- The Washington Times - Monday, December 2, 2002

MANASSAS When the Virginia General Assembly passed a bill this year authorizing the death penalty for acts of terrorism, lawmakers hoped their work would be a mere precaution that never had to be implemented.
But just three months after its enactment, sniper suspects John Lee Malvo and John Allen Muhammad are being prosecuted under the new law.
"We envisioned Osama bin Laden. But what we're talking about in the sniper case is definitely terrorism," said commonwealth Delegate David B. Albo, the law's chief sponsor.
Analysts say the public terror created by the three-week series of shootings and the snipers' demands for a $10 million ransom make the law an easy fit.
In fact, the law is one of the reasons U.S. Attorney General John Ashcroft sent the pair to Virginia for prosecution, giving the commonwealth precedence over Maryland.
Mr. Ashcroft wanted the pair to face the "ultimate punishment," and Virginia's new law increases the chances of obtaining the death penalty in a state that trails only Texas in the number of people executed in the past 25 years.
However, the anti-terrorism law is untested and almost certainly will be challenged on constitutional grounds.
Mr. Albo, Fairfax County Republican, said a situation like the sniper case was the last thing on his mind as he shepherded his bill through the legislature.
"This is something we thought we would put in place and hope it never gets used," Mr. Albo said. "Unfortunately, 2 months after the bill became law, that definition of terrorism fit the sniper case like a glove."
The bill passed with little opposition.
The law defines an act of terrorism as a crime committed with the "intent to intimidate or coerce a civilian population or influence the policy, conduct or activities of the government through intimidation or coercion."
Mr. Muhammad, 41, and Mr. Malvo, 17, have been accused of shooting 18 persons killing 13 and wounding five in Alabama, Georgia, Louisiana, Maryland, Virginia and the District. Nobody was hit in another shooting, in which a bullet went through a craft-store window.
While the defendants' attorneys have been largely silent about their strategies, University of Richmond law professor Ronald Bacigal said it is certain they will challenge the terrorism law's constitutionality.
"The argument will be that it's overly broad and vague," he said. "You could argue that anybody going on a crime spree could be intimidating the population."
Winning such an argument will be difficult, said Mr. Bacigal and other legal analysts.
He also said the sniper case "sure looks like it fits perfectly with that definition" in the law, citing the public terror and the demands for a $10 million ransom.
"This is about as weak a case as you could use to challenge the law," Mr. Bacigal said.
Laws written as broadly as the terrorism statute can be constitutionally problematic, said University of Virginia law professor A.E. Dick Howard.
Still, he said, it's rare that a judge would strike down a law simply because it is written broadly.
More often, a judge would evaluate a specific case and see whether the law is being applied too broadly.
That doesn't seem to be the case here, Mr. Howard said.
The law also makes a specific exception so that prosecutors don't have to prove who pulled the trigger to obtain the death penalty.
The provision was included because Virginia Attorney General Jerry W. Kilgore, who wrote the law, wanted legislation that would specifically target the leaders of a terrorism network, not just the foot soldiers.
"We knew we wanted to have the opportunity to go after the people that were the evil masterminds of terrorist attacks," Mr. Kilgore said.
Prosecutors made it clear early on that they saw the law as an option in prosecuting the sniper suspects.
On Oct. 10, one day after the first sniper killing in Virginia, Prince William County Commonwealth's Attorney Paul Ebert said he intended to use the new law simply because "it fits."
Mr. Ebert, who is prosecuting Mr. Muhammad in the killing Oct. 9 of Dean Meyers, and Fairfax County Commonwealth's Attorney Robert F. Horan Jr., who is prosecuting Mr. Malvo, have said they anticipate constitutional challenges to the terrorism law.
But even if the statute is overturned, Virginia could seek to execute the sniper suspects.
Another law allows the death penalty when a person commits more than one murder within three years.


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