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One was a prosecutor. Another was a journalist. There was a national guardsman, an environmental protection worker, an accountant, a security guard, a corporate executive and even a sheriff. They had many different motivations, but they were all anthrax hoaxers. And their growing numbers are forcing a national response, complete with a personal pledge from the president to prosecute any and all offenders. The term “hoax” is a misleadingly harmless term for the thousands of threats and simulated attacks occurring across the country. In recent weeks, the Postal Service has been the target of more than 8,600 threats or incidents involving anthrax. The Federal Bureau of Investigation has been deluged by hoaxes at 250 abortion clinics in 17 states. As strange as it may seem, there’s an abundance of Americans who find the role of an al Qaeda terrorist to be funny or exhilarating or useful. Although these are not the first hoaxes to bedevil law enforcement — a brief wave followed the 1982 Tylenol tamperings, for example — today’s hoaxes are far more serious because of their greater number and their drain on the time and resources of limited hazardous materials teams during this crisis. Unfortunately, our laws are not well-equipped to respond. From state to state, there are wide variations in the treatment of hoaxers, including both the overprosecution and underprosecution of individual cases. Model state and/or federal legislation is needed to address this uneven and arbitrary treatment. Such a law would necessarily reconsider our definition of a terrorist. Traditionally, we have distinguished between hoaxers and terrorists on the basis of the lethality of the substance used in the threat. But this distinction is often artificial. What we need is a law that takes into account the hoaxer’s motivation and result. Is the criminal actor merely moronic or truly menacing? WITLESS TO CLUELESS The good news is that many of these individuals really are dimwitted pranksters. It is ridiculous to treat them as hardened criminals, particularly where it is clear that an intended joke between friends has just gone terribly awry. In Chicago, Chad Seabold thought it was funny to leave his roommate an envelope filled with powdered creamer. The roommate believed the threat, and Seabold came home to find his apartment ground zero for a hazardous materials team. A few miles away, prosecutor James Vasselli also thought it was funny to leave an envelope containing sugar on a colleague’s desk with the address of a defendant whom the colleague was prosecuting. In Newark, N.J., Robert Henderson thought it was a hoot to send a friend an envelope filled with Parmesan cheese from “Mohamed” with the street address of two recently arrested terrorist suspects. These three are being prosecuted. Although journalists have been real targets, some members of the media have run with the “joke.” In Seattle, an assignment editor for a television station put white powder in an envelope marked “ANTHRAX” to get a rise out of his colleagues. In Des Moines, Iowa, an awarding-winning television reporter sprinkled fake anthrax in the newsroom for a laugh. It appears that neither of them will be charged. However, in Florida, tennis pro Ronald Bryant Hilburn is facing 15 years in prison for sprinkling flour on Halloween candy to make the evening “more scary” for the kids. Sometimes hoaxers claim public-spirited objectives in creating panic. In Kentucky, Sheriff John Ransdell left sealed envelopes filled with crushed aspirin at the courthouse to see how “ready” employees were for a bioterrorism attack. They were ready and promptly panicked. Likewise, Virginia postal worker Sharon Ann Watson said that she sent an envelope sprinkled with baby powder to force her supervisors to “take anthrax more seriously.” Such idiotic efforts are technically crimes, but the treatment given offenders is varying radically. The Kentucky sheriff will not be charged, while the Virginia postal worker was arraigned Nov. 1 and faces up to 25 years behind bars. Sometimes hoaxers have ulterior motives unrelated to terrorism but still deserving of more serious punishment. In 1998, a Los Angeles accountant called in a fake anthrax scare merely to delay his bankruptcy hearing. More recently, Edward Randle of Chicago called in a fake attack with a Middle Eastern accent because he wanted to go home early. And Nixon Saldanha said that he triggered an anthrax scare in Manhattan’s Grand Central station in the hope of being deported back to India at government expense. Then there’s the judgment-impaired Princess Brown of St. Paul. Angry that a boyfriend had not returned with her car from the mall, Princess called the FBI and reported that the boyfriend was a terrorist who was planning to plant four bombs at the mall. She figured agents would help locate the car. They did. After most of a day’s work, the FBI arrested the boyfriend at gunpoint only to learn the truth about Princess. THE FRIGHTENERS Besides this parade of the clueless, there are the real al Qaeda wannabes for whom terror is the purpose of the crime. While a true anthrax attack will usually kill or injure only a handful of people, its primary purpose is to terrorize an entire community and cause disruption among thousands being evacuated. Since a fake anthrax attack is designed to achieve the same goal, its perpetrator, too, should be treated as a terrorist. There are laws on the books that can be used in such serious cases, but they were mainly designed for other types of crimes. The most relevant is a federal statute making it a crime to use mail or wire communications to transmit a threat involving a weapon of mass destruction. (Other federal laws can be brought to bear for such offenses as disrupting the mail and lying to investigators.) A few states, including Florida and New York, have anti-terrorist laws of their own, but most states must bring lesser criminal charges ranging from disorderly conduct to battery to filing false police reports to criminal threats of violence. So what should the law do with someone like Steven Matthew Cutler, a former technician for a Dallas medical laboratory, who in 1998 sent fake anthrax to a postal center in a vial of water marked “you have just been contaminated by anthrax”? Calling someone like Cutler a hoaxer makes it sound like he’s a boorish uncle at a holiday party. Yet he received only a 21-month sentence for his crime. A “real” terrorist would have gotten life. FITTING THE CRIME The radically different levels of punishment meted out in these cases strongly suggest a need for national and model state legislation. The broadest laws covering the majority of hoaxes should be passed on the state level, leaving federal authorities free to focus on hardened terrorists like those of al Qaeda. A model terrorism law would have four important elements now missing in most state codes. First, the law should contain a definition of terrorism that does not depend on the lethality of the substance but rather on the intent to cause fear. (Such measures are under consideration in several states, including Ohio, and have already been enacted in a few states, including Florida.) Second, the law should provide for graduated levels of punishment. The criminal justice system needs the flexibility to recognize the difference between the prankster who meant no harm and the terrorist who meant to cause fear and panic. Third, the law should allow the state or private parties to sue for double the costs of any evacuation. Such liability, plus probation, may be sufficient penalty for those hoaxers for whom disruption, not fear, was the goal. Consider the Connecticut Department of Environmental Protection employee who allegedly let his agency be shut down for two days at a cost of more than $1.5 million even though he knew the “anthrax” was only nondairy creamer. Or recall the Los Angeles accountant who ducked his bankruptcy hearing. He received one day in jail. Finally, the law should set a truly deterrent penalty for those hoaxers who use simulated lethal substances to spread terror. Deterrence is best understood as the relationship between the detection rate and the penalty level of a crime. As detection increases, less of a penalty is required to deter most criminal actors. Hoaxes have a relatively low detection rate because their initiating act is usually innocuous, such as mailing a letter. Certainly, most hoaxers believe that they won’t get caught. Deterrence, therefore, depends on substantially increasing penalties for those serious actors who do get caught. Laws serve a dual purpose: They give society a way to hold an individual accountable for wrongdoing as well as a means to define wrongdoing in appropriate ways. To fight the terror that is attacking our world on so many levels, we must recognize and punish those “hoaxers” who truly deserve the title and stigma of terrorist. Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University Law School.

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