LETTER TO THOMAS S. MARTIN FROM GEORGE W. CLARKE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP05C01629R000100010006-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 22, 2016
• Document Release Date: August 9, 2011
• Sequence Number: 6
• Publication Date: April 11, 1986
• Content Type: LETTER

Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
CENTRAL INTELLIGENCE AGENCY
WASHINGTON, D.C. 20505
Office of General Counsel
11 April 1986
Thomas S. Martin, Esquire
Jenner & Block
21 Dupont Circle, N.W.
Washington, D.C. 20036
Dear Tom:
Enclosed are two memoranda which you may wish to provide the
Working Group for our next meeting. The first is a brief summary
of why the death penalty is a problem in general under federal
criminal statutes, and specifically under 18 U.S.C. S 794. The
second memo contains a brief summary of various bills which have
been introduced to provide the death penalty for various espionage
offenses.
Sincerely,
STAT
Associate General Counsel
Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
 Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
10 April 1986
SUBJECT: Death Penalty Under the Espionage Statutes:
18 U.S.C. ? 794
QUESTION
1. Whether the death penalty imposed under 18 U.S.C. ? 794
which prohibits the gathering or delivering of defense information
to aid a foreign government is unconstitutional.
CONCLUSION
2. The Espionage Statutes provide for the death penalty in 18
U.S.C. ? 794 and the Ninth Circuit has determined that this
penalty is unconstitutional. In Furman v. Georgia, 408 U.S. 238
(1972), the Supreme Court held that the death penalty is
unconstitutional if it can be imposed in an arbitrary and
discriminatory manner. In order to have a constitutional death
penalty, a state legislature or Congress must indicate in the
pertinent statute the factors concerning the defendant and the
crime committed for the judge or jury to consider in imposing the
death penalty.l/ Gregg v. Georgia, 428 U.S. 153 (1975). The
function of these factors is to limit the discretion of the judge
or jury when he (they) are determining whether to impose the death
penalty. Because ? 794 of Title 18 contains no relevant factors
for a judge or jury to consider in imposing the death penalty, the
death penalty can be imposed in an arbitrary and discriminatory
manner and is, therefore, unconstitutional. U.S. v. Harper, 729
F.2d 1216 (1984).
ANALYSIS
3. In Furman v. Georgia, 408 U.S. 238 (1972) the United
States Supreme Court considered the constitutionality of the death
penalty.? Justices Douglas, Brennan, Stewart and White all
wrote separate concurring opinions which stated that the death
penalty imposed in the three cases was unconstitutional due to the
ban imposed by the 8th Amendment against cruel and unusual
punishments. The factor linking all of these concurring opinions
was that the death penalties in these cases were imposed randomly
Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05CO1629R000100010006-0
 Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
and arbitrarily because the states had not set forth any guide-
lines to be used by judges or juries in determining when to impose
the death penalty. According to Justice Douglas, "[t]he death
penalty inflicted on one person is 'unusual' if it discriminates
against him by reason of his race, religion, wealth, social
position, or class, or if it is imposed under a procedure that
gives room for the play of such prejudices." Id. at 242. Douglas
based this statement on two facts. First, the language of the 8th
Amendment was derived from a particular provision in the English
Bill of Rights and the purpose of that provision was to forbid
arbitrary and discriminatory penalties of a severe nature. Id.
Douglas also stated that the requirements of the Equal Protection
Clause of the Fourteenth Amendment are inherent in the
proscription against cruel and unusual punishments imposed by the
8th Amendment. In order to comply with the Equal Protection
Clause of the 14th Amendment, it is clear that punishments cannot
constitutionally be imposed in an arbitrary or discriminatory
manner. Justices Brennan, Stewart and White also focused on the
arbitrary and discriminatory manner in which the death penalty had
been imposed in these three instances to find it unconstitutional.
4. One example of a death penalty which is constitutional
according to the Furman decision is the Georgia provision
discussed by the Supreme Court in Gregg v. Georgia, 428 U.S. 153
(1975).3/ The Court determined that the Georgia statute
complied with the guidelines set forth in Furman for the following
reasons. First, the law narrows the class of persons subject to
the death penalty by specifying ten aggravating circumstances and
requiring that at least one must be present before the death
penalty can be imposed. Id. at 196-97..t/ Second, the jury is
authorized to consider any other appropriate or mitigating
circumstances. Id. at 197. These procedures require the jury to
consider the circumstances of the crime and the criminal before it
recommends the sentence. Third, although some jury discretion
exists, it is controlled by clear and objective standards so as to
produce a nondiscriminatory application. Id. at 198, citin Coley
v. State, 231 Ga. 829, 834, 204 S.E.2d. 612, 615 (1974). An
additional safeguard is the statutory provision for an automatic
appeal of all death sentences to the State's Supreme Court. The
Court must insure that the death penalty was imposed in a
nondiscriminatory manner which was free from the influence of
passion. The Court must also examine similar cases to determine
whether the sentence is disproportionate compared to the sentences
imposed in those similar cases. Id. at 198.
5. In U.S. v. Harper, 729 F.2d 1216 (1984), the Ninth Circuit
considered the constitutionality of the death pen~lty imposed
under the Espionage Statutes in 18 U.S.C. ? 794.5 According to
the statute, whoever is found guilty of gathering or delivering
defense information to aid a foreign government may be punished by
2
,, Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
 Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
death or by imprisonment for any term of years or for life. The
Ninth Circuit determined that the death penalty imposed under this
statute is unconstitutional because the statute contains no
guidelines for a jury or judge to consider when imposing the death
penalty. Id. at 1225. The court concluded that the legislature,
representing organized society, must articulate clear guidelines
concerning the factors about the crime and the defendant that the
judge or jury must consider in determining whether to impose the
death penalty. Id. at 1225. The court determined that such a
statute would be the only way to comply with the Furman and Gregg
decisions.
Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
 Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
1/ A sentence is the pronouncement by a court of the
penalty imposed upon the defendant after the defendant has been
found guilty. In the federal courts the sentence is usually
imposed by the judge who presided at the trial. 4 Wharton's
Criminal Procedure S609 (12th ed. 1976).
2/ The Court considered the death penalty as it had been
imposed in three separate situations. Three black men were
sentenced to death, two for crimes of murder and one for the crime
of rape. Furman at 252-53. In each case, the determination of
whether the penalty should be for death or a lighter punishment
was left by the State to the discretion of the judge or the jury.
All three of these cases involved jury trials. Id. at 240.
3/ Georgia's statutory scheme for the imposition of the
death penalty is the following:
1. The death penalty may be imposed for only six
categories of crime: murder, kidnapping for ransom or where
the victim is harmed, armed robbery, rape, treason and
aircraft hijacking. Gregg at 162-63.
2. If the trial is by jury, the judge is required to
charge the lesser included offense if it is supported by the
evidence. Id. at 163.
3. If guilt is determined, a presentence hearing is
conducted before whoever made the determination of guilt.
At the hearing the judge [or jury] shall
hear additional evidence in extenuation,
mitigation, and aggravation of punishment,
including the record of any prior criminal
convictions and pleas of guilty or pleas of
nolo contendre of the defendant, or the
absence of any prior conviction and pleas:
Provided, however, that only such evidence
in aggravation as the State has made known
to the defendant prior to his trial shall be
admissible. The judge [or jury] shall also
hear argument by the defendant or his
counsel and the prosecuting
attorney... regarding the punishment to be
imposed. ? 27-2503 (Supp. 1975)
Id. at 163-64.
, Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05CO1629R000100010006-0
 Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
4. In determining the appropriate sentence, the judge
or jury must also consider any mitigating or aggravating
circumstances otherwise authorized by law and any of ten
aggravating statutory circumstances which the evidence
supports. The judge or trial jury may impose the death
penalty if he (they) find beyond a reasonable doubt the
presence of at least one of the ten specified aggravating
circumstances. Id. at 164-65. (See Footnote 4 for a list
of these circumstances.)
5. If the verdict is death, the judge or jury must
specify the aggravating circumstance(s) found. Id. at 166.
6. The statute provides for a special expedited
direct review by the Supreme Court of Georgia for the
purpose of determining the appropriateness of the death
sentence in the particular case. Id. at 166.
7. The Supreme Court must determine whether the death
sentence was imposed under the influence of passion or
prejudice, whether the evidence supports the jury's or
judge's finding of a statutory aggravating circumstance,
and whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases.
Id. at 166-67.
8. If the court affirms the death sentence, it must
include in its decision reference to similar cases that it
considered. Id. at 167.
9. A transcript and complete record of the trial, as
well as a separate report by the trial judge, are
transmitted to the court for its use in reviewing the
sentence. The report is designed to elicit information
about the defendant, the crime, and the circumstances of
the trial. It requires the trial judge to characterize the
trial in several ways designed to test for arbitrariness
and disproportionality of the sentence. Id. at 167.
10. Under its special review authority, the court may
either affirm the death sentence or remand the case for
resentencing. In cases in which the death sentence is
affirmed, there remains the possibility of executive
clemency. Id. at 168.
Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05CO1629R000100010006-0
 Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
4/ The statute provides in part:
"(a) The death penalty may be imposed for the offenses of
aircraft hijacking or treason, in any case.
"(b) In all cases of other offenses for which the death
penalty may be authorized, the judge shall consider, or he
shall include in his instructions to the jury for it to
consider, any mitigating circumstances or aggravating
circumstances otherwise authorized by law and any of the
following statutory aggravating circumstances which may be
supported by the evidence:
"(1) The offense of murder, rape, armed robbery, or
kidnapping was committed by a person with a prior record of
conviction for a capital felony, or the offense of murder
was committed by a person who has a substantial history of
serious assaultive criminal convictions.
"(2) The offense of murder, rape, armed robbery, or
kidnapping was committed while the offender was engaged in
the commission or another capital felony, or aggravated
battery, or the offense of murder was committed while the
offender was engaged in the commission of burglary or arson
in the first degree.
"(3) The offender by his act of murder, armed robbery, or
kidnapping knowingly created a great risk of death to more
than one person in a public place by means of a weapon or
device which would normally be hazardous to the lives of
more than one person.
"(4) The offender committed the offense of murder for
himself or another, for the purpose of receiving money or
any other thing of monetary value.
"(5) The murder of a judicial officer, former judicial
officer, district attorney or solicitor or former district
attorney or solicitor during or because of the exercise of
his official duty.
"(6) The offender caused or directed another to a commit
murder or committed murder as an agent or employee of
another person.
"(7) The offense of murder, rape, armed robbery, or
kidnapping was outrageously or wantonly vile, horrible or
inhuman in that it involved torture, depravity of mind, or
an aggravated battery to the victim.
, Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05CO1629R000100010006-0
 Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
"(8) The offense of murder was committed against any peace
officer, corrections employee or fireman while engaged in
the performance of his official duties.
"(9) The offense of murder was committed by a person in,
or who has escaped from, the lawful custody of a peace
officer or place of lawful confinement.
"(10) The murder was committed for the purpose of
avoiding, interfering with, or preventing a lawful arrest
or custody in a place of lawful confinement, of himself or
another.
"(c) The statutory instructions as determined by the trial
judge to be warranted by the evidence shall be given in
charge and in writing to the jury for its deliberation.
The jury, if its verdict be a recommendation of death,
shall designate in writing, signed by the foreman of the
jury, the aggravating circumstance or circumstances which
it found beyond a reasonable doubt. In non-jury cases the
judge shall make such designation. Except in cases of
treason or aircraft hijacking, unless at least one of the
statutory aggravating circumstances enumerated in section
27-2534.1(b) is so found, the death penalty shall not be
imposed." ? 27-2534.1 (Supp. 1975).
5/ S 794. Gathering or delivering defense information
to aid foreign governments.
(a) Whoever, with intent or reason to believe that it is to
be used to the injury of the United States or to the advantage
of a foreign nation, communicates, delivers, or transmits, or
attempts to communicate, deliver, or transmit, to any foreign
government, or to any faction or party or military or naval
force within a foreign country, whether recognized or
unrecognized by the United States, or to any representative,
officer, agent, employee, subject, or citizen thereof, either
directly or indirectly, any document, writing, code book,
signal book, sketch, photograph, photographic negative,
blueprint, plan, map, model, note, instrument, appliance, or
information relating to the national defense, shall be punished
by death or by imprisonment for any term of years or for life.
(b) Whoever, in time of war, with intent that the same
shall be communicated to the enemy, collects, records,
publishes, or communicates, or attempts to elicit any
information with respect to the movement, numbers, description,
condition, or disposition of any of the Armed Forces, ships,
aircraft, or war materials of the United States or with respect
to the plans or conduct, or supposed plans or conduct of any
naval or military operations, or with respect to any works or
7
1 Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05CO1629R000100010006-0
 Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
measures undertaken for or connected with, or intended for the
fortification or defense of any place, or any other information
relating to the public defense, which might be useful to the
enemy, shall be punished by death or by imprisonment for any
term of years or for life.
(c) If two or more persons conspire to violate this
section, and one or more of such persons do any act to effect
the object of the conspiracy, each of the parties to such
conspiracy shall be subject to the punishment provided for the
offense which is the object of such conspiracy.
Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
 Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
8 April 1986
SUBJECT: Summary of Bills Concerning the Imposition of the
Death Penalty and Other Penalties under the
Espionage Laws
1. H.R. 704 amends 18 U.S.C. ? 2381 which currently provides
for the death penalty in cases of treason. The amendment imposes
criteria for the imposition of such a sentence of death. The bill
requires the Government to notify the court and defendant if it
intends to seek the death penalty. The judge is to conduct a
separate sentencing hearing to determine whether any aggravating
or mitigating factors exist. If no aggravating factors exist, the
judge shall impose a sentence other than death. If aggravating
and mitigating factors exist, the judge shall balance them to
determine whether the death sentence is justified. The defendant
has the right to appeal a death sentence to the court of appeals.
H.R. 704 amends 18 U.S.C. ?794(a) which currently authorizes the
death penalty if one transmits or attempts to transmit to a
foreign government any information relating to the national
defense. The amendment restricts the imposition of the death
penalty to cases in which the jury or court finds that the offense
directly concerned nuclear weaponry, military spacecraft or
satellites, early warning systems, or other means of defense or
retaliation against large-scale attack; war plans; communications
intelligence or cryptographic information; or any other major
weapons system or major element of defense strategy.
2. H.R. 1082 also amends 18 U.S.C. ?? 794 and 2381, which are
discussed above. The amendment requires the court to follow
certain guidelines in determining whether or not to impose the
death penalty. The Government must notify the court and defendant
that it intends to seek the death penalty. If the defendant is
found guilty, the judge is to conduct a separate sentencing
hearing at which the judge or jury will determine the existence of
any mitigating or aggravating factors. At the conclusion of this
separate sentencing hearing, the finder of fact shall consider
whether the aggravating factor(s) found to exist outweigh any
mitigating factor(s), or whether the aggravating factor(s) alone
Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
 Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
justify a sentence of death. At least one aggravating factor must
exist before a death sentence is imposed. If the court finds that
the sentence of death is justified, the court shall sentence the
defendant to death. In the absence of such a finding, the court
shall impose any sentence other than death that is authorized by
law or a sentence of life imprisonment without parole. The
defendant has the right to appeal a death sentence to the court of
appeals. The court of appeals shall affirm the decision if it
determines that the death sentence was not imposed arbitrarily and
that the information presented at the separate sentencing hearing
supports the finding of the existence of an aggravating factor.
3. H.R. 2797 amends 18 U.S.C. ? 794 by adding a new
subsection which creates a new Federal criminal offense of
treasonous espionage, consisting of the unauthorized disclosure of
classified information detrimental to the national security for
profit. A person shall be subjected to the penalty of death for
the offense of treasonous espionage only if the court follows the
requisite guidelines. If the defendant is found guilty of the
offense, the judge shall conduct a separate sentencing hearing to
determine the existence of mitigating factors. The fact finder
shall return a special verdict setting forth its findings as to
the existence or nonexistence of each of four mitigating factors.
If the court finds that one or more of the mitigating factors
exists, it shall not sentence the defendant to death, but it shall
impose any other sentence provided for by the offense for which
the defendant was convicted.
4. H.R. 2662 amends 18 U.S.C. ? 794 in order to provide more
severe penalties for certain forms of espionage. The amendment
leaves intact the sentence of death as one of the penalties for
violating either subsection (a) or (b) of section 794.
5. H.R. 3026 amends title 10, United States Code, to
establish under the Uniform Code of Military Justice the offense
of espionage during peacetime and to provide for a sentence of
life imprisonment for any person convicted of the offense. This
amendment does not authorize the death penalty if a person commits
the offense of espionage during peacetime.
6. H.R. 3188 amends title 10 of the United States Code by
creating a new offense, espionage in time of peace. Any person
who is subject to the Uniform Code of Military Justice who at any
time, with intent or reason to believe that information is to be
used to the injury of the United States or to the advantage of a
foreign nation, communicates to a foreign government or faction
any such information relating to the national defense shall be
tried by a general court-martial. On conviction such person shall
be punished by death or by imprisonment for any term of years or
for life. If the foreign government is the Government of the
Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
 Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05C01629R000100010006-0
Soviet Union or any other Communist country, such person shall
upon conviction be punished by death or mandatory life
imprisonment. H.R. 3188 amends 18 U.S.C. ? 794 by mandating that
the death penalty provided for in subsection (a) may only be
imposed if the jury or court finds that the foreign government
involved is the Soviet Union or any other Communist country and
that the information involved is classified. The death penalty
authorized in subsection (b) may only be imposed if the jury or
court finds that the government involved is the Soviet Union, any
other Communist country, or an enemy of the United States and that
the information involved is classified.
7. S. 1301 amends title 10 of the United States Code and 18
U.S.C. ? 794 in the same manner as does H.R. 3188.
8. S. 1491 amends 18 U.S.C. ? 794 in the following manner.
The death penalty provided for in subsection (a) may not be
imposed for an offense under this subsection occurring during a
period other than war or when the United States Armed Forces are
engaged in hostilities outside the territories or possessions of
the United States unless the jury or judge finds that the offense
directly concerned nuclear weaponry, military spacecraft or
satellites, early warning systems, or other means of defense or
retaliation against large-scale attack; war plans; communications
intelligence or cryptographic information; sources or methods of
intelligence or counterintelligence operations; or any other major
weapons system or major element of defense strategy.
9. The death penalty authorized in subsection (b) of ? 794
may not be imposed unless the court follows certain procedures.
The Government must notify the court and defendant of its intent
to seek the imposition of the death penalty. If the defendant is
found guilty, the court shall conduct a separate sentencing
hearing to determine the punishment to be imposed. At the
hearing, information may be presented as to any matter relevant to
the sentence, including mitigating and aggravating factors. The
jury or court shall return a special finding as to each mitigating
and aggravating factor. If an aggravating factor is found to
exist, the jury or court shall then consider whether all the
aggravating factors found to exist sufficiently outweigh all the
mitigating factors found to exist to justify a sentence of death,
or, in the absence of a mitigating factor, whether the aggravating
factors alone are sufficient to justify a sentence of death. The
jury or court shall then return a finding as to whether the
sentence of death is justified.
10. S. 1654 amends 18 U.S.C. ? 794 to provide for criminal
forfeiture of proceeds derived from espionage activities and
rewards for informants providing information leading to arrests in
espionage cases. This bill does not amend the death penalty
currently authorized by section 794.
,, Declassified in Part - Sanitized Copy Approved for Release 2012/08/10: CIA-RDP05CO1629R000100010006-0