Ruling May Widen Federal Death Penalty

The Justice Department declared Monday that capital punishment may be imposed for certain federal crimes even where the death penalty is not specifically authorized by Congress.

The ruling was issued by the department’s Office of Legal Counsel in a lengthy opinion written for the U.S. Sentencing Commission, a nine-member panel created by Congress in 1984 to establish sentencing guidelines for a wide range of criminal statutes.

Binding on Judges

To promote uniformity of sentences by federal judges, Congress said in the Sentencing Reform Act of 1984 that sentencing guidelines to be established by the commission later this year would be binding on judges in all but exceptional cases.

Empowering the commission to extend the death penalty to more federal statutes--if the commission adopts that course in its final report, due April 13--seems certain to be hotly debated in Congress. The panel’s guidelines will take effect within six months unless Congress acts to block them.

U.S. Appellate Judge William W. Wilkins Jr. of Richmond, Va., the commission chairman, said Monday that the panel is still discussing the guidelines. Wilkins had requested a ruling last month on whether the panel had authority to issue guidelines governing judicial imposition of the death penalty.

ACLU Attacks Ruling

The American Civil Liberties Union promptly attacked Monday’s ruling.

“We are very disappointed and disturbed that the sentencing commission is weighing into the death penalty issue,” the ACLU said in a statement.

“There is a very real question, notwithstanding the Justice Department’s view, as to whether or not Congress ever intended to give the sentencing commission the power to reinstate the federal death penalty.”

At present, the death penalty for a federal offense is limited to such crimes as espionage, treason, murder of certain U.S. officials and kidnaping where a victim is harmed. Last year, the House passed comprehensive anti-drug legislation that included capital punishment for certain drug-related crimes, but the Senate so opposed this extension of the death penalty that it refused to accept the bill until the provision was deleted.

Sen. Joseph R. Biden Jr. (D-Del.), now chairman of the Senate Judiciary Committee, led the fight against extending the death penalty.

Review Welcomed

Sen. Strom Thurmond (R-S.C.), the committee’s former chairman and now its ranking Republican member, said that he would welcome giving Congress an opportunity to review death penalty provisions if they are included in the sentencing guidelines. Thurmond is a longtime supporter of capital punishment.

The Justice Department’s opinion, signed by Assistant Atty. Gen. Charles J. Cooper, said there is “no constitutional requirement” that Congress alone must provide for capital punishment. Cooper said that this ultimate sanction may also be “promulgated by an administrative agency exercising delegated authority,” such as the commission.

“Should the commission promulgate capital sentencing guidelines, there is no doubt that sentencing courts would be obligated to abide by them,” Cooper added.

In another memorandum, Assistant Atty. Gen. William F. Weld, chief of the department’s criminal division, told the commission: “The death penalty is necessary to protect society from heinous crimes and to exact just punishment and retribution for such offenses.”