ACLU Letter to House Judiciary Committee Voicing Opposition to H.R. 3060, Terrorist Death Penalty Enhancement Act of 2005

The Honorable Howard Coble
Subcommittee on Crime, Terrorism and Homeland Security
House Judiciary Committee

The Honorable Bobby Scott
Subcommittee on Crime, Terrorism and Homeland Security
House Judiciary Committee

Re: H.R. 3060, Terrorist Death Penalty Enhancement Act of 2005

Dear Chairman Coble and Ranking Member Scott:

We write to voice our opposition to the drastic expansion of the federal death penalty in H.R. 3060, the ""Terrorist Death Penalty Enhancement Act of 2005."" The proposed legislation would creating twenty-five (25) separate new death penalties in one stroke. Universal application of the death penalty to terrorism crimes would effectively erase any distinction between terrorist offenses. The controversial ""material support"" offense would be on equal footing with a hijacking. Far from making America safer, this bill would undermine international cooperation against terrorism by complicating the extradition of suspects and sharing of evidence with our allies who have abolished the death penalty. Finally, major expansion of death-eligible terrorism crimes could have a reverse deterrent effect, giving terrorist groups new martyrs for the cause. The House Judiciary, Subcommittee on Crime, Terrorism and Homeland Security is scheduled to mark up H.R. 3060 June 30, 2005; we strongly urge you to oppose this legislation.

Congress Should Not Expand The Federal Death Penalty

Until It Ensures Innocent People Are Not On Death Row Federal law already provides a lengthy and growing list of crimes of terrorism. Forty-six ""Federal crimes of terrorism"" are listed at 18 U.S.C. § 2332b(g)(5). Twenty of these crimes currently carry a death penalty if death results in the course of the crime. The proposed legislation, with one exception[1], would provide a death penalty for every crime on the terrorism list adding at least twenty-five new death penalties to the federal criminal code in one stroke. Also, the bill will make seven additional offenses eligible for the death penalty and prevent people having a hearing before being prosecuted for a capital crime under the continuing criminal enterprise statute.

The death penalty is in need of reform, not expansion. According to the Death Penalty Information Center, 119 prisoners on death row have now been exonerated since 1973. Chronic problems, including inadequate defense counsel and racial disparities, plague the death penalty system in the United States. With twenty death penalties for federal crimes of terrorism already on the books, prosecutors have ample opportunity to seek the death penalty in serious terrorism cases. The expansion of the death penalty potentially to numerous federal felonies creates an opportunity for more arbitrary application of the death penalty.

States continue to address the systemic problems with the administration of the death penalty by implementing reform and moratorium efforts, while the federal government, in H.R. 3060, is moving to expand the death penalty in lieu of enacting or implementing reforms on the federal level. Expansion of the federal death penalty undermines the very reforms that were enacted in last year's Justice for All Act (P.L. 108-405).

A Drastic and Unwise Expansion of the Federal Death Penalty Would Erase Distinctions Among Terrorism Offenses

Congress should not simply adopt, without examination, the list of ""Federal crimes of terrorism"" as a proxy for crimes that are serious enough to warrant the death penalty. In listing ""Federal crimes of terrorism,"" Congress did not choose only the most serious terrorism offenses for which it considered the death penalty to be an appropriate punishment, but also included other crimes that Congress created for the goal of preventing and deterring terrorism, including terrorism financing, material support, and computer-related offenses. Some of these crimes have been defined very broadly to enable the government to prosecute persons whose actions may have some relationship to terrorism but whose involvement is more peripheral than those who commit bombings, hijackings, murders or other terrorist acts that already carry the death penalty.

For example, one crime that currently does not carry the death penalty is the offense of providing ""material support"" to a designated foreign terrorist organization. This offense was created in 1996 with a maximum sentence of ten years in prison. The USA PATRIOT Act increased the maximum sentence to fifteen years in prison, with a possibility of a life sentence if death results.

There remains substantial controversy about the breadth of the ""material support"" offense because a conviction requires only that the government show the individual ""knowingly"" gave assistance to an organization designated as a terrorist organization, even if the assistance was only for the organization's lawful activities. The government argues that a defendant may be convicted even if he did not know of the designation, believed the assistance would support only charitable activities, and even if the assistance in fact only benefited charitable activities.

One federal appeals court has now ruled the material support statute, as amended by the USA PATRIOT Act, must be construed to require knowledge of the designation or of the organization's unlawful activities, and that its prohibitions on providing ""training"" and ""personnel"" are void for vagueness.[2] Adding a death sentence to such a broad statute will only contribute to its constitutional flaws.

While the bill would only permit the death penalty for material support if death results, a prosecutor could be expected to argue that any financial or other contribution to a designated foreign terrorist organization - even for humanitarian activities - is fungible and therefore assisted the organization in committing terrorist acts that resulted in death.

The following example helps to illustrate why it is so inappropriate to make the crime of material support a death-eligible offense:

Joshua attends a function at a local community center in which he views a graphic film about suicide bombings in Israel. The film praises unofficial ""armed resistance"" by Jewish militants to Islamic terrorist groups. At the function, Joshua gives money for the ""Kahane Chai Relief Fund"" for widows of Palestinian attacks. Joshua suspects the charity may be a front, but is angry enough after seeing the film that he does not care. Joshua does not know that Kahane Chai has been designated by the State Department as a foreign terrorist organization.[3] Under this legislation, Joshua's actions are not only a crime, but he could now be facing the death penalty.

Supporters of the bill may argue that prosecutors can be expected to exercise discretion and will not seek the death penalty except in very egregious cases. While prosecutorial discretion is an important element of the criminal justice system, prosecutors should not have unlimited discretion. The bill's expansion of the death penalty is likely to affect only the more peripheral cases in which prosecutors would not normally seek the death penalty - but where there may be political pressure to do so because the defendants belong to an unpopular religious, ethnic or political group.

Dramatic Expansion of the Death Penalty Will Hinder International Cooperation Vital to Catching and Imprisoning Terrorists

The radical expansion of the death penalty provided in H.R. 3060 would not aid in preventing terrorism or making America safer. Instead, the legislation is likely to significantly impede international cooperation in combating terrorism by creating new barriers to international legal assistance. Already, many nations that have abolished the death penalty are unwilling to extradite or provide evidence in federal terrorism cases if the death penalty might result from their cooperation.

Other nations have become increasingly critical of the United States for its continued and even expanding use of the death penalty when the international trend has been towards abolition. The exoneration of more than one hundred former inmates of America's death row has not gone unnoticed abroad. Diplomacy concerning the issue of the death penalty has become increasingly tense and complex. By dramatically expanding the number of death-eligible offenses, the bill would dramatically multiply the number of cases in which prosecutors will have to negotiate special agreements with foreign governments to obtain needed cooperation in obtaining evidence or extraditing suspects.[4]

Major Expansion of Federal Death Penalty Could Have ""Reverse Deterrent Effect,"" Giving Terrorist Groups New ""Martyrs"" for the Cause

Finally, the addition of new death penalty offenses to the federal government's already considerable arsenal of twenty death-eligible terrorism crimes will almost certainly have no deterrent effect on suicidal, religiously-motivated terrorists such as members of Al Qaeda. Well-publicized executions are far more likely to have a perverse ""reverse deterrent effect."" Terrorist groups will use the executions as propaganda to attract new followers who will be asked to emulate the ""courage"" of the ""martyr.""

The United States government should not go out of its way to provide terrorists with the gift of publicity - often the most important tactical goal of any terrorist action. Jessica Stern, a terrorism expert and former member of the National Security Council, warns that executions of terrorists can ""turn criminals into martyrs, invite retaliatory strikes, and enhance the public relations and fund-raising strategies of our enemies.""[5] Put simply, the most dangerous terrorists do not fear death - they seek it. Even for those who do not participate in suicide attacks, the risks inherent in terrorist activity are far more significant than the possibility that a death sentence would be imposed on any given terrorist suspect.

While some may argue the death penalty can be used to obtain cooperation of suspects, other countries with more experience in countering terrorist organizations have specifically rejected the death penalty for terrorists. While imprisoning terrorists also carries risks, these nations have determined that the risks of executions are greater, outweighing any potential benefits. For example, the United Kingdom voted to repeal the death penalty for terrorism in Northern Ireland on the basis that executing terrorists only increases violence and puts soldiers and police at greater risk. Spain similarly rejected the death penalty as counterproductive in its decades-long campaign against the Basque terrorist group ETA. Even as the Israeli government continues its controversial tactic of targeted killings of terrorist suspects, its judges do not impose the death penalty on terrorists in Israeli custody.

H.R. 3060 is a drastic and unwise expansion of the government's most sobering power - the power to take a life. H.R. 3060 will not make America safer, and thus we urge members to squarely oppose it.

Sincerely,

Greg Nojeim
Acting Director

Jesselyn McCurdy
Legislative Counsel

cc: House Judiciary Committee

Footnotes

[1] 18 U.S.C 1363 Buildings or property with special maritime and territorial jurisdication.
[2] Humanitarian Law Project v. United States Dep't of Justice, 352 F.3d 382 (9th Cir. 2003).
[3] The list of foreign terrorist organizations currently numbers 37 and is maintained on the State Department's website at http://www.state.gov/s/ct/rls/fs/2003/17067.htm. See also Jerry Seper, 4 Jewish Web Sites Deemed ""Terrorist,"" Wash. Times, Oct. 11, 2003. [4] See Andrea Gerlin, United States May Have to Give Up Death Penalty to Extradite Suspects, Philadelphia Inquirer, Oct. 1, 2001, and Milt Bearden, Death Penalty Would Hinder Anti-Terrorism, Op-Ed, Wall Street Journal., June 4, 2001.
[5] Jessica Stern, Execute Terrorists at Our Own Risk, Op-Ed, N.Y. Times, Feb. 28, 2001.