Mr. President, I ask unanimous consent that the Senate proceed to the consideration of the conference report to accompany S. 151, the PROTECT Act. I rise in support of the conference report on S.…
Mr. President, I ask unanimous consent that the Senate proceed to the consideration of the conference report to accompany S. 151, the PROTECT Act.
I rise in support of the conference report on S. 151, the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, which truly represents landmark bipartisan legislation to protect our children.
On Tuesday of this week, the House and Senate conferees met and reached agreement on this important piece of bipartisan legislation. Earlier this morning, the House of Representatives passed the legislation by an overwhelming vote of 400 to 25.
I was hoping I could come to the floor to make a statement commending the Senate for working together as we had on so many other occasions on many important issues like this important piece of legislation which is needed to protect our children.
Unfortunately, this is not a proud day for the Senate, and unless we get this bill passed, it will be a sad day.
The spirit of bipartisanship appears to me to be fading, as my Democratic colleagues seek to obstruct and delay rather than working together to solve our Nation's problems and pass this important piece of legislation. Having listened to the distinguished Senator from Massachusetts, I have hope that there will not be obstruction or delay on this bill, and perhaps there won't be as he seeks his point of order. The spirit of obstructionism that I have been worried about, which we have experienced all year long, has now reached a difficult point here. If there is a desire to stop this bill in the Senate through a point of order, or otherwise, then I think it would exhibit a willingness to sacrifice the protection of our own children for political advantages. I hope that is not the case.
If it is, I will be deeply saddened by this turn of events, and I urge my colleagues on the other side to rethink their strategy and approach to so many issues.
In particular, when it comes to this issue of protecting our children, I think we ought to get this bill done. We need to cast aside partisan disputes and quickly pass this measure and send it to the President for signature as soon as possible.
Let me take a moment to commend the House of Representatives, and Judiciary Committee Chairman Sensenbrenner in particular, for their tireless dedication to this legislation. Chairman Sensenbrenner has demonstrated his commitment time and time again to passing this measure quickly during this new session of Congress. Thanks to our House colleagues, we in the Senate now have an opportunity to pass not only an AMBER alert bill, but a truly comprehensive package of measures that will protect our children from vicious criminals, pornographers, sexual abusers, and kidnappers. These types of individuals who prey on our Nation's youth are nothing less than the scum of the earth who deserve every ounce of punishment which we as a nation can fairly and justly mete out.
The problem of child abuse and child exploitation is simply mind- boggling. The recent wave of child abductions across the Nation, including the kidnapping of Elizabeth Smart in my own State of Utah, has highlighted the need for legislation to enhance our ability to protect our Nation's children against predators of all types.
I have a letter addressed to the Senate and the House of Representatives, signed by Ed and Lois Smart, Elizabeth's mother and father, as well as Elizabeth Smart, dated April 9, 2003. I ask unanimous consent that it be printed in the Record.
Mr. President, I will take a moment to address some of the significant components of this measure. First, the PROTECT Act of 2003, which I and Senator Leahy introduced following the Supreme Court's decision in Ashcroft v. Free Speech Coalition, has been my top legislative priority since last year. Congress has long recognized that child pornography produces three distinct, disturbing, and lasting harms to our children. First, child pornography whets the appetites of pedophiles and prompts them to act out their perverse sexual fantasies on real children. Second, it is a tool used by pedophiles to break down the inhibitions of children. Third, child pornography creates an immeasurable and indelible harm on the children who are abused to manufacture it.
It goes without saying that we have a compelling interest in protecting our children from harm. The PROTECT Act strikes a necessary balance between this goal and the first amendment. The PROTECT Act has been carefully drafted to avoid constitutional concerns. The end result of all of our hard work is a bill of which we can be proud, one that is tough on pedophiles and child pornographers in a measured and constitutional way.
The legislation also addresses AMBER alert, America's Missing Broadcast Emergency Response. The bill will extend the AMBER alert system across our Nation. Our entire Nation recently rejoiced with the Smart family after Elizabeth was found alive and reunited with her loved ones. Her discovery, facilitated by everyday citizens who followed this case, demonstrates the importance of getting information about these disappearances out to the public quickly.
When a child is abducted, time is of the essence. All too often, it is only a matter of hours before a kidnapper commits an act of violence against the child. Alert systems, such as the AMBER alert system, galvanize entire communities to assist law enforcement in the timely search for and safe return of child victims.
This legislation will enhance our ability to recover abducted children by establishing a coordinator within the Department of Justice to assist States in developing and coordinating alert plans nationwide. The act also provides for a matching grant program through the Department of Justice and the Department of Transportation for highway signs, education and training programs, and the equipment necessary to facilitate AMBER alert systems. I support the national AMBER Alert Network Act because it will improve our ability on a national level to combat crimes against our children.
Also, I want to take a moment to highlight another very important measure. The legislation includes the Code Adam Act, which would require Federal buildings to establish procedures for locating a child that is missing in the building. The provision is named after the son of John Walsh, the host of America's Most Wanted and the John Walsh Show. As everybody knows, John Walsh's son, Adam, was kidnapped from a mall in Florida and murdered in 1981. Retail stores around the country, including Wal-Mart, have initiated Code Adam systems in memory of Adam, and they have successfully recovered many missing children. This would implement the same system for building alerts in all Federal buildings. It is a measure I am proud to support in memory of John Walsh's son, Adam, and in honor of John Walsh's commitment and vigilance to fighting for crime victims and our children throughout the country.
On Tuesday, John Walsh attended the meeting of the conferees to discuss this legislation. Yesterday, John Walsh issued the following statement:
This incredible bill may be one of the most important
pieces of child protection legislation passed in the last 20
years. I commend Senator Hatch's leadership on the Judiciary
Committee and Chairman Sensenbrenner's leadership on the
House Judiciary. Pushing this bipartisan legislation through
is very appropriate during ``National Crime Victims' Rights
Week.'' This bill, which is a loud voice for the smallest
victims--children--has sent a loud message to those who would
prey upon our most vulnerable segment of society.
I also want to highlight other important measures contained in the conference report that will enhance existing laws, investigative tools, criminal penalties, and child crime resources in a variety of ways.
As the chart shows--the print is small--in addition to the PROTECT Act, AMBER Act, and the Code Adam Act, the legislation would, No. 1, provide a judge with the discretion to extend the term for supervision of released sex offenders up to a maximum of life; No. 2, extend the statute of limitations for child abductions and sex crimes to the life of a child; No. 3, denies pretrial release for child rapists and child abductors; No. 4, require a mandatory sentence of life imprisonment for twice-convicted serious child sex offenders; No. 5, increase penalties for kidnapping of under 18-year-old victims by nonfamily members; No. 6, add new wiretap predicates that relate to sexual exploitation crimes against children; No. 7, increase penalties and provide prosecutors with enhanced tools to prosecute those who lure children to porn Web sites using misleading domain names; No. 8, reauthorize and double the annual grant to the National Center for Missing and Exploited Children to $20 million each year through 2005; No. 9, authorize funding for the Sex Offender Apprehension Program to allow money to be used by local law enforcement to track sex offenders who violate terms of their release; No. 10, create a national Internet site for information regarding registered sex offenders; No. 11, establish a pilot program for national criminal history background checks and a feasibility study in order to provide a background check process for volunteers working for organizations, such as the Boys and Girls Clubs of America, National Mentoring Partnership, and the National Council of Youth Sports; No. 12, reauthorize grant programs to provide funding of child advocacy centers; No. 13, reforms sentencing for criminals convicted of crimes against children and sex crimes.
All of that is done in this particular bill. It is a very important bill, as you can see.
The bill also institutes sentencing reforms so that criminals convicted of crimes against children receive the stiff sentences they deserve. This provision, which was adopted at the conference, represents a significant compromise from the original House bill containing the so-called Feeney amendment which passed the House by a vote of 357 to 58. Indeed, the overall House bill passed the House by an overwhelming vote of 410 to 14.
In response to concerns raised about the Feeney amendment, I worked with Chairman Sensenbrenner, Senator Graham, and my colleagues to develop a bipartisan compromise which was ultimately supported by not only all of the Republican conferees, but by Democratic conferees as well--Senator Biden, as well as Congressmen Frost, Matheson, and Hinojosa.
The compromise proposal would:
No. 1, limit, but not prevent, downward departures only to enumerated factors for crimes against children and sex offenses;
No. 2, change the standard for review of sentencing matters for appellate courts to a de novo review, while factual determinations would continue to be subject to a ``clearly erroneous'' standard;
No. 3, require courts to give specific and written reasons for any departure from the guidelines of the Sentencing Commission; and
No. 4, require judges to report sentencing decisions to the Sentencing Commission.
It is important to note that the compromise restricts downward departures in serious crimes against children and sex crimes and does not broadly apply to other crimes, but because the problem of downward departures is acute across the board, the compromise proposal would direct the Sentencing Commission to conduct a thorough study of these issues, develop concrete measures to prevent this abuse, and report these matters back to Congress.
For those who want to oppose these needed sentencing reforms, I remind them that the Sentencing Reform Act of 1984 was designed ``to provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.''
While the U.S. Sentencing Commission promulgated sentencing guidelines to meet this laudable goal, courts, unfortunately, have strayed further and further from this system of fair and consistent sentencing over the past decade.
Let me refer to this chart. As the chart shows, during the period 1991, in the left part of the chart, to the year 2001, the number of downward departures--in other words, soft-on-crime departures, excluding those requested by the Government for substantial assistance and immigration cases along the Southwest border--has steadily climbed.
In 1991, the number of downward departures was 1,241 and rose by 2001 to a staggering total of 4,098. This chart shows the rate of downward departures has increased over 100 percent during this period--in fact, almost four times--and nearly 50 percent over the last 5 years alone.
This problem is perhaps most glaring in the area of sexual crimes and kidnapping crimes.
This chart of downward departures from sentencing guidelines for sex crimes shows that during the last 5 years, trial courts granted downward departures below the mandated sentencing in 19.20 percent of sexual abuse cases, 21.36 percent of pornography and prostitution cases, and 12.8 percent of kidnapping and hostage-taking cases. Think about it: Downward departure in these types of cases that involve our children. This many departures happens to be very disturbing and astounding considering the magnitude of the suffering by our Nation's youth at the hands of pedophiles, molesters, and pornographers.
Let me give one example of the abuse this sentencing reform will correct. In one particular case, a defendant was charged--this is a convicted child pornographer--with possession of 1,300 separate images of child pornography, depicting young children in graphic and violent scenes of sexual exploitation that were sickening and horrible. For example, one of the images showed a young girl wearing a dog collar while engaging in sexual intercourse with an adult male. This same defendant was engaging in online sexual communications with a 15-year- old girl.
The sentencing guideline for this defendant mandated--these are the sentencing guidelines the distinguished Senator from Massachusetts, the distinguished Senator from Delaware, and a number of us, including myself, passed long ago--the sentencing guidelines for this defendant mandated a sentence in the range of 33 to 41 months. Yet the trial judge departed downward to a sentence of only 8 months, citing, No. 1, the defendant's height. He was just short of 6 feet tall, and he said that would make him vulnerable to abuse in prison. No. 2, he said the defendant was naive. And No. 3, the defendant's demeanor--he was meek and mild and compassionate.
We all have common sense, but this is simply incredible and outrageous. Congress has to act, and it has to act now. The compromise sentencing reform provisions contained in the conference report are a reasonable and measured response to this problem.
The compromise proposal would simply require judges to sentence these vicious defendants in accordance with the law and not seek new areas or new legal justifications for reducing sentences for these defendants without specific authorization from the U.S. Sentencing Commission.
Contrary to the oft-repeated claims of its opponents, the compromise proposal is not a mandatory minimum. Judges handling these important criminal cases can still exercise discretion to depart downward, but only when the Sentencing Commission specifies the factors that warrant a downward departure.
The other major reform in the compromise adopted in the conference report is consistent with prevailing law, requiring de novo review of a trial judge's application of facts to law. Indeed, this is the same standard that applies to appellate review of critical motions to suppress physical or testimonial evidence. There is no reason for appellate judges to give deference to the trial judge on such questions of law.
Even after the compromise amendment, the trial judge's factual determinations will still be subject to great deference under a ``clearly erroneous'' standard. If a discretionary downward departure is justifiable, it is difficult to understand why anyone would be opposed to the appellate courts reviewing them under the same standard that applies to other important areas of law.
I wish to take a moment to remind everyone to focus on the problem we face: an epidemic of abuse of our children. According to the National Center for Missing and Exploited Children--these facts really are not only astounding, they are deplorable--in our country, 3.9 million of the Nation's 22.3 million children between the ages of 12 and 17 have been seriously physically assaulted, and 1 in 3 girls and 1 in 5 boys are sexually abused before the age of 18. That is unbelievable, but that is what is going on, and that is why this bill is so important. That is why we need to pass it today.
Considered in this context, we can have an honest debate about the issues, but we have an epidemic that needs to be addressed and addressed now. We simply have no greater resource than our children. It has been said that the benevolence of a society can be judged on how well it treats its old people and how well it treats its young. Our children represent our Nation's future, and I commend all of my colleagues for their tireless efforts on behalf of children and families and urge my colleagues to pass this critical legislation. Quite frankly, our Nation's children deserve no less.
I know there are some misunderstandings from the conference, but virtually everybody but a number of Democrats have signed off on this, including a number of Democrats have signed off on this conference report, knowing what it says, knowing what it means, knowing what it was represented to mean. I acknowledge some of my dearest friends on the other side feel otherwise, but I believe it was made quite clear during conference what this actually means.
I urge my Democratic colleagues to stop any partisanship or partisan gamesmanship and support this needed legislation. I do not think we should let our children or our communities down. We need to pass this legislation without delay and send it to the President.
The epidemic of downward departures in child pornography cases has created what I like to call the ``Me Too'' sentencing pitch from the defense. In a recent case in Kansas, the judge departed from the Sentencing Commission's guideline sentence of 27-33 months in prison, and imposed only probation. As part of the reason for the departure, the court stated that it found defense counsel's argument compelling-- that in 27.4 percent of cases involving possession of child pornography, sentencing courts have downwardly departed. In other words, the problem is so out of hand, that defense attorney's point to the downward departure statistics and say, ``Me too, Judge, Me Too.''
That is where we are. That is what we are trying to fix. I have to say I have done my best to try to accommodate both sides. I do not know how to accommodate them any differently. Even as late as today, I have tried to see if there was any possibility, but there is not any. I think those who stayed for the full conference knew exactly what was involved, and it is a bipartisan bill. That is apparent from the size of the vote over in the House.
I yield the floor.
Mr. President, I don't know anybody on the Senate floor who can roar better than my ``lion'' friend from Massachusetts. He is a great Senator. And he certainly feels very deeply on this issue. Apparently I have irritated him, and I feel sorry about that, but he is totally wrong in what he says. I can see why he might feel that way.
Now, let me just say this, that I believe the letters that he was referring to, with regard to the courts of this country complaining about this, were before the compromise we enacted in this particular conference report. I got a lot of complaints, too. That is why I tried to make the change and worked it out with Chairman Sensenbrenner and others in the House who were not very happy to make the change.
My friend called and said: Can you do something in this area? I said I would try, which I did. And we came up with the Hatch-Graham- Sensenbrenner amendment. I apologize for my voice, but I have semi- laryngitis. But we came up with the Hatch-Graham-Sensenbrenner amendment, which I believed moved this in the right direction and I thought would please my friend from Massachusetts, but it did not.
Now, it needs to be pointed out that this is a bipartisan conference report. On the Senate side, we voted for this report 5 to 2, meaning it was bipartisan. On the House side, they voted in larger numbers for this report.
I have to mention that neither the distinguished Senator from Massachusetts nor the distinguished Senator from Vermont signed the conference report, so they did not agree with it. And I understand that they are upset about the language in the report. I cannot help that.
But we are talking about only 2 percent of the cases that are affected by this departure language--only 2 percent of all the cases. I thought I did a pretty good job in getting it done.
I have to mention one other thing: the distinguished Senator from Massachusetts talking about a blacklist for judges, because he claims that these reports have to be sent to the Attorney General.
Well, remember, sometimes Attorneys General are Republican and sometimes they are Democrat. I think most Attorneys General really try to do a good job. I know the current one is trying to do his best job against crime in this society. The current Attorney General approved and was for the original Feeney language--which we changed--and so were many Members of the House. They were not happy with this change.
Let me just make some points here that are important. It is not surprising that the American Civil Liberties Union, the Federal Public Defenders, the American Bar Association, and the Judicial Conference have opposed the Feeney amendment.
One seriously wonders what would have been heard from the ABA, the ACLU, the Leadership Conference on Civil Rights, and others if upward departures--in other words, making it tougher on crime--had grown at the absurd and dizzying rates that downward departures have.
Can anyone seriously believe that they would have been asking for more time to study this issue if upward departures had gone out of control, like these downward departures, that are skyrocketing?
So everybody in our country understands, we have judges on the bench--not many, but enough--who, in these child molestation, child degradation, and child pornography cases--these children's criminal cases--who are continually reducing the sentences recommended by the Sentencing Commission for these criminals who are hurting our children.
Look at this chart. Since 1991, when there were 1,241 downward departures--or lesser sentences for these types of people--we are now up to 4,098 in 2001. And I am sure it was much higher for 2002 and that for 2003 it will be much higher.
Can anyone seriously believe that these liberal groups would be asking for more time to study this issue, as is being asked for here? I suspect there would be a loud, steady drumbeat for swift legislative action by Congress to stop such an outrage--not more time for the Sentencing Commission to study the issue--that is, if the upward departures, in other words, the tougher on crime departures, were followed by the courts. Well, that isn't the case. These are downward departures, making it easier on these pedophiles, sex criminals, child rapists, child pornographers.
I further suspect that these groups would not have waited as long and as patiently as we have in watching downward departures increase steadily year after year, making it easy on criminals who do these types of things to our children.
Additionally, I am not surprised the Judicial Conference is opposed to this amendment, if it is.
It is important to note, however, the compromise is limited to these serious crimes against children and sex crimes. But because the problem of downward departures is acute across the board, the compromise proposal would direct the Sentencing Commission to timely conduct a thorough study of these issues, develop concrete measures to prevent and limit this abuse--this abuse of downward departures, making it easy on child molesters--and report these matters back to Congress.
In fact, to place this matter in historical context, in debate on the Sentencing Reform Act, the distinguished Senator from Massachusetts observed, with respect to the Judicial Conference and sentencing disparity, the following:
With all due respect to the Judicial Conference, the judges
themselves have not been willing to face this issue and to
make recommendations and to try and remedy this situation.
He acknowledges that some judges are out of control on these issues. And I think this chart shows they are out of control in children's cases, and it is time to stop it. That is what this bill does.
Along these lines, consider the following disparity, demonstrating the increasing undermining of the sentencing guidelines by some of these judges. The average downward departure rate for nonsubstantial assistance cases in the Fourth Circuit is 5.2 percent, while in the Tenth Circuit it is 23.3 percent. The average downward departure rates are making for easier sentences for these sex criminals. It is this type of sentencing disparity that risks turning our criminal justice system of sentencing into--to borrow yet another phrase from Senator Kennedy on this issue--``a system of roulette.''
I urge support for this conference bill. It squarely increases punishment for child-related crimes and ensures that those who commit these crimes are incarcerated accordingly. And it says the game is over for judges: You will have some departure guidelines from the Sentencing Commission, but you are not going to go beyond those, and you are not going to go on doing what is happening in our society today on children's crimes, no matter how softhearted you are. That is what we are trying to do here. We are tired of it. I am tired of having children abused. This bill will go a long way toward stopping that kind of abuse.
Let me talk about departure rates and the amounts for child-related crimes. The conference report addresses the glaring penalty gaps that exist in the sentencing guidelines. The bill represents a compromise from various points of view. I did my best to try to get a compromise that I hoped my colleagues on the other side would be happy with.
They are not, some of them. But I have to say that the distinguished Senator from Delaware was. He voted with us on this conference report, as he should have. I believe others on the committee should have also. For instance, there was one view that believed all downward departures should be banned, all of them. That was a view by some. The Feeney amendment, approved in the House before conference, moderated that view by merely limiting departures. I cosponsored an amendment in the conference with Chairman Sensenbrenner and Senator Graham that we have been talking about that went even further by limiting departures related to crimes victimizing children. This bill puts a stop to the very troubling practice of certain trial courts which depart from the sentencing guidelines in crimes involving children and sex crimes.
The following very troubling statistics related to child crimes demonstrate why this is necessary. According to the Sentencing Commission's 2001 Sourcebook of Federal Sentencing Statistics, trial courts reduce the sentence of those convicted of sexual
abuse of children from the guidelines over 16 percent of the time. Think of it. Why do we have these sentencing rules to begin with if they are not going to be followed, especially in these children's cases?
On average, child courts reduce the sentences of those convicted of sexual abuse by an astonishing 63 percent from the guideline range. I would think my colleagues would want to put a stop to that kind of inappropriate decisionmaking by some judges. For those convicted of pornography and/or prostitution-related offenses, trial courts departed from the recommended guidelines over 18 percent of the time, reducing these defendants' sentences by a staggering 66 percent. Think about it. We are going to let that continue just because some of these groups don't like it or want to be more compassionate towards these criminals? This many departures and this amount of sentencing reductions are astounding given the trauma inflicted on victims of these particular types of offenses, and require us in Congress to step in and ensure the sentences in these areas remain uniform and consistent with national expectations.
Let me add an overall perspective to this compromise. The compromise agreed to in conference will affect only crimes against children and sex crimes; that is, sexual abuse, pornography, prostitution, and kidnapping/hostage taking. These types of cases represent only 2 percent of the Federal criminal caseload. This is only 2 percent of the cases that would have been affected by the original Feeney amendment-- they all would have been affected by the original Feeney amendment--and only 2 percent of the cases that would have been affected by the version that passed the House by an overwhelming 357 to 58 vote. And we have complaints about this?
Hopefully in the future the Sentencing Commission will more closely monitor these types of disparities and will step in to fix these problems in a timely manner. However, when they do not, it is incumbent upon the Congress to do so. That is precisely what this bill does. We say in this bill: We are sick of this, judges. You are not going to do this anymore except within the guidelines set by the Sentencing Commission. There will be downward departures, but they will meet the guidelines and not just be off-of-the-top departures like the 190 pound man, five feet 11, almost six feet tall, who had committed a child crime and got reduced 400 percent or more.
It is absurd to suggest the Sentencing Commission should be given time to study this issue. The Sentencing Commission has been aware that Congress was greatly concerned about this problem since the year 2000, even before then. Indeed, these very issues were squarely raised with the Sentencing Commission during the Senate hearing in October 2000. Both Senators Thurmond and Sessions directed many questions at the commissioners and others about their concerns that trial judges systematically undermine the sentencing guidelines by creating new reasons to reduce these sentences.
Indeed, Senator Sessions expressed his concerns about the troubling trend of departures based on novel and creative reasons directly to the chair of the Sentencing Commission.
Senators Thurmond and Sessions were assured the Sentencing Commission intended to address this issue by including it in a larger report due November 2002, addressing how well the guidelines were accomplishing the statutory purposes of sentencing. It is now 6 months beyond the due date, and no such report has been produced. In fact, the Sentencing Commission announced just this past March it has completed portions of the report on cocaine sentencing and surveys related to Federal judges.
However, as to the departure issues raised at the Senate hearing, the Sentencing Commission continues to study the issue, 2 years, 3 years later. It is apparent this issue, while an obvious priority to the Congress, is simply not a priority to the Sentencing Commission. And we have done something about it in this conference report that has bipartisan support. After having decided we can no longer be held hostage to the schedule set to study this issue by the Sentencing Commission, only to watch it unilaterally change, action is now even more necessary.
It has now been over 2 years since Congress highlighted this problem in an oversight hearing. Further delay would effectively abdicate our responsibilities as legislators and politically accountable members of our society, something the Sentencing Commission and the ACLU and the ABA and other groups are not.
With regard to the Hatch-Sensenbrenner-Graham compromise amendment, this amendment limits, but does not prevent, downward departures only to enumerated factors for crimes against children in sex offenses including, one, kidnapping; two, kidnapping involving a minor victim; two, sex trafficking of children; three, sexual abuse crimes; four, sexual exploitation and other abuse of children; five, transportation for illegal sexual activity and related crimes; and, six, obscenity. Changes in the standard for review of sentencing matters for all cases in Federal courts to a de novo review while factual determinations would continue to be subjected to ``a clearly erroneous'' standard.
We require the courts to give specific and written reasons for any departure from the guidelines. That is a logical thing to do. We require the judges to report sentencing decisions to the Sentencing Commission. They don't like that because that means more work. I have to confess, I sympathize somewhat with these judges because they are being paid less than a number of law review graduates in their first year in private practice. The fact they don't want to increase their workload, I don't blame them for that. But it seems to me in this case, it is certainly justified.
Contrary to the oft repeated claims of the opponents, the compromise proposal is not a mandatory minimum. Judges handling these important criminal cases can sometimes exercise discretion to depart downward, but only when the Sentencing Commission specifies the factors that warrant a downward departure, only when they have the right to do so as listed by the Sentencing Commission. That seems to me just a gimmick. Yet we have had all this fuss and bother over this.
Requiring de novo review of a trial judge's application of the facts to the law is totally reasonable. This is the same standard that applies to appellate review of critical motions to suppress physical or testimonial evidence. There is no reason for appellate judges to give deference to the trial judge in such questions of law.
Even after my compromise amendment, the trial judge's factual determinations would still be subject to great deference under a ``clearly erroneous'' standard. If a discretionary downward departure is justifiable, it is difficult to understand why anyone would be opposed to the appellate court's reviewing them under the same standard that applies to other important areas of law.
I hope my colleagues are not obstructing this bill, because they are upset they didn't get their way in the conference--when, in fact, they were defeated 5 to 2 on these issues. To suggest the conference report suffers from a procedural flaw, I think, is going way too far. They argue, incredibly, that the Hatch-Sensenbrenner-Graham amendment to the Feeney amendment to the House bill was improperly modified in conference. That is simply ridiculous and we all know it. What occurred was straightforward.
In response to Democratic concerns raised about the drafting of the Hatch-Sensenbrenner-Graham amendment to the conference report, we made a number of technical changes to comport with Democratic Senator Biden's understanding of the amendment, as well as concerns raised by a Congressman during the conference, as to the meaning of one particular provision. In good faith, my staff addressed these technical drafting issues and made certain revisions to comport with these Democratic suggestions.
Senator Biden was right. I agreed with these changes. Senator Biden agreed with these changes as well. He voted for the conference report. Keep in mind these changes had the effect of cutting back on the restrictions contained in the Feeney amendment as it applies to sentencing decisions by judges to ensure that the restrictions apply only in a limited category of cases. In the end, Democratic members
to the conference report--Senator Biden and Representatives Frost, Hinojosa, and Matheson--all supported the conference report.
For some Democratic members to now complain about the process is simply unfair, and I question those positions. I would like to refer to the transcript my colleague was referring to because he believes I represented one thing when in fact I meant another.
Let me start with line 759:
Chairman Hatch. The proposed amendment would, and I hope my
colleague from Massachusetts will listen carefully to this--
Ted, if I could get you to listen to this.
Senator Kennedy. Yes.
Chairman Hatch. Because, hopefully, this will help some of
your concerns.
The proposed amendment would limit, but not prevent,
downward departures only to enumerated factors for crimes
against children and sex offenses, including: one, kidnapping
at Section 1201; two, sex trafficking of children, Section
1591; three, sexual abuse crimes, Chapter 109(a); four,
sexual exploitation and other abuse of children, Chapter 110;
and five, transportation for illegal sexual activity and
related crimes. That's Chapter 117, and also Chapter 71,
dealing with obscenity, I've been informed.
It will change the standard for review of sentencing
matters for appellate courts to a de novo review, while
factual determinations would continue to be subject to the
``clearly erroneous'' standard.
It would require courts to give specific and written
reasons for any departure from the guidelines.
It will require judges to report sentencing decisions to
the Sentencing Commission.
The Sentencing Reform Act of 1984 was designed, as Congress
wrote in the text of that bill, ``to provide certainty and
fairness in meeting the purposes of sentencing, avoiding
unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar
criminal conduct.''
Now, while the United States Sentencing Commission
promulgated sentencing guidelines to meet this laudable goal,
courts have strayed further and further from this system of
fair and consistent sentencing over the past decade.
The rate of discretionary downward departures, excluding
downward departures for defendants' cooperation, has
increased virtually every year since 1991.
But now Chairman Sensenbrenner--and I don't know whether the Senator from Massachusetts was there at the time; maybe he was not there. Chairman Sensenbrenner made it very clear. He said:
Now there are several other issues that I think have got to
be addressed. First of all, with respect to the standards of
appellate review, that applies to all cases and it is a de
novo review.
That is what we understood.
This is in direct response to the Supreme Court's decision
in the case of Koon v. United States. Now, you may recall
this involved a conviction for a civil rights violation of
one of the police officers accused of beating up Rodney King,
which we all saw on TV.
The point is, I think everybody else there recognized what the Hatch- Sensenbrenner-Graham amendment was meant to be. I feel badly that my colleague feels like he was misled, because I don't think I misled him. I think the language I just read shows I didn't. I acknowledge and I express sorrow that he feels the way he does. I feel badly he feels the way he does because I would never deliberately mislead a colleague under any circumstances. I might make a mistake or forget something I might have said earlier, or something like that, but I would never deliberately mislead a colleague. I certainly didn't in this case. I don't think anybody there understood it the way it is being seen through the eyes of some on the other side.
I think to blow up this conference report over this is not only a mistake, it is a failure to recognize the tremendously irritating and damaging downward departure situation going on in the country today-- letting these criminals off with regard to children's crimes.
I would add that the Reno Justice Department argued in the Koon case for a de novo standard for appellate review. This was the right argument to make.
Let me finish first. It was a position supported by the Congressional Black Caucus. I have a copy of that letter. Let me read it:
As members of the Congressional Black Caucus, we are
writing to you because of our concern about the sentencing of
Officer Laurence Powell and Sergeant Stacey Koon by Judge
John Davies in the Rodney King civil rights case.
We are troubled that the sentence for the crime was reduced
to 30 months upon the court's consideration of mitigating
facts. Such a reduction for mitigating factors may be
appropriate in other circumstances. However, we feel that the
defendant's special status as police officers, with special
duties owed to the public, should have militated against such
a significant reduction.
As you well know, the maximum possible penalty was ten
years and fines of up to $250,000. Your federal prosecutors
were asking for seven to nine years. Our federal sentencing
guidelines recommended minimum sentences in a range of four
to seven years in prison.
Instead, Judge John Davies made broad use of subjective
factors. He stated that he read only letters addressed to him
from the friends and families of Officer Powell and Sergeant
Koon. He argued that much of the violence visited on Rodney
King was justified by King's own actions. However, these
officers were convicted on charges of violating Rodney King's
civil rights. We believe these mitigating factors did not
justify so large a reduction given the defendants' special
responsibilities as police officers.
In addition, Judge Davies did not afford proper weight to
the racist comments made over police radio by those convicted
on the night of the beating in discounting race as a
motivation for the beating. He similarly failed to take into
account the remarkable lack of remorse shown by Officer
Powell and Sergeant Koon since their conviction.
People of good will all over this country and of all races
were heartened when Officer Powell and Sergeant Koon were
convicted by a jury of their peers, a verdict made possible
by the Justice Department's resolve to file civil rights
charges and by the phenomenal performance of federal
prosecutors. With these severely reduced sentences, however,
we are sending a mixed message. Are police officers going to
be held responsible for excessive use of force or not?
We think what has been lost, in all this, is that police
officers have an enhanced responsibility to uphold the law.
Notwithstanding Judge Davies' authority to modify the
sentencing guidelines, most experts agreed that the minimum
four to seven years sentence should have been followed in
this case.
We realize that the trial judge is afforded sufficient
latitude in sentencing, but we urge the Department of Justice
to appeal these sentences. We need to reexamine these
sentences so that justice can finally be done in this
difficult, painful case. Only then can we begin to put this
behind us.
It is signed by a large number of good Members of Congress.
What we have proposed is that there should be de novo review. We set a standard that is not an easy standard to overcome. We have shown that we have an outrageous situation in this country where a number of judges have been giving extra downward departures far in excess of what anybody in their right mind would think they should do.
This is happening in criminal cases where children are victims, and we are trying to stop that because we think there has to be responsibility here. We believe that in these child molestation cases, pornography cases, prostitution cases, child rape cases, and kidnaping cases the sentencing guidelines ought to be followed.
Nothing says these judges cannot follow the downward departure guidelines if they so choose in their discretion as the trial judges, but they can no longer conjure up reasons outside the guidelines to reduce criminals' sentences.
Basically, that is what the conference report says. I would think everyone in this body would vote for this conference report. I think it does it right and does what we said it would do in the conference, and it does what a bipartisan majority in the House and the Senate said it should do. Frankly, I believe that is right.
I personally believe we can do that. We did have a hearing in 2000. The hearing was extensive and led to this legislation. By the way, the number on the chart excluded departure requests made by the prosecutors under Section 5K1.1 of the Guidelines, when a defendant provides ``substantial assistance'' to the government. We counted 4,098 downward departures excluding the so-called ``5K1.1 motions'' made by the government. The number of downward departures has risen from 1,241 in 1991. Any Senator should see that this increase is the reason for our concern.
I do not disagree with the distinguished Senator. I think it would be good to find out what the Senator wants to know, and that is, if I understand him correctly, he is asking for a hearing on downward departures.
I would certainly ask the Subcommittee on Crime to do that.
Let me interrupt the Senator for one second. I agree with the Senator. I have seen the girlfriend courier go to prison for 10 years when she did not even know what was in the package, or at least claimed she did not, while the boyfriend, the drug dealer, pleaded State's evidence and gets off. Frankly, I do not like that either.
I think we should hold hearings on this, and I will be happy to recommend it to the Crime Subcommittee or if it should be elevated to the full committee, we can perhaps do that. I appreciate the distinguished Senator's willingness to try and help us resolve this today because this bill needs to pass. I do not see how anybody can refute what I have been saying here. I do not see how anyone would not want to get tougher with sentencing with regard to these sexual crimes, especially when they have gone way outside the downward departure limits the Sentencing Commission gives them. We do not stop trial judges from granting downward departures, but they should be done in compliance with the purposes of the sentencing guidelines.
I am not willing to redo this bill because the conference is over. A vast majority has supported it in the House--a huge majority--and a bipartisan majority on the conference. But I am certainly willing to look at it. If we need to modify what we have done here today, I will certainly look at that.
I feel badly the distinguished Senator from Massachusetts feels he was misled, but I do not see how he was misled. I can see there was an ambiguity if one did not look at the whole record. He may not have been there when we decided to use Chairman Sensenbrenner's language, which was clear and specific. I thought mine was clear, but Chairman Sensenbrenner's language was more clear than mine. I think everybody there understood.
The distinguished Senator from Massachusetts and the distinguished Senator from Vermont, the ranking member, the Democrat leader on the committee, refused to sign the conference report over perhaps this misunderstanding, but it is a misunderstanding, not a desire by me to do something that is improper.
I thank the distinguished Senator for his comments here today. Those are good points he made, and we will see what we can do.
Let me make a couple other comments before I finish. Let me provide some additional examples of sentencing departure abuse and why we want to change this and why this bill makes a very good step in the right direction.
In one case, a defendant who was convicted of possessing child porn images, over 280 images, more than 10 of which were clearly identified as prepubescent children, was sentenced to serve 13 months in prison and 14 months in home detention, even though the defendant's lawful guidelines sentencing range was 27 to 33 months in prison. Think about that.
At sentencing, the defendant threw in the kitchen sink and moved for a departure on multiple grounds. He argued that his status as a former prison guard rendered him as particularly susceptible to abuse in prison. He argued that he needed rehabilitation and treatment. I have no doubt. He argued his age and his wife's age, his extraordinary family responsibilities, and his military and work histories justified a departure. He argued he was entitled to a ``super'' acceptance of responsibility and argued his conduct was aberrant. Although the Government opposed all grounds of downward departure, the court imposed an illegal split sentence and allowed the defendant to spend 14 months of his 27-month sentence in the home.
Without explaining how many guideline levels it was departing, the court credited the defendant's claim that he was the only one who could take care of his wife, who had degenerative arthritis and had back surgery but nonetheless continued to work as a night janitor--his wife, that is. The court also credited the defendant's claim that, based on his service in the military and his civilian career in law enforcement, his criminal acts were aberrant. Remarkably, these winning arguments enabled the defendant to spend over half of his 27-month sentence in the home.
Now let me state why we need this reporting requirement to the Attorney General that the distinguished Senator from Massachusetts has inappropriately characterized. It is no secret that the Attorney General is in charge of every aspect of prosecuting cases in the Federal courts. Therefore, he has a direct interest in the disposition of criminal cases. Now let me give you a specific example as to why we need this reporting requirement.
There is a Federal judge who routinely violates the Sentencing Commission guidelines because he believes the Sentencing Commission erroneously calculated the sentencing guidelines. He does not depart much, just a little reduction in a sentence here and a little reduction there. But the fact is, he routinely does it. Now
the Attorney General may not have the resources to try to appeal each and every time this judge violates the sentencing guidelines. However, if an Attorney General is aware of someone routinely abusing this provision, this reporting requirement will allow him to monitor this and take action when appropriate. That is why we have the requirement in there.
Now let me give you another illustration, some more examples of what is going on here and what we are trying to correct with this bill.
A child pornographer was sentenced this year in Montana. Prior to sentencing, the court raised on its own motion that the defendant suffered from diminished capacity. The court ruled that this young man had extraordinary family responsibilities and that he suffered from a diminished mental capacity. The judgment notes, in part, United States Sentencing Guidelines section 5(k)(2)(13), diminished capacity: Defendant was extremely addicted to child pornography and the testimony of efforts established that defendant had a significantly impaired ability to control his behavior that he knew to be wrong; that the extent to which the reduced mental capacity contributed significantly and substantially to the commission of the offense. The Court departed downward 8 offense levels from offense level 18 to offense level 10. This reduced the guideline range from 27 to 33 months to just 6 to 12 months.
The trial court placed Clark on probation for 5 years.
I want to emphasize again a disturbing fact here about child pornographers. A Bureau of Prisons study shows that 76 percent of child pornographers and those who had been convicted of traveling in interstate commerce to commit sex acts with minors admitted to undetected sex crimes with an average of 30.5 child sex victims. Think about that. These child sexual predators, if you averaged them, admitted to undetected sex crimes with an average of 30.5 child sex victims. Can anyone really say that tougher penalties and sentencing reforms are not needed when it comes to these horrible crimes?
Does anyone believe that judges should be allowed to grant downward departures based on reasons that are not contemplated within the Guidelines themselves?
Now we have supporting letters for this conference report from the Department of Justice, the National Sheriffs' Association, the Law Enforcement Alliance of America, Major County Sheriffs' Association, Fraternal Order of Police, and the National Association of Assistant U.S. Attorneys.
One of the criticisms that has been raised about the conference agreement is that it limits the membership of Sentencing Commission to no more than three Federal judges. Currently, the law requires that the Sentencing Commission be comprised of at least three Federal judges. The hearings before the House and Senate Judiciary Committees showed that trial judges have downwardly departed from the sentencing guidelines to a level beyond what was originally intended. There may be an appearance of conflict of interest when judges, desiring to preserve judicial discretion, serve on the Sentencing Commission whose mission it is to ensure uniformity in sentencing, which necessarily means less judicial discretion.
Currently, judges outnumber other voting members of the Sentencing Commission. Because so, there is a potential for at least an appearance of a conflict of interest.
Now, I do not argue that there is a conflict or that they are acting improperly. I am proud of those who have served. But there is a different attitude in the courts, as Senator Kennedy has suggested. He has all kinds of letters from judges who do not like this. It means more work to them.
This change will, hopefully, restore the appearance of balance in the Sentencing Commission and eliminate any conflict between the commissioners' desire to retain judicial discretion and uniformity in sentencing.
Now, the National Center for Missing and Exploited Children, the NCMEC, expressed its thanks to the House of Representatives and Senate conferees on agreeing to the language included in the conference report of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act 2003. This was released April 9. NCMEC also expressed its hope that both Houses of Congress would move swiftly to approve the report and enact these important provisions into law. Children throughout the United States will be safer because these key leaders of the House and Senate were able to come together and reach consensus on so many vital issues--Robbie Callaway, chairman of the National Center for Missing and Exploited Children.
I ask unanimous consent that the comments in this press release, along with a letter from Robbie Callaway, who is with the Boys and Girls Clubs of America, along with the National Sheriffs' Association, along with the Law Enforcement Alliance of America, and Major County Sheriffs' Association, the Federal Law Enforcement Officers Association, the U.S. Department of Justice, be printed in the Record.
I notice the distinguished Senator from Vermont is in the Chamber. I yield the floor.
Mr. President, reserving the right to object, if this change were allowed, as the Senator's unanimous consent request asks, it would effectively kill this bill, and he knows it. If Senators on the other side of the aisle want to vote against this conference report, they can do so.
The point is that we are prepared to vote on this bill today and to get this to the President for signature before the impending recess so that there will not be any more children subjected to what Elizabeth Smart was subjected to, or at least we can have a better set of tools to solve these problems. Therefore, we cannot agree to this request.
I ask unanimous consent that the consent be modified so that there now be 30 additional minutes of debate on the conference report, to be equally divided in the usual form, and that following that time, the Senate proceed to a vote on adoption of the conference report, with no further intervening action or debate.
Then I object.
I object to the request of the Senator.
