The House bill that would reauthorize the USA Patriot Act anti-terrorism law includes several little-noticed provisions that would dramatically transform the federal death penalty system, allowing smaller juries to decide on executions and giving prosecutors the ability to try again if a jury deadlocks on sentencing.
The bill also triples the number of terrorism-related crimes eligible for the death penalty, adding, among others, the material support law that has been the core of the government's legal strategy against terrorism.
The death penalty provisions, which were added to the House bill during a voice vote in July, are emerging as one of the major points of contention between House and Senate negotiators as they begin work on a compromise bill to renew expiring portions of the Patriot Act. If approved, the provisions could have a significant impact on future Justice Department terrorism prosecutions.
The Senate version of the bill does not include the death penalty expansions. Senate Democrats say that the proposals are extraneous to the Patriot Act and should not be approved without fuller debate. Death penalty opponents and defense lawyers also contend that the measures, by removing some of the safeguards now in place, would increase the risk that innocent people could be executed.
"These are radical changes in the way federal death penalty cases are litigated, and they were added virtually without any debate," said Jennifer Daskal, U.S. program advocate for Human Rights Watch.
The Justice Department has endorsed the provisions and a spokesman for House Judiciary Committee Chairman F. James Sensenbrenner (R-Wis.) said yesterday that the proposals were viewed as relatively uncontroversial because they were overwhelmingly approved on the House floor.
"I would expect that the House will forcefully advocate for those provisions," said Jeff Lungren, a spokesman for Sensenbrenner. "I would say its prospects look fairly good."
A Republican staffer on the Senate Judiciary Committee said the death penalty issue was "one of several concerns" about the House bill, which also includes fewer restrictions on surveillance and search powers than the Senate version.
The death penalty provisions were added as an amendment by Rep. John Carter (R-Tex.), who had originally proposed the changes in a separate bill called the Terrorist Death Penalty Enhancement Act. The same package was included in a House intelligence reform bill last year but was stripped out during conference negotiations with the Senate, officials said.
Carter spokeswoman Gretchen Hamel said the proposals are important because "the congressman believes capital punishment is a deterrent for all kinds of crimes, including terrorism."
Under the proposals, 41 crimes would be added to the 20 terrorism-related offenses now eligible for the federal death penalty. Prosecutors would also find it easier to impose a death sentence in cases in which the defendant did not have the intent to kill.
In one example cited by Human Rights Watch, "an individual could be sentenced to death for providing financial support to an organization whose members caused the death of another, even if this individual did not know or in any way intend that the members engage in acts of violence."
But critics are most concerned about procedural changes related to juries, including a provision that would allow a trial with fewer than 12 jurors if the court finds "good cause," with or without the agreement of the defense.
The bill would also give prosecutors a chance to try again if a jury is deadlocked over a death sentence. Currently, a hung jury at sentencing automatically results in a life sentence, which mirrors the system used by most of the 38 states that currently allow the death penalty. Five states, including California, allow prosecutors to empanel a new jury if the first one deadlocks.
In a statement to the House Judiciary Committee, Justice Department terrorism chief Barry M. Sabin called the proposal "a major change in federal capital punishment and procedure."
David Bruck, a death penalty expert at Washington and Lee University's law school, noted that federal juries are already screened to remove opponents of capital punishment.
"The chances are that if a jury disagrees the first time, they'll disagree the next time and the next time, no matter how much time and how many millions of dollars you waste on it," Bruck said. "If you can't get a unanimous jury to decide that a particular case is one of the worst of the worst, that tells you something."