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Justice Douglas based his concurrence on the discriminatory

method of inflicting capital punishment and made no mention of minimizing the discrimination either by narrowing the definitions of capital offenses or requiring that the jury be given standards to guide their determination. Justice Douglas' endorsement of Justice Brennan's Mc Gautha dissent, 40 U.S.L.W. at 4962-963 n. 11 (Douglas, J., concurring), could be taken as adoption of Justice Brennan's views cited above.


Justice White stated that he did not include "more narrowly defined categories of murder or for rape" in the formulation of his opinion. Id. at 4940 (White, J., concurring). Justice Stewart in citing cases not considered included mandatory statutes for narrowly defined

offenses. Id. at 4939. (Stewart, J., concurring).

Both joined in Justice

Since in McGautha

Harlan's majority opinion in McGautha without comment. they found that due process did not require that the jury be given guidelines designed to prevent discrimination in determining whether to impose the death penalty, and in Furman that the exercise of unguided jury discretion had resulted in arbitrary imposition of the death penalty in violation of the Cruel and Unusual Punishments Clause, it is difficult to predict how they would view a statute which attempted to rationalize the cases in which the penalty was imposed either narrowing the definitions of capital offenses or creating standards to guide the jury in their determinations.

It is likewise difficult to ascertain the opinions of Justices Powell and Rehnquist, since the only indicia of their views must be drawn from the fact that they joined in the dissents of the Chief Justice and Justice Blackmun.


In the case of all four dissenters it would seem that the same

reasons that led them to the view that capital punishment imposed in

the murder and rape cases under consideration was not cruel and unusual would dictate a similar result in a case where the capital offense was more narrowly defined or where the jury was guided by legislatively established standards. Again, it should be emphasized that Furman does not sanction or condemn either of these alternatives, regardless of the support that may be garnered from the various individual opinions.

Furman likewise neither sanctions nor condemns the use of capital punishment in kidnapping, treason, air piracy or any other capital offense other than murder or rape. The absence of discussion of these offenses in the ten opinions makes consideration of their validity as punishments in light of Furman too speculative for discussion here.

By the same token there seems little point in discussing the

effect of Furman on state statutory and constitutional provisions creating

a right to bail for all but "capital" offenses.

supra, modified, 6 Cal. 3d 804a (1972).

See, People v. Anderson,

We also refrain from any attempt to determine what effect Furman might have on the tests used to judge allegedly cruel and unusual, noncapital punishments.

The foregoing summary is but a capsulized account of the interplay among the opinions in Furman, the subtleties of which can only be fully appreciated by a careful study of the opinions themselves.

Senator CANNON. Next witness is Mr. John Meadows, Acting Deputy Assistant Secretary for Transportation and Telecommunications, Department of State.


Mr. MEADOWS. Thank you, Mr. Chairman. I have with me Mr. David Ortman, Assistant Chief of the Aviation Programs and Policy Division of the Department.

My statement today will be brief and I will, of course, be pleased to answer any questions you may wish to address to us.

The Department of State's major concern at the moment with respect to the antihijacking program is the elimination of foreign safehavens. When the time comes that hijackers are returned or brought to justice wherever they go, then the threat of hijackings will come to a close.

This is our objective and title I of S. 39 can be a useful tool in achieving this objective. In testimony before you on June 29, 1972, Bert Rein, my predecessor as Deputy Assistant Secretary of State for Transportation and Telecommunications, described in detail the Department's reasons for supporting this legislation and certain suggestions which in our view would improve it, particularly with respect to the secondary boycott provision. We stand by Mr. Rein's testimony. I will not re-plow this ground but will note two subsequent developments which have a bearing on the subject.

Yesterday a meeting opened in Montreal of the legal committee of the International Civil Aviation Organization. The purpose of this meeting is to continue work on drafting an international air security enforcement convention. Such a convention would have two functions. It would establish an international factfinding procedure to make a judgment on whether a state had observed the rules of international law as set forth in the Tokyo, Hague and Montreal conventions with respect to the return of the passengers, crew, and aircraft involved in a hijacking, and with respect to the extradition or punishment of the criminals involved. The convention would also establish a second procedure under which states could take joint action against a nation found to have violated these standards. The provisions in title I of S. 39 would specifically enable the United States to join with other states in the suspension of air services in such a case. Since the United States is taking the lead in advocating this convention, the enactment of these provisions would further demonstrate our resolve in this respect.

Second, I would note that as part of our efforts to counter effectively the skyjacking menace, discussions have been initiated recently with Cuba about a possible hijacking agreement. These discussions are being conducted through the Swiss Embassy which represents our interest in Cuba.

This development followed upon two incidents last October. One involved the flight of three men who had killed a policeman and a

bank manager in Arlington in the course of an attempted robbery and then an airline clerk who tried to question them when they sought to board an aircraft in Houston. The other was a hijack by an escaped convict and two men wanted for serious crimes who, in a harrowing episode over 2 days, almost brought to a tragic end the lives of 31 passengers and crew members. These incidents were shocking examples of the type persons hijackers are and the sort of risk that a hijacking constitutes to the traveling public. We believe that the Cuban Government had these things in mind when it offered to conclude a bilateral agreement with us to deal with hijackers. We immediately indicated our willingness to do so.

Three meetings have already been held in Havana to exchange and review various U.S. and Cuban proposals and ideas, and currently the Department of State has under study the most recent Government of Cuba proposals which were received January 4.

For reasons which you will understand, I am not in a position to comment on the details of these on-going negotiations in open session. However, for the information of the members of this subcommittee I would like to note that these discussions are progressing. In this regard, Secretary Rogers, discussing these talks, has said that "a foundation for agreement has been laid."

Thank you, Mr. Chairman.

Senator CANNON. Thank you, Mr. Meadows. Without going into detail regarding the negotiations with Cuba on the sanctuary problem, how do you feel the chances for success are for achieving a bilateral agreement with Cuba on the issue of air piracy?

Mr. MEADOWS Mr. Chairman, we are hopeful that we will be able to achieve such agreement. The talks have, in our view, been progressing well. And we have a reasonable degree of confidence that they will result in agreement.

Senator CANNON. How soon do you expect that we might have some information as to whether an agreement is going to be concluded? Mr. MEADOWS. I believe, sir, it would be difficult to predict a precise date.

Senator CANNON. I understand that, but I mean a general time frame, do you think within 30 days or do you think within 3 months or what type of time frame do you think we are talking about, that we ought to know something quite definitive?

Mr. MEADOWS. Well, at the risk of climbing somewhat out on a limb, I would say we would certainly hope we could conclude with these discussions and reach agreement sometime in the first part of this year. Senator CANNON. Now, there have been numerous reports in the press about the fate of the U.S. hijackers once they arrive in Cuba. Does the Department have knowledge of the manner in which the Cubans handled the most recent hijackers who escaped to Cuba on the Eastern and Southern hijackings of October and November and does evidence exist that such fugitives will be tried under the Cuban courts for crimes committed in the United States?

Mr. MEADOWS. We have no specific details on the manner of their confinement. We do understand that they have been imprisoned and will be tried in Havana this year. Presumably the crimes for which they will be tried will be offenses under Cuban law but we have been informed through our friends, the Swiss, that the Cuban Government does in fact intend to try these hijackers

Senator CANNON. Now, is it possible in some of these skyjacking cases to Cuba, after these persons have committed other felonies in the United States, that extradition could be had not for the skyjacking, but for the other crimes?

Mr. MEADOWS. Well, Mr. Chairman, we have in effect an extradition treaty with Cuba. We have not yet tested the willingness of Cuba to following through on those provisions of that treaty which would govern crimes committed in the United States. Mr. Örtman informs me we have in fact requested extradition in the two recent cases to which I referred earlier.

To date we have not yet received a reply from Cuba.

Senator CANNON. How long has that request been outstanding? Mr. MEADOWS. We don't have the specific date, Mr. Chairman, but certainly within the last 2 months. The Swiss Embassy has informed us that it delivered our request November 18.

Senator CANNON. I see. Now, since the subcommittee's hearings last year on the aircraft piracy problem, what steps has the Department taken in regard to the sanctuary problem with certain Arab States in the Middle East which have offered haven to U.S. hijackers in the past?

Mr. MEADOWS. Well, Mr. Chairman, we have consistently advocated international agreements, and international implementation of the Hague Convention as a means to provide either extradition or punishment for hijackings.

The exercise we have now intrain which I mentioned in my statement, namely an enforcement convention, is a means to bring international pressure on States which harbor hijackers. We intend to pursue this international agreement most vigorously and we are hopeful that we can reach an international understanding on enforcement that would prevent the use of Arab States or indeed any others as safehavens for hijackers.

Senator CANNON. Senator Hart?

Senator HART. You said we have an extradition treaty with Cuba. That was entered into before the Castro government?

Mr. MEADOWs. Yes, sir.

Senator HART. Has extradition been obtained on any U.S. request since the Castro government went in, are you aware?

Mr. MEADOWS. Sir, not to my knowledge, but I will advise the committee later if there has been such a case.

Senator HART. OK.

Senator CANNON. Thank you very much, Mr. Meadows, we appreciate your being here with us.

The next witness is the Honorable Thomas J. Bliley, Mayor of Richmond, Va., representing the National League of Cities and U.S. Conference of Mayors.


Mr. BLILEY. Mr. Chairman, Senator Hart:

With me today is Mr. Larry Snowhite, legislative counsel for the National League of Cities and U.S. Conference of Mayors.

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