aircraft hijacking, and second, the alternatives available to Congress if it desires to provide for capital punishment in some aircraft hijacking situations.

There is no question that the existing air piracy statute and the proposed language of S. 39 are subject to the same infirmity as the criminal statutes involved in the Furman case, that is, they provide for discretionary application of the death penalty by judge or jury without standards to aid in the exercise of this discretion. Unlike murder and rape, of course, which were involved in the Furman case, aircraft piracy is a narrower category of offense and one to which deterrence arguments are somewhat stronger because of the premeditative character of most hijackings.

While the matter is not entirely clear, the Department of Justice is doubtful whether the death penalty provisions of the aircraft piracy statute or of S. 39 would be sustained in their present form by the Supreme Court. In the face of this uncertainty, and of the nonuse of the death penalty by the Federal courts for more than 10 years, Federal prosecutors are unlikely to seek the death penalty under existing statutes because of the risk of judicial reversal of any conviction on sentencing grounds. In fact if not in law, the Furman decision has placed the enforcement of these death penalty provisions in their present form under a permanent cloud.

What then is the possibility for legislative action that would restore the death penalty to at least some aircraft hijacking cases? Would such action be desirable? And what form should it take? It is to these questions that I would now like to turn.

The Department of Justice believes that the death penalty has an important but limited role as a sentencing alternative in aircraft hijacking. The death penalty-which expresses the public revulsion toward a crime that is particularly heinous and affects vital Federal interests may serve in some instances as a realistic deterrent.

The nature of aircraft hijacking and the accelerating increase in its frequency indicate that severe punishment is necessary and appropriate for this crime. Nearly all hijacking situations involve the use or display of firearms or other threats of violence. The lives of innocent passengers and of airline personnel are jeopardized and a period of terror and fear initiated.

Whether the motive is one of self-proclaimed political protest, one of pecuniary gain, or one of attempted escape from prosecution, most air piracy offenses can generally be characterized as deliberate and premeditated. Where the act of air piracy is the result of predemitation and involves a willful disregard of the lives of others, rather than a momentary impulse, it is reasonable to infer that the prospect of death will have a deterrent effect.

The Department of Justice has under consideration several alternative drafts of legislation which would restore the death penalty for selective use in a small number of highly serious and premeditated crimes, including aircraft hijacking. Since final agreement has not been reached on some aspects of the legislation, it should be understood that my discussion of legislative options today is tentative in character. One option is a constitutional amendment nullifying the Furman decision. The purpose of such an amendment would be to revalidate

the practice of sentencing guilty offenders to death on the basis of an overall discretionary judgment. It would reinstate, in general, the situation prevailing prior to the Furman decision.

One obvious advantage of an amendment is certainty. As a provision of the Constitution, it would be ipso facto constitutional. A second advantage is that a constitutional amendment would restore to both State and Federal legislative bodies the authority to make judgments concerning the proper application of capital punishment.

The principal disadvantage of this approach, aside from the stamp of approval it would appear to give to broadened use of the death penalty, is delay and uncertainty of ratification. Ratification, as you know, requires the concurrence of three-fourths of the States. Since nine States have abolished the death penalty entirely and a number of others have limited it narrowly, prospects for ratification of an amendment reinstating the death penalty would be time consuming as well as

uncertain in result.

Moreover, it might be difficult to justify the necessity for passage and ratification of an amendment in view of the statements by seven members of the Court in the Furman case that the death penalty has not been made unconstitutional per se. Our view is that an attempt first should be made to propose legislation that meets the guidelines suggested by the Court in the Furman case.

A second alternative is legislation which would provide for mandatory death penalties. As I use the term here, a mandatory death penalty refers to a statute which provides that the defendant must be sentenced to death if he is convicted of the offense.

There are a few Federal statutes which, in defining the military jurisdiction, provide for a mandatory death penalty upon conviction of a certain specific offense such as espionage. Such statutes were not before the Court in the Furman case; and the option of providing a mandatory death penalty for very serious and narrowly circumscribed offenses is a possibility under the Court's decision.

There is one substantial advantage to this approach. It would eliminate capriciousness in the imposition of the death penalty on those convicted of certain offenses, simply because all of them would be executed. There is a plausible argument that this certainty of imposition would meet the principal objections to capital punishment voiced by several Justices in the Furman case.

If such a statute were limited to heinous crimes which affect a vital Federal interest, especially crimes in which premeditation is a normal element, there is a strong possibility that the statute would be upheld by the Supreme Court. Thus the Department of Justice would vigorously defend the constitutionality of a Federal statute providing a mandatory death penalty for a crime such as assassination of a President or treason in wartime.

The Furman decision, however, does not allow a confident prediction that broadly applicable mandatory death penalties would be upheld by the Supreme Court. There are indications that some of the dissenting Justices might join with the majority members to invalidate overly broad mandatory provisions. Chief Justice Burger's dissenting opinion stated, and I quote: "If [mandatory death penalties are] the only alternative that the legislatures can safely pursue under today's ruling, I would have preferred that the Court opt for total abolition."

The objections to mandatory death penalties, however, are not based on humanitarian grounds alone. Such provisions are often opposed by law enforcement officials on very practical grounds. The danger of jury nullification is a problem whenever the jury may believe that death is too severe a punishment in the particular instance. If the only possible penalty is death and juries know it, they may simply refuse to convict, regardless of the strength of the evidence.

Similarly, the ability of authorities to negotiate with an aircraft hijacker in the midst of a crisis situation might be adversely affected if this crime carried a mandatory death penalty. It would be unfortunate if the lives of innocent passengers were lost because a hijacker believed that he had nothing to lose by continuing a suicidal flight rather than surrendering. Here as elsewhere, punishment that is too severe or too inflexible may interfere with rather than enhance effective law enforcement.

A mandatory death penalty for air piracy offenses may also give rise to extradition problems-a subject on which the United States is engaged in delicate international negotiations and desires international cooperation. Several nations, such as Spain, refuse to extradite a person who will be subject to the death penalty. Cooperation in these situations had been obtained thus far by offering assurances that the Federal prosecutors will not seek the death penalty. A mandatory death sentence provision in an aircraft hijacking statute would stand in the way of extradition in such cases.

In addition, although air piracy offenses can generally be characterized as premeditated and therefore deterred by the possibility of the death penalty, recent studies concerning hijacking offenders indicate that emotional disorders are characteristic of some. The threat of death may not operate as an effective deterrent to such persons, especially if the penalty is applied broadly rather than restricted to situations in which the hijacker has acted with willful disregard for innocent lives with resulting death or serious injury.

These and other practical considerations lead the Department of Justice to conclude that, if Congress desires to enact a mandatory death penalty applicable to aircraft hijacking, it should be restricted to those situations in which the hijacker's willful disregard of the lives of others resulted in death or serious injury.

There is a third legislative option which we prefer. This legislative alternative would eliminate arbitrary imposition of the death penalty by providing by statute for a mechanism which would guide the judge or jury in the exercise of the judgment whether a particular defendant should be sentenced to death. Legislation limiting capital punishment to certain well-defined situations of aircraft piracy and providing standards for its imposition is likely to withstand constitutional attack and also to serve as an effective law enforcement tool. There are a number of mechanisms which have been considered by the Department in order to insure that the imposition of the death penalty follows a rational and uniform pattern. Carefully defined statutory guidelines could be enacted listing circumstances of aggravation and mitigation to be considered by the jury or judge in deciding whether to impose the death penalty. This is the approach recommended in the model penal code and by the Brown Commission.

The Department's most recent draft of proposed legislation on this subject provides for potential application of the death penalty only in a situation in which an aircraft hijacking results in death. In this situation a separate sentencing hearing generally would follow the determination of guilt. In this separate proceeding the jury would consider evidence concerning the existence or nonexistence of specified criteria which would either require or preclude the imposition of the death sentence by the judge.

Thus if the jury, for example, found that the defendant had created a grave risk of death to two or more persons in addition to the victim of the offense, or that the crime had been committed in an especially cruel or depraved manner, the finding of either of these facts would require the judge to sentence the defendant to death. On the other hand, a jury finding, for example, that the defendant was under the age of 18, or that he was under the influence of unusual and extreme mental or emotional disturbance would preclude the imposition of the death sentence regardless of the existence of aggravating circumstances. The examples I have just given are not comprehensive but may serve to illustrate the overall scheme.

The principal advantages of legislation following this approach are that it would be responsive to the guidelines contained in the Furman opinion. Narrowing the range of offenses for which capital punishment is prescribed to the most serious offenses would reduce the possibility of its unreasonable imposition. This, coupled with sentencing guidelines, should ultimately produce a rational pattern in death sentencing. Mandating capital punishment on the basis of special findings by the jury should also promote greater uniformity and rationality.

While there is no assurance that this approach would be sustained by the Supreme Court, it probably stands the best chance of success and, in addition, is to be preferred to other alternatives on policy grounds. It provides the best opportunity for the selective application of the death penalty to highly serious offenses in a manner that may deter other offenders, satisfy the moral standards of the community, and comport with judicial notions of rationale and fairness. Thank

you.

Senator CANNON. Thank you, Mr. Cramton. Your testimony seems to favor changes in the current law and amendments to S. 39 which would narrowly restrict the courts in imposing the death penalty for aircraft piracy but would require mandatory death sentence under certain, very particular, circumstances.

Now, is that in fact your recommendation or will it be, and, if so, can you provide the committee with draft changes to the Federal Aviation Act and to S. 39, which would effect these changes in the death penalty situation?

Mr. CRAMTON. What I have described is the current thinking of the Department of Justice. This thinking is going on in connection with the pending Federal Criminal Code revision which is now nearing completion for submission to the Congress.

None of this, obviously, has been cleared by the Attorney General and particularly by the Office of Management and Budget for submission to the Congress. But it is our expectation that some time in the

relatively near future the Department will propose legislation, and if the thinking that prevails now continues to prevail, it will follow the lines which I have outlined.

Senator CANNON. That is rather an interesting remark that it hasn't been cleared by the OMB. Do they clear it because of financial implications involved in imposing the death penalty, or what is the

Mr. CRAMTON. Not at all. We have an executive branch of the Federal Government, and the executive branch is headed by the President of the United States who, under the Constitution, is responsible for all of the policies of the executive branch.

One of the requirements, which has been in existence not only in this administration but in every administration in recent years, is that proposed legislation of executive departments be cleared by the OMB and the White House.

There is nothing new about that; there is nothing sinister about it. All it means is that we do have an executive branch of the Government, and the President is the head of it. And the executive departments are supposed to submit legislation which follows the policy desires and are consistent with the views of the President.

Senator CANNON. Well, now, the committee wants to report a bill such as S. 39 within a few weeks at the most. Will you have a firm recommendation for us on this problem by then?

Mr. CRAMTON. The Department of Justice would certainly be available to outline some difficulties of the existing language. The language of S. 39 insofar as it deals with the death penalty is exactly the same as those of the existing air piracy statute. We would have suggestions. Similar suggestions are contained in the report of the Brown Commission, and in the bill to revise the Federal Criminal Code that is under consideration by Senator McClellan's committee.

There is a question as to whether these changes ought to be done piecemeal aircraft piracy in this legislation, other crimes in other legislative proposals. Or whether it ought to be done as part of a broader and more systematic revision of all of the Federal crimes that call for capital punishment.

Now, we haven't crossed that bridge yet, but it is my personal inclination that in the treatment of the death penalty, it would be wise at this point to take the broad overall approach and to decide the crimes for which we think the death penalty is appropriate, what the mechanism for consideration of the death penalty should be, and what the standards to guide the imposition of it by a jury ought to be overall rather than piecemeal for each crime.

And that suggests to me that what perhaps should be done with S. 39 at this point is to merely leave the death penalty question open and call for life imprisonment, or else refer to existing statutory provisions for punishment in 18 U.S.C.

Senator CANNON. Can you provide the committee with precedents under U.S. law or U.S. federalism in which the U.S. Government has forced, by regulation, State or local government, to provide police presence as a deterrent to the commission of Federal crimes or to arrest persons suspected of committing Federal crimes?

Mr. CRAMTON. Yes, one celebrated case comes to mind. This is the case of Testa v. Katt, which involved the Emergency Price Control