some fanatics may not be deterrable, the death penalty will 
decrease terrorism as long as there are a few potential terrorists who 
prefer imprisonment to death.
    Similarly, many people who commit crimes of passion may well be 
undeterrable. The emotion of the moment may overcome their self-
control. However, my research, discussed above, shows that the death 
penalty has a deterrent effect on crimes of passion, taken as a 
group.\28\ Although the death penalty may not deter all, or even most, 
crimes of passion, it deters some of them.
---------------------------------------------------------------------------
    \28\ Shepherd, supra note 15.
---------------------------------------------------------------------------
    However, there may be no reduction in terrorism if the death 
penalty induces as much terrorism as it deters. Indeed, the application 
of the death penalty might conceivably induce a net increase in 
terrorism if many terrorists view the death penalty as a means to 
glorious martyrdom.
    However, both research and current examples suggest that, although 
some terrorists are undeterrable fanatics, a substantial number do 
respond to incentives in the way that other potential murderers do. For 
example, Lott and Landes showed that potential perpetrators of 
multiple-victim mass shootings are deterred in states that permit 
citizens to carry concealed weapons; in such states, a greater chance 
exists that the perpetrators will be shot.\29\ Likewise, many 
terrorists, such as Osama bin Laden and alleged bomber Eric Rudolph, 
attempt strenuously to avoid capture and punishment. It is possible to 
be a selfish, calculating terrorist.
---------------------------------------------------------------------------
    \29\ Lott & Landes, supra note 19.
---------------------------------------------------------------------------
    Moreover, each instance in which an alleged terrorist or other 
accused murderer asks his lawyer to attempt to gain a sentence of life 
in prison, rather than death, is evidence that is consistent with 
deterrence. Many accused perpetrators fight strenuously to avoid 
execution; few volunteer for it. That many potential perpetrators view 
execution as worse than life imprisonment confirms why the existence of 
the death penalty would deter at least a few from committing murder.
    Finally, the pervasive consistency of capital punishment's 
deterrence of other kinds of murder suggests that capital punishment 
would deter at least some terrorist murders.

    Mr. Coble. Mr. Carter, I don't think Dr. Shepherd was 
intimidated by my admonition as you were, but she didn't 
violate it very badly. Mr. Edgar, good to have you with us.

 STATEMENT OF TIMOTHY H. EDGAR, LEGISLATIVE COUNSEL, AMERICAN 
                     CIVIL LIBERTIES UNION

    Mr. Edgar. Thank you very much Mr. Chairman. I am pleased 
to appear before you today on behalf of the ACLU to discuss 
H.R. 2934. The bill expands the death penalty to terrorism as 
defined by the PATRIOT Act where death results. The bill is the 
first of three separate bills that the Administration is 
pushing to expand the PATRIOT Act. Congress should reject the 
Administration's invitation to pass this part of PATRIOT Act 
II. The American Conservative Union, Free Congress Foundation 
and the Gun Owners of America, have joined with the ACLU and 
many others in taking strong issue with the PATRIOT Act's 
definition of domestic terrorism.
    More than 291 local resolutions in 39 States, including 
four statewide resolutions, have rejected some provisions of 
the PATRIOT Act, including the terrorism definition, saying 
that it infringes on basic rights and freedoms. All together, 
these communities represent close to 50 million Americans. 
Because the PATRIOT Act's terrorism definition is so broad, it 
might ensnare both conservative and liberal activists. Leaders 
on the left and the right have agreed that it must be amended. 
Conservative Republicans Butch Otter of Idaho and Jeff Flake or 
Arizona have introduced H.R. 3352, the Security and Freedom 
Ensured or SAFE Act which would more narrowly focus the 
definition of domestic terrorism on serious terrorism crimes.
    The House Judiciary Committee is just beginning its 
oversight of the Justice Department's use of the PATRIOT Act 
and other powers. Congress should not consider a major 
expansion of the PATRIOT Act's terrorism definition or any 
other very controversial part of the PATRIOT Act before it has 
completed this process. Most important, the bill is not needed 
to make the death penalty available for very serious crimes. 
The Government already has 20 Federal death penalty terrorism 
offenses not to mention other Federal and State death penalties 
at its disposal. Rather, the bill will likely sweep in more 
peripheral cases of politically motivated crime, even 
potentially including some acts of civil disobedience if death 
results. Whether prosecutors seek the death penalty in such 
cases may depend on the politics of the defendants or of the 
Administration. The bill makes two major changes to the Federal 
death penalty. It enacts a sweeping catch all death penalty for 
any Federal felony and even attempts and conspiracies that is 
any Federal crime whose maximum punishment is over a year into 
a potentially capital offense if it meets the PATRIOT Act's 
definition of domestic terrorism. What that means is that it 
must involve a criminal act and appear to be intended to 
influence Government policy or a civilian population and must 
involve dangerous acts. These definitions of terrorism are so 
broad that they could cover criminal felony violations of the 
freedom of access to clinic entrances act or other types of 
Federal laws that might be violated by certain types of protest 
groups.
    Finally, the other thing that it does is it expands the 
list of Federal crimes of terrorism which is currently 43 
Federal crimes to add 23 new death penalties. We heard from the 
other witnesses about two of these 23 new death penalties, that 
is, damage to a defense installation, a nuclear or power plant. 
I would like to point out, as I provided in the chart that is 
attached to my written statement, there are at least two or 
perhaps three or more other Federal offenses that could be 
charged in such a case that do carry the death penalty. For 
example, arson or bombing of a property used in interstate 
commerce, which is section 844-I of the Federal Code; arson or 
bombing of a Federal bombing which is 844 F-2 of title 18 or 
acts of terrorism transcending national boundaries, which is 
very broad and covers virtually any murder where there is a 
Federal predicate for jurisdiction.
    So I think that those examples are really not realistic in 
that the Federal prosecutor is very unlikely to limit himself 
to only charging one crime. The Federal prosecutor is almost 
certainly going to charge whatever crimes are available. And in 
any serious case of terrorism, there is almost certainly going 
to be a death penalty crime available. We do not believe the 
bill will make America safer. Instead, it will undermine the 
fight against terrorism by making international cooperation 
even more difficult.
    Already, many nations are unwilling to extradite or provide 
evidence in terrorism cases if the death penalty might result 
from their cooperation. Finally, whatever the evidence 
regarding the deterrent effect of the death penalty for 
ordinary crimes, there is no reliable scholarly evidence on the 
deterrent effect of the death penalty for terrorism.
    Jessica Stern, a former member of the National Security 
Council staff and many other terrorism experts, warns that 
there could be a reversed deterrent effect. They note that 
terrorism is designed to produce publicity, and publicity is 
designed to produce new followers and that executing terrorists 
could simply play into their hands.
    Certainly, other countries such as the United Kingdom, 
Spain and others have agreed that the death penalty is not an 
effective strategy even though they have had decades old 
terrorism problems.
    To sum up, H.R. 2934 is a drastic and unwise expansion of 
the Government's most sobering power, the power to take a life. 
It creates literally an uncountable number of new Federal death 
penalties because it would apply to any Federal crime that is 
classified as a felony. It is not needed to charge terrorists 
with death sentences because of the 20 existing Federal death 
penalties and other death penalties in the Federal and State 
law and it is a classic example of a solution in search of a 
problem. Thank you very much.
    [The prepared statement of Mr. Edgar follows:]

                 Prepared Statement of Timothy H. Edgar

    Chairman Coble, Ranking Member Scott and Members of the 
Subcommittee:
    I am pleased to appear before you today on behalf of the American 
Civil Liberties Union and its more than 400,000 members, dedicated to 
preserving the principles of the Constitution and Bill of Rights, to 
explain the ACLU's views on H.R. 2934, the ``Terrorist Penalties 
Enhancement Act of 2003.''
    The proposed legislation, which expands the death penalty to acts 
defined by the USA PATRIOT Act as ``terrorism'' that are federal crimes 
punishable by more than one year in prison,\1\ is one part of a planned 
sequel to the USA PATRIOT Act commonly known as ``Patriot Act 2.'' 
Congress should not consider such an expansion of the USA PATRIOT Act 
until it has undertaken comprehensive oversight of the federal 
government's use of the Act and its other law enforcement powers.
---------------------------------------------------------------------------
    \1\ H.R. 2934 as introduced would have applied to any state or 
federal crime, but Chairman Coble is sponsoring a substitute amendment 
that would apply the new death penalty to federal felonies, which are 
defined as any federal crime punishable by more than one year in 
prison. 18 U.S.C. ' 1.
---------------------------------------------------------------------------
    The bill's expansion of the federal death penalty would be drastic. 
In addition to creating twenty-three separate new death penalties in 
one stroke, the bill also creates an unprecedented ``catch-all'' death 
penalty for any federal crime, or any attempt or conspiracy to commit 
such a crime, that meets the PATRIOT Act's overbroad definition of 
terrorism and is punishable by more than one year in prison.
    Such a drastic expansion of the death penalty will not make America 
safer from terrorism. Rather, it will undermine international 
cooperation against terrorism by further complicating efforts to obtain 
the cooperation of governments that have abolished the death penalty.
    Adding even more death penalties will not deter suicidal, 
religiously motivated terrorists who have not been deterred by the 
twenty federal death penalties for crimes of terrorism already on the 
books (not to mention other federal and state death penalties that may 
be available) and may instead simply attract new followers to the 
cause.
    The death penalty is in need of reform, not expansion. According to 
the Death Penalty Information Center, one hundred thirteen prisoners on 
death row have now been exonerated. Chronic problems, including 
inadequate defense counsel and racial disparities, plague the death 
penalty system in the United States. With twenty death penalties for 
federal crimes of terrorism already on the books, prosecutors have 
ample opportunity to seek the death penalty in serious terrorism cases. 
The expansion of the death penalty potentially to any federal felony 
creates an opportunity for more arbitrary application of the death 
penalty.

CONGRESS SHOULD NOT EXPAND THE USA PATRIOT ACT WITHOUT THOROUGH REVIEW 
                    OF ITS IMPACT ON CIVIL LIBERTIES

    Continued grassroots controversy among Americans of all political 
persuasions about the impact of post 9/11 government policies on basic 
civil liberties has slowed the seemingly inexorable momentum of new 
federal government powers. Conservative organizations, including the 
American Conservative Union, Free Congress Foundation and the Gun 
Owners of America, have joined with the ACLU, the American Library 
Association and many others to argue that America should not sacrifice 
its liberties in the name of security. More than 291 local resolutions 
in thirty-nine states, including four state-wide resolutions, have 
rejected some provisions of the USA PATRIOT Act and other post 9/11 
polices that infringe on basic rights and freedoms. Altogether, these 
communities represent close to 50 million Americans.
    As a result, President Bush and Attorney General Ashcroft have not 
gone forward with a comprehensive sequel to the USA PATRIOT Act--a 
``Patriot Act 2'' that many expected would be introduced last year. 
Instead, the Administration has endorsed three separate bills expanding 
federal powers, including this legislation dramatically expanding the 
federal death penalty.\2\
---------------------------------------------------------------------------
    \2\ The Administration's ``Patriot Act 2'' agenda also includes 
efforts to remove altogether judicial oversight of records searches and 
a ``no-bail'' presumption for terror suspects. Patriot Act 2 was not 
introduced in its original form because of strong bipartisan 
opposition. However, the Bush Administration has pressed forward with 
efforts to enact parts of their sequel to the Patriot Act in separate 
legislation. See Timothy H. Edgar, ACLU Interested Persons Memo 
Updating the Status of ``Pieces of Patriot II'' Proposals, Oct. 8, 
2003, available at http://www.aclu.org/SafeandFree/
SafeandFree.cfm?ID=14000&c=206.
---------------------------------------------------------------------------
    Congress should firmly reject any effort by the Administration to 
add new powers to the USA PATRIOT Act until it has received the 
cooperation of the Department of Justice in comprehensive oversight of 
its existing federal anti-terrorism powers. For this reason alone, 
Congress should reject this legislation.

     THE BILL'S SWEEPING ``CATCH-ALL'' DEATH PENALTY WOULD GREATLY 
EXACERBATE THE CHILLING IMPACT OF AN ALREADY OVERBROAD USA PATRIOT ACT 
                      DEFINITION OF ``TERRORISM''

    H.R. 2934 seeks to expand the USA PATRIOT Act to create new death 
penalties for any federal offense punishable by more than one year, if 
death results. The bill's expansion of the federal death penalty would 
be drastic and unwise.
    First, the bill makes all of the forty-three ``Federal crimes of 
terrorism'' listed at 18 U.S.C. Sec. 2332b(g)(5) death-eligible 
offenses; currently, twenty of these crimes are potentially capital 
offenses. Second, the bill adds a sweeping ``catch-all'' death penalty 
that makes a federal felony a potential capital offense if it meets the 
broad definitions of ``international terrorism'' or ``domestic 
terrorism'' contained at 18 U.S.C. Sec. 2331. The number of new federal 
death penalties created by this provision is limited only by the ever-
expanding number of federal felonies.
    The proposed legislation creates a unique and sweeping ``catch-
all'' death penalty for any federal felony that meets the federal 
code's overbroad definitions of terrorism. The ``catch-all'' death 
penalty provision would not only dramatically increase the number of 
federal capital offenses, but would seriously exacerbate the already 
considerable chilling effect of the USA PATRIOT Act's ``domestic 
terrorism'' definition on political protest groups that use tactics of 
civil disobedience. This provision would exacerbate the already serious 
civil liberties problems of the definition of international terrorism 
and of the similar definition of domestic terrorism enacted by the USA 
PATRIOT Act.
    The USA PATRIOT Act, at section 802, provides that any actions, 
occurring primarily within the United States, are ``domestic 
terrorism'' if they (1) ``involve'' a violation of state or federal 
criminal law, (2) ``appear to be intended'' to influence government 
policy or a civilian population by ``intimidation or coercion'' and (3) 
``involve acts dangerous to human life.'' 18 U.S.C. Sec. 2331(5). The 
federal code's definition of ``international terrorism'' is similar, 
except that the actions must occur primarily outside the United States 
or ``transcend national boundaries'' and may involve ``violent acts'' 
instead of (or in addition to) ``acts dangerous to human life.'' 18 
U.S.C. Sec. 2331(1).
    These definitions of ``terrorism'' are so broad that many 
legitimately fear they could cover the civil disobedience activities of 
diverse protest organizations, including Operation Rescue, Greenpeace, 
and the anti-globalization movement. Blocking entrances to abortion 
clinics, for example, could ``involve'' violations of federal law 
punishable by more than one year in prison and may certainly ``appear 
to be intended'' to influence government policy or a civilian 
population by ``intimidation or coercion.'' Blocking clinics under some 
circumstances involves ``acts dangerous to human life'' in that such 
actions could threaten the lives of the protesters (if protesters block 
traffic, for example) or interfere with the ability of women to get 
needed medical treatment. The anti-globalization movement is also known 
for civil disobedience tactics, such as chaining protestors together to 
block traffic, that could meet the USA PATRIOT Act's overbroad 
definition of terrorism.
    Because of the chilling effect of this definition on ideologically 
diverse protest groups, section 802 is one of the provisions of the USA 
PATRIOT Act that organizations on the left and the right have agreed 
must be amended to protect civil liberties. Conservative Republican 
Reps. Butch Otter (ID) and Jeff Flake (AZ) have joined independent Rep. 
Bernie Sanders (VT) and Democrats such as Rep. John Conyers, Jr. (MI) 
and Rep. Barney Frank (MA) to introduce H.R. 3352, the Security and 
Freedom Enhanced (SAFE) Act of 2003. The SAFE Act now has fifty-five 
cosponsors and is pending before this Subcommittee.
    Section 6 of the SAFE Act reforms the definition of ``domestic 
terrorism'' so that it applies only to actions that constitute a 
``Federal crime of terrorism'' under 18 U.S.C. Sec. 2332b(g)(5). The 
SAFE Act would thus limit ``domestic terrorism'' to serious federal 
crimes, going a long way towards reassuring Americans of all political 
persuasions that the federal government will not treat them as 
terrorists because they may be involved in civil disobedience. This 
narrower definition is strongly supported by groups from the right and 
left, including the American Conservative Union, Free Congress 
Foundation, Gun Owners of America and the ACLU.
    The proposed legislation goes in exactly the opposite direction--
not only leaving in place the USA PATRIOT Act's definition of terrorism 
but broadening the definition by adding a potential death sentence. 
Protest organizations have already been significantly chilled by the 
USA PATRIOT Act's definition of some civil disobedience tactics as 
forms of terrorism. A death penalty based on that definition would 
multiply the chilling effect dramatically.
    A few examples help illustrate why such a ``catch-all'' death 
penalty would be so inappropriate:

        Example 1. A diverse group of American and foreign protestors 
        at an international population control conference chain 
        themselves together in a parking lot entrance to block access 
        to a local reproductive services clinic in violation of the 
        Freedom of Access to Clinic Entrances (FACE) Act of 1994, 18 
        U.S.C. Sec. 248. A woman seeking treatment because of 
        complications from her abortion cannot gain access and the 
        delay in treatment results in her death from those 
        complications. Under this proposal, a federal prosecutor could 
        seek the death penalty against the protesters for 
        ``international terrorism,'' because their violations of FACE 
        Act were felonies \3\ that ``transcend[ed] national 
        boundaries'' through the involvement of international opponents 
        of abortion, involved ``acts dangerous to human life,'' 
        appeared to be intended to influence government policy or a 
        civilian population by ``intimidation or coercion,'' and 
        resulted in death.
---------------------------------------------------------------------------
    \3\ A first-time violation of the FACE Act that does not result in 
bodily injury is a misdemeanor; all other violations are felonies 
because they carry a maximum sentence of more than one year in prison. 
18 U.S.C. ' 248(b).

        Example 2. An organization of gun rights supporters gather at a 
        convention hall to demonstrate against a new federal gun 
        control law that requires all sellers of firearms to be 
        federally licensed dealers and conduct background checks. Some 
        of the demonstrators, saying they want to ``send a message to 
        those gun-grabbers in Washington,'' hold an illegal ``gun 
        show'' of the kind the law was enacted to prohibit, committing 
        felony violations of the federal gun control regime at 18 
        U.S.C. Sec. 922. A mentally unbalanced man purchases one of the 
        firearms and uses it to kill a man. Under this proposal, a 
        federal prosecutor could seek the death penalty for ``domestic 
        terrorism'' against those who participated in the illegal gun 
        show because their violations of the 18 U.S.C. Sec. 922 
        involved ``acts dangerous to human life'' and appeared to 
        intended to influence government policy by ``intimidation or 
        coercion.''

  AN DRASTIC AND UNWISE EXPANSION OF THE FEDERAL DEATH PENALTY WOULD 
              ERASE DISTINCTIONS AMONG TERRORISM OFFENSES

    Federal law already provides a lengthy and growing list of crimes 
of terrorism. Forty-three ``Federal crimes of terrorism'' are listed at 
18 U.S.C. Sec. 2332b(g)(5). Twenty of these crimes currently carry a 
death penalty if death results in the course of the crime. The proposed 
legislation would provide a death penalty for every crime on the 
terrorism list, adding twenty-three new death penalties to the federal 
criminal code in one stroke. The attached chart shows lays out current 
penalties for all of these crimes, showing which federal crimes would 
be made death-eligible by this provision of the bill.
    Congress should not simply adopt, without examination, the list of 
``Federal crimes of terrorism'' as a proxy for crimes that are serious 
enough to warrant the death penalty. In listing ``Federal crimes of 
terrorism,'' Congress did not choose only the most serious terrorism 
offenses for which it considered the death penalty to be an appropriate 
punishment, but also included other crimes that Congress created for 
the goal of preventing and deterring terrorism, including terrorism 
financing, material support, and computer-related offenses. Some of 
these crimes have been defined very broadly to enable the government to 
prosecute persons whose actions may have some relationship to terrorism 
but whose involvement is more peripheral than those who commit 
bombings, hijackings, murders or other terrorist acts that already 
carry the death penalty.
    For example, one crime that currently does not carry the death 
penalty is the offense of providing ``material support'' to a 
designated foreign terrorist organization. This offense was created in 
1996 with a maximum sentence of ten years in prison. The USA PATRIOT 
Act increased the maximum sentence to fifteen years in prison, with a 
possibility of a life sentence if death results.
    There remains substantial controversy about the breadth of the 
``material support'' offense because a conviction requires only that 
the government show the individual ``knowingly'' gave assistance to an 
organization designated as a terrorist organization, even if the 
assistance was only for the organization's lawful activities. The 
government argues that a defendant may be convicted even if he did not 
know of the designation, believed the assistance would support only 
charitable activities, and even if the assistance in fact only 
benefited charitable activities.
    One federal appeals court has now ruled the material support 
statute, as amended by the USA PATRIOT Act, must be construed to 
require knowledge of the designation or of the organization's unlawful 
activities, and that its prohibitions on providing ``training'' and 
``personnel'' are void for vagueness.\4\ Adding a death sentence to 
such a broad statute will only contribute to its constitutional flaws.
---------------------------------------------------------------------------
    \4\ Humanitarian Law Project v. United States Dep't of Justice, 352 
F.3d 382 (9th Cir. 2003).
---------------------------------------------------------------------------
    Congress was certainly aware that creating the crime of material 
support of the lawful activities of an organization designated as 
``terrorist'' by the government could be vulnerable to challenge under 
the First Amendment and the Due Process Clause. While Congress chose to 
pass the material support statute despite these concerns, by providing 
a maximum sentence of fifteen years (or a life sentence if death 
results), Congress indicated it did not believe this crime was as 
serious as direct participation in terrorist acts for which it provided 
the death penalty.
    While the bill would only permit the death penalty for material 
support if death results, a prosecutor could be expected to argue that 
any financial or other contribution to a designated foreign terrorist 
organization--even for humanitarian activities--is fungible and 
therefore assisted the organization in committing terrorist acts that 
resulted in death.
    The following examples help illustrate why it is so wildly 
inappropriate to make the crime of material support a death-eligible 
offense:

        Example 3. Joshua attends a function at a local community 
        center in which he views a graphic film about suicide bombings 
        in Israel. The film praises unofficial ``armed resistance'' by 
        Jewish militants to Islamic terrorist groups. At the function, 
        Joshua gives money for the ``Kahane Chai Relief Fund'' for 
        widows of Palestinian attacks. Joshua suspects the charity may 
        be a front, but is angry enough after seeing the film that he 
        does not care. Joshua does not know that Kahane Chai has been 
        designated by the State Department as a foreign terrorist 
        organization.\5\ Under this legislation, Joshua's actions are 
        not only a crime, but he could now be facing the death penalty.
---------------------------------------------------------------------------
    \5\ The list of foreign terrorist organizations currently numbers 
37 and is maintained on the State Department's website at http://
www.state.gov/s/ct/rls/fs/2003/17067.htm. See also Jerry Seper, 4 
Jewish Web Sites Deemed ``Terrorist,'' Wash. Times, Oct. 11, 2003.

        Example 4. Sean is upset about that some Irish leaders have 
        abandoned the goal of a united Ireland and wants to ``send a 
        message'' by providing technical assistance to an anti-British 
        website. The website features articles and comments that are 
        strongly nationalist in tone, and Sean has been told the 
        website is run by the Real IRA, a designated foreign terrorist 
        organization. Under this legislation, Sean would not only face 
---------------------------------------------------------------------------
        criminal changes, but could face the death penalty.

    Supporters of the bill may argue that prosecutors can be expected 
to exercise discretion and will not seek the death penalty except in 
very egregious cases. While prosecutorial discretion is an important 
element of the criminal justice system, prosecutors should not have 
unlimited discretion. The federal criminal code already contains twenty 
terrorism crimes--and many other crimes not specifically listed as 
terrorism crimes--that carry the death penalty and cover a broad range 
of terrorist acts, including bombings, kidnappings, arson, aircraft 
hijackings and many others. In very serious terrorism cases, federal 
prosecutors are likely to have at least one, and probably more than 
one, death-eligible crime with which to charge a defendant. The bill's 
expansion of the death penalty is likely to affect only the more 
peripheral cases in which prosecutors would not normally seek the death 
penalty--but where there may be political pressure to do so because the 
defendants belong to an unpopular religious, ethnic or political group.

   DRAMATIC EXPANSION OF THE DEATH PENALTY WILL HINDER INTERNATIONAL 
        COOPERATION VITAL TO CATCHING AND IMPRISONING TERRORISTS

    The radical expansion of the death penalty provided in H.R. 2934 
would not aid in preventing terrorism or making America safer. Instead, 
the legislation is likely to significantly impede international 
cooperation in combating terrorism by creating new barriers to 
international legal assistance. Already, many nations that have 
abolished the death penalty are unwilling to extradite or provide 
evidence in federal terrorism cases if the death penalty might result 
from their cooperation.
    Other nations have become increasingly critical of the United 
States for its continued and even expanding use of the death penalty 
when the international trend has been towards abolition. The 
exoneration of more than one hundred former inmates of America's death 
row has not gone unnoticed abroad. Diplomacy concerning the issue of 
the death penalty has become increasingly tense and complex. The rift 
between the United States and many of its closest allies is likely to 
grow even wider as a result of a recent decision of the International 
Court of Justice concerning the death penalty. The decision strongly 
rebuked the United States for its disregard of the rights of 51 Mexican 
nationals on death row to timely consular notification under the Vienna 
Convention on Consular Relations.\6\
---------------------------------------------------------------------------
    \6\ Avena and Other Mexican Nationals (Mexico v. United States), 
No. 128 (ICJ Mar. 31, 2004).
---------------------------------------------------------------------------
    The European Union prohibits the extradition of any criminal 
suspect facing the death penalty. After the bombing of United States 
embassies in Africa by Al Qaeda terrorists, Germany only extradited an 
alleged conspirator to face trial in the United States after 
negotiating assurances the suspect would not face the death penalty. 
Many European nations, including the United Kingdom, have restated 
their opposition to the death penalty after September 11, 2001 and 
conditioned any extraditions in connection with the global fight 
against terrorism on similar assurances.\7\
---------------------------------------------------------------------------
    \7\ See Andrea Gerlin, United States May Have to Give Up Death 
Penalty to Extradite Suspects, Phila. Inquirer, Oct. 1, 2001.
---------------------------------------------------------------------------
    By dramatically expanding the number of death-eligible offenses, 
the bill would dramatically multiply the number of cases in which 
prosecutors will have to negotiate special agreements with foreign 
governments to obtain needed cooperation in obtaining evidence or 
extraditing suspects.
    A dramatic expansion of the death penalty would, according to 
foreign policy experts, be likely to further impede the cooperation 
between nations that is absolutely critical to impeding terrorist 
organizations by arresting and prosecuting their members. Milt Bearden, 
a former CIA station chief in Pakistan and Sudan, warns, ``If the U.S. 
routinely applies the death penalty to cases of international terrorism 
targeting American citizens, it may limit continued cooperation from 
the majority of countries most closely involved in combating 
terrorism.'' \8\
---------------------------------------------------------------------------
    \8\ Milt Bearden, Death Penalty Would Hinder Anti-Terrorism, Op-Ed, 
Wall Street J., June 4, 2001.
---------------------------------------------------------------------------
    Continuing and pronounced racial disparities in the imposition of 
the death sentence for serious street crimes has contributed to the 
harsh international criticism of the United States. A dramatic 
expansion of the death penalty for crimes said to be terror-related--
making death-eligible many crimes that would not normally carry a death 
sentence--would confirm the suspicions of many in the Arab and Muslim 
world that the United States is creating a separate, and unequal, 
system of justice for mainly Arab and Muslim defendants.

MAJOR EXPANSION OF FEDERAL DEATH PENALTY COULD HAVE ``REVERSE DETERRENT 
    EFFECT,'' GIVING TERRORIST GROUPS NEW ``MARTYRS'' FOR THE CAUSE

    Finally, the addition of new death penalty offenses to the federal 
government's already considerable arsenal of twenty death-eligible 
terrorism crimes will almost certainly have no deterrent effect on 
suicidal, religiously-motivated terrorists such as members of Al Qaeda. 
Well-publicized executions are far more likely to have a perverse 
``reverse deterrent effect.'' Terrorist groups will use the executions 
as propaganda to attract new followers who will be asked to emulate the 
``courage'' of the ``martyr.''
    The United States government should not go out of its way to 
provide terrorists with the gift of publicity--often the most important 
tactical goal of any terrorist action. Jessica Stern, a terrorism 
expert and former member of the National Security Council, warns that 
executions of terrorists can ``turn criminals into martyrs, invite 
retaliatory strikes, and enhance the public relations and fund-raising 
strategies of our enemies.'' \9\
---------------------------------------------------------------------------
    \9\ Jessica Stern, Execute Terrorists at Our Own Risk, Op-Ed, N.Y. 
Times, Feb. 28, 2001.
---------------------------------------------------------------------------
    Put simply, the most dangerous terrorists do not fear death--they 
seek it. Even for those who do not participate in suicide attacks, the 
risks inherent in terrorist activity are far more significant than the 
possibility that a death sentence would be imposed on any given 
terrorist suspect.
    While some may argue the death penalty can be used to obtain 
cooperation of suspects, other countries with more experience in 
countering terrorist organizations have specifically rejected the death 
penalty for terrorists. While imprisoning terrorists also carries 
risks, these nations have determined that the risks of executions are 
greater, outweighing any potential benefits. For example, the United 
Kingdom voted to repeal the death penalty for terrorism in Northern 
Ireland on the basis that executing terrorists only increases violence 
and puts soldiers and police at greater risk.
    Spain similarly rejected the death penalty as counterproductive in 
its decades-long campaign against the Basque terrorist group ETA. Even 
as the Israeli government continues its controversial tactic of 
targeted killings of terrorist suspects, its judges do not impose the 
death penalty on terrorists in Israeli custody.

                               CONCLUSION

    H.R. 2934 is an drastic and unwise expansion of the government's 
most sobering power--the power to take a life. The federal government 
already has twenty separate death penalties for crimes of terrorism. 
Terrorists might also face other federal death penalties, or state 
crimes that carry the death penalty. While the government has not 
always obtained a death sentence in every terrorism case where it was 
sought, the reason was because it could not charge or convict the 
defendant of a capital offense. For example, in the cases involving the 
1998 bombings of United States embassies in Africa, the jury found two 
defendants guilty of death-eligible crimes, but chose not to impose a 
death sentence. The bill is thus a classic example of a solution in 
search of a problem.
    H.R. 2934 severely exacerbates the USA PATRIOT Act's definition of 
``domestic terrorism''--one of the most controversial provisions of the 
Act. The bill would provide for a possible capital offense for any 
federal crime that carries more than a year in prison, if the crime 
``appears to be intended'' to influence government policy or a civilian 
population.
    Passage of H.R. 2934 would be seen by many organizations of the 
right and left--including anti-abortion and gun rights advocates--as a 
major and troubling expansion of federal power. Congress should not 
move a major part of the Administration's agenda to expand the USA 
PATRIOT Act without far more detailed review of the effect of the Act, 
and other post-9/11 policies, on civil liberties.
    H.R. 2934 will rightly be seen, both in the United States and 
abroad, as another federal infringement on civil liberties that will 
not make America safer. It will, as a result, increase mistrust, both 
at home and abroad, even of legitimate anti-terrorism efforts, dividing 
many Americans from their government and further isolating America in 
the world. It should be rejected.

    Mr. Coble. Thank you, Mr. Edgar, and thanks to all of our 
witnesses. Folks, we impose the 5-minute rule against ourselves 
as well, so if you could keep your answers brief, we would be 
appreciative to you.
    Dr. Shepherd, it has been said in this town you can take a 
position on any issue and prove it with polling numbers. Now 
your testimony pretty clearly reflects the deterrent effect of 
capital punishment. Are you surprised when you examine findings 
of anti-death penaltyadvocates that are 180 degrees from your 
conclusion? Does that surprise you or do you agree that anybody 
can support anything with certain numbers?
    Ms. Shepherd. In the economics literature in the past 
decade, as I said, there is a very strong consensus. There have 
been 13 studies and all find there is a deterrent effect. There 
may be people on the other side that rely on older papers and 
studies that use outdated statistical techniques or older data, 
but all of the modern economic studies in the past decades have 
found a deterrent effect. So I am not sure what the other 
people are relying on.
    Mr. Coble. What do you say about some of these terrorists 
who appear to be willing to die because they will become 
martyrs or Timothy McVeigh, the guy who was involved in the 
Oklahoma City bombing? He didn't die. The terrorist who 
attacked the World Trade Center on 9/11, they didn't die. Do 
you think that might have a reverse effect?
    Ms. Shepherd. Obviously, people who are willing to die and 
plan to die in a terrorist attack won't be deterred by applying 
capital punishment because they are going to die anyway. 
Timothy McVeigh did not fight capital punishment as many 
terrorists do, but there are numerous examples, and I think the 
majority of terrorists do try and fight the death penalty and 
would prefer life in prison. Obviously, they consider the death 
penalty to be a harsher penalty.
    Mr. Coble. Mr. Edgar, in your opinion, are there any crimes 
that warrant death penalty?
    Mr. Edgar. In my opinion, no. But I think we are going to 
agree to disagree with many of the panelists here and the 
Subcommittee about that. I have tried to focus my testimony on 
what I consider to be the overbroad nature of the bill and to 
show that even from the point of view of those who might agree 
that there should be a death penalty for serious terrorism 
crimes, that the bill still goes too far because of the 
existing 20 Federal death penalties there on the books.
    Mr. Coble. Senator Feinstein, Mr. Edgar, at a recent 
oversight hearing indicated that the ACLU could not provide her 
with one instance of abuse of the PATRIOT Act provisions. Could 
you elaborate on that?
    Mr. Edgar. I am happy you asked me that question because 
Senator Feinstein really mischaracterized an e-mail that I sent 
to her staff before that hearing in which we pointed out that 
although there had been many documented abuses of Federal power 
including involving immigration and other detainees, that most 
of the PATRIOT Act provisions that people were most concerned 
about involved secret Government surveillance, surveillance 
that is classified and that people are forbidden by law from 
informing anyone what is going on. So it would be ironic for us 
to have information about the use of those powers which are 
classified, that a Member of the Senate select Committee on 
Intelligence didn't have.
    Mr. Coble. Mr. Sutton, walk us through logistically the 
internal procedures that are involved when you are making a 
decision about seeking the death penalty.
    Mr. Sutton. It begins with a crime. Someone has to 
investigate it and there has to be evidence that someone 
committed a crime for a prosecutor to even begin with a 
charging decision. It begins that way. If it is determined that 
it is a crime that carries the death penalty, there is a very 
elaborate procedure set in place going all the way up to the 
Attorney General making the final decision himself on each 
case. Each United States attorney's office does a very thorough 
review, elaborate memo. The Prosecution memo is written listing 
all the mitigating and aggravating factors, the criminal 
history of the defendant, the opinion of the victim's family, 
what kind of punishment they want to see and then oftentimes 
the United States attorney's office will make a decision to 
make recommendation and then up to Washington. Once that 
recommendation is made, the case is sent up to Washington, 
D.C., where the capital case committee, a group of experienced 
prosecutors, will then review the case to see whether they 
agree or disagree with the recommendation of the United States 
attorney.
    If there is a decision to seek the death penalty, at that 
point, the defense attorneys representing the defendant--
obviously he has a right to counsel that will be appointed for 
him if he doesn't have any money. And then they are given 
input. Whatever they want to say to the U.S. attorney, they are 
allowed to say. Whatever they want to say to the capital case 
committee, they are allowed to say, including a personal 
hearing.
    Then the case committee makes a recommendation to the 
Attorney General. That goes through the Deputy Attorney General 
Office to review, then finally to the Attorney General with 
recommendations all the way up the line as to whether there 
should be death or not death sought and the Attorney General 
makes the decision.
    Mr. Coble. One more quick question. Mr. Edgar, let me 
revisit that question by Senator Feinstein. In your testimony, 
you indicate the fear or the concern that the Department of 
Justice will abuse the ability to charge the death penalty. 
Comment a little more in detail.
    Mr. Edgar. I think the problem is, you know, obviously the 
prosecutors here will argue that because of prosecutorial 
discretion that the examples I gave in my written statement 
might be unrealistic. My point is to say that it is going to 
depend a great deal on the politics of that Administration, of 
that Justice Department. We have seen politicized Justice 
Departments, or at least allegations under both Democratic and 
Republican administrations and that with the broad availability 
of the Federal death penalty in serious crimes where this is 
really going to matter is in the kinds of examples that I was 
giving and that Congress has a responsibility as well as 
prosecutors to narrow the focus of the death penalty as much as 
it can.
    One of the things about the Federal death penalty that is 
very different from some State death penalties is that lawyers 
are actually careful to try to craft a death penalty that would 
withstand challenge by narrowing it to only very serious 
crimes, and I think that is something this bill would really 
undo in any case involving any politically motivated crime.
    Mr. Coble. Thank you, sir. My red light has appeared, but I 
am going to disagree agreeably with you. I don't believe our 
Justice Department would be abusive. Before I recognize my 
friend from Florida, let me indicate that we have been joined 
by the distinguished gentleman from California, Mr. Schiff. The 
other distinguished gentleman from Florida Mr. Feeney has 
joined us along with Mr. Keller. I am now pleased to recognize 
Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Dr. Shepherd, you cited John Lott in your testimony. Is he 
the one that has the theory that if there were more guns out on 
the street, the crime rate would go down?
    Ms. Shepherd. Among others, yes.
    Mr. Scott. On page 13 of your testimony, you say that to 
predict perfectly whether the terrorist penalties enhancement 
of 2003, that is what is before us, will decrease terrorists 
acts, we would need research that focuses specifically on the 
application of capital punishment to terrorists. Unfortunately, 
this research does not yet exist, is that right?
    Ms. Shepherd. Absolutely. In order to definitively say what 
will happen, we need specific research. Our best guess, is the 
indirect evidence as provided by these other studies.
    Mr. Scott. And that research does not now exist. That is 
your testimony in your submitted testimony?
    Ms. Shepherd. No research on terrorism and capital 
punishment.
    Mr. Scott. Mr. Sutton, the bill includes the denial of 
Federal benefits as part of the punishment. Can you explain to 
me what those benefits are and how that will help fight against 
terrorism?
    Mr. Sutton. Thank you, Ranking Member. As the Chairman 
indicated, my expertise is as a prosecutor, eight years as a 
State prosecutor and seven years as a Federal prosecutor, so my 
expertise is now in proving up cases, proving them in court and 
making sure we have convictions that stand. I would probably 
refer you to the Department of Justice with regard to Federal 
benefits. I would simply say that those convicted of terrorist 
crimes probably should not enjoy the benefits of the Federal 
Government. To what degree that is, I would leave that to other 
members of my department.
    Mr. Scott. You are not suggesting the effect that you might 
not be able to get a student loan is going to deter someone 
from committing a capital offense. You are not making that 
suggestion?
    Mr. Sutton. It comes from more the sticking in the crawl of 
an American citizen that after someone tries to destroy our 
country and is convicted and put in prison----
    Mr. Scott. You are not suggesting that is going to help the 
fight against terrorism to have that provision in there one way 
or the other?
    Mr. Sutton. I doubt that would help. We are interested 
certainly----
    Mr. Scott. Going back and forth across these cross 
references is a little confusing. You mentioned mass casualties 
and terrorism on many different occasions. Is this bill limited 
to mass casualties?
    Mr. Sutton. No, sir.
    Mr. Scott. So a single death would trigger the application 
of the bill?
    Mr. Sutton. Depending on the circumstances. Obviously it 
would have to be a terrorism event or an intentional killing 
during a terrorist event or some very, very reckless act, or 
some violent act that contemplated that a death would occur.
    Mr. Scott. What is a terrorism event? What makes it a 
terrorism crime rather than a regular crime?
    Mr. Sutton. We have definitions in the bill. Some of those 
definitions might be to coerce a government to change a 
position in some way.
    Mr. Scott. Let's talk about Timothy McVeigh. Was that a 
terrorist crime?
    Mr. Sutton. I believe that was a terrorist crime.
    Mr. Scott. How would you as a prosecutor go about proving 
the elements to make it a terrorist crime?
    Mr. Sutton. It is very common in the Federal law and State 
law as well that one criminal event may be prosecuted under a 
variety of different----
    Mr. Scott. Is Timothy McVeigh's case a terrorism crime?
    Mr. Sutton. I am not sure what theory of prosecution they 
did in that case. I know it carried a death sentence.
    Mr. Scott. It was a mass murder. We keep talking about 
terrorism and mass casualties. And Timothy McVeigh, you can't 
cite in the Timothy McVeigh case what made that a terrorist 
event.
    Mr. Sutton. We may be confused over the technical 
definition of terrorism or whether someone says I hate the 
United States Government and therefore I am going to blow up 
the Federal building and kill 168 people inside it. In that 
case, when you blow up a Federal building, that is currently 
against the law. What this bill is saying, is trying to do is 
to say if you are a terrorist and you commit a terrorist 
offense.
    Mr. Scott. If Timothy McVeigh blew up the building in 
Oklahoma City, how would you go about making that a terrorist 
crime rather than just a regular crime.
    Mr. Sutton. You have to look at the evidence and see what 
his theories were, what other evidence you had with regard to 
him protesting against the Government and wanting to attack the 
Government. There was quite a bit of information in that case. 
We are not saying we want to exclude other theories of 
liability or theories of prosecution. What this simply does is 
give prosecutors a tool to go after terrorists who kill people, 
to make sure that the death penalty will be available in every 
case. Doesn't mean they are going to get it, but certainly they 
have the death penalty available.
    Mr. Scott. Mr. Chairman, are you going to have a second 
round? What separates the regular, run-of-the-mill mass 
casualty crime from a terrorism crime? And what you would have 
to do in the Timothy McVeigh case or the 9/11 case how you 
would go about proving that it was a terrorist crime, not that 
they just hate America, but it was a terrorist crime pursuant 
to the statute? And I think it is easier to prove quite frankly 
an abortion clinic protester terrorism because they are 
actually--the evidence is that they are trying to change policy 
is clear. We can go the abortion protestors a lot easier. We 
will get back to that.
    Mr. Coble. We likely will have a second round. In the order 
of appearance, I recognize the distinguished gentleman from 
Florida, Mr. Keller.
    Mr. Keller. Thank you, Mr. Chairman. I haven't been at this 
political thing too long. I have been here long enough to know 
that nothing you could say or I could say or Judge Carter could 
say is ever going to convince Bobby Scott or Mr. Edgar that the 
death penalty is a great idea. I am not going to walk through 
the big debate and try to persuade you. But just to walk 
through your criticism, Mr. Edgar, you personally oppose the 
death penalty?
    Mr. Edgar. That is right.
    Mr. Keller. And the ACLU opposes the death penalty?
    Mr. Edgar. Absolutely.
    Mr. Keller. And your criticism in part is that this bill is 
overly broad?
    Mr. Edgar. That is right. What I am trying to do is point 
out flaws in the bill that even if you agree that there should 
be a death penalty for serious crimes or serious terrorism 
crimes, you might find troubling.
    Mr. Keller. Isn't it fair to say that if in the course of 
this markup, theoretically we decide to make this a very 
narrowly drawn piece of legislation, that we say the death 
penalty will only apply to those specific terrorist acts which 
are intentional, premeditated and result in the deaths of at 
least 50,000 innocent civilians, you would still be in 
opposition to the bill?
    Mr. Edgar. Congressman, that would dramatically scale back 
current Federal death penalty law and so we very well might be 
in favor of it.
    Mr. Keller. There are no crimes in which you would be----
    Mr. Edgar. I understand that. And we are trying to improve 
and narrow the law. And the description you gave of saying you 
could only get the death penalty for 50,000 deaths would be an 
extraordinary narrowing of current law where there are already 
20 Federal death penalties that don't require such a dramatic 
showing.
    Mr. Keller. I suspect if we narrow that, you would still be 
in opposition just for your own moral reasons, or whatever and 
that you would have a different reason as to why we shouldn't 
support this probably worrying about innocent people.
    Mr. Edgar. With 113 people having been cleared from death 
row, I think it is a very serious concern that however you 
craft the statute, you may create mistakes and you may execute 
innocent people.
    Mr. Keller. It is a serious concern. You are aware in the 
last legislative session, we passed a law to increase the 
funding for DNA testing and make that allowed in death penalty 
cases in the Federal Government.
    Mr. Edgar. That is certainly a good step. We support that 
increased DNA testing.
    Mr. Keller. Let me switch to another topic, and I am going 
to ask Judge Carter to give his side of it. One of your 
concerns also is that this may have a chilling effect on 
political protests. How often does death result from a 
political protest?
    Mr. Edgar. Well, it doesn't, thank goodness, result very 
often, but I think the concern is that the decision to seek the 
death penalty in a case that is very highly politically charged 
is going to depend a lot on the politics of the Administration 
and the politics of the protesters and that this definition is 
already far too broad and we should be trying to narrow and fix 
it so that it really applies to what we would all agree are 
terrorists, al Qaeda and other serious terrorist groups and 
wouldn't even arguably apply to any kind of civil disobedience. 
And I think that is the first thing we should be doing before 
we start expanding that definition.
    Mr. Keller. Judge Carter, Mr. Edgar and maybe others has 
criticized this legislation saying it would have a chilling 
effect on political protest. You are the author of this 
legislation so let me give you a chance to respond to that 
criticism.
    Mr. Carter. I read Mr. Edgar's testimony and the example he 
gave was a protest by, I believe, a pro-abortion group and 
someone died in the process or maybe it was an antiabortion 
group and someone died in the process of this. She was seeking 
treatment and because there was a protest going on, she was not 
able to have that treatment and she died and he gave that as an 
example of potential capital murder.
    I don't think it meets the parameters of the statute nor do 
I think it meets the parameters of Federal procedure. In order 
to impose death penalty as a result of a Federal crime, there 
are three provisions and I can't cite them verbatim, although 
they are right here, which--all of which require intent as a 
part of the beginning process of seeking the death penalty. 
Mitigating factors are also included. And that makes a 
difference as you view this thing.
    Mr. Keller. I will make one comment. So much criticism 
lately on the PATRIOT Act and some of it was reflected by Mr. 
Edgar's testimony and I certainly can accept honest and 
constructive criticism and difference of opinions, but I have 
to remind you we sit on the single most polarized Committee in 
the United States Congress, Judiciary Committee, the most left 
of the left and the right of the right, and this is a bill that 
passed 37-zip unanimous, and we had hearings on it up and down. 
When I hear of all the new-founded criticism that this was just 
some wild-eye thing, I have to wonder why all the liberal 
Democrats and the conservatives voted on it back then.
    Mr. Coble. The gentleman from California is recognized for 
5 minutes.
    Mr. Schiff. Thank you, Mr. Chairman and I apologize if some 
of this ground has been covered already. But I wanted to go 
into the definition of terrorism offenses and also ask a couple 
of questions about it. I support the death penalty and 
certainly in some of the circumstances we have discussed, 
someone is going to blow up a nuclear power plant, does so, 
kills people. That ought to qualify for the death penalty. But 
I am concerned about the breadth of the definitions we are 
using and I want to ask, one of the illustrations that has been 
discussed here today is the discussion about the shooting at an 
abortion clinic. As I read the statute, whoever in the course 
of committing a terrorist offense engages in conduct that 
results in death would qualify for the death penalty. And 
terrorist offense is defined in several ways including as 
defined in section 2331. 2331 says under subsection 5, the term 
domestic terrorism means activities that A, involves acts 
dangerous to human life that are violation of criminal laws.
    So shooting at a doctor who performs an abortion would 
satisfy that subsection. And B, appear to be intended, number 
one, to intimidate a civilian population. That may or may not 
apply, but number 2, to influence the policy of a Government by 
intimidation or coercion. Now wouldn't shooting an abortion 
doctor be intended to intimidate or coerce the population that 
is performing abortions or influence Government policy on 
choice? And as I read it, then someone who shoots an abortion 
doctor would be subject to the death penalty for an act of 
terrorism? Is that not a fair reading, Mr. Sutton?
    Mr. Sutton. It certainly could be depending on the 
circumstances. One thing that is missing from the discussion is 
that in order to get a death sentence, you still have to meet 
all the requirements of 3591. And basically what those are is 
it is an intentional killing or you intended to cause serious 
bodily injury or you did an act that was so egregious and so 
violent that you knew somebody was going to die or you 
intentionally or specifically engaged in an act of violence 
that was so reckless that you knew somebody was going to die.
    So I guess in the context of a protest, especially in the 
ACLU examples, none of those examples would be eligible for the 
death penalty because none of them meet that standard. It is 
reserved only for intentional or violent acts.
    Mr. Schiff. Someone taking pop shots at people going in and 
out of an abortion clinic would meet all of those standards, 
right?
    Mr. Sutton. I guess the question would be there are 
different--like we were discussing with Congressman Scott 
earlier, there are different statutes on the books that you can 
go under. Sometimes there may be two or three. Sometimes there 
may be zero.
    Mr. Schiff. Mr. Sutton, I had the same job you have now 
some years ago, so I know that. But what I am getting at is it 
may be appropriate to seek the death penalty for somebody who 
shoots a doctor at an abortion clinic, independent of what we 
are looking at today. It may be perfectly appropriate to seek 
the death penalty.
    But that is one policy decision, whether we want to 
enumerate that kind of a crime subject to the death penalty. It 
is another if what we are trying to do is define what are 
commonly viewed as terrorist crimes as subject to the death 
penalty, both to deter people from committing terrorism so they 
will know that they face the ultimate sanction, but also as a 
matter of efficacy, because one of the legal challenges--if the 
statute passes in its current form, one of the challenges you 
are going to get on appeal, on the invariable appeal from any 
death penalty case, is that the statute was overbroad, ill 
defined, that the special circumstance that is called for here 
was so ill defined that it would be unconstitutional to provide 
the death penalty under these circumstances.
    So there is a risk here without--if we don't define it 
clearly enough, narrowly enough, that it won't be upheld on 
appeal.
    So I would just encourage, you know, further discussion and 
analysis of this between now and the full Committee so that the 
bill really goes after what it is intended to go after and that 
it is more likely to survive appeal.
    Would the gentleman yield?
    Mr. Coble. I thank the gentleman.
    The gentleman from Florida, Mr. Feeney, is recognized for 5 
minutes.
    Mr. Feeney. Thank you, Mr. Chairman.
    And thanks to all of our panelists, especially our 
colleague, Judge Carter, for bringing this very important 
response to a new threat, really, that we have seen.
    And some of the testimony has suggested that while there 
seems to be near unanimity that the death penalty is deterring 
for certain violent crimes including murder--somewhere between 
three and 18 murders are basically deterred on average for 
every death sentence and execution--but the criticism is that 
there is no proof that it will work for terrorists.
    The truth of the matter is the biggest attack that has 
prompted your response didn't occur until 9/11, and we have yet 
to put any of these perpetrators on trial.
    And so I would ask above and beyond the fact that we have 
proven that the death penalty is a deterrent, Judge Carter in 
your experience as a judge and as a policymaker here in 
Washington, does society, in your view, also have an additional 
interest, beyond deterrence, in getting the public a certain 
satisfaction in response to horrific incidents, horribly 
vicious people that attack innocent citizens, that rather than 
being paralyzed and frustrated by the inability to respond, 
that society may have a reasonable expectation that there can 
be some satisfaction that cannot end the grief but that can at 
least bring some finality and some justice and that you believe 
that the death penalty, in addition, can be supported and 
especially in the terrorism area based on the fact that we have 
a right to expect some sort of retribution and satisfaction?
    Mr. Carter. I agree. In fact, most States, if not all the 
States, the prosecutors, as Mr. Sutton pointed out, which I 
believe is actually confined in the Federal law, talked to the 
victims about whether or not this will give them--the various 
ranges of punishment--would give them adequate satisfaction as 
part of the overall view that the prosecutor takes a look at as 
he starts the process.
    I think generally it is clear that it would give 
satisfaction to a great deal of the surviving victims from 
their loved ones who were killed.
    I also remember that it will deter others from doing it, 
and it will certainly deter the person who is convicted from 
doing it again. And remember that we are dealing--it seems we 
are dealing with some pretty radical people in many of the 
areas, where if they served a 10-year sentence or 15-year 
sentence, they could get out and do it again.
    The IRA in Ireland gives us a good example to look to. 
People who are released from prison would be back out blowing 
things up in a short period of time.
    Mr. Feeney. Thank you, Judge, and the point is, the reason 
that we can't prove it is a deterrent to terrorism is it hasn't 
been tried yet. It just works in other cases where we know.
    Dr. Shepherd, along those lines, are you familiar with some 
of the writings--it is not mentioned in your testimony--of 
Professor Vanderhaar on the issue of the death penalty and some 
of the moral justifications that society has a reasonable right 
to have expectations? Or is your expertise limited to the 
econometrics studies you----
    Ms. Shepherd. I would say my expertise is limited to 
deterrence issues and empirical studies, yes.
    Mr. Feeney. It is a very wise person that knows their 
limitations. We have very little of that going around in the 
halls of Congress.
    Mr. Edgar, can you tell me, under what conditions and for 
what crimes the ACLU supports a Federal death penalty?
    Mr. Edgar. This is about the third time I have been asked 
that question, and the answer is that, of course, it is well-
known, we oppose the death penalty, and we think that it is 
unconstitutional in all circumstances.
    But what I try to do in this hearing and in my written 
statement is to lay out flaws in the bill that even from the 
point-of-view of a supporter of the death penalty would seem to 
be of serious concern.
    One thing that I wanted to respond to is that----
    Mr. Feeney. If I can, because I have got limited time, and 
I don't mean to be impolite, but, you know, you mentioned that 
there are--there is this interesting coalition of people 
concerned about the PATRIOT Act. But probably some of these 
criticisms concerning the death penalty proposal by Judge 
Carter might be given some more credibility if they were being 
argued by death penalty supporters.
    I mean, the truth of the matter is that the ACLU's opinion, 
right or wrong, flies in the face of 50 States' historic 
policies, of the fact that the first death sentence in America 
came in 1609, that the founding fathers, when Madison and 
friends drafted the Constitution, were very familiar. As a 
matter of fact, article V actually mentions capital cases.
    And then, finally, now we have Dr. Shepherd's overwhelming 
evidence that death penalties actually deter and save civil 
liberties for between three and 18 victims, according to her 
expert testimony.
    So the bottom line is the ACLU's position, while I respect 
them in this case, is both anti-historic and anti-empirical, 
and to the extent that we are trying to decide what to do on 
terrorism, you know, I find it a little bit less credible than 
your legitimate concerns about the PATRIOT Act itself.
    Mr. Edgar. Congressman, just to respond very briefly----
    Mr. Coble. The gentleman's time has expired, but I will 
allow you to answer that, Mr. Edgar.
    Mr. Edgar. Just to say that the real definition is around 
the definition of terrorism, and this definitely is linked to 
that definition. So even if you agreed with the death penalty, 
it doesn't necessarily mean you think the death penalty should 
be linked to that definition, and that is where we share common 
ground with these other conservative organizations.
    Thank you, Mr. Chairman.
    Mr. Coble. I thank the gentleman from Florida.
    The gentlelady from Texas is recognized for 5 minutes.
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    I will not use this forum to debate my views on the death 
penalty. I think Mr. Edgar is right. We all fall on different 
sides of that issue for a number of reasons.
    I think what we are attempting to do here in this Committee 
is to do justice and to appropriately apply laws that are fair 
and as well meet the constitutional standards, I believe, of 
due process.
    Dr. Shepherd, have you done studies that would provide you 
with enlightenment on the disparate treatment of African-
Americans in the judicial system and the large numbers of those 
individuals on death row?
    Ms. Shepherd. I haven't myself, but I have read studies 
that have, yes.
    Ms. Jackson Lee. Are you aware of the number of cases 
resulting in conviction of African-Americans and the death 
penalty juxtaposed to white Americans?
    Ms. Shepherd. Again, I have read the studies. I don't know 
those numbers off the top of my head, but I do think that most 
of the studies do show that there is an unequal treatment.
    Ms. Jackson Lee. And so you think that is a realistic 
concern in America to be able to assess the judicial system as 
relates to different communities and races of people?
    Ms. Shepherd. Absolutely. It is an issue that should be 
looked into, yes.
    Ms. Jackson Lee. Let me, Mr. Edgar, speak to you, and would 
you please give us, very quickly since my time is limited as 
well, some of the severe flaws? And why don't you respond--or 
why don't you begin with your assessment of the definition, if 
you would, in this particular legislation.
    Mr. Edgar. Sure. Absolutely. I think the problem is that 
any Federal crime that is punishable by a maximum sentence of 
over 1 year in prison, which is all that a felony is, could 
trigger the death penalty if it is motivated--if there is a 
political motivation and if death results. That is what this 
bill does.
    The definition of terrorism simply says that if you commit 
a criminal act and you do so for the intent and purpose--or the 
apparent intent and purpose of influencing Government policy or 
intimidating a civilian population and if it involves dangerous 
acts, which certainly would if death results, then that is an 
act of domestic international terrorism. And what this bill 
does is it says that if that involves a Federal crime 
punishable by more than 1 year in prison, then that becomes a 
death-eligible offense. That is a sweeping proposition.
    I was considering counting the number of new death 
penalties this bill creates, but then I realized that it 
creates a death penalty for every Federal felony. So it really 
is just however many Federal felonies are on the books, that is 
the number of death penalties it creates.
    Ms. Jackson Lee. And you know, in now putting on the 
position--or taking the position of being the devil's advocate 
in this discourse or discussion with you that what is deeply 
embedded in our hearts and minds beyond the terrible tragedy of 
Oklahoma and the incident of Waco, which this Committee had 
jurisdiction in both cases, is the enormous tragedy of 9/11 and 
the particular desire of this country and of our 
responsibilities to secure the homeland. And obviously, 
legislation like this certainly gives the suggestion.
    And my good friend from Texas, I respect his legal ability 
and certainly the years he has been a jurist, and I know that 
he has encountered many occasions where the judicial system 
warrants--or the jury system has convicted someone in the State 
of Texas and given them death. And I know that he adheres to 
the jury system.
    But we know that the backdrop of this discussion is 9/11. 
So engage me from the perspective that people are frightened, 
we have an obligation to protect them, and go back again to 
this discussion of the language that is broad and wide-
sweeping, if you will.
    Do you believe that that kind of broadness provides the 
security and safety for the United States that we are now here 
trying to secure?
    Mr. Edgar. Well, no, I don't. In addition to the reasons 
why I think that the death penalty generally for terrorism may 
not be productive, the international cooperation, the issue of 
providing publicity, there is also the issue of, you know, we 
have the death penalty for these serious crimes. I think we 
want to make that clear. We have 20 Federal death penalties for 
crimes of terrorism, and of course, many States also carry the 
death penalty.
    So the real issue here is whether the definition sweeps so 
broadly that it is going to divide us. You know, that is one of 
the problems.
    You know, one of the earlier Members mentioned that the 
Judiciary Committee passed the PATRIOT Act by 37 to 0, but that 
wasn't the version of the PATRIOT Act that went into law. That 
was one of the reasons it was so controversial, is that you all 
in the House Judiciary Committee created what was a much better 
bill than what passed into law. And so, you know, we have to be 
careful, I think, about broadening the law beyond what already 
exists, when we already have the ability, not only from 9/11 
but for many other serious crimes.
    Ms. Jackson Lee. What I am concerned about, if I may, is 
combined with, I think, the very honest assessment of Dr. 
Shepherd and recognizing that terrorism comes in all colors--
and I am not necessarily trying to compare the two, which is 
the question of terrorist acts and the disparate treatment of 
African-Americans. But we have very large issues to address in 
this country.
    What I would be concerned with, Mr. Chairman, as I finish 
my comment and recognize, as I said to Mr. Edgar, we all may 
agree and disagree, but the broadness of the language--and I 
think as we proceed and mark up and as this goes to full 
Committee, I hope that we can engage and that we make sure that 
this legislation focuses where we desire it to focus, and that 
is to protect the homeland and ensure the fact that we would 
have the kind of legislation that goes right to the jugular 
vein or to the heart of it, Mr. Chairman, and that is to get 
terrorists who are engaged in horrible terrorist acts and not 
someone who has perpetrated a felony that may result in a 
death, and it may be for political reasons. And I yield back at 
this time.
    Mr. Coble. The gentlelady's time is expired.
    The gentleman from Wisconsin Mr. Green is recognized for 5 
minutes.
    Mr. Green. Mr. Chairman, I have no questions.
    Mr. Coble. The gentleman from Virginia Mr. Goodlatte is 
recognized for 5 minutes.
    Mr. Goodlatte. Thank you, Mr. Chairman, and thank you for 
holding this hearing.
    I would like to follow up on the questions of the 
gentlewoman from Texas and Mr. Edgar's response and ask Mr. 
Sutton or Congressman Carter or Dr. Shepherd if you would like 
to respond to some of his assertions. In particular, I want to 
know how a trial and conviction of a defendant in a death 
penalty case differs from a case where a prosecutor is seeking 
life imprisonment. Can you describe the procedure necessary to 
obtain a recommendation for the death penalty?
    Mr. Sutton. Sure. The procedure is much more elaborate, 
much more complex, and obviously, it is probably the most 
important and sober thing that we do in Federal criminal law. 
So there is a very elaborate procedure set from the very 
beginning where it starts with local law enforcement, or a 
Federal agency, going all the way up to the Attorney General, 
having recommendations from the U.S. Attorney--from the Capital 
Case Committee, the deputy Attorney General's office and input 
from all areas and all facts to decide whether it is 
appropriate, the death penalty in that case.
    With regard to what Mr. Edgar is saying, he seems to imply 
that there is all of these cases where if you have a year in 
prison, you are going to get the--the punishment is you are in 
prison, you are going to get the death penalty. What we need to 
keep reminding ourselves of is that you cannot get the death 
penalty unless you murder someone, unless you kill someone, 
either intentionally or by some violent act, that you knew they 
were going to die, and the purpose of this bill is in the 
context of a terrorist scenario where we can prove that someone 
is a terrorist and they intentionally kill someone or do some 
terribly reckless act that they knew would result in death, it 
makes sense that the death penalty would be appropriate and 
that is what we are saying today.
    Mr. Carter. Also remember, Congressman, that the State has 
the burden of proof, and part of that burden of proof is going 
to be to meet the definition of terrorist act. And part of the 
definition of a terrorist act is you have to be trying to 
change public policy by your felony crime that you are 
committing which resulted in the death of a person.
    So that--there is a burden--there is a series of burdens 
that are going to have to be met, and you can't just say every 
Federal crime, that you are just going to reach out there and 
get a jury to agree that they did it to change public policy. 
They have to meet that burden, and that is a fairly heavy 
burden involving culpability, what they were thinking about 
when they committed this crime.
    And it is a burden that, believe me, the prosecutors look 
at, because if they don't think they can reach that far, they 
are not about to take that out there, because they don't want 
to get it poured back in their face.
    We have got to remember the State has the burden of proof, 
and it is all the elements of the offense.
    Mr. Sutton. And one other thing I might add is, beyond 
culpability, everyone agrees a person is guilty. All it takes 
is one juror who finds that there is some mitigating evidence 
that would warrant not giving a sentence of death. That is all 
it takes is one person saying, ``This just ain't right, the 
mitigation outweighs what this guy did, so I am not going to 
give the death penalty.''
    Where the other side of the coin is you have to prove 
beyond a reasonable doubt to 12 jurors, they have to all agree 
on, first, he did it, then all the aggrevating factors outweigh 
the mitigating factors, before you can even get to a death 
sentence.
    Mr. Goodlatte. Is there a way to write this legislation so 
that we don't get totally random Federal felonies going through 
that process in the first place?
    Mr. Carter. As you look at this, okay, you have to decide 
how creative can you, as you sit up, in the evening and--let me 
think of some act I can do to hurt the United States of 
America. I thought of one sitting in Committee today 
anticipating this case. What if a terrorist is able to go in 
and wipe out all the treatment records in a hospital, resulting 
in the death of hundreds of patients that night because all 
treatment is fouled up and they give everybody the wrong 
medicine and everybody dies in a hospital as a result of a 
terrorist act?
    Now, it has to be broad enough--you would have to really 
sit down and think of every weird scenario that intentionally 
might cause the death of an individual, and that is why to some 
extent you have to be--it has to be broad.
    But the broadness being argued is forgetting that you still 
have the burden of proof to prove a terrorist act, which means 
they were intending to change policy by their action. Just 
because a guy sticks up a liquor store and shoots somebody is 
not any proof he is trying to change--commit, you know, a 
terrorist act.
    Mr. Goodlatte. Let me get one more question before my time 
runs out.
    Mr. Sutton, would you specifically outline the death 
penalty procedure and the jury trial procedure?
    Mr. Sutton. Sure. Thank you.
    It begins with the selection of a jury. All those jurors 
would have to be qualified to sit on the jury. If someone had a 
bias or some kind of prejudice against the defendant in any 
way, they couldn't be on there.
    The first part of the trial is similar to any other trial. 
The big distinction in a death case is, one, the Government has 
to give notice well in advance that they will be seeking the 
death penalty, so it doesn't come as any surprise to the 
defendant. And they also have to give notice of any aggravating 
factors that they will be proving up, so that the defense early 
on knows what is coming.
    The big difference is at the punishment phase. If the 
person is convicted of a death-eligible offense, there is a 
separate hearing, usually with that same jury, where both sides 
get to present all the evidence, the aggravating evidence. And 
the defendant gets to put on any evidence that he wants that 
might mitigate--bad background, abusive childhood, relatives, 
people in the community that would speak in favor of him. And 
then the jury would have to weigh those aggravating and 
mitigating factors to determine whether the death penalty is 
appropriate.
    And what I was saying before is all it takes is one juror 
who says, ``You know what? I think the fact this boy had a bad 
childhood is enough to say no death penalty.'' There are many 
more ways to veer off the road to go to a life sentence or 
something lesser than there are to get to the fact of a death 
sentence.
    Mr. Goodlatte. Thank you. I find Judge Carter's comments 
very helpful. Thank you.
    Mr. Coble. The gentleman's time has expired.
    Folks, we have a working quorum for a markup. I hope we can 
keep this, but I know Mr. Scott has another question to put to 
the witnesses.
    Mr. Scott. Thank you, Mr. Chairman. Let me follow up on 
that, Mr. Sutton.
    As I understand it, a lot of crimes that under this statute 
would be converted to a 1-year crime up to a death-eligible 
crime. Is that right?
    Mr. Sutton. I don't think that is a very good 
characterization.
    What you would have to have is a terrorist murder during 
the course of some kind of felony that you could prove.
    Mr. Scott. And just the felony, and it converts--some of 
these are 1-year felonies. Is that right?
    Mr. Sutton. Under current law, that is correct.
    Well, I guess the difference here is you would take those 
crimes if somebody was intentionally murdered as a part of 
that, and it was a terrorist. Again, this is all about 
terrorists. If you could prove the terrorism angle, then it 
would make----
    Mr. Scott. Well, let me just make my point. After the 
defendant does a song and dance and talks them out of the death 
penalty, what is the penalty that is imposed?
    Mr. Sutton. Oftentimes, it is life. If you are seeking the 
death penalty, it is life. It is automatic----
    Mr. Scott. It is not often life. It is life without parole.
    Mr. Sutton. What I am saying is it is automatic life. 
Again, the prosecutor has discretion at the----
    Mr. Scott. If he goes through a song and dance and 
convinces them after the conviction not to impose the death 
penalty, the penalty that is imposed is life without parole.
    Mr. Sutton. If the Government is trying to seek the death 
penalty, that is correct.
    Mr. Scott. Mr. Carter, you talked about intent. Where is it 
in here that you have to intend to kill a lot of people?
    Mr. Carter. You don't have to intend to kill a lot of 
people, Congressman Scott. You have to intend to kill anybody.
    Mr. Scott. Where is it in here----
    Mr. Carter. It is in the Federal procedures.
    Mr. Scott. If you are part of the conspiracy, you can be 
part of the protest----
    Mr. Carter. That's right, but for there to be a punishment 
of death, there has to be intent.
    Mr. Edgar. Congressman?
    Mr. Scott. Where is that?
    I'm sorry.
    Mr. Edgar.
    Mr. Edgar. We have this. I looked this up, because I think 
it is very helpful to look at it and to see. It is not the law 
in the Federal criminal death penalty that you have to intend 
to kill the victim.
    It is the law instead that you have to intentionally and 
specifically engage in an act of violence, knowing the act 
creates grave risk of death. It is such that participation in 
the act constitutes reckless disregard for human life. That is 
a much lower standard, at least a lower standard than 
intentionally killing----
    Mr. Carter. And it is one of the four standards.
    Mr. Scott. Well, if you were part of a conspiracy for which 
somebody else is reckless but which you are part of the protest 
and you are giving support for that protest and the protest 
gets out of hand, then you are on the hook for the death 
penalty.
    Mr. Edgar. I certainly think a prosecutor may argue that.
    Mr. Scott. Now, one of the things, Mr. Sutton, I have been 
a little concerned about is you keep talking about terrorists 
like we are going to have the people for who they are, not for 
what they did. And I think we have to be a little careful about 
this.
    Let's go back to the Operation Rescue Abortion Clinic 
situation, Timothy McVeigh and the 9/11, September 11 
hijackers. Now, the hijackers all died. Anybody that gave them 
aid or comfort or support would now be on the hook for the 
death penalty. Is that right?
    Mr. Sutton. No, sir. That's right.
    Mr. Scott. No, sir? Yes, sir?
    Mr. Sutton. I don't think it is. Again, just as what Mr. 
Edgar read, there are two things you have to do here. One is 
you have to meet one of the definitions of terrorist offense 
that are in the bill.
    Mr. Scott. So you would have to prove that the 9/11 
hijackers are trying to do something about trying to change 
Government policy?
    Mr. Sutton. Well, yeah.
    Mr. Scott. If all they did was just hijack the plane and 
went into the World Trade Center, and you didn't know why they 
did it or couldn't prove why they did it, that is just a mass 
murder. It is not terrorism.
    Mr. Sutton. You would have to be able to prove some 
terrorism link, some----
    Mr. Scott. But Operation Rescue where you know it is an 
anti-abortion protest and somebody dies, that is a slam dunk on 
terrorism.
    Mr. Sutton. No, sir. Again, you would have to look at the--
two things you have to look at. First, you have to look at the 
definition of terrorism, which means it would have to be--you 
would have to personally do some act that is dangerous to human 
life, a violation of the----
    Mr. Scott. But the doctor got shot. Okay? So you have a 
murder, and you have the abortion protest. Now, the people--you 
have the Webmaster who put up there the doctor's address. So 
you know where to go shoot him. Now, is that support or 
conspiracy?
    Mr. Sutton. With regard to the person who actually did the 
act, you would have a much better case. With regard to anybody 
protesting, you would not. Again, the death penalty----
    Mr. Scott. Well, what is this about conspiracy, attempt? 
That is in the bill. Right?
    Mr. Sutton. Right. You would have to show--you would have 
to show that they did some act, some part of--they participated 
and did some affirmative act to facilitate the murder of that 
doctor.
    Mr. Scott. But they put the doctor's address up so that the 
shooter--and let me tell you, they have--a lot of these people 
have gone after doctors, looked at the Web site and then gone 
and shot the doctor.
    Mr. Sutton. I can tell you my opinion is it would not--
the----
    Mr. Scott. Is that because the individuals are not, quote, 
terrorists?
    Mr. Sutton. You would have to--that would be a proof 
question.
    Mr. Scott. And are we convicting people for who they are or 
for what they did?
    Mr. Sutton. For what they do.
    Mr. Scott. Now, they have conspired, and part of the 
conspiracy ended up in somebody's death. They didn't think the 
person was going to die. They didn't think the person was going 
to shoot somebody. The thing just got out of hand.
    Mr. Sutton. They would not meet the criteria, and they 
would not be eligible for the death penalty.
    Mr. Scott. If they are part of the conspiracy?
    Mr. Sutton. Again, to get the death sentence, you have to 
intentionally kill someone or be a party to that or 
intentionally have participated in a--specifically and 
intentionally engage in an act of violence knowing that the act 
created grave risk of death to the person----
    Mr. Scott. You put the address up there and don't think it 
is a grave risk to that doctor?
    Mr. Sutton. That would be a proof question down the road--
--
    Mr. Scott. If you can prove it, you have got the death 
penalty.
    Mr. Sutton. Well, you may have the death penalty under 
other scenarios, but I can't tell you. But my opinion is it 
probably would be difficult.
    Mr. Scott. And if you can't prove that they were trying to 
change Government policy, like all they did was hijack an 
airplane and went upside the World Trade Center, you can't 
prove they were trying to change Government policy--they just 
belonged to a terrorist organization, and they were bad 
people--you thought they were bad people, but you can't prove 
that the act had anything to do with changing Government 
policy, that wouldn't be a terrorist act. But the abortion 
protest, you know that is trying to change Government policy, 
so that would be easier to prove under this legislation.
    Mr. Sutton. I disagree with the----
    Mr. Scott. Because of who they are or because of what they 
did?
    Mr. Sutton. You would have to look at the facts of each one 
of those cases and determine under the current definitions of 
what we have in the bill to see if it meets there. You would 
also have to evaluate other options as well.
    Mr. Scott. Do you think you would have problems proving the 
terrorist act on behalf of the 19 hijackers?
    Mr. Sutton. I don't think so.
    Mr. Scott. Why? What did they do to change Government 
policy, other than who they are?
    Mr. Sutton. I can't tell you other--all the intimate 
details of that case. It certainly was not a case from our 
district, but I think that in that case the FBI and other 
intelligence agencies would be able to show evidence of a clear 
terrorist link in that case.
    Mr. Scott. To terrorists, not the act, and so we are going 
after people for who they are.
    Mr. Coble. The gentleman's time has expired.
    Now the gentleman from Florida wants to be heard for a 
second time as well, so folks, I hope you hang around here for 
this markup.
    Mr. Feeney. Thank you. I will try to be brief. Actually, 
Mr. Scott's question sufficiently confused me. I just want to 
be clear here, so we will take his example.
    He is suggesting that we are going to put to death people 
for who they are, not what they did.
    Mr. Sutton, I just want to ask you very directly, using the 
anti-Carter bill hypothesis, supposing I want to engage in a 
First Amendment protest against an abortion clinic or an 
abortion doctor, supposing I am the guy that does the Web site, 
that tells people where they can show up to tell the doctor we 
don't like what he is doing and I put up the Web site address. 
Am I punishable by death under the Carter bill?
    Mr. Sutton. No.
    Mr. Feeney. Supposing I sell a sandwich to somebody I know 
that is on the way to exercise their First Amendment rights, 
and they go there. And some other person shoots the doctor. Am 
I liable as aiding and abetting the conspiracy for the death 
penalty under the Carter bill?
    Mr. Sutton. No, sir.
    Mr. Feeney. Supposing I personally go exercise my First 
Amendment rights, and some other nut in the crowd decides to 
shoot the doctor. Am I liable under the Carter bill for the 
death penalty?
    Mr. Sutton. No, you are not.
    Mr. Feeney. So the act I have to be engaged in a conspiracy 
to do is to kill the doctor, not to go protest under the First 
Amendment. So it is not who I am or what I believe, but it is 
what I do that is punishable under the Carter proposal?
    Mr. Sutton. That's right.
    Mr. Feeney. Thank you.
    Mr. Coble. I thank the witnesses for their testimony. This 
will be continued to another day before the full Committee, I 
am sure, but we appreciate your contribution today.
    This concludes our hearing on H.R. 2934, the ``Terrorist 
Penalties Enhancement Act of 2003.'' The record will remain 
open for 1 week.
    Again, thank you all for being here, for your cooperation, 
and the Subcommittee stands--we will go into markup.
    [Whereupon, at 3:35 p.m., the Subcommittee proceeded to 
other business.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Post-hearing questions and responses from the Honorable Johnny Sutton



 Letter from Professors in the Department of Criminology and Criminal 
                  Justice at The University of Memphis



 Letter from Michael Israel, Editor, Criminal Justice Washington Letter



   Letter from Robert M. Sanger, Certified Criminal Law Specialist, 
                            Sanger & Swysen



    Letter from Wanda D. Foglia, J.D., Ph.D., Professor of Law and 
                   Justice Studies, Rowan University



                                 
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