Patriot Death Games

Wednesday, November 2, 2005

THE USA PATRIOT Act is intended to give the government the authority it needs to prevent terrorism. But the House has larded its version of the bill reauthorizing some of those powers with extraneous provisions that would significantly reshape the federal death penalty -- and not just in terrorism cases. Whatever else happens in the House-Senate conference committee that will meet soon to reconcile differing versions of the bill, these provisions need to be removed.

The most troubling is a little-noticed section that would dramatically alter capital sentencing proceedings. Currently a jury has to be unanimous to impose death: one dissenter and the punishment defaults to life in prison. The bill would change that by allowing a new jury to be empaneled whenever a sentencing jury cannot make a unanimous decision one way or the other. This would effectively give prosecutors a do-over in many of the cases in which they fail to achieve a death sentence the first time around -- or the second time or the third. We oppose capital punishment, but even its supporters should agree that a sentence so severe and irreversible should be meted out only when the arguments for it are overpowering. When a qualified juror is not persuaded, prosecutors should not get another chance.

Another House proposal would permit a death sentence in terrorism cases even when the defendant did not intend to kill. Under current law, capital sentences require not merely a homicide but evidence of intent either to kill or to seriously injure someone, except in cases involving espionage and treason. The new language would group terrorism crimes in with those espionage and treason cases, where intent to kill is not necessary. It would become easier to execute low-level conspirators who raised money or aided a plot in some way but who did not mean for their actions to cause death or injury. Depending on how the courts interpret this change, it could dramatically expand the federal death penalty.

On the substantive matters at the bill's core, the Senate's bill is preferable to the House's in important respects -- giving the government the authorities it needs while building in better checks and balances than exist now. But to get the right answer on the Patriot Act, it is critical that controversial, unrelated legislation be considered separately. On their own, such radical changes in the federal death penalty would have trouble getting through Congress. They shouldn't be slipped through either.

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