[House Report 105-319]
[From the U.S. Government Publishing Office]



105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    105-319
_______________________________________________________________________


 
   PROHIBITING INTERMENT OR MEMORIALIZATION IN CERTAIN CEMETERIES OF 
               PERSONS COMMITTING FEDERAL CAPITAL CRIMES

_______________________________________________________________________


October 9, 1997.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Stump, from the Committee on Veterans' Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 923]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Veterans' Affairs, to whom was referred the 
Act (S. 923) to deny veterans benefits to persons convicted of 
Federal capital offenses, having considered the same, reports 
favorably thereon with amendments and recommends that the Act 
as amended do pass.

  The amendments are as follows:
  Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. DENIAL OF ELIGIBILITY FOR INTERMENT OR MEMORIALIZATION IN 
                    CERTAIN CEMETERIES OF PERSONS COMMITTING FEDERAL 
                    CAPITAL CRIMES.

  (a) Prohibition Against Interment or Memorialization in Certain 
Federal Cemeteries.--Chapter 24 of title 38, United States Code, is 
amended by adding at the end the following new section:

``Sec. 2411. Prohibition against interment or memorialization in the 
                    National Cemetery System or Arlington National 
                    Cemetery of persons committing Federal capital 
                    crimes

  ``(a) The remains of a person described in subsection (c) may not be 
interred in a cemetery in the National Cemetery System or in Arlington 
National Cemetery.
  ``(b) The memory of a person described in subsection (c) may not be 
honored in a memorial area in a cemetery in the National Cemetery 
System (described in section 2403(a) of this title) or in such an area 
in Arlington National Cemetery (described in section 2409(a) of this 
title).
  ``(c) A person referred to in subsections (a) and (b) is any of the 
following:
          ``(1) A person who has been convicted of a Federal capital 
        crime for which the person was sentenced to death or life 
        imprisonment.
          ``(2) A person who--
                  ``(A) is found (as provided in subsection (d)) to 
                have committed a Federal capital crime, but
                  ``(B) has not been convicted of such crime by reason 
                of such person not being available for trial due to 
                death, flight to avoid prosecution, or determination of 
                insanity.
  ``(d) A finding under subsection (c)(2) shall be made by the 
Secretary, in the case of a cemetery in the National Cemetery System, 
or by the Secretary of the Army, in the case of Arlington National 
Cemetery. Any such finding may only be made based upon a showing of 
clear and convincing evidence, after an opportunity for a hearing in a 
manner prescribed by the Secretary or the Secretary of the Army, as the 
case may be.
  ``(e) For purposes of this section, the term `Federal capital crime' 
means an offense under Federal law for which the death penalty may be 
imposed.''.
  (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 24 of such title is amended by adding at the end the following 
new item:

``2411. Prohibition against interment or memorialization in the 
National Cemetery System or Arlington National Cemetery of persons 
committing Federal capital crimes.''.

  (c) Effective Date.--Section 2411 of title 38, United States Code, as 
added by subsection (a), shall apply with respect to applications for 
interment or memorialization made on or after the date of the enactment 
of this Act.

SEC. 2. CONDITION ON GRANTS TO STATE-OWNED VETERAN CEMETERIES.

  Section 2408 of title 38, United States Code, is amended--
          (1) by redesignating subsection (d) as subsection (e); and
          (2) by inserting after subsection (c) the following new 
        subsection:
  ``(d)(1) In addition to the conditions specified in subsections (b) 
and (c), any grant made on or after the date of the enactment of this 
subsection to a State under this section to assist such State in 
establishing, expanding, or improving a veterans' cemetery shall be 
made on the condition described in paragraph (2).
  ``(2) For purposes of paragraph (1), the condition described in this 
paragraph is that, after the date of the receipt of the grant, such 
State prohibit the interment or memorialization in that cemetery of a 
person described in section 2411(c) of this title (except that a 
finding described in paragraph (2)(A) of such section shall be made for 
purposes of this subsection by an appropriate official of such 
State).''.

  Amend the title so as to read:

      An Act to amend title 38, United States Code, to prohibit 
interment or memorialization in certain cemeteries of persons 
committing Federal capital crimes.

                              Introduction

    The Senate passed S. 923 amended on June 18, 1997, without 
prior Senate Committee consideration. The full Committee met on 
September 11, 1997 and ordered S. 923 reported favorably with 
an amendment in the nature of a substitute by unanimous voice 
vote.

                      Summary of the Reported Bill

    S. 923, as amended, would:

    1. LDeny burial and memorialization in a cemetery operated 
by the Department of Veterans Affairs, Arlington National 
Cemetery and certain state veterans' cemeteries to persons 
convicted of Federal capital crimes.
    2. LAuthorize the appropriate Secretary or state official 
to deny burial and memorialization on the grounds of clear and 
convincing evidence that the person committed a Federal capital 
crime but was never tried because the person died prior to 
trial, avoided prosecution through flight, or was determined to 
be insane.

                       Background and Discussion

    The commission of certain crimes has long been the basis 
for denial of veterans' benefits. Sections 6103, 6104, and 6105 
of title 38, United States Code, authorize denial of some or 
all Department of Veterans Affairs (VA) benefits for more than 
twenty Federal crimes, including fraud, treason, and subversive 
activities. Additionally, section 5313 of title 38, United 
States Code, provides for the reduction of VA disability 
compensation paid to felons serving sixty or more days in a 
Federal, state, or local penal institution. Under this section, 
the maximum rate of compensation payable is reduced to10 
percent for a veteran rated at 20 percent or more disabled. 
Compensation for a veteran rated at less than 20 percent 
disabled is reduced to an amount equal to one-half of the 10 
percent rate. As amended, S. 923 would deny burial in certain 
veterans' cemeteries for those convicted of a Federal capital 
crime.
    A Federal capital offense is a crime punishable by death. 
Most of the 51 Federal capital offenses require that a death 
occur as a result of, or during, the commission of a crime. 
This includes the classic case of first-degree murder and many 
felony-murder offenses such as willful destruction of an 
aircraft, hostage taking, violence in an international airport, 
and train wrecking, which result in the death of one or more 
persons. However, there are several felony-murder offenses 
which do not require the death of a person in the commission of 
the crime but are capital offenses. The ``drug king-pin'' 
offenses are an example. (See 18 U.S.C. 3591(b)(1)(2) and 21 
U.S.C. 848.)
    Denial of veterans' benefits to those with qualifying 
military service is an extraordinary act. Veterans' benefits 
are, in the words of General Omar Bradley, ``. . . one means by 
which society attempts to ameliorate the human tragedy of war 
and distribute its burdens.'' In most cases, post-service 
conduct is irrelevant to the veteran's status and eligibility 
for benefits. However, when a person is convicted of a heinous 
crime and sentenced to death or life imprisonment under Federal 
law, then such post-service conduct becomes relevant for a 
regulatory purpose--establishing additional qualifications for 
those persons who can be buried in Federal cemeteries.
    Veterans' cemeteries are intended to be national shrines 
that honor both those buried therein as well as the principle 
of service to the nation. Thus, Congress has a duty to protect 
the integrity of veterans' benefits programs and the honor of 
those buried in veterans cemeteries.
    The Department of Veterans Affairs currently operates or 
maintains 115 national cemeteries and 35 soldiers lots and 
Confederate cemeteries. The VA also funds the construction and 
improvement of state veterans' cemeteries through grants. 
Twenty-three states and territories have received funding for 
these cemeteries, and eight states and territories have 
applications for cemetery grants pending at the Department of 
Veterans Affairs. The Department of the Army has operational 
jurisdiction over Arlington National Cemetery.
    Under S. 923, a bill passed by the U.S. Senate in the 105th 
Congress, a veteran convicted of any Federal capital offense 
would be ineligible for all VA benefits. As ordered reported by 
the House Committee on Veterans' Affairs on September 11, 1997, 
S. 923 would be more narrow in its sanctions than the passed 
Senate bill. It would limit the loss of benefits to burial or 
memorialization in a cemetery operated by the Department of 
Veterans Affairs, Arlington National Cemetery, and any 
veterans' cemetery for which a state receives a VA grant after 
enactment of the bill. This loss of benefit would apply to a 
person convicted of a Federal capital crime who was sentenced 
to death or life imprisonment. It would not affect any other 
veterans' burial benefit such as a flag, Presidential Memorial 
Certificate or payments to spouses and dependents. Spouses and 
dependent children who are now eligible for burial benefits 
under title 38 would not be affected by this bill unless 
convicted of a Federal capital crime in their own right.
    On July 9, 1997, the Committee held a hearing on S. 923 and 
H.R. 2040. H.R. 2040 would limit its burial forfeiture 
sanctions to those sentenced to death or life imprisonment for 
murdering Federal officials and for terrorist acts. 
Representatives of veterans organizations clearly favored the 
less draconian forfeiture of burial and memorialization 
contained in H.R. 2040 over the broad denial of all benefits 
proposed by S. 923. However, several members of the Committee 
raised the issue of inconsistency in denying benefits only in 
the case of murdering a Federal official as called for in H.R. 
2040. These members clearly preferred to expand the category of 
crimes which warrant revocation of eligibility to include all 
Federal capital crimes, and one member argued strongly for 
inclusion of state capital crimes. Concern was also expressed 
about provisions relating to persons who are insane or mentally 
ill. Mr. Quinn offered the amendment to S. 923 to accommodate 
the concerns of the veterans organizations and those members 
who believed that the full range of Federal capital crimes 
should be included. The Committee believes this approach is 
consistent with existing restrictions in title 38, United 
States Code, and preserves the unique status of veterans' 
benefits.
    The Committee received testimony from Mr. Johnny H. 
Killian, Senior Specialist in American Constitutional Law, 
Congressional Research Service, with regard to the 
constitutional issues of ex post facto laws and bills of 
attainder that may be raised by S. 923, as amended. For a law 
to be an unconstitutional ex post facto law or in violation of 
one of the other limits on Congressional power, the law must 
impose punishment. It is reasonable and permissible under the 
Constitution of the United States for Congress to regulate 
eligibility for the Federal benefits administered by VA. As 
amended, S. 923 is an exercise of Congress' power to establish 
qualifications for entitlement to a Federal benefit. Further, 
establishment of additional qualifications for burial or 
memorialization in a Federally funded cemetery is not a 
punitive action, as that term has been used in decisions of the 
United States Supreme Court construing section 9 or Article I, 
and thus does not violate the prohibition on ex post facto 
legislation. Finally, since the bill applies to a broad class 
of persons, it is not a bill of attainder.

                      Section-by-Section Analysis

    Section 1(a) would amend chapter 24 of title 38, United 
States Code, to add a new section 2411, to deny burial or 
memorialization in cemeteries operated by the Department of 
Veterans Affairs, Arlington National Cemetery, and certain 
state cemeteries to a person convicted of a Federal capital 
crime, who was sentenced to death or life imprisonment. It 
would also authorize the appropriate Secretary, after an 
administrative hearing at which clear and convincing evidence 
of the guilt of the individual was presented, to deny burial or 
memorialization rights to individuals not available for trial 
due to death, flight to avoid prosecution, or insanity.

    Section 1(b) would amend the table of sections at the 
beginning of chapter 24.

    Section 1(c) would establish the date of enactment as the 
effective date for all applications made on or after that date.

    Section 2 would amend chapter 24 of title 38, United States 
Code, to require any state that receives funding for a state 
veterans' cemetery under the VA's state cemetery grant program 
to deny burial or memorialization in that cemetery to a persons 
convicted of a Federal capital crime, who was sentenced to 
death or life imprisonment. It would also authorize the 
appropriate state official, after an administrative hearing at 
which clear and convincing evidence of the guilt of the 
individual was presented, to deny burial or memorialization 
rights to individuals not available for trial due to death, 
flight to avoid prosecution, or insanity.

                           Oversight Findings

    No oversight findings have been submitted to the Committee 
by the Committee on Government Reform and Oversight.

               Congressional Budget Office Cost Estimate

    The following letter was received from the Congressional 
Budget Office concerning the cost of the reported bill:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 30, 1997.
Hon. Bob Stump,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.

    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 923, as amended, an 
act to amend title 38, United States Code, to prohibit 
interment or memorialization in certain cemeteries of persons 
convicted of federal capital crimes.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO contact is Mary Helen Petrus, 
who can be reached at 226-2840.
            Sincerely,
                                           June E. O'Neill,
                                                           Director

    Enclosure

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

 S. 923, As Amended--An act to amend title 38, United States Code, to 
prohibit interment or memorialization in certain cemeteries of persons 
                   convicted of federal capital crime

As ordered reported by the House Committee on Veterans' Affairs 
on September 11, 1997

    Veterans are eligible for burial in a national cemetery if 
they were discharged or separated from active duty under 
conditions other than dishonorable. Members of the armed forces 
who die on active duty, spouses, and minor children of veterans 
are also eligible. In addition, areas in national cemeteries 
may be set aside to honor the memory of veterans who are 
missing in action or whose remains are not available for 
burial. This act would prohibit burial in federally funded 
cemeteries of persons convicted of federal capital crimes for 
which the death penalty or a sentence of life imprisonment was 
imposed. It would also prohibit memorial areas for such 
persons.
    CBO estimates that enactment of this legislation would have 
an insignificant effect on the federal budget. Using data from 
the U.S. Bureau of Justice Statistics and the Federal Bureau of 
Prisons, CBO estimates that the act would apply to few, if any, 
persons each year. According to information from the National 
Cemetery Service and the Department of Veterans Affairs, the 
cost savings would be several hundred dollars per person.
    Because the act could affect direct spending, pay-as-you-go 
procedures would apply--but any such effects would be 
negligible. The act contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act 
of 1995 and would not affect the budgets of state, local, or 
tribal governments.
    If you wh further details on this estimate, we will be 
pleased to provide them. The estimate was prepared by Mary 
Helen Petrus, who can be reached at 226-2840. This estimate was 
approved by Robert A. Sunshine, Deputy Assistant Director for 
Budget Analysis.

                     Inflationary Impact Statement

    The enactment of the reported bill would have no 
inflationary impact.

                  Applicability to Legislative Branch

    The reported bill would not be applicable to the 
legislative branch under the Congressional Accountability Act, 
Public Law 104-1, because it would apply only to certain 
programs and facilities of the Department of Veterans Affairs.

                     Statement of Federal Mandates

    The reported bill would not establish a Federal mandate 
under the Unfunded Mandates Reform Act, Public Law 104-4.

                 Statement of Constitutional Authority

    Pursuant to Article I, section 8 of the United States 
Constitution, the reported bill would be authorized by 
Congress' power to ``provide for the common Defence and general 
Welfare of the United States.''

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (existing law proposed 
to be omitted is enclosed in black brackets, new matter is 
printed in italics, existing law in which no change is proposed 
is shown in roman):

                      TITLE 38, UNITED STATES CODE

          * * * * * * *

                       PART I--GENERAL PROVISIONS

          * * * * * * *

             CHAPTER 24--NATIONAL CEMETERIES AND MEMORIALS

Sec.
2400. Establishment of National Cemetery System; composition of such 
          system; appointment of director.
     * * * * * * *
2411. Prohibition against interment or memorialization in the National 
          Cemetery System or Arlington National Cemetery of persons 
          committing Federal capital crimes.
     * * * * * * *

Sec. 2408. Aid to States for establishment, expansion, and improvement 
                    of veterans' cemeteries

  (a) * * *
          * * * * * * *
  (d)(1) In addition to the conditions specified in subsections 
(b) and (c), any grant made on or after the date of the 
enactment of this subsection to a State under this section to 
assist such State in establishing, expanding, or improving a 
veterans' cemetery shall be made on the condition described in 
paragraph (2).
  (2) For purposes of paragraph (1), the condition described in 
this paragraph is that, after the date of the receipt of the 
grant, such State prohibit the interment or memorialization in 
that cemetery of a person described in section 2411(c) of this 
title (except that a finding described in paragraph (2)(A) of 
such section shall be made for purposes of this subsection by 
an appropriate official of such State).
  [(d)] (e) Sums appropriated under subsection (a) of this 
section shall remain available until the end of the second 
fiscal year following the fiscal year for which they are 
appropriated. If all funds from a grant under this section have 
not been utilized by a State for the purpose for which the 
grant was made within three years after such grant is made, the 
United States shall be entitled to recover any such unused 
grant funds from such State.
          * * * * * * *

Sec. 2411. Prohibition against interment or memorialization in the 
                    National Cemetery System or Arlington National 
                    Cemetery of persons committing Federal capital 
                    crimes

  (a) The remains of a person described in subsection (c) may 
not be interred in a cemetery in the National Cemetery System 
or in Arlington National Cemetery.
  (b) The memory of a person described in subsection (c) may 
not be honored in a memorial area in a cemetery in the National 
Cemetery System (described in section 2403(a) of this title) or 
in such an area in Arlington National Cemetery (described in 
section 2409(a) of this title).
  (c) A person referred to in subsections (a) and (b) is any of 
the following:
          (1) A person who has been convicted of a Federal 
        capital crime for which the person was sentenced to 
        death or life imprisonment.
          (2) A person who--
                  (A) is found (as provided in subsection (d)) 
                to have committed a Federal capital crime, but
                  (B) has not been convicted of such crime by 
                reason of such person not being available for 
                trial due to death, flight to avoid 
                prosecution, or determination of insanity.
  (d) A finding under subsection (c)(2) shall be made by the 
Secretary, in the case of a cemetery in the National Cemetery 
System, or by the Secretary of the Army, in the case of 
Arlington National Cemetery. Any such finding may only be made 
based upon a showing of clear and convincing evidence, after an 
opportunity for a hearing in a manner prescribed by the 
Secretary or the Secretary of the Army, as the case may be.
  (e) For purposes of this section, the term ``Federal capital 
crime'' means an offense under Federal law for which the death 
penalty may be imposed.
          * * * * * * *

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