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Legislative Memo: Bioterrorism Bill

These bills seek to deter acts of terrorism by applying criminal sanctions for the possession or deployment of certain weapons of mass destruction, including biological and chemical weapons. The NYCLU finds both proposals contain serious flaws and urges the Legislature to oppose the legislation as drafted. In each case, the proposed legislation would criminalize behavior that is not terroristic in nature, and would impose penalties that are excessive in relation to the criminal act.

The federal antiterrorism statute contains broad exemptions for what is considered prophylactic, protective or otherwise peaceful uses of biological agents or chemical weapons used in industrial or agricultural research; medical or pharmaceutical applications; or for law-enforcement purposes and unrelated military purposes. The federal statute also defines chemical weapons with reference to international conventions to which the United States is a signatory. Yet, the Governor’s Program Bill fails to incorporate the federal definitions and standards.

The Assembly bill appropriately incorporates these federal exemptions; however, the new crimes for possession or use of chemical or biological weapons sweep far too broadly – first, by characterizing as terrorism conduct that is simply not terroristic in nature, and that is already a crime under the Penal code; and second, by subjecting individuals convicted of such crimes to penalties – including the death penalty and life without parole – that may be grossly disproportionate to the crime committed.

For example, suppose that members of PETA – an animal rights group – were to throw paint laced with bleach or acid at a person wearing fur; or consider the human rights activist who throws a bag of blood at a defendant or judge in a federal courtroom.

These are criminal acts, subject to severe penalties under existing criminal law; but under the proposed legislation, this conduct may well be punished by life without parole. Such unjust outcomes may be prevented if the new criminal sanctions are explicitly tied to terroristic acts, and if judges are given discretion when imposing sentences under the proposed statute.

Finally, the NYCLU is concerned the Legislature is acting with undue haste in an area of law that is complex; and that is already addressed in federal law and international treaties. Fundamental issues, including questions of competence and jurisdiction, have not been given adequate consideration. The NYCLU respectfully suggests that there is no harm in taking reasonable time to consider the real-world implications of this legislation before putting it to a vote.

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