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Comment Of Senator
Patrick Leahy
On Senate Passage
Of The AMBER Alert Bill
(PROTECT Act Package)
April 10, 2003
“After months and months of trying,
we’ve finally gotten a green light for a national AMBER Alert
program. The problem has never been winning enough support to pass
it. The problem has been that our bill has garnered such strong
support that it has been abused as a sweetener for highly
controversial add-ons.”
# # # # #
[Leahy is a leading cosponsor of the
AMBER Alert Bill and is co-author of other elements of the PROTECT Act
package, including the Hatch-Leahy PROTECT Act on virtual child
pornography, and Leahy’s bill to reauthorize the National Center for
Missing and Exploited Children.]
Statement Of Senator Patrick Leahy
On The PROTECT Act, S. 151, Conference Report
April 10, 2003
NATIONAL AMBER ALERT
NETWORK ACT
I am pleased that today we will finally
pass into law a very important bill designed to protect children.
As an original cosponsor of the National
AMBER Alert Network Act, S.121, I have worked with my Senate
colleagues to do all that we possibly can to speedily pass it into
law. Twice now we rapidly passed our bill through the Senate on
unanimous, bipartisan votes – last fall and again in January. Both
times House leaders chose not to pass it, instead delaying its assured
passage into law by using the bill as a “sweetener” for a package of
other controversial provisions that the Senate has not previously
considered. The Smart family – who credit the AMBER Alert for the
safe return of
Elizabeth – has repeatedly joined us to
urge House leaders to promptly take up and pass our Senate bill.
Had House leaders opted to stand up and
do what is right from the beginning, we would already have a
nationwide AMBER Alert system around to save our children’s lives when
they are taken. We will never know how many children could have been
saved by a nationwide AMBER Plan – if the House had simply passed our
bill when the Senate did, I daresay the number of children rescued
from their abductors and death would be much higher. Efforts to
protect our children do not deserve to be used as pawns by groups who
play politics by attaching it to more controversial measures.
That being said, I am pleased that AMBER
Alert legislation is included in the conference report, as it will aid
states in their fight against the disturbingly increasing trend of
child abductions and their often tragic ends. Our plan will enhance
the AMBER Alert system created after the 1996 kidnapping and murder of
9-year-old Amber Hagerman of
Arlington, Texas. Since 1996, AMBER
Alerts have helped rescue 53 children from their abductors nationwide
by using broadcasters, law enforcement officials, road signs and a
variety of other tools to instantly disseminate information about
child abductions.
Today 39 states have statewide AMBER
Alert plans. Our AMBER Alert legislation included in the conference
report will create voluntary standards that would help states
determine the criteria for AMBER Alerts and for quickly spreading
official information during AMBER Alerts. A newly appointed
coordinator within the Justice Department will oversee the
communication network for abducted children, working with states,
broadcasters, and law enforcement agencies to set up and supplement
AMBER plans and responses.
Our plan will give law enforcement
agencies a powerful tool, while providing flexibility for states to
implement the alert system. States also need financial help to create
effective Amber Alert systems, and this conference report creates two
federal grant programs to help states establish AMBER plans. One,
administered by the Department of Transportation, will give states,
assistance creating statewide notification and communications systems,
including message boards and road signs to help in the recovery of
abducted children. The other, administered by the Justice Department,
will help states create communications plans with law enforcement
agencies and the communities they serve. My state of
Vermont does not yet have
an AMBER Alert system, and law enforcement officials in Vermont have
begun laying the groundwork for a system here. They welcome the
federal help our bill will offer to get a system up and running.
As a father and grandfather I know that
an abducted child is a family’s worst nightmare, and one that happens
far too often. The families of children taken by strangers need our
help, and they will get it with the passage of the AMBER Alert
legislation.
TITLE V: CHILD
PORNOGRAPHY PROVISIONS
The conference report we consider today
includes another very important piece of legislation – this one
designed to protect children from being exploited by child
pornographers. I should know because I helped to write this bill in
the Senate. Indeed, I am the lead cosponsor of the Senate bill,
S.151, which we sent over to the House with a vote of 84-0.
Ironically, the House and the conference
committee have added so many extraneous provisions to the conference
report bill that one of its core elements, and the element that gives
the conference report its title – the PROTECT Act – is buried near the
end in Title V. Title V is largely the bill that Senator Hatch and I
jointly crafted, held hearings on, and moved through the Senate as the
PROTECT Act. I would like to discuss both the content and history of
the provisions in this title of the conference reported bill.
When Senator Hatch and I introduced S.
151 in January, I supported passing a bill that was identical to the
measure that we worked so hard to craft in the last Congress. That
bill had passed the Judiciary Committee and the Senate unanimously in
the 107th Congress. It did not become law last year
because, even though the Senate was still meeting, considering and
passing legislation, the House of Representatives had adjourned and
would not return to take action on this measure, which had passed the
Senate unanimously, or to work out our differences.
As I said when we introduced the
Hatch-Leahy PROTECT Act and again as the Judiciary Committee
considered this measure, although this bill is not perfect, it is a
good faith effort to provide powerful tools for prosecutors to deal
with the problem of child pornography within constitutional limits.
We failed to do that in the 1996 Child Pornography Protection Act (“CPPA”),
a significant portion of which the Supreme Court struck down last
year. We must not make the same mistake again. The last thing we
want to do is to create years of legal limbo for our nation’s
children, after which the courts strike down yet another law as
unconstitutional.
I also said at our Judiciary Committee
markup and again when the Senate passed this bill unanimously that I
hoped we could pass the bill in the same form as it unanimously passed
in the last Congress. Unfortunately, my colleagues on the other side
of the aisle and in the House have jointly decided not to follow this
route. Despite this fact, I have continued to work with Senator Hatch
to craft the strongest bill possible that will produce convictions
that will stick under the Constitution.
I was also glad to learn that, after we
passed the bill unanimously, the Administration “strongly supported”
the Senate version of the bill. However, the House still chose not to
enact the Senate bill, instead adding numerous extraneous provisions
to it. That is a shame, because it was no easy feat to move a bill
fraught with such constitutional difficulties as the PROTECT Act to
the point where not a single Senator voted against it.
Efforts to Pass the
PROTECT Act in the 107th Congress:
I want to take a moment to speak again
about the history of this important bill and the joint effort that it
took to get to this point. In May of 2002, I came to the Senate floor
and joined Senator Hatch in introducing the PROTECT
Act , after the Supreme Court’s decision
in Ashcroft v. Free Speech Coalition
(“Free Speech”). Although there were some others who raised
constitutional concerns about specific provisions in that bill, I
believed that unlike legislative language proposed by the
Administration in the last Congress, it was a good faith effort to
work within the First Amendment.
Everyone in the Senate agrees that we
should do all we can to protect our children from being victimized by
child pornography. That would be an easy debate and vote. The more
difficult thing is to write a law that will both do that and will
produce convictions that stick. In 1996, when we passed the CPPA many
warned us that certain provisions of that Act violated the First
Amendment. The Supreme Court's decision last year in
Free Speech has proven
them correct.
I believed and continue to believe that
we should not sit by and do nothing. It is important that we respond
to the Supreme Court’s decision. It is just as important, however,
that we avoid repeating our past mistakes. Unlike the CPPA, this time
we must respond with a law that passes constitutional muster. Our
children deserve more than a press conference on this issue. They
deserve a law that will last, rather than one that will be stricken
from the law books.
It is important that we do all we can to
end the victimization of real children by child pornographers, but it
is also important that we pass a law that will withstand First
Amendment scrutiny. We need a law with real bite, not one with false
teeth.
After joining Senator Hatch in
introducing the PROTECT Act in the 107th Congress, as
Chairman of the Judiciary Committee in the last Congress, I convened a
hearing on
October 2, 2002 on the legislation. We heard from the Administration,
from the National Center for Missing and Exploited Children (“NCMEC”),
and from experts who came and told us that our bill, as introduced,
would pass constitutional muster, but the House-passed bill supported
by the Administration would not.
I then placed the Hatch-Leahy PROTECT
Act on the Judiciary Committee's calendar for the
October 8, 2002, business
meeting. I continued to work with Senator Hatch to improve the bill so
that it could be quickly enacted. Unfortunately the Judiciary
Committee was unable to consider it because of procedural maneuvering
by my colleagues that had nothing to do with this important
legislation.
I still wanted to get this bill done.
That is why, for a full week last October, I worked to clear and have
the full Senate pass a substitute to the bill that tracked the
Hatch-Leahy proposed committee substitute in nearly every area.
Indeed, the substitute I offered even
adopted parts of the House bill which would help NCMEC work with local
and state law enforcement on these cases. Twice, I spoke on the
Senate floor imploring that we approve such legislation. As I stated
then, every single Democratic Senator cleared that measure. I then
urged Republicans to work on their side of the aisle to clear this
measure – which was substantially similar to the joint Hatch-Leahy
substitute – so that we could swiftly enact a law that would pass
constitutional muster. Unfortunately, they did not. Facing the
recess before the mid-term elections, we were stymied again.
Even after the last election, during our
lame duck session, I continued to work with Senator Hatch to pass this
legislation in the Senate. As I had stated I would do prior to the
election, I called a meeting of the Judiciary Committee on
November 14,
2002. In the last meeting of the Judiciary Committee under my
Chairmanship in the 107th Congress, I placed S.2520, the Hatch-Leahy
PROTECT Act, on the agenda yet again. At that meeting the Judiciary
Committee amended and approved this legislation. We agreed on a
substitute and to improvements in the victim shield provision that I
authored.
I did not agree with certain of Senator
Hatch's Committee amendments because I thought that they risked having
the bill declared unconstitutional. I nevertheless both called for
the Committee to approve the bill and voted for the bill in its
amended form. That is the legislative process and it was followed for
this portion of the bill. We studied and argued the issues. I
compromised on some issues, and Senator Hatch compromised on others.
Even though the bill was not exactly as either of us would have
wished, we both worked fervently to seek its passage.
The same day as the bill unanimously
passed the Judiciary Committee, I sought to gain the unanimous consent
of the full Senate to pass the Hatch-Leahy PROTECT Act as reported,
and I worked with Senator Hatch to clear the bill on both sides of the
aisle. I am pleased that the Senate did pass the bill by unanimous
consent. I want to thank Senator Hatch for all he did to help clear
the bill for passage in the 107th Congress. Unfortunately,
the House failed to act on this measure last year and the
Administration decided not to push for passage. If they had, we could
have passed a bill, sent it to the President, and had a new law to
protect children on the books months ago.
Instead, we were forced to repeat the
entire process again, and we did it. I am glad to have been able to
work hand-in-hand with Senator Hatch on the real “PROTECT Act” -- now
Title V of the massive bill we are considering -- because, it is a
bill that gives prosecutors and investigators the tools they need to
combat child pornography. The Hatch-Leahy PROTECT Act strives to be a
serious response to a serious problem. Let me outline some of the
important provisions in Title 5 that I helped to write and move
through the Senate.
Key Provisions of the
Child Porn Section of the PROTECT Act:
I was glad that the House retained the Senate version of Section 503
of the bill, which created two new crimes aimed at people who
distribute child pornography and those who use such material to entice
children to do illegal acts. Each of these new crimes carries a 15
year maximum prison sentence for a first offense and double that term
for repeat offenders. First, the bill criminalizes the pandering of
child pornography, creating a new crime to respond to the Supreme
Court’s recent ruling striking down the CPPA’s
definition of pandering. This provision is narrower than the old
pandering definition in at least one way that responds to a specific
Court criticism. The new crime only applies to the people who
actually pander the child pornography or solicit it, not to all those
who possess the material “downstream,” and it requires the government
to demonstrate that the defendant acted with the specific intent that
the material is believed to be child pornography.
The bill also contains a directive to
the Sentencing Commission which asks it to distinguish between those
who pander or distribute such material and those who only “solicit”
the material. As with narcotics cases, distributors and producers are
more culpable than users and should be more harshly punished for
maximum deterrent effect. With the many problematic sentencing
provisions that were included in the conference report, this provision
that I crafted does it the correct way. It points out an important
distinction between possessors and distributors but ultimately leaves
it to the bipartisan commission to set the guidelines.
I would have liked for the pandering
provision to be crafted more narrowly so that “purported” material was
not included and so that all pandering prosecutions would be linked to
“obscenity” doctrine. That is the way that Senator Hatch and I
originally wrote and introduced this provision in the last Congress.
Unfortunately, the Senate amendment process has resulted in some
expansions to this once non-controversial provision that may subject
it to a constitutional challenge. Thus, while it responds to some
specific concerns raised by the Supreme Court, there are
constitutional issues that the courts will have to seriously consider
with respect to this provision. I will discuss these issues later.
Second, section 503 creates a new crime
that I proposed to take direct aim at one of the chief evils of child
pornography: namely, its use by sexual predators to entice minors
either to engage in sexual activity or the production of more child
pornography. This was one of the compelling arguments made by the
government before the Supreme Court in support of the CPPA, but the
Court rejected that argument as an insufficient basis to ban the
production, distribution or possession of “virtual” child
pornography. This bill addresses that same harm in a more targeted
and narrowly tailored manner. It creates a new felony, which applies
to both actual and virtual child pornography, for people who use such
material to entice minors to participate in illegal activity. This
will provide prosecutors a potent new tool to put away those who prey
upon children using such pornography -- whether the child pornography
is virtual or not.
Next, this bill attempts to revamp the
existing affirmative defense in child pornography cases both in
response to criticisms of the Supreme Court and so that the defense
does not erect unfair hurdles to the prosecution of cases involving
real children. Responding directly to criticisms of the Court, the
new affirmative defense applies equally to those who are charged with
possessing child pornography and to those who actually produce it, a
change from current law. It also allows, again responding to specific
Supreme Court criticisms, for a defense that no actual children were
used in the production of the child pornography -- i.e. that it was
made using computers.
The final bill includes the House
provision on banning virtual and non-obscene child pornography, a
provision that I have counseled against in both bills because it
renders the bill weaker against constitutional attack. One addition
to the bill that I helped to include is the inclusion of a definition
of material as “graphic” in nature. Had that definition, which
narrowed the field to hard core child pornography, been applied to the
entire definition, the measure would have been much stronger against
constitutional attack. By also including “lascivious simulated”
material in the virtual porn definition, however, the conference
report risks having the entire provision stricken.
At the same time, I was pleased the
House agreed to accept provision I authored that protects prosecutors
from unfair surprise in the use of this affirmative defense by
requiring that a defendant give advance notice of his intent to assert
it, just as defendants are currently required to give if they plan to
assert an alibi or insanity defense. As a former prosecutor I
suggested this provision because it affects the real way that these
important trials are conducted. With the provision, the government
will have sufficient notice to marshal the expert testimony that may
be needed to rebut this “virtual porn” defense in cases where real
children were victimized.
This improved affirmative defense
measure also provides important support for the constitutionality of
much of this bill after the Free
Speech decision. Even Justice Thomas specifically wrote
that it would be a key factor for him. This is one reason for making
the defense applicable to all non-obscene, child pornography, as
defined in 18 U.S.C. 2256. In the bill’s current form, however, the
affirmative defense is not available in one of the new proposed
classes of virtual child pornography, which would be found at 18 U.S.C.
2256(8)(C). This omission also may render that provision
unconstitutional under the First Amendment.
The bill also provides much needed
assistance to prosecutors in rebutting a false “virtual porn” defense
by removing a restriction on the use of records of performers
portrayed in certain sexually explicit conduct that are required to be
maintained under 18 U.S.C. 2257, and expanding such records to cover
computer images. These records, which will be
helpful in proving that the material in question is not “virtual”
child pornography, may be used in federal child pornography and
obscenity prosecutions under this Act. The purpose of this
provision is to protect real children from exploitation. It is
important that prosecutors have access to this information in both
child pornography and obscenity prosecutions,
since the Supreme Court’s recent decision has had the effect of
narrowing the child pornography laws, making it more likely that the
general obscenity statutes will be important tools in protecting
children from exploitation. In addition, the Act raises the penalties
for not keeping accurate records, further deterring the exploitation
of minors and enhancing the reliability of the records.
Next, the Hatch-Leahy bill contains
several provisions altering the definition of “child pornography” in
response to the Free Speech
case. One approach would have been simply to add an “obscenity”
requirement to the child pornography definitions. Outlawing all
obscene child pornography -- real and virtual; minor and
youthful-adult; simulated and real – would clearly pass a
constitutional challenge because obscene speech enjoys no protection
at all. Under the Miller
obscenity test, such material (1) “appeals to the prurient interest,”
(2) is utterly “offensive” in any “community,”
and (3) has absolutely no serious “literary, artistic or scientific
value.”
Some new provisions of this bill do take
this “obscenity” approach, like the new section 1466A, which I crafted
with Senator Hatch. Other provisions, however, take a different
approach. Specifically, the House virtual porn
provision 2256(8) include persons who are “indistinguishable”
from an actual minor. This adopts language from Justice O’Connor’s
concurrence in the Free Speech
case. The problem with that is that Justice O’Connor was not the
deciding vote in the Free Speech
case, she was the
seventh vote to strike
down the law. Thus, while this language is defensible, I predict that
this provision will be the center of much constitutional debate.
Although I will explain in more detail later, these new definitional
provisions risk crossing the constitutional line.
Title V, which was already in the
unanimously passed Senate bill before the House saw fit to make the
bill more controversial, itself contains a variety of other measures
designed to increase jail sentences in cases where children are
victimized by sexual predators. First, it enhances penalties for
repeat offenders of child sex offenses by expanding the predicate
crimes which trigger tough, mandatory minimum sentences. Second, the
bill requires the U.S. Sentencing Commission to address a disturbing
disparity in the current Sentencing Guidelines. The current sentences
for a person who actually travels across state lines to have sex with
a child are not as high as for child pornography. The Commission
needs to correct this oversight immediately, so that prosecutors can
take these dangerous sexual predators off the street. These are all
strong measures designed to protect children and increase prison
sentences for child molesters and those who otherwise exploit children
but – unlike the ill-considered Feeney and Hatch-Sensenbrenner
amendments – they are done the right way within the structure that
Congress established under the Sentencing Reform Act of 1984.
Also retained from the original
Hatch-Leahy PROTECT Act are several provisions designed to protect the
children who are victims in these horrible cases. Privacy of the
children must be paramount. It is important that they not be
victimized yet again in the criminal process. This bill provides for
the first time ever a provision that I suggested. It is an explicit
shield law that prohibits the name or other non-physical identifying
information of the child victim (other than the age or approximate
age) from being admitted at any child pornography trial. It is also
intended that judges can and will take appropriate steps to ensure
that such information as the child’s name, address or other
identifying information not be publicly disclosed during the pretrial
phase of the case or at sentencing. The conference report also
retained a Senate provision requiring the judge to instruct the jury,
upon request of the government, that no inference should be drawn
against the
United States because of information
inadmissible under the new shield law.
The conferees also voted to adopt a
provision from the original Hatch-Leahy PROTECT Act that amended
certain reporting provisions governing child pornography.
Specifically, it allows federal authorities to report information they
receive from NCMEC to state and local police without a court order.
In addition, the bill removes the restrictions under the Electronic
Communications Privacy Act (ECPA) for reporting the contents of, and
information pertaining to, a subscriber of stored electronic
communications to NCMEC when a mandatory child porn report is filed
with NCMEC pursuant to 42 U.S.C. 13032.
While this change may invite rogue
federal, state or local agents to try to circumvent all subpoena and
court order requirements under ECPA and allow them to obtain
subscriber emails and information by triggering the initial report to
NCMEC themselves, it should be well understood that this is not the
intention behind this provision. These important safeguards are not
being altered in any way, and a deliberate use of the tip line by a
government agent to circumvent the well established statutory
requirements of these provisions would be a serious violation of the
law. Nevertheless, we should still consider further clarification in
the future to guard against subverting the safeguards in ECPA from
government officials going on “fishing expeditions” for stored
electronic communications under the rubric of child porn
investigations.
As I made clear when the Senate bill was
introduced and again when it passed the Senate, I continue to express
my disappointment in the Department of Justice information sharing
regulations related to NCMEC tip line. According to a recent
Government Accounting Office (GAO) report, due to outdated turf
mentalities, the Attorney General’s regulations exclude both the
United States Secret Service and the U.S. Postal Inspection Service
from direct access to important tip line information. That is totally
unacceptable, especially in the post 9-11 world, where the importance
of information sharing is greater than ever. How can the
Administration justify support of this provision, which allows
state and local law
enforcement officers such access, when they are simultaneously
refusing to allow other federal
law enforcement agencies access to the same information? I once more
urge the Attorney General to end this unseemly turf battle and to
issue regulations allowing both the Secret Service (now in the
Department of Homeland Defense) and the Postal Inspection Service,
both of whom perform valuable work in investigating these cases, to
have access to this important information so that they can better
protect our nation’s children.
Section 506 of the conference report
also adopted the Senate provision providing for extraterritorial
jurisdiction where a defendant induces a child to engage in sexually
explicit conduct outside the
United States for the purposes of
producing child pornography which they intend to transport to the
United States. The provision is crafted to require the defendant to
have the intent of actual transport of the material into the United
States, unlike the House bill, which criminalized even
an intent to make such material
“accessible.” Under that overly broad wording, any material posted on
a foreign web site could be covered, whether or not it was ever
intended that the material be downloaded in the United States. Under
the bill we consider today, however, proof of a specific intent to
send such material to the United States is required.
Finally, Section 510 of the bill
provides a new private right of action for the victims of child
pornography that was part of the Senate bill. This provision has
teeth, including injunctive relief and punitive damages that will help
to put those who produce child pornography out of business for good.
I commend Senator Hatch for his leadership on this provision and his
recognition that such punitive damages provisions are important means
of deterring misconduct. These provisions are important, practical
tools to put child pornographers out of business for good and in jail
where they belong. These are provisions that were in the Senate
Hatch-Leahy bill and could have already been law had the House not
chosen to hold them hostage to try to gain passage of the more
controversial elements of the House package.
Joint Hatch-Leahy
Improvements in the Judiciary Committee:
The committee process is there for a
reason. It is there because it causes us to work together and improve
bills as they go along. The Senate version of the PROTECT Act, much
of which is included in the conference reported bill, is a prime
example of the merits of that process. I only wish that other
portions of this bill had been so considered. Let me explain.
As I mentioned previously, the Senate
Hatch-Leahy PROTECT Act – most of which is now stuck in at the end of
the bill -- is a good faith effort to tackle the child pornography
problem, and I have supported its passage from the outset. Until our
conference, Senator Hatch and I worked closely together to make this
bill as strong as possible. In fact, Senator Hatch and I were able to
offer a joint amendment in the Judiciary Committee that strengthened
the bill further against constitutional attack. Here are some of the
improvements that we jointly made to the bill as introduced and which
are in the final bill.
C
The Hatch-Leahy committee amendment created a new specific intent
requirement in the pandering crime. The provision is now better
focused on the true wrongdoers and requires that the government prove
beyond a reasonable doubt that the defendant actually intended others
to believe that the material in question is obscene child
pornography. This is a positive step.
C
The Hatch-Leahy committee amendment narrowed the definition of
“sexually explicit conduct” for prosecutions of computer created child
pornography. Although I continue to have serious reservations about
the constitutionality of prosecuting cases involving such “virtual
child pornography” after the Supreme Court’s decision in
Free Speech Coalition v. Ashcroft, narrowing the definition
of the conduct covered provides another argument that the provision is
not as overbroad as the one in the CPPA. I had also proposed a change
that contained an even better definition, in order to focus the
provision to true “hard core” child pornography, and I was glad that
this provision – relating to “graphic” pornography, was included in
the final conference report.
C
The Hatch-Leahy committee amendment refined the definition of virtual
child pornography in the provision that Senator Hatch and I worked
together to craft last year, which will be a new 18 U.S.C. 1466A.
These provisions rely to a large extent on obscenity doctrine, and
thus are more rooted in the Constitution than other parts of the
bill. I was pleased that the Hatch-Leahy amendments included a
definition that the image be “graphic” – that is, one where the
genitalia are actually shown during the sex act – and that the House
agreed to adopt this definition for the virtual porn provision as a
whole for two reasons.
First, because the old law would have required proof of “actual”
minors in cases with “virtual” pictures, I believe that this
clarification will remove a potential contradiction from the new law
which pornographers could have used to mount a defense.
Second, it will provide another argument supporting the law’s
constitutionality because the new provision is narrowly tailored to
cover only the most “hard core” child pornography. If only we would
have gone the extra step of requiring this level of obscenity for all
virtual child pornography, I think the bill would be safe from
constitutional challenge, instead of skating along the constitutional
edge.
C
The Hatch-Leahy Committee amendment also clarified that digital
pictures are covered by the PROTECT Act, an important addition in
today’s world of digital cameras and camcorders. I am glad that the
final bill adopted that change.
These were important changes, and I was
glad to work with Senator Hatch to craft them. It is unfortunate that
this bipartisan cooperation did not extend to the provisions that were
added to the bill in the House and in the conference.
Remaining Issues:
Even Title 5 of this law -- the real
PROTECT Act-- is not perfect, however, and I would have liked to see
some additional improvements to the bill. Let me outline some of
them.
First, with regard to the tip line, I
would have liked to further clarify that law enforcement agents may
not and should not “tickle the tip line” to avoid the key protections
of the Electronic Communications Privacy Act (ECPA). This might have
included modifying 42 U.S.C. 13032 to clarify that the initial tip
triggering the report may not be generated by the government’s
investigative agents themselves. A tip line to NCMEC is just that – a
way for outsiders to report wrongdoing to NCMEC and the government,
not for the government to generate a report to itself without
following otherwise required lawful process. It was not the intent
of any part of this bill to alter that purpose.
Second, regarding the affirmative
defense, I would have liked to ensure that there is an affirmative
defense for each new category of child pornography and for all cases
where a defendant can prove in court that a specific, non-obscene
image was made not using any child but only actual, identifiable
adults. That will no doubt be a basis for attacking the
constitutionality of this law. I specifically made this suggestion in
conference negotiations but my Republican colleagues from both the
House and the Senate refused to adopt a “complete” affirmative
defense, instead leaving holes that will surely be raised in
constitutional attacks on the bill.
As a general matter, it is worth
repeating that we could have avoided all these problems were we to
take the simple approach of outlawing “obscene” child pornography of
all types, which we do in one new provision that I suggested and which
is the new Section 1466A established in the conference report. That
approach would produce a law beyond any possible challenge. This
approach is also supported by NCMEC, which we all respect as the true
expert in this field.
Following is an excerpt from
NCMEC’s answer to written questions
submitted after our hearing, which I will place in the record in its
entirety:
“Our view is that the vast majority (99-100%) of all child pornography
would be found to be obscene by most judges and juries, even under a
standard of beyond a reasonable doubt in criminal cases. Even within
the reasonable person under community standards model, it is highly
unlikely that any community would not find child pornography obscene.
...
In
the post Free Speech decision legal climate, the
prosecution of child pornography under an obscenity approach is a
reasonable strategy and sound policy.”
Thus, according to NCMEC, the approach
that is least likely to raise constitutional questions – using
established obscenity law – is also an effective one. In short, the
obscenity approach is the most
narrowly tailored to prevent child pornography. New section
1466A adopts this obscenity approach, but because that is not the
approach that other parts of the PROTECT Act uses,
I recognize that it contains provisions about which some may have
legitimate constitutional questions.
Specifically, in addition to the
provisions that I have already discussed, there were two amendments
adopted in the Judiciary Committee in the last Congress and one in
this Congress to which I objected that are included in the bill as we
consider it today. I felt and still feel that these alterations from
the original language that Senator Hatch and I introduced needlessly
risk a serious constitutional challenge to a bill that provided
prosecutors the tools they needed to do their jobs. The bill would be
even stronger than it is now were they changed. Let me discuss my
opposition to these changes adopted by the Judiciary Committee in this
Congress and the last.
Expansion of
Pandering Provision:
Although I worked with Senator Hatch to write the new pandering
provision in the PROTECT Act, I did not support two of Senator Hatch’s
amendments extending the provision to cover (1) “purported” material,
and (2) material not linked to obscenity. Although our bill, unlike
the House bill which had a pandering provision with no link to
obscenity at all, had at least one provision which covered
predominantly unprotected speech, it was needlessly altered in the
legislative process and made vulnerable to attack.
First, during our markup in the last
Congress I objected to an amendment from Senator Hatch to include
“purported” material in the pandering provision. “Purported” material
criminalizes speech even when there is no underlying material at all
-- whether obscene or non-obscene, virtual or real, child or adult.
The pandering provision is an important tool for prosecutors to punish
true child pornographers who for some technical reason are beyond the
reach of the normal child porn distribution or production statutes.
It is not meant to federally criminalize talking dirty over the
internet or the telephone when the person never possesses any material
at all. That is speech, and criminalizing it goes too far.
The original pandering provision in
S.2520 as introduced last Congress was quite broad, and some argued
that it presented constitutional problems as written, but I thought
that prosecutors needed a strong tool, so I supported Senator Hatch on
that provision.
I was heartened that Professor
Schauer of Harvard, a noted First
Amendment expert, testified at our hearing last year that he thought
that the original provision was constitutional, barely.
Unfortunately, Professor Schauer has
since written to me stating that this new amendment to include
“purported” material “would push well over the constitutional edge a
provision that is now up against the edge, but probably barely on the
constitutional side of it.” I placed his letter in the record upon
introduction of the bill in this Congress on
January 13, 2003.
The second amendment to the pandering
provision to which I objected expanded it to cover cases not linked in
any way to obscenity. It would allow prosecution of anyone who
“presented” a movie that was intended to cause another person to
believe that it included a minor engaging in sexually explicit
conduct, whether or not it was obscene and whether or not any real
child was involved. Any person or movie theater that presented films
like Traffic,
Romeo and Juliet, and
American Beauty would be
guilty of a felony. The very point of these dramatic works is to
cause a person to believe that something is true when in fact it is
not. These were precisely the overbreadth
concerns that led 7
justices of the Supreme Court to strike down parts of the 1996 Act.
We do not want to put child porn convictions on hold while we wait
another 6 years to see if the law will survive constitutional
scrutiny.
Because these two changes endanger the
entire pandering provision, because they are unwise, and because that
section is already strong enough to prosecute those who peddle child
pornography, I opposed those expansions of the provision which are in
the bill we consider today. At least with those provisions, however,
we debated and carefully considered alternatives. As I have said, with
respect to other provisions in the bill the process has been
fundamentally flawed.
Inclusion of 100
Percent Virtual Child Pornography:
Although I joined Senator Hatch in introducing this bill, even when it
was introduced last year I expressed concern over certain provisions.
One such provision was a new definition of “identifiable minor.” When
the bill was introduced, I noted that this provision might both
confuse the statute unnecessarily and endanger the already upheld
“morphing” section of the CPPA. I said I was concerned that it could
present both overbreadth and vagueness
problems in a later constitutional challenge. Unfortunately, this
provision remains problematic and susceptible to constitutional
challenge. I was even more concerned with the House bill, which
included 100 percent virtual child pornography from the start.
Unfortunately, as we consider the bill
today, we have the House provision designed to cover “virtual” child
pornography – that is, 100 percent computer generated pictures not
involving any real children.
The “identifiable minor” provision in
the current law may be used without any link to obscenity doctrine.
Therefore, what potentially saved the original version we introduced
in the 107th Congress was that it applied to child porn
made with real persons. The provision was designed to cover all sorts
of images of real kids that are morphed or altered, but not something
entirely made by computer, with no child involved.
The provision we now consider, however,
dislodges, in my view, that sole constitutional anchor. The new
provision could be read to include images that never involved real
children at all but were 100 percent computer generated. That was not
the original goal of the Senate provision.
There are other provisions in this bill
that deal with obscene virtual child pornography that I support, such
as those in new section 1466A, which are linked to obscenity
doctrine. This provision, however, was intended to ease the
prosecutor's burden in cases where images of real children were
cleverly altered to avoid prosecution. By changing the Senate’s
identifiable minor provision into the House’s virtual porn provision,
the conference needlessly endangered its constitutionality.
For these reasons, I was glad to work in
a bipartisan manner to shore up this provision in conference.
Unfortunately, despite our best efforts, I fear we did not do
everything possible to strengthen it against constitutional attack.
Let me explain.
The new “virtual” porn provision in
section 502 lumps together such truly “hard core” sexual activities
such as intercourse, bestiality, and S&M with simple lascivious
exhibition of the genitals and simulated intercourse where any part of
a breast is shown. Equating such disparate types of conduct, however,
does not mesh with community standards and is precisely the type of
“one size fits all” approach that the Supreme Court rejected in the
area of virtual pornography in the Free Speech case. The
contrast between this broad definition and the tighter definition in
new Section 1466A, crafted by Senator Hatch and myself, is striking.
Although I was glad that we included the same definition of “graphic”
conduct found in new section 502 as in Section 1466A, we have also
left intact the less focused language that imperils the bill. The
provision may be open to overbreadth
attacks.
I am pleased that the conference
addressed the vagueness concern in the new statute 2256(2) as it
applies in virtual cases. By removing the requirement of “actual”
conduct, we corrected the vagueness issue and have prevented clever
defendants from seeking to argue that this new provision still
requires proof “actual” sexual acts involving real children.
The Supreme Court made it clear that we
can only outlaw child pornography in two situations: No. 1, where it
is obscene, or No. 2, where it involves real kids. That is the law as
stated by the Supreme Court, whether or not we agree with it.
Senator Hatch and I agree that
legislation in this area is important. But regardless of our personal
views, any law must be within constitutional limits or it does no good
at all. Section 502, which would include most “virtual” child
pornography in the definition of child pornography, in my view,
crosses the constitutional line and needlessly risks protracted
litigation that could assist child pornographers in escaping
punishment.
I supported passage of the original
PROTECT Act as Senator Hatch and I introduced it and as it passed the
Senate unanimously in the last Congress. Even so, I was willing to
work with him to further amend the bill in the Judiciary Committee.
Some amendments that we considered in committee I supported because
they improved the bill. Others went too far. I had hoped the House
would simply adopt the unanimously passed Senate bill and we would
have already had a law on the books. Unfortunately, the House chose
to proceed otherwise. Nevertheless I continued to work side by side
with Republicans in conference to work through a variety of
controversial and largely unrelated provisions. I wish I could say
that my efforts have been reciprocated. One wonders whether everyone
is placing the interests of our children first.
A media report on this legislation at
the end of the last Congress reported the wide consensus that the
Hatch-Leahy bill was more likely than the House bill to withstand
scrutiny, but quoted a Republican House member as stating: “Even if it
comes back to Congress three times we will have created better
legislation.”
To me, that makes no sense. Why not
create the “better legislation” right now for today’s children,
instead of inviting more years of litigation and putting at risk any
convictions obtained in the interim period before the Supreme Court
again reviews the constitutionality of Congress’ effort to address
this serious problem? That is what the Senate passed version of the
PROTECT Act sought to accomplish.
As I have explained, I believe that this
issue is so important that I have been willing to compromise and to
support a measure even though I do not agree with each and every
provision that it contains. That is how legislation is normally
passed. I am disappointed that the Administration and the House
decided to play politics with this issue and seek further changes that
could bog the bill down.
SEX OFFENDER REGISTRY
ON THE INTERNET
There are a few additional measures in
the conference report that I want to mention. First, Section 604 of
the conference report, which was proposed by Senator Grassley, amends
Section 170101(e) of the Violent Crime Control and Law Enforcement Act
of 1994. That section would amend several provisions of the sexual
registry established under that law. First, it would add additional
crimes to those that are included in the registry. Second, it would
require that such registries be made available over the internet.
Finally, and quite significantly, this provision would not only
require a “process” be established for contesting the accuracy of any
information on the registry, but would also require that the
instructions for following that process be readily available on the
internet. For the first time, then, we are explicitly requiring that
there is a mechanism for those who believe that information has been
erroneously posted on the registry to challenge that information and
seek to have it removed.
NCMEC REAUTHORIZATION
INSERT
Second, I want to thank the conferees
for supporting measures included in the Protecting Our Children First
Act, S.773, a bipartisan bill that I introduced in both this Congress
and the last, joined by Senators Hatch, Kennedy, DeWine,
Biden, Shelby, Lincoln and Reid, to
reauthorize the National Center for Missing and Exploited Children.
As the nation’s top resource center for child protection, NCMEC
spearheads national efforts to locate and recover missing children and
raises public awareness about ways to prevent child abduction,
molestation, and sexual exploitation. NCMEC works to make our
children safer by being a national voice and advocate for those too
young to vote or speak up for their own rights.
We had proposed reauthorization through
2007 but have at least achieved agreement to extend its activities
through 2005. We were able to double the grants from $10 million to
$20 million a year so that the
National Center can help more children
and families. We also authorize the U.S. Secret Service to provide
forensic and investigative assistance to the National Center, and we
strengthen NCMEC’s Cyber
Tipline to provide online users an
effective means of reporting Internet-related child sexual
exploitation in distribution of child pornography, online enticement
of children for sexual acts, and child prostitution.
TRANSITIONAL HOUSING
Third, I am pleased that conferees
agreed to include in the conference report Leahy-Kennedy-Biden
legislation that will establish a transitional housing grant program
within the Department of Justice to provide to victims of domestic
violence, stalking, or sexual assault the necessary means to escape
the cycle of violence.
Today, more than 50 percent of homeless
individuals are women and children fleeing domestic violence. They
are homeless because, in their desperate attempt to leave their
abusers, they find themselves with few, if any, funds to support
themselves. Shelters offer a short-term solution, but are often
overcrowded and unable to provide all of the support that is needed.
Transitional housing allows women to bridge the gap between escaping
from a domestic violence situation and becoming fully
self-sufficient. Such assistance is limited, however, because no
federal funds exist for transitional housing programs geared
specifically to victims of domestic violence. We last authorized such
a transitional housing grant program as part of the reauthorization of
the Violence Against Women Act in 2000.
This program would have been administered through the Department of
Health and Human Services and would have provided $25 million in
FY2001. Unfortunately, funds were never appropriated for the program,
and the authorization expired.
If we truly seek an end to domestic
violence, then transitional housing must be available to all those
fleeing their abusers. First of all, such housing provides women and
children a stable, sustainable home base. Second, it gives these
victims opportunity to participate in educational programs, to work
full-time jobs, to learn new job skills, and to search for adequate
child care in order to gain self-sufficiency. Without such resources,
many women and children eventually return to situations where they are
abused or even killed.
This conference report amends the
Violence Against Women Act of 1994 to authorize $30 million for each
of fiscal years 2004-2008 for the Attorney General to award grants to
organizations, States, units of local government, and Indian tribes to
help victims of domestic violence, stalking, or sexual assault who
need transitional housing or related assistance as a result of fleeing
their abusers, and for whom emergency shelter services or other crisis
intervention services are unavailable or insufficient. Funds may be
used for programs that provide short-term housing assistance,
including rental or utilities payments assistance and assistance with
related expenses. The funds may also support services designed to
help individuals locate and secure permanent housing. Lastly, these
resources may be used to help integrate domestic violence victims into
the community by providing services, such as transportation,
counseling, child care services, case management, employment
counseling, and other assistance.
This new grant program will make a
significant impact in many areas of the country, such as my state of
Vermont,
where the availability of affordable housing is at an all-time low.
There are many dedicated people working to provide victims of domestic
violence with resources, but they can not work alone. We must provide
women and children who have endured domestic violence with a safe
place to gain the skills and stability needed to make the transition
to independence. I thank the conferees for adding this language to
the conference report and recognizing that this is an important
component of reducing and preventing crimes that take place in
domestic situations. Together, we can help the victims of these
crimes to move on with their lives.
REID “SHOE BOMBER”
FIX
Fourth, I am pleased that the conference
report includes a provision that I introduced in the last Congress to
clarify that an airplane is a vehicle for purposes of terrorist and
other violent acts against mass transportation systems. A significant
question about this point was raised in an important criminal case and
deserves our prompt attention.
On
June 11, 2002, a U.S. District Judge in
Boston dismissed one of the nine charges against Richard Reid stemming
from his alleged attempt to detonate an explosive device in his shoe
while onboard an international flight from Paris to Miami on December
22, 2001. The dismissed count charged defendant Reid with violating
section 1993 of title 18, United States Code, by attempting to “wreck,
set fire to, and disable a mass transportation vehicle.”
Section 1993 is a new criminal law that
was added, as section 801, to the USA PATRIOT Act to punish terrorist
attacks and other acts of violence against, inter
alia, a “mass transportation”
vehicle or ferry, or against a passenger or employee of a mass
transportation provider. I had urged that this provision be included
in the final anti-terrorism law considered by the Congress. A similar
provision was originally part of S. 2783, the “21st Century Law
Enforcement and Public Safety Act,” that I introduced in the 106th
Congress at the request of the Clinton Administration.
The district court rejected defendant
Reid’s arguments to dismiss the section 1993 charge on grounds that
(1) the penalty provision does not apply to an “attempt” and (2) an
airplane is not engaged in “mass transportation.” “Mass
transportation” is defined in section 1993 by reference to the “the
meaning given to that term in section 5302(a)(7)
of title 49, U.S.C., except that the term shall include
schoolbus, charter and sightseeing
transportation.” Section 5302(a)(7), in turn, provides the following
definition: “mass transportation'' means transportation by a
conveyance that provides regular and continuing general or special
transportation to the public, but does not include school bus, charter
or sightseeing transportation.” The court explained that “commercial
aircraft transport large numbers of people every day” and that the
definition of “mass transportation” “when read in an ordinary or
natural way, encompasses aircraft of the kind at issue here.”
U.S.
v. Reid,
CR No. 02-10013, at p. 10, 12 (D. MA, June 11, 2002).
Defendant Reid also argued that the
section 1993 charge should be dismissed because an airplane is not a
“vehicle.” The court agreed, citing the fact that the term “vehicle”
is not defined in section 1993 and that the Dictionary Act, 1 U.S.C.
§4, narrowly defines “vehicle” to include “every description of
carriage or other artificial contrivance used, or capable of being
used, as a means of transportation on land.”
Emphasis in original opinion. Notwithstanding common parlance
and other court decisions that have interpreted this Dictionary Act
definition to encompass aircraft, the district court relied on the
narrow definition to conclude that an aircraft is not a “vehicle”
within the meaning of section 1993.
The new section 1993 was intended to
provide broad federal criminal jurisdiction over terrorist and violent
acts against all mass transportation systems, including bus services,
airplanes, railroads and other forms of transportation available for
public carriage. The more inclusive definition would also cover
cruise ships. Unfortunately terrorist attacks
against Americans is not a new threat. In 1985, four terrorists
brutally attacked the Achillo
Lauro Cruise Ship. The wheelchair-bound
Leon Klinghoffer, a stroke victim, was
shot once in the head and once in the back by the terrorists who then
pushed him over the side of the ship into the
Mediterranean.
Section 609 of the conference report
adds a definition of “vehicle” to 18 USC 1993 and clarifies the
breadth of the meaning of this term both in common parlance and under
this new criminal law to protect mass transportation systems.
Specifically, it defines this term to mean “any carriage or other
contrivance used, or capable of being used, as a means of
transportation on land, water or through the air.”
Sentencing Provisions and the Process of the Conference Meeting
Having reviewed all the positive
elements of the conference report, I want to speak to the conference
process itself. I am deeply disappointed by the
process that characterized Tuesday’s AMBER Alert and PROTECT
Act conference. By taking bipartisan, non-controversial bills and
adding numerous controversial and unrelated measures, the Republicans
have decided yet again to play games with important measures to
protect our children. They are rolling the dice with the safety of
America’s
children. I do not say this lightly, and I say it with a heavy heart,
but House and Senate Republicans are now holding the passage of AMBER
and the PROTECT Act hostage to these very troubling additions.
With respect to new matters never
considered by this body, the conference committee in this matter tried
no less a feat than to rewrite the criminal code on the
back of an envelope. That type of effort
is unwise and doomed to failure.
There are many things in this bill that
I support – indeed as a former prosecutor I brought my personal
experiences to bear and I wrote much of it. That is why even after
the House Republicans loaded the bill with numerous controversial and
unrelated provisions, I worked in good
faith to come to agreement on many provisions. In fact, staff members
of the conferees met all through the weekend and late into the early
hours of Tuesday morning to find common ground. It is unfortunate
that our good faith was repaid with attempts to add even more
extraneous controversial provisions at the conference meeting.
Tuesday’s conference, which was convened
in the spirit of bipartisan cooperation, turned political, however,
when Republicans sprung a lengthy and complex amendment on the
Democrats. This nine page document was not a simple substitute for a
portion of the bill. It was a highly complex amendment requiring
careful consideration. The sponsors denied a request to break briefly
in order to give conferees a moment to analyze the document. After
meeting for three days in good faith, the Democratic conferees were
effectively slapped in the face with a totally new proposal. Then, to
add insult to injury, the sponsors of the amendment misrepresented its
contents in the conference meeting and quickly forced a vote before
the conferees had a chance to review or debate the amendment.
I was sorely disappointed by the way
that this amendment was explained to the conferees. One sponsor said
– not once or twice, but three separate times: “It’s important to
note that the compromise is limited to these serious crimes against
children and sex crimes and does not broadly apply to other crimes.”
In fact, the amendment was not limited as he described, and did apply
broadly to downward departures in sentencing for all federal crimes.
After the conferees were forced to vote
on the Hatch-Sensenbrenner amendment, Senator Hatch’s office, at
2:00 a.m.,
substantially changed the text of
his own amendment – the amendment that had
already been voted upon in
open conference. With no new meeting and no new vote of the
conferees, the Republicans changed the conference report as it was
voted on, and filed it in the House. The 2:00 a.m. text came closer
to reflecting the original description of
his amendment, but was still not limited, as was promised, to crimes
against children.
The substance of the Hatch-Sensenbrenner
amendment – whether in the form that was voted on in conference, or in
the form that was circulated after the conference adjourned – is just
as outrageous as the way in which it was adopted. This amendment
modifies in very limited ways the Feeney amendment, which was added to
the bill on the House floor after only twenty minutes of debate. This
far-reaching proposal will undermine the federal sentencing system and
prevent judges from imposing just and responsible sentences. In
short, it amounts to an attack on the Federal judiciary.
Speaking about the original Feeney
amendment,
Chief Justice Rehnquist wrote: “this legislation, if
enacted, would do serious harm to the basic structure of the
sentencing guideline system and would seriously impair the ability of
courts to impose just and responsible sentences.” In another bald
mischaracterization of the Hatch-Sensenbrenner amendment, Senator
Hatch claimed in the conference meeting that he had addressed the
Chief Justice’s concerns. He said, “Chief Justice Rehnquist is
worried about the breadth and scope of the Feeney Amendment. He’s not
worried about this [language]. I don’t think any federal judge would
worry about this language. They know this language is to protect our
children in our society, and we’re limiting it to that.” In fact, the
Hatch-Sensenbrenner amendment does not address the problems raised in
Chief Justice Rehnquist’s letter, which were directed at the assault
on the sentencing structure that is retained in the amendment.
In addition to the Chief Justice of the
United States, this is an issue on which we have heard from the
Judicial Conference, other distinguished judges, the Sentencing
Commission, the former chairmen of the Sentencing Commission, the
American Bar Association, the Washington Legal Foundation, the
Leadership Conference on Civil Rights, the Cato Institute, the
National Petroleum Refiners Association and a number of other business
associations, all of which opposed the House language.
Just this week, Justice Kennedy voiced
grave concerns over the excessive application of mandatory minimum
sentences. He said, "When the guilt determination phase and the
sentencing is over," Kennedy said, "the legal system loses all
interest in the prisoner. And this must change. Winston Churchill said
a society is measured by how it treats the least deserving of its
people. And two million people in prison in this country
is just unacceptable."
A number of the groups opposed to the
original proposal have expressed continued opposition. Others have
not had time to write about the new version because this proposal is
being rushed through the legislative process.
The language that was adopted in the
conference report establishes new and separate departure procedures
for child-related and sex offenses. So, we will have one set of
sentencing rules for pornographers and a more flexible set of
sentencing rules for other federal defendants, including terrorists,
murderers, mobsters, civil rights violators, and white collar
criminals. No one here believes that sex offenders deserve
anything less than harsh
sentences, but I cannot understand why we would treat the terrorists
better.
The conference report also overturns a
unanimous Supreme Court decision,
Koon
v. United States, by establishing a new standard of
appellate review in all
departure cases. This provision, like so many others, is not limited
to cases involving children. The Court in
Koon interpreted
the departure standard in a way that limited departures but left some
room for judicial discretion. By contrast, the new provision would
appear to require appellate courts to consider the merits of a
departure before it can decide what standard of review to apply to the
merits. That is because, in order to determine which standard of
review applies – “due deference” or “de novo” – the appellate court
must first decide whether the departure advances the objectives of 18
USC 3553(a)(2) (incapacitation, deterrence,
etc.) or is authorized under 18 USC 3553(b) (a mitigating circumstance
of a kind, or to a degree, not adequately considered by the Sentencing
Commission) or is justified by the facts of the case. This sloppily
drafted, circular provision is likely to tie up the courts in endless
litigation, draining already scarce judicial resources, and costing
the taxpayers money.
The Republican supporters of this
amendment seem to believe that our Federal judges cannot be trusted.
I have always advocated doing a thorough review of our federal judge
nominees when they come before the Senate for lifetime appointments.
Perhaps that is the difference between my view of federal judges and
those of my colleagues across the aisle who
seem to believe they should rubber stamp the President’s nominees to
these lifetime positions. I believe we should pick our federal judges
carefully and them trust them once appointed, not
rubber stamp them and them feign disbelief when we are unhappy with
their decisions.
The amendment effectively creates a
judicial “black list” of judges that stray from the draconian mandates
of this bill. The Hatch-Sensenbrenner language retains the Feeney
amendment’s attempt to intimidate federal judges by compiling a “hit
list” of all judges who impose sentences that the Justice Department
does not like in any
type of criminal case. It takes a sledge hammer to the concept of
separation of powers.
In a further demonstration of hostility
to our Federal judiciary as envisioned by our constitution, the
Hatch-Sensenbrenner amendment removes almost all discretion for
federal judges to depart from the sentencing guidelines in some
extraordinary cases.
At the conference’s one meeting, during
the brief period afforded for debate on the Hatch-Sensenbrenner
amendment, I pointed out that the amendment retained language from the
original Feeney amendment that eliminated the ability of federal
judges to depart and give lower sentences based upon extraordinary
military service.
The sponsors of the amendment dismissed
my concern. They said that I was wrong – that their amendment did not
eliminate the departure for extraordinary military service. They were
both quite certain on this point, even after I raised it a second
time. One sponsor said, “I don’t know where you’re getting your
language from.” Another assured us that “this nine-page amendment has
been very well drafted ... It does exactly what we have said.”
After the conference had adjourned and
they took the time to familiarize themselves with their own amendment,
they discovered that I was correct. They were, in fact, eliminating
the departure for extraordinary military service in all federal
criminal cases – for congressional medal of honor
winners, for example, and veterans who had been seriously wounded
while defending their nation in battle. What’s worse, they were doing
this during a time of war, when future veterans are literally risking
their lives for
America. Realizing that this might not
go down well on the floor of the United States Senate, they quietly
dropped the provision from the final conference report.
I have discussed this issue at some
length not to embarrass any member or his staff, but to make the point
that Congress should spend more than a few minutes considering
legislation with such far-reaching consequences. The conference
report blithely overturns the basic structure of the carefully crafted
guidelines system without any serious process in either the House or
the Senate, and without any meaningful input from judges and
practitioners.
With respect to the few parts of the
Hatch-Sensenbrenner amendment that are limited to crimes against
children, it may not be the end of the guidelines system, but it is
very likely the beginning of the end. Once we prohibit judges from
exercising discretion in one set of cases, we will have established a
prototype for future attacks on the guidelines system – a form of
“mission creep” in this uncompromising, anti-judge agenda. The same
“tough on crime” political posturing that fuels the relentless drive
for more mandatory minimums and death penalties will lead to future
expansions of the Hatch-Sensenbrenner amendment to crimes having
nothing to do with minors.
My Republican colleagues on the
conference claim that there is a crisis on the Federal bench of
downward departures in sentencing. In fact, downward departure rates
are well below the range contemplated by Congress when it authorized
the Sentencing Guidelines, except for departures requested by the
government.
The overwhelming majority of downward
departures are requested by federal prosecutors to reward cooperation
by defendants or to manage the high volume of immigration cases in
certain border districts. When the government does not like a
specific downward departure, it can appeal that decision, and it often
wins – approximately 80% of such appeals are successful. This
amendment is a solution in search of a problem.
Rather than rush to change the law with
no factual basis for doing so, the Democrats in this conference asked
for hearings on the topic. In fact, Senator Graham, the new chairman
of the newly constituted Crime, Corrections and Victims’ Rights
Subcommittee indicated that he planned to hold hearings on this topic
very soon – that is, until the Feeney amendment and the subsequent
Hatch-Sesenbrenner amendment overtook
events. The Republican conferees now claim that no study is
necessary. They believe that no hearings are necessary. They would
rather significantly increase incarceration rates at taxpayer expense
than take the time to determine whether such severe changes are
necessary or appropriate.
The Hatch-Sensenbrenner amendment not
only maintains the worst aspects of the controversial Feeney Amendment
– provisions that have nothing to do with child protection – but also
adds in new provisions that were not in the original Feeney
amendment. For example, it limits the number of Federal judges who
can serve on the Sentencing Commission because, as Chairman
Sensenbrenner explained, “we don’t want to have the Commission packed
with Federal judges that have a genetic predisposition to hate any
kind of sentencing guidelines.” I, for one, believe that judges are
extremely valuable members of the Commission. They bring years of
highly relevant experience, not to mention reasoned judgment, to the
table. The Republicans apparently believe that their knowledge is of
limited value.
I find it ironic that the Republicans,
in forcing through this measure, will undercut one of the signature
achievements of Ronald Reagan’s presidency – a firm, tough, fair
system of sentencing in the Federal criminal justice system. The
Sentencing Reform Act of 1984 struck a balance between uniformity and
judicial discretion and was enacted after years of study and
consideration of the problems in the previous sentencing system.
Congress understood that a guidelines system that encompasses every
relevant sentencing factor is neither possible nor desirable.
Departures, both upward and downward, are an integral and healthy part
of the guideline system. They do not reflect an avoidance of the law
by federal judges but rather their conscientious compliance with the
congressional mandate to impose a guideline sentence unless the court
finds a circumstance not adequately considered by the Commission that
warrants a departure.
“TWO STRIKES” AND
MANDATORY MINIMUMS
Moving beyond the sentencing amendments
offered at the conference, there are several provisions of the
conference report that are equally problematic.
Section 106 of the conference report,
entitled “two strikes and you’re out,” is one of the many
controversial provisions in the House-passed bill that have never been
considered in the Senate. It mandates life imprisonment without
parole for defendants who have twice been convicted of certain crimes
against children.
Another section of the conference report
creates several new mandatory minimum sentences, and raises some
existing ones, for crimes involving child pornography and
prostitution.
We can all agree that those who commit
crimes against children should be severely punished. In fact, the
bill that Senator Hatch and I authored – the real PROTECT Act, which
is buried in title V of the conference report – contains a number of
very strong sentencing provisions. But I believe we can accomplish
our common goal of ensuring that those who prey on children receive
tough punishment without further expanding the mandatory sentencing
scheme that is gradually replacing the guideline | 