Providing for consideration of the bill (H.R. 1104) to prevent child abduction, and for other purposes.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, sexual predators target America's children every day in large cities, small towns, and even in cyberspace. Sexual exploitation of children, a prime motive for kidnapping, is on the rise. When it comes to abduction, rape, and murder of children, the United States must have a zero tolerance policy.

H.R. 1104, the Child Abduction Prevention Act, is comprehensive legislation that directly and forcefully addresses these heinous crimes. The bill is virtually identical to H.R. 5422, which overwhelmingly passed the House last October by a vote of 390 to 24. Like so many other meritorious bills sent to the other body in the last Congress, this legislation was allowed to die by the Democrat leadership.

An abducted child is a parent's worst nightmare. We must ensure that law enforcement has every possible tool necessary to try to recover a missing child quickly and safely. H.R. 1104 not only gets the word out after a kidnapping, but it also takes strong steps to prevent them from occurring in the first place. The bill strengthens penalties against kidnapping and aids law enforcement agencies to effectively prevent, investigate, and prosecute crimes against children.

Prompt public alerts of an abducted child could be the difference between life and death for that innocent victim. Recognizing this, the bill codifies the AMBER Alert program currently in place in the Departments of Justice and Transportation and authorizes increased funding to help States deploy child abduction communications warning networks.

For those individuals that would harm a child, we must ensure that punishment is severe, and that sexual predators are not allowed to slip through the cracks of a system and harm other children.

To this end, this legislation provides a 20-year mandatory minimum sentence of imprisonment for nonfamilial abductions of a child under the age of 18, lifetime supervision for sex offenders, and mandatory life imprisonment for second-time offenders. Furthermore, H.R. 1104 removes any statute of limitations and opportunity for pretrial release for crimes of child abduction and sex offenses.

Those who abduct children are often serial offenders who have already been convicted of similar offenses. Sex offenders and child molesters are four times more likely than other violent criminals to recommit their crimes. This number demands attention, especially in light of the fact that a single child molester, on average, destroys the lives of over 100 children. In response, H.R. 1104 provides judges with the discretion to impose lifetime supervision upon such offenders.

The bill also fights against an industry supporting one of the fastest growing areas of international criminal activity. The sex tourism industry obtains its victims through kidnapping and trafficking of women and children. These women and children are then

forced into prostitution. H.R. 1104 works to end this.

This legislation also authorizes increased support through the National Center for Missing and Exploited Children, the Nation's resource center for child protection. The center assists in the recovery of missing children and raises public awareness about ways to protect children from abduction, molestation, and sexual exploitation.

Some have called for a stand-alone AMBER bill instead of the comprehensive approach we have taken to address the problem of child abductions in this country. I note with interest that the DCCC, the political wing of the House Democrats, have labeled provisions of the bill I have just outlined as controversial.

I do not think these provisions are controversial. Neither do the Department of Justice, the National Center for Missing and Exploited Children, or the 390 Members of Congress that voted for this bill last year. Mark Klaas, father of kidnap and murder victim Polly Klaas, supports us. Mr. Klaas said, ``I'm behind what Mr. Sensenbrenner's doing. I like the idea of a 2-strike law for people who are committing sexual offenses against children. And what it says is that if somebody does that, they are going to spend the rest of their miserable life in prison if they are convicted a second time. I see no problem with putting it out on the floor and seeing where people fall on it.''

Those who say we need a stand-alone AMBER bill on the President's desk today do not understand the actual impact of such a bill. The fact is that much of the stand-alone AMBER bill has already been implemented and is in place right now.

The stand-alone AMBER bill calls for a national coordinator. On October 2, 2002, President Bush directed the Attorney General to designate a Justice Department officer to serve as AMBER Alert coordinator to help expand the AMBER Alert system nationwide. Assistant Attorney General Deborah J. Daniels was designated as that coordinator and for almost 6 months has been working to assist State and local officials with developing and enhancing AMBER plans and promoting statewide and regional AMBER coordination programs ever since.

The Departments of Justice and Transportation already have $12.5 million in the bank today, ready to respond and spend on AMBER programs.

Furthermore, in a March 18, 2003, letter to me, the Department of Justice stated that it has not been hampered in its efforts to implement an AMBER Alert program because of any legislation that has yet to be signed into law. Stand-alone AMBER legislation, in the words of the Department of Justice and their statement of administration policy, merely codifies current practice.

This Congress must do better than codifying current practice, and this bill does that. Let us be clear, if a stand-alone AMBER Alert were enacted into law today, nothing that is already being done would change. This bill merely supplants the Department of Justice general authorization with a specific authorization. It may make some feel good, but it will not help protect America's children from kidnapping and sexual abuse in the first place.

Federal money is in the pipeline for AMBER programs and is ready to be spent. A national coordinator has already been appointed. What we need now is a comprehensive legislative package that will crack down on child abductors, build and expand on the work of the National Center for Missing and Exploited Children, and give Federal authorities additional tools to prevent and to solve these horrific crimes.

I urge my colleagues to ignore the political rhetoric and to protect America's children by supporting this bipartisan and noncontroversial child protection legislation.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield 2 minutes to the gentlewoman from Washington (Ms. Dunn), the author of the stand-alone AMBER Alert bill on the House side.

Mr. Chairman, I yield 3 minutes to the gentleman from North Carolina (Mr. Coble), the chairman of the Subcommittee on Crime, Terrorism and Homeland Security.

(Mr. COBLE asked and was given permission to revise and extend his remarks.)

Mr. Chairman, I yield myself 15 seconds just to point out that neither the Senate-passed stand-alone AMBER Alert bill nor its companions in the House establish a mandatory national AMBER system. All of the bills are voluntary. The States can apply for grants. It is my hope that they will do so.

Mr. Chairman, I yield 2 minutes to the gentleman from Michigan (Mr. Upton).

Mr. Chairman, I yield 3 minutes to the gentleman from Wisconsin (Mr. Green).

Mr. Chairman, I yield 2 minutes to the gentleman from Utah (Mr. Cannon).

(Mr. CANNON asked and was given permission to revise and extend his remarks.)

Mr. Chairman, I yield myself the balance of my time.

Mr. Chairman, on the other side of the aisle some Members have come up and stated that we ought to bust this bill apart and strip out all of the non-AMBER Alert-related issues. That would be a big mistake. It would be a huge mistake because most of these provisions are designed to prevent kidnappings and molestations from happening in the first place.

I support AMBER Alert. It is important once a kidnapping takes place that the police and the public and the news media know about that kidnapping so that an alert public can hopefully spot the abducted child and return the child to his or her parents.

But even more important in my opinion is to prevent the kidnappings and the molestations in the first place because if that ever happens, those people's lives are scorched for life.

In H.R. 1104 there are a number of provisions. I do not think they are controversial, but let me enumerate them. It provides the judge with the discretion to extend the supervision of a released child sex offender up to a maximum of life, eliminates the statute of limitations for child abductions and sex crimes, denies pretrial release for child rapists and child abductors, requires a mandatory sentence of life imprisonment for twice-convicted child sex offenders, reauthorizes and doubles the annual grant to the National Center for Missing and Exploited Children to $20 million a year through fiscal 2005, mandates a minimum 20-year prison sentence for the kidnapping of a person under the age of 18 by a nonfamily member, authorizes COPS funding for a sex offender apprehension program, adds four new wiretap predicates that relate to sexual exploitation crimes against children.

We give these predicates so that the police will have the same authority to seek court wiretap authority when someone is using the Internet to try to entice children that the police presently have in cases of organized crime, international terrorism, or drug trafficking.

The bill facilitates the prevention of international parental kidnapping by adding an attempt to liability to the statute defining that offense, and it punishes persons who travel to foreign countries to engage in illegal sexual relations with minors and criminalizes the actions of sex tourism operators.

These are provisions that the opponents of this bill want to strip out. They are important provisions. They ought to be the law of the land, and we ought to pass H.R. 1104 intact today to make them the law of the land.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, will the gentleman yield?

Mr. Chairman, I believe the gentleman's amendment is a very constructive amendment. I urge the committee to adopt it.

Mr. Chairman, I compliment the gentleman from Florida for proposing an excellent amendment. Let me say I am really puzzled that my friend the gentleman from Virginia (Mr. Scott) is opposing this amendment.

Back in 1992, there was a citizen of Los Angeles County named Rodney King that was beaten up by a bunch of police officers. Those police officers were tried and convicted of a civil rights violation in a Federal Court.

The judge there had a downward departure from the sentence that Police Officer Koon would have received, which would have been 70 to 87 months under the sentencing guidelines. The District Court said, as a result of the widespread publicity and emotional outrage which would have surrounded this case, the officers were particularly likely to be targets of abuse in prison, had they been burdened by having been subjected to successive State and Federal prosecutions. So Mr. Koon only got 30 months in prison, when the guidelines required 70 to 87 months in prison.

Now, the Congressional Black Caucus sent a letter to Attorney General Janet Reno; and that was reported in the August 13, 1993, edition of the Los Angeles Times. The Black Caucus, the gentlewoman from California (Ms. Waters), and 24 other members of the CBC wrote the Attorney General asking that this be appealed.

The government did appeal that sentence and won its case in the Appeals Court, and the Appeals Court held that there should be a de novo review of the sentence. Then there was an appeal to the United States Supreme Court which reversed the Appeals Court and said that the only time a district judge's departure from sentencing guidelines could be reviewed and reversed was if there was an abuse of discretion.

There is a provision in the amendment offered by the gentleman from Florida (Mr. Feeney) that does precisely what the Congressional Black Caucus asked for almost 10 years ago, and that is to give appeals courts de novo review over sentencing guidelines.

So I am puzzled at the gentleman from Virginia's opposition. We are doing what he asked for, but maybe 10 years too late.

Now, I think it is outrageous that one out of every five cases of those convicted of sexually abusing a child or sexually exploiting a child through child pornography have received a downward departure from the sentencing guidelines. The law says this is supposed to be rare, but, instead, a 20 percent downward departure rate is not rare.

Mr. Chairman, I think that the amendment that has been offered by the gentleman from Florida plugs this loophole. It ought to be passed.

Mr. Chairman, I include for the Record the August 6, 1993, letter from

the Congressional Black Caucus to the Attorney General of the United States.

House of Representatives,

Washington, DC, August 6, 1993.

Hon. Janet Reno,

Attorney General, Department of Justice, Washington, DC.

Dear Attorney General Reno: 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 mitigation factors may be

appropriate in other circumstances. However, we feel that the

dependents' special status as police officers, with special

duties owned to the public, should have mitigated 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 defendant's 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 phenonemal 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 the police

officers have an enhanced responsibility to upheld 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.

Sincerely,

Maxine Waters, Eva M. Clayton, Sanford Bishop, Major R.

Owens, Eddie Bernice Johnson, Walter Tucker, Floyd H.

Flake, William Clay, Albert R. Wynn, Charles B. Rangel,

Carrie P. Meek, William J. Jefferson, James E. Clyburn,

Donald M. Payne, Earl Hilliard, Alcee Hastings, Bennie

M. Thompson, Kweisi Mfume, Glee Fields, Louis Stokes,

Cynthia McKinney, Melvin L. Watt, John Lewis, Ronald V.

Dellums, Corrine Brown.

Mr. Chairman, I believe this amendment is a very good amendment. This program is a very important one. It is too important to let go by the wayside. I believe we should take this opportunity to reauthorize it in the context of this bill and would urge the committee to support the gentleman's amendment.

Mr. Chairman, this is also a very good amendment. I commend the gentleman from Florida for drafting and offering it, and I would urge the Committee to adopt it.

Mr. Chairman, I believe this amendment is a very necessary amendment, if I could just take a minute to explain why.

In 1993, the National Child Protection Act was passed to provide a process for background checks for volunteers. It did not get up and running.

Additional legislation to improve the process was enacted through the Volunteers for Children Act of 1998. It still is not up and running.

What the gentleman from Texas is proposing is to tell the Justice Department that they have 120 days to tell us why these programs are not up and running, what is needed to fix them, and to get on with the background check system so that those who do volunteer to work not only with children, but also the disabled and the elderly, can be checked out to see if altruism is not their sole motivation for working with these groups of people.

I think that this is a very good amendment, and I hope that it would be adopted.

Mr. Chairman, I thank the gentleman for yielding.

This is also a very good amendment. It broadens the tools that law enforcement can use to track down missing children through better forensic investigation. I commend the gentleman from Texas for offering this amendment, and I hope that the committee adopts it.

Mr. Chairman, I also believe that this is a very constructive amendment, and I commend the gentleman from Puerto Rico for offering it; and I hope that it is adopted.

Let me say that one of the first things I did when I came to Congress was I helped pass the Missing Children's Act which was in response to the abduction and gruesome murder of Adam Walsh, whose father, John Walsh, has obtained quite a bit of fame in being an advocate for missing and exploited children.

The Code Adam proposal has been very successful when privately implemented in Wal-Mart stores around the country, and I think that having a Code Adam alert system in place nationwide for all public buildings will significantly improve the chance of recovering children who might be abducted in a shopping mall or some other public building. I think the gentleman from Puerto Rico has done the children of this country a great service by offering this amendment, and I hope that it is adopted.

Mr. Chairman, I thank the gentleman for yielding time to me.

Mr. Chairman, I support this amendment as an important step to stop the exploitation of our children. This amendment is directly connected to the abduction of children, since children are abducted and sold into the sex industry for both pornography and for prostitution.

The amendment addresses growing challenges to the government's ability to prosecute child pornographers. It also includes a provision to address child pornography that is produced overseas to be distributed in the United States. The exploitation of any child is unacceptable, and the United States must take affirmative steps to prevent this exploitation wherever it occurs.

The amendment is essentially the same as the Child Obscenity and Pornography Prevention Act, which passed the House in the last Congress by a vote of 413 to 8. This legislation had strong bipartisan support. Congress understood then what has become even more clear now, that this legislation ensures the enforceability of existing child pornography laws.

During the 1990s, advances in computer technology threatened the government's ability to protect real children. Congress attempted to address this concern in 1996 with the Child Pornography Prevention Act, parts of which were subsequently struck down by the Supreme Court in the Free Speech Coalition decision.

Regardless of whether we agree or disagree with the court's decision, we must now deal with its consequences. Since that decision, defendants in child pornography cases have routinely claimed that the depictions of child pornography could be virtual, thus requiring the government to prove first that the depicted image is a real person.

The mere existence of computer technology that creates virtual depictions which are indistinguishable from depictions of actual children allows defendants who possess images of real children to escape prosecution. This Congress has an obligation to correct this absurd permutation in the law.

Given the prevalence of the Internet, we absolutely cannot protect our children if prosecutors must first complete

the almost impossible task of identifying the children depicted in child pornography. Unless this amendment is adopted, the Supreme Court's decision will effectively legalize all child pornography by throwing an insurmountable burden in the face of the prosecution.

I urge my colleagues to support this critical amendment.

Mr. Speaker, I demand a recorded vote.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I rise in opposition to H.R. 1104. I would like to be able to support the AMBER Alert part of the bill, but that bipartisan, noncontroversial part of the bill has been buried behind literally a host of controversial sound-bite-based provisions which have passed the House several times, only to die in the Senate.

The AMBER Alert portion of the bill would codify a program of grants and assistance to States and localities to establish a nationwide system of communications and alerts to assist in locating and returning missing and abducted children. The system has proven itself on the State level and would help save lives and additional heartache on a national basis.

The AMBER Alert bill has already passed the Senate unanimously and could pass unanimously in the House, I believe, absent the controversial sound bites that have been tacked on.

Last Congress, many of us warned the majority that coupling the AMBER Alert bill with controversial sound bites would mean that neither the AMBER Alert nor the sound bites would be passed, but the House passed the same kind of omnibus bill anyway; and, as expected, the whole thing died in the Senate. Yet, here we are again facing the same misguided strategy and this time again with even more reasons for the Senate to reject the bill which the AMBER Alert bill is buried in. Again, we have to protest the strategy that will again defeat the AMBER Alert system and again defeat the sound bites as well.

Mr. Chairman, I think the Senate has chosen not to consider many of the controversial items hitchhiking on the AMBER Alert bill for good reasons: more death penalties, at a time when we know the death penalty has problems; more mandatory minimums, two strikes and you are out. We are authorizing FBI wiretaps for behavior that is not even a crime; pretrial detention, lifetime supervision, and removing the statute of limitations on crimes such as adults crossing State lines to engage in consensual sex that would be a crime in the home State. I would just remind Members that any kind of sex outside of marriage is a crime in Virginia.

Virtually all of the crimes described in the bill are already crimes with significant penalties. Others have already passed the House in separate bills and are still pending in the Senate, as they have been for the last 6 years.

It is wrong to hijack the AMBER Alert bill to try to pass these things again. It will not help AMBER Alert, and it will not help pass the extraneous provisions.

It is true that the President has not waited for Congress to pass an AMBER Alert bill and has, by executive order, implemented many of the provisions of the bill. But the passage of AMBER Alert is still necessary to make the program permanent and to increase the funding of the program.

Mr. Chairman, we have letters from the National Association of Police Organizations, and I will just read two paragraphs from it:

``On behalf of the National Association of Police Organizations, representing 230,000 rank and file police officers from across the United States, I would applaud your valiant efforts in calling for an immediate passage of stand-alone AMBER Alert legislation. The recent successful recovery of Elizabeth Smart exemplifies the power of an informed public.

``In this light, legislation that will greatly enhance recovery abilities should not be tied down with additional controversial provisions and political wrangling. The Senate quickly passed S. 221 92 to nothing. Like other child abduction bills, H.R. 412 and S. 121 enjoy broad bipartisan support.''

We have other letters asking for passage of a stand-alone AMBER Alert bill from the Edward, Lois and Elizabeth Smart family and from the Polly Klaas Foundation. I would ask that we defeat the bill and take up H.R. 412, the stand-alone AMBER Alert bill.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield 6 minutes to the gentlewoman from Texas (Ms. Jackson-Lee).

(Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

Mr. Chairman, could the Chair advise us as to the amount of time remaining on both sides?

Mr. Chairman, I yield 5 minutes to the gentleman from North Carolina (Mr. Watt).

Mr. Chairman, I ask unanimous consent to yield the balance of my time to the gentleman from Illinois (Mr. Davis) for purposes of control.

Yes, Mr. Chairman.

Mr. Chairman, I yield myself such time as I may consume.

This is one of the reasons why it is difficult to consider legislation on the floor that had not been considered by committee. Reading the legislation, it appears that they have defined things that are obscene and, if that is the case, the whole site can be busted for obscenity. If it is not obscene, I am not sure that the amendment even applies. Adding ``misleading'' will just add complications to the prosecution because if we can prosecute for the obscenity, we do not have to get into the question of whether the title was misleading or not. We have constitutional implications with this because ``misleading'' may apply to adults as well as children.

There have been no hearings on this to my knowledge and certainly no committee consideration of this. I would point out that if the exemption on the bill, if we have a sexual implication in the name of the Web site, that might cause as many problems as it does solutions because it would make it easier to find the pornographic and obscene sites.

The AMBER alert bill ought to be passed by itself. We ought not be complicated with amendments such as this that have not been considered on the floor. So I would hope we would defeat the amendment, take the AMBER alert portion of the bill by itself so that that could be passed and considered, and deal with this kind of a measure in committee where we can deliberate and get all the fact and implications.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield myself such time as I may consume.

In closing, I would like to say that this bill has significant constitutional implications. I include for the Record a letter from Artist Empowerment Coalition in opposition to the amendment.

Artist Empowerment Coalition,

New York, NY, March 26, 2003.

Honorable Member,

House Committee on Judiciary,

Washington, DC.

Dear Member: The Artist Empowerment Coalition (AEC)

strongly opposes the language in Section 108 of the Amber

Bill, which refers to MISLEADING DOMAIN NAMES ON THE

INTERNET. The AEC represents a nationwide coalition of

artists, songwriters, producers and industry executives. On

behalf of the coalition, we ask that you oppose this

amendment and prevent its inclusion in the legislation. The

impact of its passage would be much broader and more harmful

than the intent in our view, for the following reasons:

1. It is the artists' 1st Amendment right to express

themselves creatively on the web or otherwise.

2. Recording artists of all genres have website domain

names, which vary in origin and may reflect simply their

names, titles, who they are and/or what they represent

musically.

3. In some instances, an artists website content can

include language and lyrics which are part of their overall

body of work.

4. The content of the website and their creative expression

is not and cannot always be reflected within the domain name.

5. Under Section 108 of this proposed amendment, content of

an artists' website, judged subjectively, may be deemed

``obscene'' and therefore, based upon absence of labeling to

that effect, exposes an artist to punishment under the law

which can include, but is not limited to imprisonment.

6. The domain name selection, and its use on the part of an

artist, is not, in this case, ``knowingly misleading,''

rather it is selected based upon an artists rights under the

1st Amendment of the Constitution.

Further, the AEC believes artists should have the right to

use domain names, which are not subject to ``labeling'' and

third party interpretations. We believe it is wrong to imply

that an artist intends to ``knowingly deceive'' a person or

persons simply by using his or her name, for instance, as the

domain name rather than a description of the website

contents.

While the AEC supports efforts to protect children from

kidnapping and efforts to apprehend criminals, we oppose this

and any measure, which wrongly makes criminals of the

creative community, hinders the creative process and violates

creative rights under the law. Please vote ``NO'' on this

bill as amended.

Sincerely,

Tracey Walker,

Director of Public Affairs.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I claim the time in opposition.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, this amendment would have the effect of turning the sentencing guidelines into mandatory sentences in the cases it affects. We have not had hearings or markups on this matter; and this is not the way we should amend the sentencing guidelines, without thought or consideration.

The purpose of the sentencing guidelines is to provide intelligent consistency in sentencing, considering each sentence within the overall framework of other sentences, and ensuring that more serious crimes get more serious punishment. That is impossible when you just take one crime at a time outside of that context with a floor amendment such as this.

The fact is, it makes no sense to have people with different degrees of criminality getting equal sentences or people with equal degrees of criminality getting vastly different sentences.

The evidence is that the guidelines are operating the way they are supposed to. About 85 percent of the sentences are either within the guideline range or outside of the guidelines at the request of the prosecution.

The sentencing commission should retain the appropriate discretion, since that discretion has been essentially taken away from judges. If we want the commission to look at this specific problem of downward departures in these cases, we should direct the sentencing commission to do just that and not take it upon ourselves to do it all by ourselves in a vacuum.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I reserve the balance of my time, and reserve the right to close.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, when you ask for the courts to review it, that is so it can be considered in the courts with all the evidence, not in the political branch. It is better to leave it to the sentencing commission and the courts than to floor amendments in the House of Representatives.

If this is such a good idea, then let us do it through the regular order. Let us have some hearings, subcommittee markup, committee markup, and then we can slowly and deliberately consider such an amendment.

The purpose of the sentencing commission is to get away from the floor amendments and the sound bites so you can have intelligent sentencing. We have had situations where you have had sentences that are way out of proportion to crimes that are just as serious, or less serious, totally out of context. That is why we try to get away from it, so that serious crimes get serious punishment, lesser crimes get lesser punishment.

That is the purpose of the sentencing commission. You cannot do that with floor amendments in the House of Representatives. That is why we would hope this amendment could be defeated. We could get a clean Amber Alert bill passed so we can get that enacted and not have to get bogged down in consideration of amendments such as this.

Mr. Chairman, will the gentleman yield?

Mr. Chairman, I would point out that this is going in the right direction. We need to work on this as quickly as possible, in this bill or outside of this bill. I think it is a good idea, and I am in support of the amendment.

Mr. Chairman, I seek time in opposition.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, this amendment is designed as a fix for last year's decision in Ashcroft versus Free Speech Coalition. The problem with the amendment is that it has the same problems as the law that was struck down. The Ashcroft case held that sale or possession of non-obscene computer-generated material depicting child-like characters engaged in explicit sexual activities does not constitute a crime. This bill says it is a crime, just like the law that was struck down.

Child pornography and object are despicable and illegal and can and are banned and prosecuted. These crimes and their severe punishments are left intact by the Ashcroft decision. What the court struck down was the criminalization of computer-generated and other depictions of children, which is not obscene, in undesirable, including sexual, situations where no child was actually involved in making the material.

We all see pornography as despicable, period. But under our laws, pornography that is not obscene and does not involve real children is just that, pornography. Whether we like it or not, the Supreme Court has told us that pornography is not illegal. It is a category of speech that is despicable but not illegal.

While pornography is legal, child pornography is illegal. But to constitute child pornography, the Supreme Court has told us that a child has to be involved in the production. Virtual computer-generated images, therefore, unless they are obscene, are not illegal.

The law called into question in Ashcroft was a law enacted in 1996. The problem the court found with the law was that, while it prohibited images that constituted child pornography, it also prohibited images that did not constitute child pornography, because actual children were not involved in the production.

The court made it clear that protected speech may not be banned as a means to ban unprotected speech. This would turn the first amendment upside down.

Proponents of the bill believe that the court left intact or left open the question of whether government can establish a sufficiently compelling State interest to justify criminalization of computer- generated images that are not obscene and do not involve real children. However, the court cited in its decision New York versus Ferber from 1992 when it said, virtual images record no crime and creates no victims by its production and therefore are legal.

Proponents also argue that the court did not consider the harm to real children which would occur when, through technological advances, it will become difficult to tell real children from virtual children, thereby allowing real children to be harmed because the government cannot tell the difference for the purpose of bringing prosecution.

But the court did clearly consider that, and stated, and I quote from the decision, ``The government next argues that its objective of eliminating the market for pornography produced using real children necessitates a prohibition on virtual images as well. Virtual images, the government contends, are indistinguishable from the real ones. They are part of the same market and often exchanged. In this way, it is said virtual images promote the trafficking in works produced through the exploitation of real children.''

But then the court says, and I continue quoting, ``The hypothesis is somewhat implausible. If virtual images are identical to illegal child pornography, the illegal images will be driven from the market by indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional computer-generated images would suffice.''

Nor was the court persuaded by the argument that virtual images will make it difficult for the government to prosecute cases. As to that concern, the court said, ``Finally, the government says that the possibility of producing images by using computer imaging makes it difficult for it to prosecute those who produce pornography using real children. Experts, we are told, may have difficulty in saying whether the pictures were made using real children or by using computer imaging. The necessary solution, the argument runs, is to prohibit both kinds of images.

``The argument,'' the court said, ``in essence is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the first amendment upside down. The government may not suppress lawful speech as a means to suppress unlawful speech.''

Finally, Mr. Chairman, the government suggests that because the court determined that it did not decide whether an affirmative defense could save an otherwise unconstitutional law, it left open that possibility. That may be technically true, but listen to what the court said: ``In order to force this objection, the government would have us read the CPPA as not a measure suppressing speech but as a law shifting the burden to the accused to prove the speech is lawful. In this connection, the government relies on an affirmative defense under the statute which allows a defendant to avoid conviction for nonpossession offenses by showing that the materials were produced using only adults and were not otherwise distributed in a manner conveying the impression that they depicted real children.

``The government raises serious constitutional difficulties by seeking to impose on the defendant the burden of proving his speech was not unlawful. The affirmative defense applies only after the prosecution has begun, and the speaker must himself prove, on the pain of felony conviction, that his conduct falls within the affirmative defense.

``In cases under the CPPA, the evidentiary burden is not trivial. Where the defendant is not the producer of the work, he may have no way of establishing the identity or even the existence of the actors. If the evidentiary issue is a serious problem for the government, as it asserts, it will be at least as difficult for the innocent possessor.''

This statute, however, Mr. Chairman, by its very words, makes illegal what the court said was legal. Five Justices joined in the majority opinion. One concurred, one concurred in part and dissented in part, two dissented.

With five Justices, all of whom are still on the court, agreeing with the whole decision and only three dissenting in any part at all, this is not a close decision with wavering members.

So, Mr. Chairman, I think we should avoid the necessity of the court's telling us again that we cannot prosecute child pornography unless real children were, in fact, involved in the production of the material or unless they are otherwise legally obscene.

Finally, Mr. Chairman, we should note the subsequent action in the Ashcroft case. The trial court on February 7, just a few weeks ago, ordered attorney's fees to the plaintiff on the grounds that the government's defense of the statute was not substantially justified. This is essentially the same statute. It says that virtual child images can be made illegal. The court has said that virtual images cannot be made illegal. Those of us who are familiar with our system of government recognize that the same ruling by the same Supreme Court will find this bill unconstitutional and unenforceable; and, therefore, the amendment should be opposed.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield 2 minutes to the gentleman from North Dakota (Mr. Pomeroy).

Mr. Chairman, I yield myself the balance of my time.

The Supreme Court told us that virtual images produced without real children cannot be prohibited unless they are obscene. The bright line is a person has got to use real children for it to be illegal. This bill says that virtual images without using children are illegal. The same Supreme Court will make the same decision.

This amendment is unconstitutional and ought to be rejected.

Mr. Chairman, I yield back the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I am going to make a lengthy statement in just a moment, but I think it should be made clear to people who may be watching this on television, listening to this, Members listening to this in their offices or watching it, what is really going on here today. We have a noncontroversial bill, the AMBER alert bill, that was passed unanimously by the Senate both last year and this year; and we have an omnibus bill with all kinds of provisions, the AMBER alert provision being one of those that has now been reported out of the committee.

While this omnibus bill passed the House in the last session, it did not pass the Senate because there are a number of provisions that the Senate finds objectionable. So what we are doing is we are holding hostage the AMBER bill, the stand-alone AMBER bill, because some Members in the other party want an omnibus crime bill with controversial provisions.

If the leadership on the other side would simply let us have a separate vote on the AMBER provisions that have already passed the Senate unanimously this year, those would be passed by this House immediately and then could be sent to the President for his signature, but that is not what is being done today.

What we are doing is considering an omnibus bill with AMBER as one part of it, an omnibus bill that contains some very controversial provisions that indications are the Senate will not accept.

I would paraphrase something that is often said in criminal court: Justice delayed is justice denied. That is basically what is happening here today, is that we are packaging something that we know probably will not be accepted by the Senate, and even if it is accepted, it would be after a long and lengthy discussion and perhaps a conference committee.

Mr. Speaker, I have been a Member of this House for 25 years, and over that time I have been disappointed with the majority leadership on more than one occasion, but I cannot recall anything as utterly indefensible as the fact that the House leadership, Republican leadership, continues to block a very simple, very noncontroversial legislation, to set up a nationwide network of AMBER alerts to help save abducted children. If that sort of obstructionism is not out of touch, then I do not know what is.

Mr. Speaker, the rule for the Child Abduction Prevention Act is fine enough, fine enough that is if one is okay with politics as usual, fine enough if one is okay with delaying help to abducted children. America's children desperately need a nationwide system of AMBER alerts, and passing the Child Abduction Prevention Act through the House will not provide that anytime soon, if ever, and abducted children do not have time to wait any longer for politics as usual.

Mr. Speaker, House Republican leaders have blocked the simple AMBER Alert bill for 6 long months, and I am confident they have carefully constructed talking points to confuse the issue even further today.

So I want to be very clear about what the House is doing. We will be debating in a little bit two separate bills. One is the large, complicated and somewhat controversial bill this rule makes in order, the Child Abduction Prevention Act, H.R. 1104, of the gentleman from Wisconsin (Mr. Sensenbrenner). The other bill this bill does not make in order is the simple, noncontroversial AMBER Alert Network, S. 121, which has already passed the Senate unanimously and which could become law tomorrow if Republican leaders would only allow us to vote on it today.

I am not here to oppose the bill of the gentleman from Wisconsin (Mr. Sensenbrenner). I am not trying to defeat it. That is why Democrats did not offer a substitute yesterday in the Committee on Rules. All I am asking, as I and others like Ed Smart and Marc Klass have asked for the past 6 months, is for a separate vote on a separate bill, the AMBER Alert Network Act. Why? Because the Senate has passed the simple AMBER bill unanimously; because it has 220 cosponsors in the House, a clear majority; because the President supports it; and because if Republican leaders allow the House to pass it, then it will become law and communities across the Nation will get desperately needed resources to set up and/or strengthen the AMBER Alert systems that save children's lives.

Mr. Speaker, there is no valid reason that the House could not easily pass both bills, the simple AMBER Alert bill and the larger bill of the gentleman from Wisconsin (Mr. Sensenbrenner) today, but the rule only allows a vote on the bill of the gentleman from Wisconsin (Mr. Sensenbrenner), and passing it through the House will not send immediate help to AMBER Alerts any more than passing bankruptcy reform last week did.

Mr. Speaker, that is because the bill of the gentleman from Wisconsin (Mr. Sensenbrenner) is a large and complicated piece of legislation. It has not even been introduced in the Senate, much less passed by the Senate Judiciary Committee or the full Senate, or reconciled with the House bill in a conference committee. No one knows whether it will ever become law. That is why I tried to bring up the simple AMBER bill by unanimous consent last week, but the Republican leadership refused to allow it, and that is why I tried to amend the rule last night in the Committee on Rules to bring up both bills today on the floor, but Republicans blocked the AMBER bill as a stand-alone bill in a party- line vote last night.

Mr. Speaker, this is about protecting our children. It is not about party politics; so I cannot understand why Republican leaders insist on blocking the simple, stand-alone AMBER bill passed by the Senate. But they have been doing it for 6 months, and they make plenty of arguments. Last night in the Committee on Rules, one Republican member, the gentleman from Texas (Mr. Sessions), called it a feel-good, do- nothing piece of legislation. Like me, he is from North Texas where the AMBER Alert was invented, so I was surprised to hear him say that. The gentleman from Wisconsin (Mr. Sensenbrenner) said that those of us arguing for a simple, stand-alone vote on the simple AMBER bill are misinformed about the impacts such a bill would have.

Mr. Speaker, with due respect to the gentleman from Wisconsin (Mr. Sensenbrenner), the family of Elizabeth Smart is not misinformed. That is why they wrote an open letter to the House last week stating, ``As you know, I can't express enough how our children can't wait another day for the National AMBER Alert to be signed into law by President Bush. Please, please, please, pass the stand-alone AMBER Alert legislation now. You cannot comprehend the joy and adulation of having your child return. The AMBER Alert will make this a reality for countless families. Please don't underestimate the immediacy and power of this legislation.''

Similarly, Mr. Speaker, Marc Klass, the father of Polly Klass, was not misinformed when he wrote a letter expressing support for a nationwide network of AMBER Alerts.

And several Republican Members of the other body, including the chairman of the Committee on the Judiciary, were not misinformed when they urged the House to pass the simple stand-alone AMBER bill. Finally, the President of the United States was not misinformed when he said passing the AMBER bill is critical. All of these people are advocates for passing the simple AMBER legislation. Why? Because they understand that the AMBER Alert system works.

Announcement by the Speaker Pro Tempore

Mr. Speaker, I did not mention them by name, but I thank the Chair.

Mr. Speaker, they understand that the AMBER system works. It has helped to recover 52 abducted children, five of them in the month of March alone; but it does not work where it does not exist, and the AMBER Alert Network Act will help set up a nationwide network of AMBER Alerts. It provides 10 times the resources to communities that the President has requested for next year.

But the AMBER Alert bill will never become law as long as House Republican leaders are holding it hostage. Over the past 6 months, they have proven their willingness to do just that. As a result, Mr. Speaker, there is only one way to pass the AMBER Alert Network Act through this House, by defeating the previous question today. If we defeat the previous question, I will offer an amendment to the rule to bring up S. 121, the Senate-passed stand-alone AMBER bill immediately after the House passes H.R. 1104, the Sensenbrenner bill. That way the AMBER bill can become law and we can immediately begin strengthening AMBER Alerts around the country to save abducted children. The larger bill by the gentleman from Wisconsin (Mr. Sensenbrenner) can continue through the legislative process, hopefully through the Senate, through a conference committee, and back to the House and Senate as a conference report, and maybe one day become law. But abducted children cannot wait that long.

I urge Members, especially the 220 who have cosponsored the AMBER Alert Network Act, to defeat the previous question so we can vote on this bill today and begin helping abducted children.

Mr. Speaker, defeating the previous question will not stop the Child Abduction Prevention Act, but it is the only way to immediately strengthen AMBER Alerts around the country.

In closing, let me quote from a letter that the family of Elizabeth Smart sent to all Members of the House this morning. They write: ``Chairman Sensenbrenner's efforts on this issue are greatly appreciated, and his bill contains several worthy measures. But there is no reason the House can't vote on this bill while also passing the AMBER Alert Network Act that has been delayed for over 6 months.

``So we urge Members of the House who want to strengthen the AMBER Alert to vote `no' on the previous question today. That is the only way for the House to pass the National AMBER Alert to help protect America's children immediately.

``Our children can't afford to wait another day for the National AMBER Alert so we urge the House not to waste this opportunity to act on the legislation that has already passed the Senate twice.''

Mr. Speaker, I believe the Smart family has stated the case very clearly, so I urge my colleagues to oppose the previous question.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself 30 seconds.

Mr. Speaker, Members watching this must be scratching their heads and saying what are they talking about. The stand-alone AMBER bill has already passed the Senate 92-0. It would pass this House probably unanimously. They should just have a vote on it. Why do we just not have a vote on it; they will not let us have a vote on it.

Mr. Speaker, I yield 1 minute to the gentleman from Florida (Mr. Hastings).

Mr. Speaker, I yield myself 30 seconds.

Let us be clear what is going on here. I may have misunderstood my colleague from Georgia, a member of the Committee on Rules. I think he said that I did not support the larger bill. That is not the case. I support the larger bill, the Sensenbrenner bill; and I intend to vote for it. I just want a separate vote on the stand-alone AMBER provisions so that we can do that today rather than 6 months ago, 6 months later or a year later.

Mr. Speaker, I yield 2 minutes to the gentleman from Utah (Mr. Matheson).

Mr. Speaker, I yield myself 30 seconds. I thank the gentlewoman from North Carolina for pointing out that, on an administrative basis, there is $12 million that has been set aside. Of course, this or some subsequent administration could withdraw that money, could terminate the program if it does not become permanent statutory law. We know this administration is under great budgetary pressures because of the large deficit that they have run up, and we do not want to risk someone in the administration waking up tomorrow and deciding that they cannot afford to spend this money for the AMBER Alert. So we want to put it in statutory law where they will have to spend it.

Mr. Speaker, I yield 2 minutes to the gentleman from Minnesota (Mr. Oberstar).

(Mr. OBERSTAR asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 3 minutes to the gentleman from New Jersey (Mr. Holt).

Mr. Speaker, I yield myself such time as I may consume.

It was once observed many years ago in the pre-television age that there are two things that you do not want to see happen. One is the making of sausage and the other is the making of legislation. But, of course, now we see the making of legislation on television; and I would suggest that what the other side is doing today is giving sausage- making a bad name.

It is very clear that this legislation could become law in the next couple of days if they would just let it go, just let us have a separate vote on it. But they are not willing to do so.

My colleague from North Carolina cited the votes in the House for various provisions in this bill, other provisions. Of course those are all true, but the point is that they did not pass the Senate. They did not pass the other body. While they may be very popular in the House, that does not mean that the other body is going to take them all in one package with a little bow around them. They would not do it in the last Congress, and there is no real reason to believe they would do it anytime soon in this Congress. So all we are asking is a vote separate, a stand-alone vote just on the national AMBER network provisions which the other side, unfortunately, in this rule does not give us.

Mr. Speaker, if the previous question is defeated, I will offer an amendment to the rule. My amendment will provide that, immediately after the House passes the Child Abduction Prevention Act, it will take up the Senate-passed version of the AMBER Alert legislation. The Senate bill is identical to its House counterpart, H.R. 412, which has over 220 cosponsors.

The Senate passed S. 121 by a unanimous vote of 92-0 on January 21 of this

year. All that stands in the way of a presidential signature on this legislation is a clean vote by the House. That is what my amendment will allow us to do.

I am sure most of us cannot imagine the horror of having a child kidnapped. Research has shown that most kidnapped children are killed within 3 hours of their abduction. In these terrible, terrible instances, it is absolutely crucial that information be disseminated immediately so that these children can be rescued. AMBER programs in 39 States have already been credited with saving 31 lives.

It is hard to put into words the collective joy that this Nation felt 2 weeks ago when Elizabeth Smart was found alive and returned to her loving family. Let us help more families celebrate the joy of the safe return of a kidnapped child and not the sorrow of a tragic ending. Let us pass the Senate AMBER bill now and send it to the White House immediately.

Let me make very clear that a ``no'' vote on the previous question will not stop consideration of the Child Abduction Prevention Act. A ``no'' vote will allow the House to vote on H.R. 1104 and on S. 121 as well. However, a ``yes'' vote on the previous question will prevent the House from passing the clean AMBER bill and getting it to the President's desk as soon as possible. I urge a ``no'' vote on the previous question.

Mr. Speaker, I ask unanimous consent that the text of the amendment that I would offer be printed in the Record immediately before the vote on the previous question.

Mr. Speaker, again, I have been in this House for 25 years, and I simply do not understand what the other side is doing today. It makes no sense. It is indefensible. Let this legislation come to a vote and let it come to a vote today and be sent to the President.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I object to the vote on the ground that a quorum is not present and make the point of order that a quorum is not present.

Mr. Chairman, I offer an amendment.

Mr. Chairman, I yield such time as he may consume to the gentleman from Wisconsin (Mr. Sensenbrenner), chairman of the Committee on the Judiciary.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, this amendment addresses the April 16, 2002, Supreme Court decision in Ashcroft versus Free

Speech Coalition. That decision struck down in 1996 a law written to combat computer-generated pornography because it was too broad.

The overturning of this law to combat child pornography has emboldened those who would have used children. Regrettably, the prediction of the president of the National Center for Missing and Exploited Children has come true. He said, ``The court's decision will result in the proliferation of child pornography in America unlike anything we have seen in more than 20 years.''

A Government Accounting Office report just 2 weeks ago found that in the weight of the Supreme Court decision, child pornographers now are increasing their presence on the Internet and are engaging in their depraved actions with relative ease. The Internet has proved a useful tool for pedophiles and sex predators as they distribute child pornography, engage in sexually explicit conversations with children, and hunt for victims in chat rooms.

Every parent should know what their children see and do online. Unfortunately, the new playground for child pornographers is the Internet.

Our children are the most vulnerable among us, and we need to protect them. If this amendment becomes law, child pornographers will be a mere click away from a lengthy prison sentence. This amendment increases penalties and provides prosecutors with the tools they need to win convictions against child pornographers, and it responds to the Supreme Court's constitutional concerns by narrowing the definition of child pornography and includes an affirmative defense when real children are not depicted.

This amendment passed the House as separate legislation last year by a vote of 413 to 8, but the Senate failed to act. I hope my colleagues again will support the provisions in this amendment which will reduce child pornography on the Internet.

Mr. Chairman, I insert for the Record the analysis of the constitutionality of this legislation.

Constitutional Analysis of the Smith Amendment to H.R. 1104--the

``Child Obscenity and Pornography Prevention Act''

On April 16, 2002, the Supreme Court in Ashcroft v. Free

Speech Coalition, held that two of Federal definitions of

child pornography unconstitutional. Sec. 18 U.S.C.

Sec. 2256(8)(B), defined child pornography to include wholly

computer generated pictures that appear to be of a minor

engaging in sexually explicit conduct. Sec. 18 U.S.C.

Sec. 2256(8)(D), defined child pornography to include a

visual depiction where it is advertised, promoted, or

presented, to convey the impression that the material

contains a visual depiction of a minor engaging in sexually

explicit conduct.

The Court's decision does not bar Congress from outlawing

virtual child pornography when the prohibition is narrowly-

drawn to promote a compelling government interest. In fact,

the Court in its opinion, expressly left that option open for

Congress. The Court stated: ``We need not decide, however,

whether the Government could impose this burden on a speaker.

Even if an affirmative defense can save a statute from First

Amendment challenge, here the defense is incomplete and

insufficient, even on its own terms.'' Justice Thomas,

concurring, stated that the ``Court does leave open the

possibility that a more complete affirmative defense could

save a statute's constitutionality, see ante, at 1405,

implicitly accepting that some regulation of virtual child

pornography might be constitutional.'' No member of the Court

took exception with his conclusion.

Congress clearly has a compelling interest to protect

children from sexual exploitation. That interest extends to

the prosecution of those who exploit children. These

prosecutions are seriously threatened by the mere possibility

that technology exists to create a depiction of a virtual

child. This possibility allows those who harm real children

to claim that the child pornography they possess does not

contain real children.

Computer technology already exists today to disguise

depictions of real children to make them unidentifiable and

to make depictions of real children appear computer

generated. Furthermore, evidence was presented to the

Congress that the technology may already exist to depict

virtual children to look real and completely

indistinguishable.

Compounding the problem, is the fact that the vast majority

of child pornography prosecutions today involve images

contained on computer hard drives, computer disks, or related

media and that a computer image seized from a child

pornographer is rarely a first-generation product. These

pictures are e-mailed over and over again or scanned in from

photographs of real children being abused and exploited. The

transmission of images over an e-mail system can alter the

image and make it impossible even for an expert to know

whether or not a particular image depicts a real child. If

the original image has been scanned from a paper version into

a digital format, this task can be even harder since

proper forensic delineation may depend on the quality of

the image scanned and the tools used to scan it.

To prove a child is real will require identifying the

actual child. This is usually an impossible task. The

quandary is that while there is no substantial evidence that

any of the child pornography images being trafficked today

were made in any other way than by the abuse of real

children, technological advances are leading many criminal

defendants to suggest otherwise. These defendants are

claiming that the images they possess are not those of real

children, insisting that the government prove beyond a

reasonable doubt that the images are not computer-generated.

This is not a new defense, but without a narrowly drafted

statute intended to prohibit the use of virtual child

pornography that an ordinary person viewing the depiction

could not distinguish from a depiction of a real child, it

will be impossible for the government to prosecute child

pornography cases involving computer images. Some in the

Court are cognizant that technology may threaten the

Government's compelling state interest of effective

prosecution of those who sexually exploit children and thus

threaten the Government's ability to protect children.

A representative from the Department of Justice testified:

As Justice Thomas noted in his concurring opinion, ``if

technological advances thwart prosecution of `unlawful

speech,' the Government may well have a compelling interest

in barring or otherwise regulating some narrow category of

`lawful speech' in order to enforce effectively laws against

pornography made through the abuse of real children.'' 122 S.

Ct. at 1406-07 (Thomas, J., concurring in the judgment).

Similarly, Justice O'Connor noted in her opinion concurring

in part and dissenting in part that, ``given the rapid pace

of advances in computer-graphics technology, the Government's

concern is reasonable.'' Id. at 1409. Moreover, to avert

serious harms, Congress may rely on reasonable predictive

judgments, even when legislating in an area implicating

freedom of speech. See Turner Broad. Sys. Inc. v. FCC 520

U.S. 180, 210-11 (1997). We believe that Congress has a

strong basis for concluding that the very existence of

sexually explicit computer images that are virtually

indistinguishable from images of real minors engaged in

sexually explicit conduct poses a serious danger to future

prosecutions involving child pornography. Indeed, we already

have some sense of the impact of the Court's decision. The

Ninth Circuit had invalidated the same provisions of law in

1999, and all accounts indicate that the number and scope of

child pornography prosecutions brought by our prosecutors in

the Ninth Circuit has been adversely impacted.

Since the Supreme Court's decision in Free Speech

Coalition, evidence of this growing threat is clear as

defendants in almost every child pornography case contend

that the depictions could be virtual, requiring the

prosecutors to prove that the children depicted are real.

Some of the defense efforts are succeeding. For example,

after Free Speech Coalition, a court granted the defendant's

motion to withdraw a guilty plea and held that the government

must prove beyond a reasonable doubt that the defendant knew

that the images depicted real children.

Moreover, the existence of computer generated images of

child pornography that is indistinguishable from depictions

of real children will bolster the child pornography market

and those who abuse children to produce such pictures. The

majority opinion in Free speech Coalition stated, in dicta,

that ``if virtual images were identical to illegal child

pornography, the illegal images would be driven from the

market by the indistinguishable substitutes.'' Contrary to

that belief, the President and CEO of NCMEC ``believe[s] that

the Court's decision will result in the proliferation of

child pornography in America, unlike anything we have seen in

more than twenty years.'' He concluded that ``as a result of

the Court's decision, thousands of children will be sexually

victimized, most of whom will not report the offense.''

The Court stated that ``[f]ew pornographers would risk

prosecution by abusing real children if fictional,

computerized images would suffice.'' This conclusion is

simply wrong. The individuals who produce, trade, and

exchange child pornography are rarely profit motivated.

Pictures of abuse of real children are sold, but they are

also traded and displayed--they are trophies and signs of

validation for deviant behavior.

While the Supreme Court has certainly opened the door for

the adult entertainment industry to enter the child

pornography market, legalizing virtual child pornography will

not reduce the market for real children. Rather, the result

will be a market that contains both real and virtual children

(as it does now). The only difference is that now child

molesters will be able to hide their abuse with altered or

merely e-mailed photographs of their victims and the market

will no longer be underground but will return to the public

``adult book stores.''

Child pornography--virtual or otherwise--is detrimental to

the nation's most precious and vulnerable asset, our

children. Regardless of the method of its production, child

pornography is used to promote and incite deviant and

dangerous behavior in our society. As the President and CEO

of the NCMEC

testified ``there is compelling evidence that visual

depictions of sexually explicit conduct involving children

cause real physical, emotional and psychological damage not

only to depicted children but also to non-depicted children.

It is just as insidious, whether it is a photographic record

of a child's actual victimization, or a photographic

depiction used as a tool or device to subsequently victimize

other children.''

Sex predators produce, trade, and use child pornography for

several insidious purposes. Pedophiles not only like to

create a permanent record for arousal and gratification, but

also like to trade these pictures with other pedophiles to

validate their actions. Additionally, sex offenders use child

pornography to lower children's inhibitions to make them

believe that such behavior is acceptable and normal. There

are also those who sell it for profit.

Prior to 1982, child pornography lined the shelves of many

``adult'' entertainment stores. This changed after the 1982

Supreme Court's New York v. Ferber decision that found child

pornography was not entitled to First Amendment protection.

In Ferber, the Court found that: ``[i]t is evident beyond the

need for elaboration that a State's interest in `safeguarding

the physical and psychological well-being of a minor' is

`compelling.' '' Further the Court found that: ``[t]he

distribution of photographs and films depicting sexual

activity by juveniles is intrinsically related to the sexual

abuse of children in at least two ways. First, the material

produced are a permanent record of the children's

participation and the harm to the child is exacerbated by

their circulation. Second, the distribution network for child

pornography must be closed if the production of material

which requires the sexual exploitation of children is to be

effectively controlled.''

While child pornography disappeared from bookstores

following Ferber, it did not disappear from existence.'' The

child pornography market merely went underground, but this

underground market was spurred by the advent of the Internet.

Nevertheless, law enforcement had begun to make enormous

strides in the enforcement and prosecution of child

pornography crimes.

Again, the Government has a compelling state interest in

protecting children from those who sexually exploit them

including both child molesters and child pornographers. The

Supreme Court in New York v. Ferber, concluded that ``[t]he

prevention of sexual exploitation and abuse of children

constitutes a government objective of surpassing

importance.'' In Osborne v. Ohio, the Court recognized that

this compelling state interest extends to stamping out the

vice of child pornography ``at all levels in the distribution

chain.''

It follows that the Government has a compelling interest to

ensure that the criminal prohibitions against child

pornography remain enforceable and effective. As the Court

stated in Ferber, ``[t]he most expeditious if not the only

practical method of law enforcement may be to dry up the

market for this material by imposing severe criminal

penalties on persons selling, advertising, or otherwise

promoting the product.''

It became apparent in the 1990's that advances in

technology threatened the Government's compelling state

interest in protecting real children through the effective

prosecution of the child pornography laws that cover the

visual depictions of real children. In 1996, the Congress

attempted to address this concern with the Child Pornography

Prevention Act. The 1996 language included a prohibition of

any virtual depictions as well as pictures of youthful-

looking adults. The Supreme Court found the 1996 statutory

language overbroad, and therefore, unconstitutional.

This legislation is constitutional as it narrows the

definition in significant ways and strengthens the

affirmative defense. Furthermore, there is a compelling state

interest for the narrowly drawn prohibition. The Government's

compelling state interest is to protect children from

exploitation. And the protection includes the prosecution of

those who would or do exploit children. The Court gave the

Congress an opportunity to addresses its concerns, and the

Congress has an obligation to do so.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I thank the gentleman from North Dakota (Mr. Pomeroy) for his remarks.

Mr. Chairman, may I ask how much time remains on our side.

Mr. Chairman, I yield 2\1/2\ minutes to the gentleman from Wisconsin (Mr. Green) the vice-chairman of the Subcommittee on Crime, Terrorism and Homeland Security.

Mr. Chairman, I yield the balance of my time to the gentlewoman from Pennsylvania (Ms. Hart), a very active member of the Committee on the Judiciary.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I demand a recorded vote; and pending that, I make the point of order that a quorum is not present.

Mr. Chairman, I offer an amendment.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, as we consider this bill, which will strengthen penalties against kidnapping and aid law enforcement agencies to effectively prevent, investigate and prosecute crimes against children, we should also take this opportunity to reauthorize the Victims of Child Abuse Act. This law, initially passed in 1992, supports grants for programs to assist the victims of child abuse.

Our colleague, the gentleman from Alabama (Mr. Cramer), was involved in the original enactment of this legislation and continues to be very active in the programs administered through this program and deserves a great deal of credit for the activity underlying the amendment.

I yield to the gentleman from Wisconsin.

Mr. Chairman, I appreciate very much the chairman's comments in that regard. They are similar to comments made by the district attorneys in a letter from the National District Attorneys Association citing the extraordinary value of these programs.

In the interest of time and in the interest of debate and with the endorsement of the Committee on the Judiciary chairman, I would put into the record the statement that I make on behalf of this amendment, along with the letter from the National District Attorneys Association, and urge its adoption.

Mr. Chairman, as we consider this bill which would strengthen penalties against kidnapping and aid law enforcement agencies to effectively prevent, investigate, and prosecute crimes against children, we should also take this opportunity to reauthorize the Victims of Child Abuse Act. This law supports grants for programs to assist victims of child abuse.

Congress passed the Victims of Child Abuse Act in 1992. This Act provided for the establishment of four Regional Children's Advocacy Centers to provide information, technical assistance, and training to assist communities in establishing programs, particularly children's advocacy centers, that respond to child abuse. Since that time, these local and regional centers have served and assisted victims of child abuse heal and recover.

The need for these centers and programs in increasing. In my home state of North Dakota, we have one Children's Advocacy Center (CAC), located in Bismarck. It opened in 1996 and is completely funded by grants. Since its opening, it has assessed and closed over 4,000 cases of abuse and/or neglect. Unfortunately, over 7,000 children have been suspected to be victims during this time. Referrals have increased by 49 percent since 2000 and 72 percent of all victims were 8 and under. As you can see, this center serves a fragile population and addresses a vital need. The Center serves 49 out of 53 counties and all four Native American reservations.

Children's Advocacy Centers are important because they make the process of reporting child abuse and receiving treatment easier on children. They provide consistent and timely response to abuse reports; effective medical and mental health treatment or referrals; and reduce the number of child interviews by prosecutors and investigators, lessening the mental impact of continued exposure to the abuser.

Nationally, there are 464 Children Advocacy Centers in the United States that are members of the National Children's Alliance (NCA). There are an additional 221 programs that are recognized by NCA as being engaged in the process of creating a CAC. The National Children's Advocacy Center (NCAC) in Hunstville, Alabama has had a significant impact on CAC development, and I want to acknowledge Representative Bud Cramer of his outstanding work in developing the first CAC program.

I support Representative Cramer in his work and seek to extend the legislation that helps fund its programs. The authorization for this funding expired in fiscal year 2000. While funding has continued through the annual appropriations process, Congress should reauthorize the program and demonstrate our support for its mission. The amendment would authorize $15 million for Regional and Local Children's Advocacy Centers through 2005, and would provide $5 million for grants for specialized technical assistance and training programs.

This amendment also adds tools for the Department of Justice to evaluate these grant programs to ensure that these funds are being used to achieve the very important goals they were designed for--helping children and families deal with the tragedy of child abuse. These tools are to be used only to improve the current delivery of child abuse prosecution and recovery.

Let's make sure every victim of child abuse has access to the resources he or she may need to assist in the prosecution of their abuser and recovery. I urge my colleagues to support this vital amendment.

Alexandria, VA, March 27, 2003.

Hon. Jim Sensenbrenner, Jr.,

Chairman, Committee on the Judiciary, Rayburn House Office

Building, Washington, DC.

Dear Chairman Sensenbrenner: On behalf of the National

District Attorneys Association I want to urge the passage of

the Pomperoy amendment to H.R. 1104, the Child Abduction

Prevention Act. This amendment reauthorizes funding for the

National Center for the Prosecution of Child Abuse, a vitally

important resource for the local prosecutors of this country.

The National Center for the Prosecution of Child Abuse is

dedicated to training prosecutors, police investigators,

medical personnel and social workers on the intricacies of

investigating and prosecuting cases of child abuse and

neglect. Additionally they provide on going technical

assistance to prosecutors in the field--even in the midst of

a case.

Child abuse cases are some of the most complex to

investigate and prosecute. The training and assistance that

the Center provides is crucial to fight this scourge. I urge

speedy acceptance of Mr. Pomeroy's effort to ensure that our

children are protected to the utmost extent of the law.

Sincerely,

Dan M. Alsobrooks,

President.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I thank the gentleman for yielding me the time.

I have the greatest respect for the legal skill of my friend and colleague from Virginia. I disagree with his take on this particular amendment, however. I am a cosponsor of the legislation represented by the amendment and am pleased today to speak for its passage.

I want to commend, in particular, the gentleman from Texas (Mr. Smith), who in an exemplary bipartisan manner worked to build this legislation, crafted around a very careful reading of the Supreme Court ruling, a reference by the gentleman from Virginia (Mr. Scott), and then forged the legislative response that will withstand Supreme Court review.

This is not an exercise of making a statement only to be followed by the inevitable Supreme Court ruling throwing out the legislation. This one is written to withstand review to answer the constitutional objections raised about the earlier legislation, and it comes at a critical point in time for our country.

The Internet, as this wonderful new technology is changing so many things, has had the unfortunate effect of enabling child pornographers beyond ever before, at the very time when we have computer technology being used in the creation and dissemination of graphic, completely unacceptable child pornography. The legislation responds to that, includes several different components that go beyond any component of what might be in a free-speech argument, banning the use by an adult to a minor, the exchange of this material over the Internet, commonly used as part of an enticement procedure by perpetrators of those who would exploit children and lure them into contact.

It creates a per se definition that explicit sexual acts depicted between very young children is per se obscene. I believe this will make a very useful contribution to our judges as they evaluate the unseemly cases brought before them.

This is an important amendment. I urge its adoption.