[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
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\1\ For example, J.T. Sellin, J. T., The Death Penalty (1959); H.
Eysenck, Crime and Personality (1970).
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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.
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\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)
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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\
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\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).
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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\
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\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).
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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\
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\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\
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\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).
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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\
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\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.
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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\
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\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.
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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).
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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.
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\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).
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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.
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\17\ Hashem Dezhbakhsh and Joanna M. Shepherd, The Deterrent Effect
of Capital Punishment: Evidence from a ``Judicial Experiment,'' (Emory
University Working Paper, 2003).
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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\
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\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.
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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.
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\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.
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\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).
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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.
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\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).
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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.
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\24\ Dale O. Cloninger & Roberto Marchesini, Execution and
Deterrence: A Quasi-Controlled Group Experiment, 35 Applied Economics
569 (2001).
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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.
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\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).
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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.
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\26\ James A. Yunker, A New Statistical Analysis of Capital
Punishment Incorporating U.S. Postmoratorium Data, 82 Social Science
Quarterly 297 (2002).
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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
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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