By Jayson Blair, The New York Times
RICHMOND, Va., -- After the Sept. 11 attacks, the Virginia legislature hastily passed a law that authorized the death penalty for acts of terrorism.
But the first use of the untested statute was in the charges against the two men accused in the three-week sniper attacks that left 10 dead in the Washington area.
Prosecution under the new law eliminates a potentially serious obstacle to sending the two men, John Muhammad and Lee Malvo, to death row: the need for prosecutors to prove which man squeezed the trigger in the Virginia attacks.
Now some legislators and others say the use of the law in the sniper case might lead to a broader application than was intended and lead to more death penalty cases in a state that is second only to Texas in the number of executions.
“When we were writing this bill we were thinking about Osama bin Laden and someone flying a plane into the Pentagon,” said David B. Albo, the member of the Virginia House of Delegates who sponsored the anti-terror bill. “To be honest with you, when we passed this law I never thought it would be used.”
Mr. Albo, a Republican, said that he supported the use of the terrorism law in the sniper case but that the case showed that the law might need to be revised.
State Delegate James F. Almand, a Democrat from Arlington, a suburb of Washington, said he was more concerned.
“There is a possibility that the terrorism law might open the door to all sorts of capital prosecutions we did not intend,” said Mr. Almand, a supporter of Virginia’s capital punishment laws.
The new law, which was passed unanimously in February after five drafts and went into effect in July, defines an act of terrorism as a crime committed “with the intent to intimidate the civilian population at large or influence the conduct or activities of the government of the United States, a state or locality through intimidation.”
A provision of the law that prosecutors would not have to prove who fired the shots was a factor in helping Virginia get first crack at the sniper trials. Aides to Attorney General John Ashcroft said it was crucial to his decision to hand the accused snipers over to prosecutors in Virginia instead of Maryland.
Mr. Muhammad is charged in Prince William County with the Oct. 9 shooting death of Dean Harold Meyers at a gas station. Mr. Malvo is charged in the Oct. 14 death of Linda Franklin outside a
Another concern raised recently is that the new law might bring an increase in Virginia’s death row convictions.
Previously, Virginia law required prosecutors in capital cases to prove that a defendant was the triggerman or took other direct physical action that led to murder. The only exceptions were for a killing that was a part of a murder-for-hire scheme or was committed on the orders of a drug kingpin.
“Obviously what the legislature had in mind was bin Laden giving the order to other people,” said Ronald J. Bacigal, a professor at the University of Richmond School of Law. “But this is pretty much a non-lawyer statute, because just about any kind of violent crime that intimidates a community you can talk about as a form of terrorism.”
Mr. Bacigal said that terrorism is so broadly defined in the new statute that while the death penalty “would not apply to an angry husband who kills his wife,” it could be used in “any type of crime spree” that ends up “terrorizing the community at large.”
Even some pro-death penalty politicians are concerned about precedents that could be set by a successful prosecution of Mr. Muhammad and Mr. Malvo.
And advocates for juveniles have said that efforts they had made to persuade legislators to consider a ban on the execution of people younger than 18 have stalled since the arrest of Mr. Malvo.
Mr. Albo, who supports the use of the terrorism law in the sniper case but wants legislators may take another crack at it, said: “You never know. It happens all the time where we pass a law and then prosecutors will abuse it. And it forces us to decide whether to come back at it and rein it in a bit.”