Several pro­vi­sions con­tained with­in the U.S. House of Representatives ver­sion of leg­is­la­tion to reau­tho­rize the USA Patriot Act anti-ter­ror­ism law aim to dra­mat­i­cal­ly trans­form the fed­er­al death penal­ty sys­tem by allow­ing small­er juries to decide on exe­cu­tions and giv­ing pros­e­cu­tors the abil­i­ty to try again if the jury dead­locks on sen­tenc­ing. The leg­isla­tive changes, spon­sored by Texas Congressman John Carter, would also triple the num­ber of ter­ror­ism-relat­ed crimes eli­gi­ble for the death penal­ty.

Carter’s amend­ment, called the Terrorist Death Penalty Enhancement Act, would add 41 crimes to the 20 ter­ror­ism-relat­ed offens­es cur­rent­ly eli­gi­ble for cap­i­tal pun­ish­ment. It would also make it eas­i­er for pros­e­cu­tors to seek a cap­i­tal con­vic­tion in cas­es where the defen­dant did not have the intent to kill. In addi­tion, the pro­vi­sions would allow a tri­al with few­er than 12 jurors if the court finds ​“good cause,” with or with­out the agree­ment of the defense team. Lastly, it would give pros­e­cu­tors the chance to retry cas­es if a jury is dead­locked over a death sen­tence. Currently in fed­er­al death penal­ty cas­es, a hung jury at sen­tenc­ing auto­mat­i­cal­ly results in a life sen­tence, a sys­tem that is used in all but 5 of the 38 U.S. states that have capital punishment. 

Carter’s pro­vi­sions are not includ­ed in the Senate ver­sion of the USA Patriot Act reau­tho­riza­tion bill, and Republican Senate Judiciary Committee staff advi­sors have not­ed that the pro­vi­sions are ​“one of sev­er­al con­cerns” the com­mit­tee has with the House ver­sion of the bill. In 2004, these same pro­posed changes to the fed­er­al death penal­ty law were placed in anoth­er House bill, but were tak­en out dur­ing con­fer­ence nego­ti­a­tions with the Senate.

Critics of Carter’s mea­sure say the new pro­vi­sions could put inno­cent lives at risk by remov­ing impor­tant judi­cial safe­guards. David Bruck, a death penal­ty expert at Washington and Lee University’s law school, added, ​“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. 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.”

(Washington Post, October 26, 2005) See Recent Legislative Activity and Federal Death Penalty.

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