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Archive for Monday, October 29, 2001

New guidelines for bioterrorism to take effect

October 29, 2001

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Years before anthrax in the mail became a national phobia, a man told his sister he was developing a bacteria to send in envelopes filled with razor blades. Other relatives said he had talked about killing family and friends.

Police sent to the home of Thomas Leahy in Janesville, Wis., didn't find bacteria but did discover a castor-bean derivative called ricin, a white powder twice as deadly as cobra venom and with no known antidote. Prosecutors said Leahy's 0.67 of a gram could have killed 125 people if inhaled.

Leahy pleaded guilty in 1998 to possessing the ricin. A judge sentenced him to 12 1/2 years, but an appeals court questioned that and Leahy was ultimately sentenced to 6 1/2 years.

Federal judges have 450 pages of guidelines to help them sentence defendants for wrongdoings ranging from money laundering to drug trafficking, but crimes involving chemical and biological weapons are not on the list. Judges are left largely on their own in sentencing defendants like Leahy.

That is about to change.

Starting Thursday, new federal sentencing guidelines will cover such crimes, and the result will be tougher sentences.

Tokyo wakeup call

The changes have been in the works for a few years. After a 1995 sarin nerve gas attack on a Tokyo subway killed 12 people, U.S. lawmakers and the Justice Department noticed the gap in sentencing guidelines.

They became concerned that the few Americans caught with chemical and biological weapons were receiving only a few years in prison for crimes involving weapons that could kill hundreds.

At their urging, the U.S. Sentencing Commission wrote the new guidelines and submitted them to Congress in May. The new rules take effect automatically on Nov. 1 unless Congress decides to reject them.

Since the commission was established in 1984, Congress has rejected only two of its 600 sentencing guideline recommendations, and it is unlikely to reject them this time.

"Certainly with the current situation, I would say that there's probably about zero chance of Congress repealing the recommendations," said House Judiciary Committee spokesman Jeff Lungren, one of thousands of workers forced from the Capitol last week by anthrax fears.

Under the old guidelines, a terrorist who sent anthrax through the mail could receive as little as 17 1/2 years in prison. After Nov. 1, a convicted defendant would face 30 years to life in prison. The new guidelines would only apply to offenses committed after Nov. 1.

Judicial dissent

Not all federal judges like sentencing guidelines, believing they limit their flexibility.

U.S. District Judge Paul Magnuson of Minnesota said he was satisfied with the sentences of 2 3/4 years he ordered in 1995 for two Minnesota men convicted of possessing enough ricin to kill 126 people. Under the new rules, defendants convicted of their crimes would get at least eight years.

Prosecutors said one of the men, Leroy Wheeler, belonged to a tax protest group that had discussed blowing up a federal building, obtaining assault weapons and killing a sheriff's deputy. The other man, Douglas Baker, told authorities he had planned to use the toxin as an insecticide.

"These were local, misguided people," Magnuson said. "While I certainly don't attempt to portray them as being nice people, you don't put them in the same category as the people involved in the Sept. 11 attacks."

Judges who have handled chemical or biological weapons cases in the past have had to search for "analogous" punishments defendants might have received for similar crimes.

U.S. District Judge John Shabaz, who handled the Leahy case in Wisconsin, reasoned that ricin was comparable to a poison gas and that Leahy's offense was equal to an act of terrorism.

Taking into account Leahy's record that included accidentally shooting his stepson in the face (the youth survived), Shabaz sentenced Leahy to 12 1/2 years.

But the appeals court ruled that the terrorism comparison was unfair and ordered Shabaz to sentence him again. Leahy ended up with the 6 1/2-year sentence.

Under the new guidelines, a similar defendant would face a sentence of eight to 10 years.

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