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Washington-When the Senate on Dec. 16 failed in its first attempt to renew the USA Patriot Act, it also doomed-at least for now-a largely overlooked, but significant, expansion of the federal death penalty and a major change in states’ handling of capital cases. At press time, it was still unclear when and if the Senate would try again to approve extension of the overall measure. There are about a half-dozen provisions in the 200-plus-page conference report that would create new death-eligible crimes, most having little to do with the Patriot Act. They make the death penalty available for: Attacking a railroad or a mass-transit vehicle. Under current law, attacking a railroad is a death-eligible crime but attacking a mass-transit vehicle is not. Engaging in air piracy offenses resulting in death where those offenses occurred after enactment of the Antihijacking Act of 1974, but before the enactment of the Federal Death Penalty Act of 1994. The 1994 act repealed the 1974 act. Lawmakers contend that the courts have interpreted that repeal to create a gap in the application of the death penalty to air piracy crimes. This provision, they say, would cover a small but important category of defendants, including those responsible for the December 1984 hijacking of Kuwait Airways flight 221; the June 1985 hijacking of TWA flight 847; the November 1985 hijacking of an Egyptair flight; and the September 1986 hijacking of Pan Am flight 73. Using a destructive device in maritime navigation. Transporting dangerous materials. Destroying or interfering with maritime activities. The ‘kingpin’ standard A special section addressing illegal methamphetamine production and distribution lowers the standard for charging someone as a drug kingpin. Under current law, drug kingpins are subject to the death penalty. “All of these provisions have nothing to do with the Patriot Act, with the exception of the mass-transit one,” said Timothy Edgar, legislative counsel for the American Civil Liberties Union. “That was a crime created by the Patriot Act. The others are just part of miscellaneous new criminal statutes added on for no particularly good reason.” House and Senate conferees did eliminate the most onerous proposals, said Edgar, including nearly 25 new death penalty crimes and a provision allowing prosecutors who fail to win a unanimous recommendation for death from a sentencing jury to impanel a succession of new juries until there is a unanimous vote. The Patriot Act renewal measure also takes away from the federal courts and gives to the U.S. attorney general the power to determine when states have an adequate system for providing competent counsel in state post-conviction proceedings in order to qualify for expedited federal court review in capital cases under the 1996 Antiterrorism and Effective Death Penalty Act. Increasingly frustrated by the courts’ denial of “opt in” status to their own states, Representative Dan Lungren, R-Calif., and Senator Jon Kyl, R-Ariz., had been pushing for the change in separate and thus far unsuccessful bills. They and others, such as the Criminal Justice Legal Foundation, contend that the courts will never find an adequate state system. But changing the determination from a judicial to a political one raises “grave separation of powers concerns,” and runs counter to the 1996 act’s intent to encourage states to improve defender systems, said habeas scholar Ira Robbins of American University Washington College of Law. David Bruck of Washington and Lee University School of Law and director of the Virginia Capital Case Clearinghouse, agreed, saying, “It does seem amazingly inappropriate to ask a prosecutorial agency, the prosecutorial arm of the federal government, to be the evaluator of state defender systems. States have been amazingly recalcitrant in providing adequate defense services . . . .[T]hey are looking to the attorney general as a rubber stamp.”

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