IN THE FIRST OF THREE EXCERPTS FROM THE REPORT TITLED 'TO ESTABLISH RATIONAL CRITERIA FOR THE IMPOSITION OF CAPITAL PUNISHMENT,' 93RD CONGRESS, 1ST SESSION, SENATOR JOHN L. MCCLELLAN. CHAIRMAN OF THE SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES, SUPPORTS SENATE BILL 1401 WHICH WOULD MANDATE THE DEATH PENALTY FOR CERTAIN CRIMES AND SET UP GUIDELINES FOR JURIES. AT PRESENT THE DEATH PENALTY IS AN AUTHORIZED SENTENCE UNDER AT LEAST 10 SECTIONS OF THE FEDERAL CODE: MURDER, TREASON, RAPE, AIR PIRACY, DELIVERY OF DEFENSE INFORMATION TO AID A FOREIGN GOVERNMENT, DESTRUCTION OF MOTOR VEHICLES OR MOTOR VEHICLE FACILITIES WHERE DEATH RESULTS, ASSASSINATING OR KIDNAPING A MEMBER OF CONGRESS, CAUSING DEATH OF ANOTHER BY MAILING INJURIOUS ARTICLES, MURDER AND KIDNAPING OF THE PRESIDENT OR VICE PRESIDENT, AND AIRCRAFT PIRACY. THESE PROVISIONS OF THE FEDERAL CODE NOW APPEAR TO BE UNCONSTITUTIONAL UNDER THE U.S. SUPREME COURT DECISION IN FURMAN V. GEORGIA. AS THE RESULT OF THIS DECISION, THERE ARE APPARENTLY THREE POSSIBLE APPROACHES TO REINSTATEMENT OF THE DEATH PENALTY: (1) MANDATORY IMPOSITION UPON CONVICTION OF CERTAIN OFFENSES; (2) ESTABLISHMENT OF DESIGNATED CRITERIA TO SERVE AS A GUIDELINE FOR DISCRETIONARY IMPOSITION OF THE PENALTY; OR (3) A COMBINATION OF THESE APPROACHES. IT IS CONCLUDED THAT THE COMBINATION OF MANDATORY PENALTIES AND GUIDELINES FOR DISCRETIONARY IMPOSITION OF DEATH PENALTIES IS THE APPROACH MOST LIKELY TO BE UPHELD AS CONSTITUTIONAL. THE BILL ALSO REDUCES THE NUMBER OF CRIMES CARRYING THE DEATH PENALTY TO TREASON, ESPIONAGE, MURDER, AND CERTAIN EXTREMELY SERIOUS OFFENSES SUCH AS AIRCRAFT HIJACKING AND KIDNAPING WHERE DEATH RESULTS. UNDER THIS BILL THE JURY DECIDES IF THERE ARE AGGRAVATING OR MITIGATING CIRCUMSTANCES; THE BILL ALSO PROVIDES FOR A SEPARATE PROCEEDING BEFORE THE JUDGE OR A JURY TO DETERMINE THE DEATH PENALTY ISSUE. A DISSENTING VIEW BY SENATOR PHILIP A. HART CALLS THE DEATH PENALTY PROVISIONS OF S. 1401 AS CAPRICIOUS AS THOSE PREVIOUSLY STRUCK DOWN BY THE SUPREME COURT. HE MAINTAINS THAT THE PROVISIONS IN THE PROPOSED REVISION OF THE FEDERAL CODE ARE PREFERABLE. THE FINAL EXCERPT IS A LETTER FROM FORMER ATTORNEY GENERAL ELLIOT L. RICHARDSON RESPONDING TO A WRITTEN INQUIRY FROM MEMBERS OF THE SUBCOMMITTEE REGARDING TECHNICAL ASPECTS OF THE BILL. EXTENSIVE NOTES ARE INCLUDED. (GLR)