[Senate Hearing 109-729]
[From the U.S. Government Publishing Office]
S. Hrg. 109-729
PRESERVING SACRED GROUND: SHOULD
CAPITAL OFFENDERS BE BURIED IN AMERICA'S NATIONAL CEMETERIES?
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 22, 2005
__________
Printed for the use of the Committee on Veterans' Affairs
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COMMITTEE ON VETERANS' AFFAIRS
LARRY CRAIG, Idaho, Chairman
ARLEN SPECTER, Pennsylvania DANIEL AKAKA, Hawaii, Ranking
KAY BAILEY HUTCHISON, Texas Member
LINDSEY O. GRAHAM, South Carolina JOHN D. ROCKEFELLER IV, West
RICHARD BURR, North Carolina Virginia
JOHN ENSIGN, Nevada JAMES M. JEFFORDS, (I) Vermont
JOHN THUNE, South Dakota PATTY MURRAY, Washington
JOHNNY ISAKSON, Georgia BARACK OBAMA, Illinois
KEN SALAZAR, Colorado
Lupe Wissel, Majority Staff Director
D. Noelani Kalipi, Minority Staff Director
C O N T E N T S
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September 22, 2005
SENATORS
Page
Craig, Hon. Larry, Chairman, U.S. Senator from Idaho............. 1
Mikulski, Hon. Barbara, U.S. Senator from Maryland............... 3
Prepared statement........................................... 5
Salazar, Hon. Ken, U.S. Senator from Colorado.................... 8
Thune, Hon. John, U.S. Senator from South Dakota................. 16
Prepared statement........................................... 16
WITNESSES
Davis, Vernon G., Son of victims Daniel and Wilda Davis.......... 6
Wannemacher, Hon. Richard A., Jr., Acting Under Secretary,
Memorial Affairs, National Cemetery Administration, Department
of Veterans Affairs; accompanied by Richard J. Hipolit,
Assistant General Counsel, Department of Veterans Affairs...... 9
Prepared statement........................................... 11
Response to written questions submitted by Hon. John Thune... 13
Higginbotham, Thurman, Deputy Superintendent, Arlington National
Cemetery; accompanied by Craig R. Schmauder, Deputy General
Counsel, U.S. Army............................................. 13
Prepared statement........................................... 15
Cullinan, Dennis M., Director, National Legislative Service,
Veterans of Foreign Wars of the United States; accompanied by
Brian Lawrence, Assistant National Legislative Director,
Disabled American Veterans..................................... 21
Prepared statement........................................... 23
Response to written questions submitted by Hon. John Thune... 24
PRESERVING SACRED GROUND: SHOULD
CAPITAL OFFENDERS BE BURIED IN AMERICA'S NATIONAL CEMETERIES?
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THURSDAY, SEPTEMBER 22, 2005
U.S. Senate,
Committee on Veterans' Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:19 a.m., in
room SR-418, Russell Senate Office Building, Hon. Larry E.
Craig, Chairman of the Committee, presiding.
Present: Senators Craig, Thune, Salazar, and Mikulski.
OPENING STATEMENT OF HON. LARRY E. CRAIG, CHAIRMAN, U.S.
SENATOR FROM IDAHO
Chairman Craig. Good morning, everyone. The U.S. Senate
Committee on Veterans' Affairs will come to order. We
appreciate all of your presence this morning. We oftentimes do
not give hearings titles, but I think this one deserves a
title. We call it ``Preserving Sacred Ground: Should Capital
Offenders Be Buried in America's National Cemeteries?''
I have called this hearing to examine a very sensitive
topic, one that the Congress first addressed in 1997. We were
then confronted with the fact that the perpetrator of the
Oklahoma City bombings, Timothy McVeigh, was legally entitled
to burial and memorialization at America's national cemeteries.
Largely in response to McVeigh's eligibility, the Congress
passed a law to deny interment in Arlington National Cemetery
and VA national cemeteries to any person convicted of a Federal
capital crime or a State capital crime for which a sentence of
death or life imprisonment without parole is given.
The intent of the 1997 law was clear: We should not bury
brutal murderers alongside America's honored dead. The
circumstances surrounding the placement of a convicted double
murderer's cremated remains at Arlington National Cemetery in
late July caused me and many of my colleagues to wonder what
impact the 1997 law actually had. The media coverage of the
former Chief Justice William Rehnquist's Arlington Cemetery
funeral only served to confirm my bewilderment. How could an
individual who committed such heinous acts be placed in the
same hallowed ground as Chief Justice Rehnquist, Justice
Thurgood Marshall, President Kennedy, and hundreds upon
hundreds of servicemen and women to whom this country owes
eternal respect?
Russell Wagner's two life sentence carried with them the
possibility of parole. The 1997 law only bars national cemetery
interment to State capital offenders sentenced to death or life
in prison without parole. Thus, we have our first example of
what I think we call ``the parole loophole.''
We will hear in a moment from Mr. Vernon Davis, son of
Daniel and Wilda Davis, the victim of Wagner's crimes. Mr.
Davis, who himself is a veteran, will give us his thoughts
about all this, a story, I am sure, that causes him profound
anguish.
To further explore how wide the parole loophole is for
State capital offenders, I asked my staff to have the
Congressional Research Service analyze the sentence of Dennis
Rader, better known as the infamous BTK serial killer. BTK,
being short for Rader's method in disposing of his ten victims,
that is, bind, torture, and kill. Rader was given ten
consecutive life sentences of which he must serve a minimum of
175 years. However, because the Kansas law under which Rader
was tried did not allow for a sentence of death, nor did it
allow for a sentence of life without parole, the Congressional
Research Service concluded that as an honorably discharged
veteran of the Air Force, it would appear that he is not
statutorily precluded from interment in a national cemetery.
If the 1997 law cannot prevent the interment of a notorious
serial killer, then what good is it? Answering that question is
what I hope we can accomplish today. However, one thing is
certain already: The parole loophole, in my opinion, must be
closed. I will soon introduce legislation to, at a minimum,
take that necessary reform in the 1997 law.
Let me make a point that decisions to take away benefits
earned by virtue of honorable military service should never be
made without careful and reasonable deliberation. And I want to
thank the Veterans of Foreign Wars, the American Legion, the
Disabled American Veterans, the Vietnam Veterans of America,
and the Paralyzed Veterans of America for agreeing to submit a
unified testimony which drives this point home.
The unified testimony illustrates the complexity involved
in this sensitive, highly charged issue. It takes courage to
recommend a path of caution and prudence when emotions are
riding high, so I appreciate very much their testimony today.
And, of course, as I think many of you have noted, joining Mr.
Davis on our first panel is his able Senator and a friend of
mine from the State of Maryland, Senator Barbara Mikulski. The
Senator sent a forceful letter to me just days after the Wagner
story broke, urging the Committee to act. We are fortunate to
have her here with us this morning.
On our second panel, we will have Richard Wannemacher, VA
Acting Under Secretary for Memorial Affairs, and Turman
Higginbotham, Deputy Superintendent of Arlington National
Cemetery. Mr. Wannemacher is accompanied by Patrick Hallinan,
Acting Director of VA National Cemetery Administration, Office
of Field Programs, and Mr. Richard Hipolit, Assistant General
Counsel at the Department of Veterans Affairs. Mr. Higginbotham
is accompanied by Craig Schmauder, Army Deputy General Counsel
for Civil Works and Environment. Mr. Wannemacher and Mr.
Higginbotham will testify about existing law, its adequacies,
and the process in place to determine whether individuals are
barred as capital offenders.
Finally, we have the unified testimony of the Veterans
organizations. The spokesman for them today will be Dennis
Cullinan, Director of the VA National Legislative Service. He
is accompanied by Brian Lawrence, Assistant National
Legislative Director with the Disabled American Veterans.
Let me welcome all of you. Senator Akaka may be able to
join us today, but we will now proceed and I will ask the
Senator from the great State of Maryland to start.
Barbara?
STATEMENT OF HON. BARBARA MIKULSKI,
U.S. SENATOR FROM MARYLAND
Senator Mikulski. Thank you very much, Senator Craig. I
want to thank you, Mr. Chairman and Senator Akaka, for
convening this hearing and responding to my request when I
found out that a convicted Maryland murderer, who had died in
prison from a heroin overdose, was about to be buried in
Arlington Cemetery.
I was so concerned about this that I asked you to re-
examine the restrictions on the burial of capital offenders at
Arlington Cemetery or VA cemeteries. I thank you for holding
this hearing because we would agree that Arlington National
Cemetery and all of our national cemeteries are hallowed
ground. They should not be tainted by the remains of a
convicted murderer.
Today, I am introducing legislation to close the loophole
that allows convicted murderers, those convicted in State
courts, to be honored at national cemeteries. I look forward to
your legislation as well because it is not about my legislation
or your legislation, it is about the right legislation. I come
to you today not as a member of a party, but because I know how
strongly you feel about these issues. I do, too. When it comes
to standing up for our veterans and who should be buried at
Arlington or other national cemeteries, we have to be the red,
white, and blue party. I think this is what our focus is today.
Mr. Chairman and the distinguished Senator from Colorado,
let me tell you what brought me to this. I am joined at the
table by one of my constituents, Mr. Vernon Davis. Mr. Davis is
from Hagerstown. His wife and daughter and several members of
the Davis family are here. Why are they here? Well, I found
out--quite frankly, they brought to my attention that the
remains of a convicted cold-blooded murderer, sentenced for two
life sentences for his crimes, was buried at Arlington National
Cemetery in July. This man, Russell Wagner, was convicted of
stabbing two elderly citizens of Hagerstown: Daniel Davis, age
84, and his wife, Wilda, age 80. They were the parents of
Vernon, who is at this table.
He was sentenced in State court for two life sentences for
these despicable crimes. While serving his prison term, he died
from a heroin overdose. Early in his life, he did serve
honorably in Vietnam. His remains were allowed to be placed in
Arlington with full military honors even though he had done
this dastardly deed and died in prison unrepentant, shooting up
heroin that he had smuggled in.
This is not what our sacred ground is for. This episode has
been so terribly painful for the Davis family. You can
understand. They have had to relive the horror of what happened
in their own family while seeing the man who took away the
lives of these wonderful citizens being honored as a hero.
There has been community outrage in Maryland, which I
share, and which I shared with you in my letter. The current
law does not apply to his case, so he's eligible to be buried
in Arlington. But Arlington is for heroes.
So many Marylanders--as I know in Utah and Colorado--so
many Marylanders who have served with honor are laid at rest in
Arlington. They are heroes from every war. There is one I
recall very distinctly, Navy diver Michael Steadam, who was
brutally murdered on a hijacked plane, simply because he wore a
Navy uniform. There are countless constituents of mine from all
wars who lie at rest in Arlington. In Iraq, 37 Marylanders have
died, including two from the same high school just a few years
apart. These are the heroes who deserve burial at our national
cemeteries.
Now, you are going to hear from the Veterans Service
Organizations--and I salute them for standing up for the fact
that our veterans should have benefits, health care that they
need, honorable burying, and so on. I respect and I admire
them. I know that their position is to be very careful when we
limit rights, and I understand that as well. Know that I feel
promises made to veterans should be promises kept, particularly
in VA medical care. But you know what? This is murder. This is
murder, and we are talking about something very different.
You will review the Federal law, which you have already
done in your opening statement, but there is this big loophole.
We made sure Tim McVeigh and anyone convicted of a Federal
crime, a Federal murder, is not buried at Arlington. Yet if
someone is tried for the same crime in a State court, like
Wagner was in Maryland, he can be buried at Arlington.
This loophole enabled the man who murdered them to be
placed alongside of our heroes. Well, we need to look at this.
When we passed the law in 1997, it does not apply to Wagner or
anyone else in State court, and particularly those eligible for
parole. We need to examine the law, and we need to understand
the position of the veterans organizations for these families.
And we think about Arlington. You know, to all of America,
Arlington is one of our national icons. It is like the Statue
of Liberty. The flag over Arlington, the Eternal Flame of
President Kennedy, the distinguished people who died there, the
Tomb of the Unknown Soldier that honors the sacrifice. Even if
we do not know your name, we want to salute you and honor you,
even at death. Therefore, I believe that the people who are
buried there should truly be those who not only served the
Nation but also are honorable citizens of our Nation.
Mr. Chairman, I want to thank you for looking at the
legislation and holding the hearing. I do believe we need to
close the loophole. I presented the story, but I do believe
that the story is best told by the family who is most affected.
It is indeed a story that is grim, and because of the loophole,
it has become melancholy.
I look forward to working with you on a bipartisan basis.
[The prepared statement of Senator Mikulski follows:]
Prepared Statement of Hon. Barbara Mikulski, U.S. Senator from Maryland
Thank you, Mr. Chairman and Senator Akaka, for convening today's
hearing: to help us preserve our national cemeteries as places of honor
for our veterans. Arlington National Cemetery and all our national
cemeteries are hallowed ground, they should not be polluted by the
remains of convicted murderers.
Today, I am introducing legislation to close the loophole that
allows convicted murders to be honored at national cemeteries.
Mr. Chairman, in August, I brought to your attention a tragic and
troubling circumstance regarding national cemeteries. The remains of a
convicted cold-blooded murderer sentenced to two life sentences for his
crimes were placed at Arlington National Cemetery on July 27, 2005.
This man, Russell Wagner, was convicted of stabbing to death two
elderly residents of Hagerstown, MD, Daniel Davis, 84 and his wife,
Wilda Davis, 80.
He was sentenced in State court to two life sentences for these
unspeakable crimes. While serving his sentence in prison, Wagner died
from a heroin overdose and because he served honorably in Vietnam, his
remains were allowed to be placed in Arlington National Cemetery with
full military honors even though he committed this terrible crime.
This episode has been terribly painful for the Davis family
understandably. They have had to relive the horror of their parents'
brutal murder, while seeing the man who took away their loved ones
being honored as a hero in our Nation's most sacred burial ground.
There has been community outrage--which I share.
The law that allows this disgrace must be changed.
Arlington is for heroes. So many Marylanders who served with honor
were laid to rest in Arlington. The heroes from every war, men like
Navy Diver Michael Steadam, who was brutally murdered by terrorists
simply because he was a member of our military.
In the Iraqi conflict, 37 Marylanders have died including two from
the same high school who died within weeks of each other. These are the
heroes who deserve burial at our national cemeteries.
The Committee will hear from the Veterans Service Organizations. In
my 18 years as the head of the VA-HUD Subcommittee, I was proud to work
closely with the veterans organizations. They are tireless advocates
for America's veterans. I do respect and admire them.
I know many in these groups are uncomfortable with the idea of
Congress tinkering with the benefits our veterans have earned.
I can understand their yellow flashing lights.
Promises made to our veterans must be promises kept. For 18 years,
I fought every day to safeguard these benefits--and continue to do so.
Because they represent America's payment of a debt, we owe our brave
veterans for their service a debt that can never be fully repaid. But
this is murder.
Federal law already prohibits murderers from being honored at
Arlington and our national cemeteries. In 1997, Congress passed a law
to restrict burial eligibility to prevent convicted Oklahoma City
bomber Timothy McVeigh from being buried in a national cemetery
following his execution.
If someone is convicted of a capital crime in a Federal court--
their remains cannot be placed at Arlington. Yet, if someone is tried
for the same kind of crime in a State court, they can be buried in
Arlington if they are eligible for parole.
This loophole enabled the man who murdered Mr. and Mrs. Davis to be
placed alongside the heroes at Arlington.
Why did Congress pass this law?
Not to further punish the guilty, but to preserve our national
cemeteries as places of honor for our veterans.
So I was shocked to learn that the law we passed in 1997 doesn't
apply in the case of the man who murdered Daniel and Wilda Davis. He
was convicted of two life sentences. But because he was convicted in
State court, he remained eligible for interment with honors at
Arlington National Cemetery.
This doesn't make any sense.
The purpose of the 1997 law was to protect the standards our
military men and women live by to protect the values they fight and die
for. The cold-blooded murder of an elderly couple is certainly contrary
to those values.
I am here today on behalf of the Davis family. But I am also here
on behalf of a Nation at war. Every day across this country, brave
young soldiers are being honored and laid to rest in our national and
veterans cemeteries.
We have precious little to offer in comfort for their grieving
loved ones who have made the ultimate sacrifice a nation can ask of a
Mother or Father. But we can insist that these sacred resting places
and the honors our Nation rightfully bestowed on those who have died in
its service are preserved as sanctuaries and monuments to the values
they died protecting. Placing the remains of a cold-blooded murderer in
this hallowed ground makes a mockery of that service. And it is wrong.
Mr. Chairman, I appreciate you taking on this difficult issue. I
thank you and the Committee for rethinking the circumstances under
which convicted murderers are allowed to be buried in our national
cemeteries. I look forward to your recommendations.
Chairman Craig. Senator, thank you very much for that very
important and stirring testimony. I think you have said it
clearly and said it very well.
Before I introduce Vernon Davis, let me recognize my
colleague, Ken Salazar from Colorado, who is here. Ken, thanks
for joining me this morning.
Senator Salazar. Thank you, Senator.
Chairman Craig. Mr. Davis, thank you very much for being
with us this morning. The microphone is yours.
STATEMENT OF VERNON G. DAVIS, SON OF VICTIMS
DANIEL AND WILDA DAVIS
Mr. Davis. By the way, I am Santa Claus. I do Santa Claus
in December.
Chairman Craig. Do you really?
Mr. Davis. Yes, I do.
Chairman Craig. Good for you.
Mr. Davis. Everything gets shaved December 25th.
Chairman Craig. Well, you are getting awfully close to
Santa Claus right now. You will be ready. Thank you.
Mr. Davis. On February 14, 1994, my mother and Daddy were
getting ready for bed at 7 o'clock. My mother was talking to my
sister. There was a knock come on the door. And my mother told
my sister, ``Somebody is at the door. I will talk to you
later.''
Mom and Dad would invite anybody in their house. They
didn't have enemies. They didn't have nobody. If you remember,
February 14 is Valentine's Day. A fellow by the name of Russell
Wagner was at the door. They opened the door for him. Before
they opened the door, he knew exactly what he was going to do,
how he was going to do it, and what he was going to do. He had
a knife and a pair of gloves with him.
He took Mom and Dad and sat them on the kitchen chair and
tied their hands behind their back, put a pillowcase over their
head, and stabbed them 14, 15 times. And then he robbed them
and then left.
It took a while to catch the guy. Then the case went to
trial, while in the meantime--I am ahead of my story. So that
was on the 14th. On the 15th, Mom and Dad's great-granddaughter
was delivering their newspaper. As she walked in the door, she
happened to look over and saw Mom and Dad. That little girl was
sleeping beside her Mother and Daddy on the floor for at least
9 years.
We had one trial, and that was held in Oakland, Maryland.
It was a hung jury because they could not prove that--for some
technicality. I don't know what it was anymore. The first trial
was in 1996. The second trial was in 2002. They found him
guilty because of DNA evidence. Mom and Dad's blood was found
on Russell Wagner's gloves that was used in their murder.
He went to jail, and I tried to keep track of him. From
what I understand, he was down in Jessup, Maryland. And then we
heard later that he died on the the third day of the second
month of this year. When he died, we thought it was over, and
we didn't have to worry about him anymore.
Then on July 27, I heard that they placed his remains in
Arlington Cemetery. I thought that was totally wrong. That's an
honorable place for honorable people to go, not a murderer. And
I realized what you all have done. The law that was passed was
only looking at one person. But you got more than one person
out there that is like that. And what I am asking is the law to
be changed for this reason.
You just had a Chief Justice of the Supreme Court buried
there, and I thought there was something wrong with that, too,
because he is buried alongside with a murderer. And Arlington
Cemetery is very honorable place to go.
I have got a factory in Hagerstown, Mack truck and Volvo
plants, drawing up petitions. I did not even know about it, and
they presented it to me, and I got over 400 names on this
petition. There was a guy who called me 2 days ago telling me
that his brother in Arizona--I did not even know him--has a
petition going, and the same thing with a guy from California.
I was hoping to get them before that time, but I couldn't get
them. He said he is going to send the petitions to me sometime.
But there are people out there who are doing it on their own,
and I don't even know who they are. But I wish you would change
the law.
Chairman Craig. Well, Mr. Davis, thank you very much for
that testimony. I know it is tough in any circumstance to
relive the tragedy that struck your family at the hands of this
fellow.
We will accept the petitions you have with you, and the
others as they come to you, if you want to submit them to the
Senator or to us, we will be happy to receive them and make
them a part of the record of this hearing. So we thank you
very, very much for your testimony.
Barbara, thank you for being with him. We appreciate it,
and we appreciate your due diligence, Barbara, on this issue.
Senator Mikulski. You are quite welcome.
Do you want to introduce your wife?
Chairman Craig. Please do.
Mr. Davis. Yes, my wife is back there. Her name is Vivian.
Stand up, Vivian. And my daughter here, her name is Julie; my
nephew, Lee; and my older sister, Virginia.
Chairman Craig. Thank you all very much for being here
today.
Mr. Davis. And Mr. Phil Stotlemeyer, a Marine veteran. He
wanted to come along.
Chairman Craig. Very good. All right. Good luck at
Christmas.
Senator Mikulski. Mr. Chairman, just by way of background,
Hagerstown is in western Maryland.
Chairman Craig. Right.
Senator Mikulski. It is one of our larger communities on
the way to Appalachia and mountain counties, but it is rural.
It has those rural values that you also share--hard work,
patriotism, community. It also has a very low crime rate. This
crime was shocking when it occurred, and also, the people of
Hagerstown are so duty-driven that they are really behind us on
this examination.
Thank you.
Chairman Craig. Thank you both very much.
Mr. Davis. Thank you for your time.
Chairman Craig. Yes, Senator Salazar?
Senator Salazar. I know I was late coming into the meeting
because I was voting, but could I make a statement regarding
this issue?
Chairman Craig. Please do.
STATEMENT OF HON. KEN SALAZAR,
U.S. SENATOR FROM COLORADO
Senator Salazar. First, Senator Mikulski, I want to thank
you for bringing this issue before the Veterans' Affairs
Committee, and to you, Mr. Davis, for the pain that your family
has suffered. Our thoughts and our prayers are with you.
It is hard to believe that because of legal loopholes
people who have committed truly atrocious crimes would be
allowed burial next to real American heroes. It is shocking
that the Wagner you described--and the crime that you
described--is a real monster who bound and killed your parents
in their home on Valentine's Day in 1994, was laid to rest at
Arlington National Cemetery alongside Medal of Honor recipients
and veterans going back to the American Revolution. It is
abhorrent that a killer who died of a heroin overdose in prison
was given the same honor as our most prominent Americans,
including John Kennedy, William Taft, Earl Warren, Thurgood
Marshall, Chief Justice Rehnquist, and others.
In Colorado, we have two national cemeteries, Fort Logan
and Fort Lyon. I have often walked through the beautiful tracts
of land at Fort Logan and been humbled to see the seven Buffalo
Soldiers, the Medal of Honor recipients, and the 82,000 more
heroes who were buried in those cemeteries. Heroes like Private
John Davis who won the Medal of Honor for capturing the
Confederate Flag in Georgia in April of 1865. Heroes like Major
William Adams, an Army helicopter pilot in Vietnam who died
after volunteering to rescue three fellow soldiers from a small
fire base under heavy attack. And heroes like First Sergeant
Maximo Chavez, who died during a ferocious firefight in Vietnam
during which he used his body as a shield to protect his fellow
soldiers against a grenade attack, moved two wounded men to
safety, and killed an enemy machine gun crew before falling
mortally himself.
These soldiers and millions of others who served our Nation
honorably deserve all the honors of a military funeral. They
also deserve the dignity of not being buried next to murderers
and monsters like Russell Wagner and the BTK killer. I think
that it is important for us to close this loophole. As we close
this loophole, I think it is also important for us to make sure
that we do not open the door to further erosion of any
veterans' benefits. At a time when the VA is turning away
hundreds of thousands of veterans and making it harder and
harder for Priority 7 and 8 veterans to get care, we have to
remember one important fact: a veteran is a veteran, no matter
what. By serving honorably and by sacrificing to preserve our
freedom, soldiers, sailors, airmen, and marines have all earned
the eternal support of a grateful Nation.
I am glad to participate in this hearing and to work with
Senator Mikulski and Members of this Committee to close the
loophole, preserve the sanctity of our national cemeteries, and
protect the rights and benefits of honorably discharged
veterans.
Thank you very much. Thank you, Mr. Chairman.
Chairman Craig. Ken, thank you for that excellent
statement.
Now we will call our second panel forward: Richard
Wannemacher, Acting Under Secretary for Memorial Affairs,
Department of Veterans Affairs; and Thurman M. Higginbotham,
Deputy Superintendent, Arlington National Cemetery.
Richard, good morning. We will let you start and--well,
let's see. We also have Patrick--oh, Patrick Hallinan is not on
the panel. All right. We have Craig Schmauder. Thank you for
being here, and also Richard Hipolit, thank you. Please
proceed.
STATEMENT OF RICHARD A. WANNEMACHER, JR., ACTING, UNDER
SECRETARY FOR MEMORIAL AFFAIRS, NATIONAL CEMETERY
ADMINISTRATION, DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY
RICHARD J. HIPOLIT, ASSISTANT GENERAL COUNSEL, DEPARTMENT OF
VETERANS
AFFAIRS
Mr. Wannemacher. Mr. Chairman, Members of the Committee,
good morning. Before I start my formal statement, I would also
like to express our condolences to Mr. Davis and the tragedy
that he and his family have experienced and the impact that it
has had on their lives.
In my testimony, I will discuss the Department of Veterans
Affairs implementation of the capital crime prohibition statute
and some of the issues that have been encountered administering
the statute within the national cemetery system. I am
accompanied by Richard Hipolit, Assistant General Counsel, and
I would like to submit my written testimony for the record.
Chairman Craig. Without objection, your full testimony will
be a part of the record.
Mr. Wannemacher. My office oversees the daily operations of
VA's 121 national cemeteries and the burial eligibility
determination process. Last year, the National Cemetery
Administration (NCA) interred more than 93,000 veterans and
members of their families. We issued more than 351,000
headstones and markers and prepared more than 435,000
Presidential Memorial Certificates commemorating the honorable
service of those who had served in defense of a free and
democratic Nation.
The provisions of Public Law 105-116 prohibit burial or
memorialization in a national cemetery of an otherwise eligible
veteran who was convicted of a Federal capital crime and
sentenced to death or life imprisonment or convicted of a State
capital crime and sentenced to death or life imprisonment
without parole, or was found to have committed a Federal or
State capital crime but was not convicted because they were not
available for trial due to their death or flight.
Due to the specific requirements of the statute, this
prohibition is used in a limited number of cases. We have
issued regulations and procedures designed to provide
consistent application of the capital crimes prohibition
statute. National cemetery directors throughout the Nation
receive training on how to identify such cases, with the NCA
central office officials providing oversight and guidance.
When a burial request raises suspicion that the capital
crime prohibition may impact eligibility determination, the
cemetery director questions the funeral director or the
decedent's personal representative regarding the facts
surrounding the individual's death and informs them that there
may be a delay while eligibility is determined. If the decedent
died while incarcerated, the cemetery director requests a
Notice of Conviction from the Federal or State prison to assist
in determining the individual's eligibility. When it is
suspected that the decedent may have committed a capital crime
but was not convicted due to death or flight to avoid
prosecution, the cemetery director will work with the local VA
Regional Counsel to obtain information from law enforcement
officials on the facts of the case and interpretation of State
law.
Cemetery directors approve burial eligibility if there does
not appear to be clear and convincing evidence that the
decedent would have been convicted of a Federal or a State
capital crime. If there does appear to be clear and convincing
evidence, then the family or personal representative has the
opportunity to provide additional information for VA to
consider before the National Cemetery Administration makes a
final determination on burial eligibility.
When the family or personal representative elects to pursue
the matter further, these cases are handled in accordance with
the procedural protections associated with processing claims
within the Department of Veterans Affairs. Under these
guidelines, the National Cemetery Administration has been able
to effectively process formal eligibility determination on
capital crimes cases. While VA believes that it has a workable
process in place, we have identified some areas in the statute
that have been difficult for us to implement.
First, when there is no Notice of Conviction, VA employees
are put in the position of having to decide whether there is
clear and convincing evidence that a capital crime took place
and then what kind of conviction or sentence that individual
would have faced. In such a case, we rely on the assistance of
local and State officials who do not always have the time to
address VA requests for information on a case that they were
not going to prosecute since the person was no longer living.
Second, there are significant differences between how
individual States define and prosecute capital crimes. Due to
this disparate treatment, it is conceivable that a veteran
could be determined eligible or not eligible for VA benefits
depending solely on the jurisdiction in which the crime was
committed.
Finally, requests for burials are time sensitive,
especially when dealing with casketed remains. Our goal is to
process burial eligibility determinations within 48 hours. In
cases where there are questions about eligibility due to the
capital crimes prohibition statute, families may opt for a
private burial rather than interment in a VA cemetery.
Therefore, we may have indirectly prevented an otherwise
eligible veteran from receiving the burial benefit that he or
she earned. We believe that aspects of the capital crimes
prohibition statute could be strengthened, and we would be
happy to work with VSOs, the Committee, and the community
towards that end.
Thank you very much for the opportunity to appear, and I
will be glad to answer any questions.
[The prepared statement of Mr. Wannemacher follows:]
Prepared Statement of Richard A. Wannemacher, Jr., Acting Under
Secretary for Memorial Affairs, National Cemetery Administration,
Department of Veterans Affairs
Mr. Chairman and Members of the Committee, good morning. I
appreciate the opportunity to be here today to discuss with you the
Department of Veterans Affairs (VA) implementation of the capital crime
prohibition statute. I am accompanied by Richard Hipolit, Assistant
General Counsel.
My office oversees the daily operations of the National Cemetery
Administration (NCA) 121 national cemeteries and the burial eligibility
determination process. As you know, the provisions of Public Law 105-
116 were enacted into law on November 21, 1997, and subsequently
codified at 38, U.S.C. Sec. 2411 and 38, U.S.C. Sec. 2408(d). The
provisions apply to requests for burials that occur on or after
November 21, 1997. Under this law, an otherwise eligible person who was
convicted of a Federal capital crime and sentenced to death or life
imprisonment, or was convicted of a State capital crime, and sentenced
to death or life imprisonment without parole, or was found to have
committed a Federal or State capital crime but was not convicted by
reason of not being available for trial due to death or flight to avoid
prosecution, is not eligible for burial or memorialization in a VA
national cemetery. Memorialization refers to the provision of a
headstone, marker, memorial marker, burial flag, or Presidential
Memorial Certificate.
Due to the rather specific requirements of 38 U.S.C. Sec. 2411,
this prohibition is used in a limited number of cases. The practical
effect of this provision on NCA is that in most cases where the
prohibition would apply the individual's family opts for a private
burial. Nevertheless, as a means of implementing the capital crime
prohibition, VA has issued regulations as well as program policy
guidance outlining specific steps for NCA employees to follow when they
believe the capital crime prohibition may impact a request for benefits
from NCA. These regulations, which are codified at 38 CFR 38.617 and
38.618, serve as a framework for NCA actions in such matters. In
addition, NCA has prepared standard letters based on these regulations
for use by NCA personnel in communicating with a decedent's personal
representative on such cases. Such standard letters are designed, to
the extent possible, to provide for a consistent application of policy
throughout NCA concerning the application of the capital crime
prohibition. On all requests involving the capital crime statute, NCA
Central Office officials provide oversight and guidance to the cemetery
directors as eligibility is determined.
NCA most often becomes aware of potential capital crime prohibition
cases through the funeral director, a member of the public, or media
reports. NCA staff also can be made aware of such cases through a
flagged name in NCA's burial operations database, or through a review
of eligibility information in Veterans Benefits Administration (VBA)
databases. NCA cemetery directors receive periodic training, which has
included a review of the ways to identify such cases.
When a request for burial or memorialization raises a suspicion
that the capital crime prohibition may impact an eligibility
determination, the cemetery director makes an inquiry to the funeral
home or with the decedent's personal representative about the facts
surrounding the individual's death. If necessary, the cemetery director
informs the funeral director or the decedent's personal representative
about the prohibitions contained in this law and that there may be a
delay while eligibility is being considered.
If the decedent died while incarcerated, the cemetery director
requests a Notice of Conviction from the Federal or State prison; he or
she may contact the local VA Regional Counsel to assist in obtaining
the Notice. If the Notice indicates the decedent is not eligible, then
the request for burial is denied; otherwise, the request is approved.
When it is suspected that a decedent may have committed a capital
crime, but was not convicted due to death or flight to avoid
prosecution, the cemetery director will take steps to obtain
information from law enforcement officials in the jurisdiction where
the crime was committed. Again, the VA Regional Counsel may assist the
cemetery director in obtaining information from Federal or State
Attorney General's offices as to how the case would have been
potentially prosecuted.
After collecting the available evidence, the VA Regional Counsel
provides a written summary of events and a description on how the case
would have been prosecuted allowing the cemetery director to make an
initial decision on whether or not there ``appears to be clear and
convincing evidence that a capital crime took place.'' If there does
not appear to be clear and convincing evidence, the cemetery director
approves burial. If the family decides on private burial during the
period the cemetery director is collecting information, NCA interprets
this as a withdrawal of the request for a VA burial benefit and no
further action is taken.
If no decision to bury elsewhere has occurred and there appears to
be clear and convincing evidence that the decedent was convicted of a
Federal or State capital crime, or was not convicted due to flight or
death, the cemetery director sends the personal representative a
certified letter outlining the steps that can be taken to provide
additional information for consideration. The option to end the process
at this point is also available. Cases where the personal
representative elects to pursue the matter further are handled
consistent with procedures contained in 38 CFR 38.617 and 38.618.
Because these regulations are designed to provide the procedural
protections associated with processing of claims for veterans benefits,
they are somewhat complex. Nevertheless, our experience has been that
NCA staff has been able to effectively and efficiently process capital
crimes burial cases where a formal eligibility determination is
required.
While VA feels that it has a workable process in place, allowing us
to implement the current statute, we have identified several areas of
the statute which have been difficult to implement.
In particular, we have found the requirement contained in 38 U.S.C.
Sec. 2411(b)(3), which prohibits an individual from receiving burial
benefits if the individual ``has not been convicted of such a crime by
reason of the person not being available for trial due to death or
flight to avoid prosecution'' somewhat difficult to administer. In
these cases, because there is no Notice of Conviction, VA employees are
put in the position of making decisions that typically would go through
the judicial process. The employee has to decide not only if there
appears to be clear and convincing evidence that a capital crime took
place, but what kind of conviction and sentence would have resulted.
Also, these cases put employees in the position of having to rely on
local and/or state officials to assist in providing information
necessary to make a decision. Some local and state officials have not
responded to VA requests for information; in several cases we have been
told that the local or state law officials did not have the time to
spend on a case that they were not going to prosecute since the person
was no longer living.
Another area that has created problems is that each state defines
``capital crimes'' differently, and there are significant differences
between individual states regarding the imposition of the death
sentence. For example, two individuals could commit similar crimes but
in two different states; however, one State may prosecute as a capital
crime and the other may not. One person would then be eligible for VA
burial benefits and the other would not. While we strive to apply the
requirement of this law as consistently as possible, the disparity in
State law leads to an inequity that is built into the current system.
Finally, requests for burials are time sensitive, particularly if
you are dealing with casketed remains. We strive to process all capital
crime burial eligibility determinations as quickly as possible.
Nevertheless, some delay is inherent in this process. If the cemetery
director has to tell a funeral director that an eligibility
determination must be delayed since the case has to be reviewed, a
family may decide to go elsewhere for burial. In such a case, we may be
indirectly preventing an otherwise eligible veteran from receiving the
burial benefit that he or she has earned.
While there are aspects of the capital crimes prohibition statute
we believe could be clarified and possibly strengthened, we do not
currently have any specific suggestions. We would, however, be happy to
work with the Committee on this matter. Such a discussion should not
just look at the capital crime statute language, but also consider VA's
statutory provisions governing the forfeiture of benefits. We note
that, as part of the Veterans Benefits Act of 2003, Congress recently
amended 38 U.S.C. Sec. 6105 (Forfeiture for subversive activities), to
add prohibitions against payment of VA benefits in cases where a
veteran has been convicted of six additional offenses. The offenses
included within the section 6105 forfeiture provision now include
crimes involving the misuse of biological and chemical weapons and the
use weapons of mass destruction, acts of terrorism, and genocide.
Thank you, again, for the opportunity to share with you an overview
of NCA's current processes as related to the capital crime prohibition.
I look forward to working with the Committee on this issue.
______
Response to Written Questions Submitted by Hon. John Thune to Richard
A. Wannemacher, Jr.
. Question. It seems to me the situation that has arisen in the
case of Russell Wagner could be prevented by simply changing the law to
say that those convicted of murder but eligible for parole shall not be
allowed to be buried in a national cemetery. Wouldn't this close the
loophole and prevent this situation from arising again. It seems like
an obvious remedy.
Answer. Failed to respond within allotted time.
Chairman Craig. Thank you very much, Richard.
Now let us turn to Superintendent Higginbotham. Welcome
before the Committee.
STATEMENT OF THURMAN HIGGINBOTHAM, DEPUTY
SUPERINTENDENT, ARLINGTON NATIONAL CEMETERY;
ACCOMPANIED BY CRAIG R. SCHMAUDER, DEPUTY GENERAL COUNSEL, U.S.
ARMY
Mr. Higginbotham. Good morning, sir. Thank you very much,
sir. I, too, would also like to applaud Mr. Davis's courage
here this morning. Mr. Davis and I had a conversation in my
office a few months ago concerning this matter, and I share his
grief deeply.
Mr. Chairman and distinguished Members of the Committee,
thank you for inviting the Department of the Army to discuss
the 1997 law intended to prohibit capital offenders from
interment or memorialization in Arlington National Cemetery.
Thank you for the opportunity to testify before this Committee
in support of the Department of the Army's Arlington National
Cemetery and Soldiers' and Airmen's Home National Cemetery
program. I am testifying on behalf of the Secretary of the
Army, who is responsible for operating and maintaining
Arlington and Soldiers' and Airmen's Home National cemeteries,
as well as establishing the Army's eligibility policy for
interment, inurnment, and memorialization.
Arlington National Cemetery is the Nation's preeminent
military cemetery. It is an honor to represent this cemetery
and the Soldiers' and Airmen's Home National Cemetery, which
are both national cemeteries under the jurisdiction of the
Department of the Army and are civil works activities. On
behalf of these two cemeteries and the Department of the Army,
I would like to express our appreciation for the exceptional
support that Congress has provided over the years.
In fiscal year 2004, there were 3,858 interments and 2,517
inurnments in Arlington National Cemetery. To date in fiscal
year 2005, we have performed a total of 6,300 interment and
inurnments services. We anticipate at a minimum an equal number
of services in fiscal year 2006.
Additionally, millions of visitors, both foreign and
American, come to Arlington National Cemetery each year to view
the cemetery and participate in and observe ceremonial events.
During 2004 and 2005, over 3,000 ceremonies were conducted in
those years to include the President of the United States at
ceremonies on Veterans Day and Memorial Day.
During fiscal year 2004, Arlington National Cemetery also
accommodated approximately 4 million guests, making it one of
the most visited historic sites in the National Capital Region.
One of the Army's paramount objectives is to steadfastly
maintain the integrity of Arlington National Cemetery by
ensuring only those eligible under applicable law and Army
policy are buried, inurned, or memorialized. There are two
sections of the United States Code that address the burial of
certain convicted criminals in Arlington National Cemetery.
Enacted in 1997, 10 U.S.C. Sec. 985, disqualifies persons
convicted of a Federal capital offense, an offense for which
the death penalty may be imposed, from burial or inurnment in
Arlington National Cemetery.
Also enacted in 1997, 38 U.S.C. Sec. 2411, prohibits the
interment, to include inurnment, or memorialization of a person
who has been convicted of a Federal capital crime and sentenced
to death or life imprisonment, or a person convicted of a State
crime and sentenced to death or life imprisonment without
parole. However, this statute does not address those who commit
other heinous crimes and limits State capital crimes to the
willful, deliberate, or premeditated killing of another human
being.
Under 38 U.S.C. Sec. 2411, the prohibition shall not apply
unless written notice of a conviction is received by the
Arlington National Cemetery before approval of an application
for interment or memorialization of such person. Pursuant to
the statute, such written notice shall be furnished to such
official by the Attorney General in the case of a Federal
capital crime, or by an appropriate State official, in the case
of a State capital crime.
Since these laws were enacted in 1997, Arlington National
Cemetery has interred, inurned, or memorialized over 50,000
veterans and/or eligible family members. In not one of these
cases were we timely notified in writing of a Federal or State
conviction in accordance with the statute's requirements.
National media extensively reported on the recent inurnment in
Arlington National Cemetery of Russell W. Wagner, an eligible
veteran who was also a convicted murderer. Arlington National
Cemetery was neither notified nor aware until after his
inurnment service that he had been convicted in a Maryland
State court of two murders. However, under 38 U.S.C. Sec.
2411, he was not barred from inurnment in Arlington National
Cemetery, as his life sentences included the possibility of
parole. The disqualification contained in 10 U.S.C. Sec. 985
did not apply because Mr. Wagner was not convicted of a Federal
capital offense.
Arlington National Cemetery's process relies on receiving
proper notification from the appropriate State or Federal
official that an individual was convicted of a State or Federal
capital offense and is prohibited from interment, inurnment, or
memorialization in Arlington National Cemetery, as specified in
38 U.S.C. Sec. 2411. Again, to date, no such timely
notification has been received by the Cemetery from any State
or Federal officials.
I note the prohibitions of 38 U.S.C. Sec. 2411 do not
apply in cases where notification was not made prior to
approval of the interment, inurnment, or memorialization, which
contemplates that eligible veterans who have been convicted of
a State or Federal capital offense may be interred, inurned, or
memorialized in Arlington if notice is not timely received.
The Army and Arlington National Cemetery recognize the
significance of the issues involved in this matter, will
continue to follow the current law, and look forward to working
with this Committee and the Congress in maintaining the
integrity of the cemetery. The Army thanks the Committee and
the Congress again for its longstanding commitment to and
support for Arlington National Cemetery.
[The prepared statement of Mr. Higginbotham follows:]
Prepared Statement of Thurman Higginbotham, Deputy Superintendent,
Arlington National Cemetery
Mr. Chairman and distinguished Members of the Committee, thank you
for inviting the Department of the Army to discuss the 1997 law
intended to prohibit certain capital offenders from interment or
memorialization in Arlington National Cemetery. Thank you for the
opportunity to testify before this Committee in support of the
Department of the Army's Arlington National Cemetery and Soldiers' and
Airmen's Home National Cemetery Program. I am testifying on behalf of
the Secretary of the Army, who is responsible for operating and
maintaining Arlington and Soldiers' and Airmen's Home National
Cemeteries, as well as establishing the Army's eligibility policy for
interment, inurnment, and memorialization.
Arlington National Cemetery is the Nation's preeminent military
cemetery. It is an honor to represent this cemetery and the Soldiers'
and Airmen's Home National Cemetery, which are both national cemeteries
under the jurisdiction of the Department of the Army and are civil
works activities. On behalf of these two cemeteries and the Department
of the Army, I would like to express our appreciation for the
exceptional support that Congress has provided over the years.
In fiscal year (FY) 2004, there were 3,858 interments and 2,517
inurnments in Arlington National Cemetery. To date in fiscal year 2005,
we have performed a total of over 6,300 interment and inurnment
services. We anticipate, at a minimum, an equal number of services in
fiscal year 2006.
Additionally, millions of visitors, both foreign and American, come
to Arlington National Cemetery each year to view the Cemetery and both
participate in and observe ceremonial events. During fiscal year 2004
and fiscal year 2005, over 3,000 ceremonies were conducted each year,
with the President of the United States attending the ceremonies on
both Veterans Day and Memorial Day.
During fiscal year 2004, Arlington National Cemetery accommodated
approximately 4 million guests, making it one of the most visited
historic sites in the National Capitol Region.
One of the Army's paramount objectives is to steadfastly maintain
the integrity of Arlington National Cemetery by ensuring only those
eligible under applicable law and Army policy are buried, inurned, or
memorialized. There are two sections of the United States Code (U.S.C.)
that address the burial of certain convicted criminals in Arlington
National Cemetery. 10 U.S.C. Sec. 985, enacted in 1997, disqualifies
persons convicted of a Federal capital offense, an offense for which
the death penalty may be imposed, from burial or inurnment in Arlington
National Cemetery.
38 U.S.C. Sec. 2411, also enacted in 1997, prohibits the
interment, to include inurnment, or memorialization of a person who has
been convicted of a Federal capital crime and sentenced to death or
life imprisonment, or a person convicted of a state capital crime and
sentenced to death or life imprisonment without parole. However, this
statute does not address those who commit other heinous crimes, and
limits State capital crimes to the willful, deliberate, or premeditated
killing of another human being.
Under 38 U.S.C. Sec. 2411, the prohibition shall not apply unless
written notice of a conviction is received by the Arlington National
Cemetery before approval of an application for the interment or
memorialization of such person. Pursuant to the statute, such written
notice shall be furnished to such official by the Attorney General, in
the case of a Federal capital crime, or by an appropriate State
official, in the case of a State capital crime.
Since these laws were enacted in 1997, Arlington National Cemetery
has interred, inurned, or memorialized over 50,000 veterans and/or
eligible family members. In not one of these cases were we timely
notified in writing of a Federal or State conviction in accordance with
the statute's requirements. National media extensively reported on the
recent inurnment in Arlington National Cemetery of Russell W. Wagner,
an eligible veteran who was also a convicted murderer. Arlington
National Cemetery was neither notified nor aware until after his
inurnment service that he had been convicted in a Maryland state court
of two murders. However, under 38 U.S.C Sec. 2411, he was not barred
from inurnment in Arlington National Cemetery, as his life sentences
included the possibility of parole. The disqualification contained in
10 U.S.C. Sec. 985 did not apply because Mr. Wagner was not convicted
of a Federal capital offense.
Arlington National Cemetery's process relies on receiving proper
notification from the appropriate state or Federal official that an
individual was convicted of a state or Federal capital offense and is
prohibited from interment, inurnment, or memorialization in Arlington
National Cemetery, as specified in 38 U.S.C. Sec. 2411. Again, to
date, no such timely notification has been received by the Cemetery
from any state or Federal officials.
I note that the prohibitions of 38 U.S.C. Sec. 2411 do not apply
in cases where notification was not made prior to approval of
interment, inurnment, or memorialization, which contemplates that
eligible veterans who have been convicted of a state or Federal capital
offense may be interred, inurned, or memorialized in Arlington if
notice is not timely received.
The Army and Arlington National Cemetery recognize the significance
of the issues involved in this matter, will continue to follow current
law, and look forward to working with this Committee and the Congress
in maintaining the integrity of the Cemetery. The Army thanks the
Committee and the Congress for its long-standing commitment to, and
support for, Arlington National Cemetery.
Chairman Craig. Superintendent, thank you very much.
We have been joined by Senator Thune. John, do you have any
opening statement you want to make prior to questions?
STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Thune. Mr. Chairman, I do have an opening statement
I would like to have included in the record, and I appreciate
you very much for holding this important hearing. This is a
complicated and sensitive issue, but clearly one that needs a
remedy. I support your efforts, and I understand you are
intending to introduce legislation that would correct this
loophole.
So I have got a statement I would like to have included in
the record in its entirety.
Chairman Craig. Without objection, it will become a part of
the Committee record.
Senator Thune. Thank you. And I thank the panel for your
testimony this morning as well.
Chairman Craig. John, thank you for being here.
[The prepared statement of Senator Thune follows:]
Prepared Statement of John Thune, U.S. Senator from South Dakota
I would like to thank the Chairman for holding this important
hearing on the complicated and sensitive issue of whether an honorably
discharged veteran convicted of murder can be buried in a national
cemetery. On the one hand, this seems like an easy issue to resolve. It
seems almost intuitive that people convicted of murder should not be
allowed to be buried with full military honors in a place like
Arlington. On the other hand, we're talking about veterans who were
honorably discharged, and faithfully served this country, usually long
before they committed a heinous crime. If a person has been honorably
discharged from the military, that person deserves the respect and the
gratitude of the United States Government and the American people. But,
I think it is an unwritten creed among veterans in this country that
throughout their life they follow a path of honor, integrity, service
to their community and, above all preserve the dignity of their status
as American military veterans. When a few commit unspeakable crimes
against their fellow citizens and the country that they had once sworn
to protect, they break that creed of honor.
Therefore, I believe that that those veterans convicted of murder
should not be buried at a national cemetery. Because the law we passed
in 1997 to prevent those convicted of murder from being buried at
Arlington has been circumvented in the case of Russell Wagner, I
believe we must work to close the loophole.
I was a Member of the House in 1997 when the Congress passed this
law. One of the reasons Congress passed this law was to prevent the
possibility of Timothy McVeigh, the Oklahoma City bomber who was a
decorated and honorably discharged veteran, from being buried at
Arlington. I understand from the prepared testimony offered today that
under the current law, the BTK killer in Wichita, KS, is entitled to be
buried in Arlington because his conviction does not explicitly rule out
the possibility of parole. Clearly, we need to change the law to
prevent situations like this from happening.
Again, I understand the complexity of this issue, and I appreciate
the Chairman holding this hearing to examine this issue. I think it is
obvious we need to fix the law we currently have on the books, and I
look forward to the testimony to be offered today.
Chairman Craig. Let me ask the question of both of you. It
would seem that what we have with the parole loophole is a
situation where the same crime committed in one State is
treated differently for purposes of national cemetery burial
eligibility than if it were committed in other States. Is that
a circumstance of the situation based on State law or
procedure? Please proceed.
Mr. Hipolit. Mr. Chairman, I think part of the problem
there is that the law now focuses on what sentence the person
actually received rather than what sentence they could have
received. The way it is written, the person actually has to
have been convicted and sentenced to life without parole or
death. That puts us at the will of the sentencing authorities,
if one person might get a different sentence than another, the
sentence received would be controlling. That would, I think,
lead to variance from State to State depending on where they
were prosecuted. I think that is the main issue. The law
focuses on what sentence was actually received rather than what
sentence could have been received.
Chairman Craig. Any additional reaction to that?
Mr. Schmauder. No, sir. I might add, though, in the Title
10 provision, the sentence requirement is not found, and it is
simply a conviction of a Federal capital offense for which the
death penalty or life imprisonment may have been imposed. So
there is a distinction between the Title 10 and the Title 38
provision.
Chairman Craig. So how could the Congress amend the burial
prohibition law so that it reflects State sentencing for those
who commit the same or similar atrocities? How do we create the
uniformity that I think all of us want to seek here?
Mr. Hipolit. I think there are a couple of ways as a
technical matter that could be done. It would be possible to
amend 38 U.S.C. Sec. 2411(b) to keep the existing language but
add a reference to ``without regard to parole.'' That would be
one way of addressing this issue.
Another way, which would be, I think, probably a clean way,
would be to just remove the reference in 2411(b) to the
sentence that was received. That would throw us back on the
definition of capital crime in 2411(d), which just refers to
the sentence that could have been received rather than what was
actually received. I think as a technical matter it could be
done that way.
Chairman Craig. But in that last response you provided,
without clarity--clarity sometimes also confuses in the
instance of trying to apply it to a variety of laws. Are we now
creating a general environment from which interpretation then
rests on the part of those who have to make the decision of the
right of interment?
Mr. Hipolit. I think in the second example I gave, it would
be pretty clear. It would be a fairly bright-line rule because
we would be able to look at the State law to see the crime with
which the person was charged and what sentence was available
for that crime; that would be something we could find in the
statute books. I think it would be pretty clear to apply that.
Mr. Schmauder. I would agree with my counsel that it does
create an issue, if, in fact, we are relying simply on what
could have been the conviction. That certainly will bring into
issue plea bargain situations where someone may have been--
could have been charged with a death offense and then pleads
down in and is convicted of a subsequent----
Chairman Craig. Well, you have anticipated my next
question, and that is the question of plea bargaining. How do
we deal with those cases where the sentence can be reduced for
capital crimes even though the underlying act merits burial
disqualification? You would have to look at the total package,
the total picture of the situation, I guess.
Mr. Schmauder. I agree, Senator.
Chairman Craig. I am also concerned about obviously the
number of interment or inurnment services on an annual basis
and the process of a clear, thorough, but hopefully relatively
uncomplicated review. You spoke, certainly, Superintendent
Higginbotham, to the timeliness of it and the importance of
being able to do it in a timely way, and, of course, the
absence of notification, and assure the thoroughness of the
process to disallow the kind of thing that just happened.
Mr. Higginbotham. I would think that probably what we need
to do, we need to just look at that further to see how we can
explore a way to find an avenue if we are not getting it from
the Attorney General or the State Attorneys General. There must
be another process we have to pursue. What that is right now, I
don't know.
Mr. Wannemacher. At the National Cemetery Administration,
we have published regulations and guidelines for our directors
to follow and the clarity makes it more efficient. But we have
specific se not.guidelines to follow.
Chairman Craig. Under what conditions could remains of
capital offenders be disinterred from Arlington National
Cemetery or VA national cemeteries?
Mr. Hipolit. Speaking for the VA cemeteries, the way the
law is currently written, if we don't receive notification of a
conviction in advance of burial, then the capital crimes
prohibition does not apply, so the person would have been
eligible for burial. In that case, if we later found out that
there had been a conviction, we wouldn't go back and disinter
because the person----
Chairman Craig. There is no requirement to do that.
Mr. Hipolit. That is correct.
Mr. Higginbotham. That is the same at Arlington, Senator.
Chairman Craig. So, in other words--well, you have answered
the question, then.
If the action were directed by an act of Congress to
preserve the dignity of those places and not as an act of
punishment, might that avoid questions of constitutionality
under an ex post facto or bill of attainder considerations?
Mr. Hipolit. Mr. Chairman, I think you are correct about
that. The ex post facto clause would apply in a case where
Congress would add an additional punishment for a crime that
was already committed or would criminalize conduct that was
legal when it was committed. I think the controlling factor is
whether the intention of Congress is to punish past conduct or
whether it is to regulate current activities. I think Congress
was very careful in enacting the original capital crimes law to
make clear that what it was doing was preserving the sanctity
of the cemeteries. The purpose was to address a current need
rather than go back and punish people that had committed
crimes. I think if it is done to that end, you would avoid a
problem with ex post facto.
Chairman Craig. Any reaction?
Mr. Schmauder. Other than I am not a constitutional lawyer,
I think that is a correct approach, and I think that is the
intent.
Chairman Craig. I am trying to get an idea about how
pervasive the parole loophole is. How many Federal and State
capital offenders have been denied burial because of the
existing prohibition? Do you have that figure?
Mr. Wannemacher. At the National Cemetery Administration in
cases of denial, we do not collect explicit data on what
eligibility criteria triggered the burial denial and we do not
know if the request for burial has been withdrawn simply
because we have been asking questions as to eligibility under
the capital crimes prohibition statute. The National Cemetery
Administration is averaging about 2 cases a month across the
system nationwide, which we know are being reviewed under the
capital crimes prohibition statute and regulation.
Mr. Higginbotham. In my more than near 40 years at
Arlington, I know of several that I can recall.
Chairman Craig. How many cases did you have no authority to
deny burial to because of sentences like the Russell Wagner
situation or even the BTK killer situation? Do you know that?
Mr. Higginbotham. No, sir.
Chairman Craig. You don't have that figure either?
Mr. Wannemacher. I don't have that figure either, sir.
Chairman Craig. The law requires that you obtain a written
Notice of Conviction from either Federal or State officials
before burial eligibility can be barred. How workable is that
requirement?
Mr. Wannemacher. Because of the time limitations, it is
workable, but we have to get local jurisdictions to cooperate,
and we rely on our regional general counsel to assist in these
cases. Sometimes it depends on the jurisdiction, really.
Mr. Hipolit. If we have reason to believe that there may
have been a conviction, we will go out and seek information
from the appropriate authorities.
Chairman Craig. Well, the question is: How would you even
know? How do you develop a reason to believe?
Mr. Hipolit. I think in many cases we have acquired
information from the news media or reports from individuals. We
have found out about cases on our own. I can't say that system
is infallible by any means. There may be cases that we do not
find out about.
Mr. Wannemacher. Word of mouth is usually the way that we
are notified of such cases. When we are notified, we put a flag
in our computer burial operations system database which serves
the national cemetery system and the State veterans cemeteries
as well. This flag indicates an individual may be involved in a
possible capital crimes case, and alerts staff to initiate
procedures, such as asking specific questions, in accordance
with the statute and regulation.
Chairman Craig. So the question is not asked up front.
Mr. Wannemacher. Right. That is correct.
Chairman Craig. ``Has this person ever been convicted of a
capital crime?'' That question is not asked of either----
Mr. Wannemacher. No, sir.
Mr. Higginbotham. No, sir.
Chairman Craig. At Arlington or any of the rest of them.
Mr. Higginbotham. We may become aware--there are some
triggers while our representatives are taking the application
from funeral directors. If the person died in a penitentiary,
OK, then the flag goes up. Maybe we better look at this and see
if the law might apply.
Chairman Craig. I would think it should.
Mr. Higginbotham. If that does not happen, then they just
say the State of Maryland, like in the case of Mr. Wagner, if I
am not mistaken, his death was in March, and the application
was not made with us until months later. We received a
cremation certificate, which only indicated the death occurred
in Maryland. There was no place of death so there was nothing
for us to put our arms around to even take a step further.
Chairman Craig. Richard, your testimony suggests there has
been a lack of cooperation from Federal and State officials
with respect to those cases requiring a finding by VA that an
individual would have been convicted of a State or Federal
capital crime. Has the result of that lack of cooperation been
that individuals who have committed murders but who died before
being convicted are now buried at VA national cemeteries? Has
that been the result?
Mr. Wannemacher. As I said in my statement, the National
Cemetery Administration always errs on the veteran's side. So
if there is a situation where NCA does not have absolute proof
that a capital crime as defined by the statute has been
committed, then we err in favor of the veteran.
Chairman Craig. Mr. Higginbotham, military funeral honors
are denied to capital offenders even when a burial occurs at a
private cemetery. What process is used by the military services
to ensure that no funeral honors are provided to capital
offenders at private cemeteries, do you know?
Mr. Higginbotham. Private cemeteries?
Chairman Craig. Yes.
Mr. Higginbotham. No, I don't know what that process is.
Chairman Craig. Mr. Higginbotham, it would appear from your
testimony that Arlington has a passive process by which it
identifies capital offenders. Unless Arlington officials
receive a notice of conviction from a Federal or State
official, no action is taken. That is what we have heard today.
Why doesn't Arlington have a more formal active process in
place?
Mr. Higginbotham. Well, we relied on the law and the State
and the Federal officials.
Chairman Craig. But you don't ask the question up front.
Mr. Higginbotham. No, we do not.
Chairman Craig. Well, gentlemen, thank you all for being
here today as we gather information and understand the process
here and attempt to clarify this law. I think it is going to be
the wishes of Congress that we do that, and we are certainly
going to proceed in that direction.
But we also want something that is workable. We do not want
to have to be dealing with these kinds of things after the
fact. We need to work together to make sure there is a process
in place that is not cumbersome, but is responsible in ensuring
the sanctity of our cemeteries for those who are buried there.
So we thank you very much, and we will stay in contact with you
as we refine this legislation.
Mr. Higginbotham. Thank you, sir.
Mr. Wannemacher. Thank you, Senator.
Chairman Craig. Thank you.
Chairman Craig. Now we will ask our last panelist to come
forward: Dennis Cullinan, Director, National Legislative
Service, Veterans of Foreign Wars, accompanied by Brian
Lawrence, Assistant National Legislative Director, Disabled
American Veterans.
Dennis, welcome. Please proceed.
STATEMENT OF DENNIS M. CULLINAN, DIRECTOR, NATIONAL LEGISLATIVE
SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED STATES;
ACCOMPANIED BY BRIAN LAWRENCE, ASSISTANT NATIONAL LEGISLATIVE
DIRECTOR, DISABLED AMERICAN VETERANS
Mr. Cullinan. Thank you very much, Mr. Chairman.
On behalf of the American Legion, the Disabled American
Veterans, the Paralyzed Veterans of America, the Vietnam
Veterans of America, and the Veterans of Foreign Wars of the
United States, it is my privilege to address this forum today
regarding an issue fraught with considerable legal,
philosophical, and emotional implications and complexity. It is
an issue that goes to the heart of the rules and rationale for
the granting and, in some most unfortunate circumstances,
taking away the benefits and entitlements conferred on this
Nation's defenders by a grateful Nation.
The situation that has again brought the rules governing
burial or inurnment in Arlington or within the National
Cemetery Administration are, as discussed today, the
circumstances surrounding the placement of Russell Wayne
Wagner's remains in Arlington Cemetery earlier this year.
The propriety or correctness of the statutory language
allowing Russell Wagner's Arlington service is now being called
into question. It is this, along with certain other inequities
under this law, that we will address here today.
When Public Law 105-116 was under consideration in 1997,
the Veterans Service Organizations represented here today,
among others, testified before the House Veterans' Affairs
Committee that, ``No group of citizens has invested more in the
preservation of our national interests than veterans.'' And to
that extent today, we continue to uphold most strongly the rule
of law and the preservation of civilized conduct.
It is our concern, however, that just as veterans must face
the same justice as other citizens, that they are not subject
to more severe or stringent penalties as a consequence of
having served the Nation in uniform.
Prior to the enactment of this law, the burial prohibition
applied only to individuals who had perpetrated acts of mutiny,
treason, sabotage, or subversive activities. Inasmuch as such
actions effectively undid or negated their contributions while
serving in uniform, the continuation of veteran's benefits, in
our view, was clearly unwarranted and, indeed, improper.
With respect to denying such benefits as a consequence of
having committed certain other capital crimes, as was directed
under this Public Law, we were then compelled to look at the
implications or effect that allowing this honor to be conferred
upon such nefarious individuals would have on burial in
national cemeteries as a whole. It was our collective
conclusion that permitting individuals so undeserving of such
honor to be buried in veterans' cemeteries would diminish the
dignity and service of other veterans and their survivors who
are fully deserving of the honor. It is for this reason that we
assented to the Act.
However, in addressing burial eligibility, to now further
extend the criteria or legal basis for revoking veterans'
earned benefits and entitlements could well promote a cascading
march of personal opinion regarding the severity or turpitude
of various crimes leading to statutory renderings that would
unjustly deny veterans that which this Nation has conferred
upon them. As we testified in 1997, ``equal treatment [under
law for veterans] demands a firm general rule that penalties
should correlate to the crime and should not go beyond to
revoke unrelated rights earned through service to the Nation.''
As abhorrent the crimes committed by Russell Wayne Wagner
subsequent to his honorable discharge from the military, he was
and remains qualified for inurnment in Arlington National
Cemetery. As unpalatable as this is for all of us here today,
to allow this situation to result in an injudicious legislative
assault on the costly bought prerogatives of all those who
have, with honor and dignity, guarded our democratic liberties
while serving in uniform would be a profoundly unfortunate
outcome.
One recommendation we would offer with respect to Public
Law 105-116 pertains to a matter of fairness and equity. While
its application with respect to Federal capital crimes is
equitable, there is an anomaly in its language on State capital
crimes. Applicable Federal capital crime is defined as ``an
offense . . . for which the death penalty or life imprisonment
may be imposed.'' State capital crime is defined as that for
which `` . . . the death penalty or life imprisonment without
parole may be imposed.''
Due to the fact that some States explicitly stipulate
sentences without parole in their sentencing language on
capital crimes and others do not, with the inference that
parole is then possible if improbable, a capital crime in one
State will result in the prohibition on burial in a national
cemetery, whereas conviction in another State of the very same
crime will not. And the potential for burial of the BTK killer
is a startling example of this. This is clearly something that
this Congress should address and rectify.
The last observation we will share here today is that on
December 21, 2004, VA's Under Secretary for Memorial Affairs
reissued guidelines and procedures for determining eligibility
for burial benefits in potential capital crime cases. While we
do not comment on the particulars of these guidelines today, it
is our contention that the application of a uniform policy does
provide an additional measure of certainty and equity in
determining the outcome of these difficult and oftentimes
unclear cases. It is our understanding that Arlington National
Cemetery does not have a similar policy. We strongly recommend
that the Superintendent of our National Veterans Cemetery
devise and apply a similar coherent policy directive. This will
help ensure a greater measure of fairness in determining burial
eligibility and potentially help avoid some of the acrimony and
ambiguity that has accompanied the inurnment of Russell Wagner.
Mr. Chairman, that concludes our statement.
[The prepared statement of Mr. Cullinan follows:]
Prepared Statement of Dennis M. Cullinan, Director, National
Legislative Service, Veterans of Foreign Wars of the United States
Mr. Chairman and Members of the Committee:
On behalf of the American Legion, Disabled American Veterans,
Paralyzed Veterans of America, Vietnam Veterans of America and the
Veterans of Foreign Wars of the United States it is my privilege to
address this forum today regarding an issue fraught with considerable
legal, philosophical and emotional implications and complexity. It is
an issue that goes to the heart of the rules and rational for the
granting and, in some most unfortunate circumstances, taking away the
benefits and entitlements conferred on this Nation's defenders by a
grateful Nation.
The situation that has again brought the rules governing burial or
inurnment in Arlington or within the National Cemetery Administration
are the circumstances surrounding the placement of Russell Wayne
Wagner's remains in Arlington Cemetery early this year.
A 52-year-old Vietnam War-era veteran, Russell Wayne Wagner died
February 7 of a heroin overdose in prison. In 2002, he was convicted by
the State of Maryland of the Valentine's Day 1994 murders of Daniel
Davis, 84, and Wilda Davis, 80, and was sentenced to two consecutive
life terms. The victims were found bound and stabbed in their home in
Hagerstown, Md.
Wagner's cremated remains were placed at the cemetery July 27 of
this year. Wagner had been in the Army from 1969 to 1972 and was
honorably discharged, service that qualified him for inurnment at
Arlington.
Congress passed a law in 1997 prohibiting people convicted of
Federal or state capital crimes and sentenced to death or life
imprisonment without parole from being interred at Arlington and other
military cemeteries. Wagner would have become eligible in 2017 for a
review that could have led to parole, according to the Maryland
Division of Corrections. Under these guidelines, he was eligible for an
Arlington service.
The propriety or correctness of the statutory language allowing
Russell Wagner's Arlington service is now being called into question.
It is this, along with certain inequities under this law, that we will
address today.
When this law was under consideration in 1997, the Veterans Service
Organizations represented here today, among others, testified before
the House Veterans' Affairs Committee. ``No group of citizens has
invested more in the preservation of our national interests than
veterans.'' And, to that extent today, we continue to uphold mostly
strongly the rule of law and the preservation of civilized conduct.
Generally, as a group, we tend to expect more from veterans, to
hold ourselves to a higher standard of behavior. Yet we must also
realize that, just as in other segments of society, individuals will
violate the rule of law, do unjustified harm to others, at times of the
most abhorrent kind. Under these circumstances, justice must be met
out, and all appropriate punishment under law applied. It is our
concern, however, that just as veterans must face the same justice as
other citizens, that they not are subject to more severe or stringent
penalties as a consequence of having served the Nation in uniform.
Prior to the enactment of Public Law 105-116, prohibiting the
interment or memorialization in national cemeteries of individuals
committing Federal or State capital crimes, this prohibition applied
only to individuals who had perpetrated acts of mutiny, treason,
sabotage or subversive activities. In as much as such actions
effectively undid or negated their contributions while serving in the
military, the continuation of veteran's benefits, in our view, was
clearly unwarranted and, indeed, improper.
With respect to denying such benefits as a consequence of having
committed certain other capital crimes, as was directed under PL 105-
116, we were then compelled to look at the implications or affect that
allowing this honor to be conferred upon such nefarious individuals
would have on burial in national cemeteries as a whole. It was our
collective conclusion that permitting individuals so undeserving of
such honor to be buried in veteran's cemeteries would diminish the
dignity and service of other veterans and their survivors who are fully
deserving of the honor. It is for this reason that we assented to this
Act.
However, in addressing burial eligibility, to extend further the
criteria or legal basis for revoking veteran's earned benefits and
entitlements could well promote a cascading march of personal opinion
regarding the severity or turpitude of various crimes leading to
statutory renderings that would unjustly deny veterans that which this
Nation has conferred upon them. As we testified in 1997, ``equal
treatment [under law for veterans] demands a firm general rule that
penalties should correlate to the crime and should not go beyond to
revoke unrelated rights earned through service to the Nation.''
As abhorrent the crimes committed by Russell Wayne Wagner
subsequent to his honorable discharge from the military, he was and
remains qualified for inurnment in Arlington National Cemetery. As
unpalatable as this is for all of us here today, to allow this
situation to result in an injudicious legislative assault on the costly
bought prerogatives of all of those who have with honor and dignity
guarded our democratic liberties while serving in uniform, would be a
profoundly unfortunate outcome.
One recommendation we would offer with respect to the language of
PL 105-116 pertains to a matter of fairness and equity. While its
application with respect to Federal capital crimes is equitable, there
is an anomaly in its language on State capital crimes. Applicable
Federal capital crime is defined as ``an offense'' for which the death
penalty or life imprisonment may be imposed. State capital crime is
defined as that for which ``. . . the death penalty or life
imprisonment without parole may be imposed.''
Due to the fact that some states explicitly stipulate sentences
without parole in their sentencing language on capital crimes and
others do not, with the inference that parole is then possible if
improbable, a capital crime in one state will result in the prohibition
on burial in a national cemetery whereas conviction in another state of
the very same crime will not. One striking example of this is in the
State of Kansas where without parole is not stipulated in sentencing
and, for this reason, the infamous BTK killer, Dennis Rader, an
honorably discharged veteran, who has been sentenced to 175 years in
prison, will under current law be eligible upon his demise for burial
in a National Cemetery or inurnment in Arlington National Cemetery.
This is clearly something that this Congress should address and
rectify.
The last observation we will share here today is that on December
21, 2004, VA's Under Secretary for Memorial Affairs reissued guidelines
and procedures for determining eligibility for burial benefits in
potential capital crimes cases. While we will not comment on the
particulars of these guidelines today, it is our contention that the
application of this uniform policy does provide an additional measure
of certainty and equity in determining the outcome of these difficult
and often times unclear cases. It is our understanding that Arlington
National Cemetery does not have a similar policy. We strongly recommend
that the Superintendent of our National Veterans Cemetery devise and
apply a similar coherent policy directive. This will help ensure a
greater measure of fairness in determining burial eligibility and
potentially help avoid the acrimony and ambiguity that has accompanied
the inurnment of Russell Wagner.
Mr. Chairman and distinguished Members of the Committee, this
concludes my testimony. I will be happy to respond to any questions you
may have.
______
Response to Written Questions Submitted by Hon. John Thune to Dennis M.
Cullinan
1. Question. It seems to me a loophole in the law was exploited in
the case of Russell Wagner that violates the spirit of the law
prohibiting convicted murderers from being buried in a national
cemetery. Do you believe Russell Wagner should have been buried at
Arlington National Cemetery?
Answer. Failed to respond within allotted time.
2. Question. Russell Wagner was able to be buried in Arlington for
essentially the same reason that BTK killer will be able to be buried
there--because their convictions explicitly or implicitly leave open
the possibility for parole. Should the BTK killer be allowed to be
buried at Arlington?
Answer. Failed to respond within allotted time.
Chairman Craig. Dennis, thank you, and as I ask these
questions, both of you may choose to respond to them.
Your testimony points out that there are some actions
committed after service that essentially negate an individual's
honorable military service and that, therefore, the
continuation of veterans' benefits is unwarranted in those
cases. Many would argue that capital murder and even other
post-service crimes might fall in the category of negating
honorable military service. Where would you draw the line?
Mr. Cullinan. Mr. Chairman, when we testified in 1997, we
had to pay great attention to protecting the sanctity of our
national cemeteries and preserving the benefits of our Nation's
veterans. One of the key issues with respect to this is the
fact that burial in a national cemetery is a shared honor, and
to allow someone of the kind of the BTK killer to be buried in
a national cemetery brings shame and dishonor to all of those
who are buried there, and their survivors. On the other hand,
there are certain other crimes that, as abhorrent as they may
be, do not rise to that level of infamy.
In preparing this testimony, we noted that along with the
severity, the evil of the crime, there is the issue of how
infamous it is, how widely known, how widely understood. And
that is the crux of the problem. It is not just the crime
itself. It is actually how widely known the crime is, how evil
it is.
So having said that, we would be very reluctant, other than
perhaps making certain corrections in the application of the
current law, to go farther than that.
Chairman Craig. Well, you are caught in a very difficult
situation, as are we. Obviously, you are and you should be the
guardian of our veterans' rights, and certainly burial in a
national or State cemetery is viewed as a very important right.
And the debate that we are going through right now and, I
understand, the debate that you are all going through, as it
relates to how heinous a crime, you are talking infamous versus
heinous.
Mr. Cullinan. Right.
Chairman Craig. Let me walk you through a couple of
thoughts here. Your testimony addressed the concerns that
emotionally fired cases like Wagner's could well promote a
cascading march of personal opinion regarding the severity or
turpitude of various crimes that would have the effect of
unjustly revoking veterans' earned benefits. Again, some might
argue that there exist some actions that are objectively so
grievous so as to remove any debate about their severity or
turpitude from the realm of personal opinion. Capital murder is
one example.
What about rape? What about child abduction, molestation?
Should the complexity of where the line is drawn cause us to
draw a very thin line or no line at all?
Mr. Cullinan. Mr. Chairman, we would have to say that a
line would have to be drawn, but in preparing for this
testimony, one of the first things that was apparent in the
Public Law under discussion today is the fact that it goes to
sentencing as opposed to the crime itself. At first, that did
not make sense to me. Upon further reflection, it makes perfect
sense because, as a Nation, in adjudicating such matters we are
not only governed by a code of law, but by the decisions of a
judge and a jury. And that is the method by which the
heinousness, the evil is adjudicated. It is certainly not a
perfect method, but other than that, we would be in a situation
where we would try and define evil through regulations. Would
the Director of the Cemetery Service at the Department of
Veterans Affairs be called upon to somehow ascribe a level of
evil to various acts? And that is our concern.
Chairman Craig. Well, the reason I am walking you through
these questions is not only for us to better understand your
thoughts, but I think those who are here or those who are
interested in what we are attempting to do have to understand
the complexity of our concern and how you draw the line in the
clear and definable way.
A primary criterion for eligibility to all veterans'
benefits, including burial, is that there be an honorable
discharge. I would imagine there are numerous criminal actions
that, if committed in the service, would hasten a dishonorable
discharge. Why, then, if those same actions were to be
committed after service should there not be a similar
revocation of benefits? Let me give you an example.
Why should a rape, let's say, the day before discharge or
prior to discharge that would create a dishonorable discharge
from the service not be reacted to in the same way in civilian
life and, therefore, bring about an ineligibility? Because if
that person obviously committed that crime while in the service
and were convicted, they would receive a dishonorable
discharge, and they would not be eligible.
Is that a double standard?
Mr. Cullinan. Mr. Chairman, I do not believe that it is a
double standard. With respect to the revocation of a veteran's
burial entitlement, that is one of the very rare instances,
other than through acts of treason, sabotage, and certain acts
of terrorism, where subsequent behavior is predicative on the
bestowment and possible revocation of the benefit. It is only
veterans then who are sort of subject--not to double jeopardy,
but to the fact that behavior subsequent to their having earned
a given benefit under law could be taken away.
Chairman Craig. Any additional comments, Brian?
Mr. Lawrence. Our purpose here is just to make sure that an
injustice does not occur 180 degrees opposite to this, where
somebody that should rightfully be buried at Arlington is
barred, because it is very hard to draw that threshold of
separation. And it is hard to tailor that threshold or law to
fit every conceivable situation. I thought you summarized our
point more eloquently than I could have in your introduction
and that we just would urge the greatest caution in adjusting
the law.
Chairman Craig. Well, gentlemen, thank you both. We will
stay in very close contact with you as we craft the language
and work with you in its crafting. It is obvious, in my
opinion, that the sentiment of the Congress is to make an
adjustment here. At the same time, I think the Congress would
approach it with the same kind of caution that you have. And
yet it really has to meet a public test. And obviously what
happened has not, in the case of the Wagner situation. This is
a hearing that is not intended to lay blame in any respect. It
is intended to correct what appears to be as I expressed
earlier and as others have, a loophole in the law based on the
way the law is applied State by State and nationally.
So we thank you very much for being with us today.
Mr. Cullinan. Thank you very much, Mr. Chairman.
Chairman Craig. Thank you all for attending today. I think
you sense the sentiment of those of the Senate's, at least, and
those who are here and others. We will move expeditiously but
cautiously to make a change in the law to attempt to assure
that this kind of action does not happen again.
Thank you all very much. The Committee will stand
adjourned.
[Whereupon, at 11:30 a.m., the Committee was adjourned.]