Waiving points of order against the conference report to accompany the bill (S. 151) to amend title 18, United States Code, with respect to the sexual exploitation of children.

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

(Mr. SCOTT of Virginia asked and was given permission to revise and extend his remarks, and include extraneous material.)

Mr. Speaker, the conference report before us started out as an effort to quickly pass AMBER Alert, a bipartisan noncontroversial provision which had already passed the Senate. I am a cosponsor of the House version of the AMBER Alert so I am anxious to see that it be passed because it has been actually shown to help children. It will codify a program of grants and assistance to States and localities to establish a national communications system so that abducted children can be saved. As the gentleman from Wisconsin pointed out, that system works.

However, the bill now before us is loaded down with an array of crime sound-bite provisions that make the AMBER Alert bill just an afterthought in the legislation. The bill that has gone through the conference process, some provisions have been improved, some have been made worse; but I am unable to support the conference report at this time.

Mr. Speaker, the bill retains egregious provisions that expand the Federal criminal laws into areas traditionally left to State criminal laws. It expands the death penalty, despite the fact that almost 70 percent of death penalties imposed in the United States are found to be erroneous and the fact that over 100 people sentenced to death in the last 10 years have been subsequently shown to be innocent.

250 Members of the House, many supportive of the death penalty, have sponsored the Innocence Protection Act to provide reasonable assurances that fewer innocent people will be put to death. So we should certainly not be adding more death penalties before this act passes.

There are numerous provisions in the bill that create new mandatory minimum sentences, including the baseball-based sound byte, ``two strikes and you're out,'' which mandates life without parole for a second-offense requirement involving a minor. The offenses covered by that provision fortunately have been limited through the conference report process by eliminating some of the minor offenses involving a minor child, but it still includes as a child sex offense some consensual acts between teenagers.

The bill also adds a 5-year mandatory minimum for first offense crimes that are Federal crimes only because a person crosses State lines, such as when an 18-year-old and a 17-year-old conspire to cross State lines from Washington, D.C., to Virginia to have consensual sex. Just to show my colleagues how bizarre that provision is, if children are conspiring to cross from Virginia to Washington, D.C., to have sex, it would not be a child sex offense, and that is because consensual sex outside of marriage is not a crime in Washington, D.C., while it is in Virginia.

The bill also provides for a new wiretap authority in many of these cases including consensual sex and including some of the activities that do not even constitute a crime, and in some of those crime cases, bail may be denied during trial.

Of course, we are supposed to expect that prosecutors will ignore the law to carry mandatory minimum terms and not bring those cases. The reason we have mandatory minimums in the first place is because judges cannot be trusted to determine who should be sentenced to life and who should be sentenced to less, so we give everybody a life sentence. So our prisons are filled with people today who are serving time because they were convicted of just tangential involvement in somebody else's drug trade and end up serving more time than bank robbers.

We should let the sentencing commission and judges determine the appropriate sentences. Mandatory sentences have been criticized because they often require sentences which violate common sense in some cases, and that is why the Chief Justice of the Supreme Court is a frequent critic. Not only do we mandate numerous mandatory minimums without regard to what the individual circumstances of the case might be, but one amendment, the Feeney amendment, reduces the discretion of the sentencing commission and judges to robot-like conformity without regard to how the sentence compares to equally serious offenses, nor does it recognize that circumstances can vary from one case to another.

There was a dramatic effort to fix that amendment, representing a brand-new version at the conference committee meeting, but it was ineffectual, as well as rife with errors. In just a cursory reading of that amendment, which was first seen by some of us at the meeting itself, it became clear that it had several major unintended effects. For example, it removed consideration in sentencing for exemplary military service. Another bizarre exchange occurred in which we were told that the word ``and'' actually meant ``or'' and it did not matter whether you had ``and'' or ``or.'' I do not know when the change took place, but the version before us now has the word ``or'' instead of ``and.'' Nevertheless the amendment still reduces the judge's ability to make the punishment fit the crime.

Most cases are sentenced within the sentencing guidelines range; and according to the American Bar Association, 79 percent of the departures from the guidelines are agreed to by the prosecution. I would like to insert the letter from the ABA into the Record at this point.

American Bar Association,

Chicago, IL, April 9, 2003.

Dear Senator: I write on behalf of the American Bar

Association to express deep concern about the Feeney

amendment, which has been incorporated in the conference

report to accompany S. 151, legislation to ban ``virtual''

child pornography. Although we are pleased to see that some

of the more offensive provisions of this amendment were

modified in conference, we continue to believe that this

provision would fundamentally alter the carefully crafted and

balanced system established by the Sentencing Reform Act,

without any of the customary safeguards of the legislative

process. Indeed, to the extent the amendment would give

prosecutors a unique and absolute power to check the

discretion of sentencing judges, it would have an unsettling

effect on the constitutional balance of power.

The Feeney amendment would legislatively overrule a

decision of the United States Supreme Court, United States v.

Koon, 518 U.S. 81 (1996), and amend central provisions of the

Sentencing Reform Act of 1984. It would void numerous

sections of the Federal Sentencing Guidelines, and, for the

first time, amend the Guidelines by direct legislation. It

would preclude the exercise of judicial discretion in certain

cases, and make judicial departures in all cases subject to

de novo appellate review. It would impose very troublesome

reporting and oversight requirements on judges that will

certainly have a chilling effect on judicial independence,

and discourage the imposition of just sentences in many

cases.

Should Congress enact the Feeney amendment, all these

dramatic changes would be accomplished through a House floor

amendment to an unrelated bill, adopted without committee

hearings by either the House or the Senate, or the benefit of

consultation with the U.S. Sentencing Commission, the federal

judiciary, or the organized Bar.

The Feeney amendment is evidently a response to the

perception that judges have engaged in widespread abuses of

their departure power following the Supreme Court's Koon

decision in 1996. Based on the Sentencing Commission's

statistics, I believe there are reasons to doubt the accuracy

of this portrayal.

Although sentences below the guideline range are now more

common that in the early days of guidelines sentencing, the

primary responsibility for this result lies with the

Department of Justice. In FY 2001, of 19,416 downward

departures awarded federal defendants, approximately 15,318

came on government motion. Put another way, in 2001, 79

percent of downward departures in the United States were

requested by the Government.

Similarly, although the rate of non-substantial assistance

departures has increased since the Koon decision, the vast

majority of that increase is attributable to the fact that

the number of departures in the five `'fast-track'' border

districts more than tripled, from 1871 to 1996, to 5928 in

2001. In short, the increased rate of non-substantial

assistance departures since Koon is due primarily to requests

for such departures by the Department of Justice.

The foregoing figures do not, of course, present the whole

picture. The percentage of judicially initiated departures

has increased somewhat since Koon. It may well be that some

judicially initiated departures are inappropriate and that

some action to curb inappropriate judicial departures should

be considered. However, it would seem advisable to determine

the nature and extent of any problem with judicial departure

power before legislating a virtual end to that power. As

Senator Hatch wisely observed some years ago:

``[C]ongressional policy makers must take advantage of the

most current and complete information available when making

legislative decisions. Whenever possible, Congress should

call upon those with relevant empirical research, encouraging

those most knowledgeable of and most

involved with the guidelines--judges, prosecutors,

practitioners and the Commission--to express their views.''

I am informed that the U.S. Sentencing Commission is even

now in the midst of a study of judicial departures in white-

collar crime. Would it not be prudent to direct the

Commission to extend that study to departures generally and

report promptly to Congress on its results? (I understand

that the General Accounting Office has also undertaken a

study of departures, at the request of the House Judiciary

Committee.) Such a congressional directive could also

instruct the Commission to develop proposals to address any

deficiencies revealed by the study. Once armed with full

information, Congress could determine the true nature and

extent of any problem, and could, if necessary, craft an

appropriate, measured legislative response to any

deficiencies in departure practice left unaddressed by the

Commission.

The American Bar Association is confident that a period for

study of current departure practice would not only yield a

more accurate picture of any problems that may exist, but

could not fail to produce a better solution than the Feeney

Amendment.

The Sentencing Reform Act of 1984 created a system of

distributed authority that was designed to ensure fair,

predictable sentences for defendants convicted in

federal court. As contemplated by the Act itself, the

Guidelines drafted by the Sentencing Commission and

approved by Congress channel judicial sentencing

discretion, but they do not eliminate it. This system

reflects two truths about the process of making sentencing

rules. First, no set of rules can anticipate the

circumstances of every individual defendant. Accordingly,

if justice is to be done, judges must retain the

flexibility to determine that some defendants do not fit

the mold envisioned by the Commission. Second, the

departure power is a means of providing feedback from

judges to the Sentencing Commission and Congress. By

studying departure patterns, the Commission can identify

those guideline rules that judges are consistently finding

to be inappropriate for certain classes of defendants.

In the Sentencing Reform Act, Congress conferred upon

Federal judges the power to depart whenever ``there exists an

aggravating or mitigating circumstance of a kind, or to a

degree, not adequately taken into consideration by the

Sentencing Commission in formulating the guidelines'' in the

enabling legislation that created the U.S. Sentencing

Commission, 18 U.S.C. Sec. 3553(b). The Feeney Amendment is

inconsistent with the original judgment of Congress about the

necessity and value of a guided departure power and the

important role of judges in Federal sentencing. If passed,

the Amendment would severely compromise critical

institutional features of the Federal sentencing system.

By curtailing and burdening judicial departure authority,

the Feeney Amendment strikes a blow at judicial independence

and sends an unmistakable message that Congress does not

trust the judgment of the judges it has confirmed to office.

By overriding the Sentencing Commission and legislatively

rewriting the Guidelines, the Feeney Amendment threatens the

legitimacy of the Commission. The Commission was created by

Congress to ensure that important decisions about Federal

sentencing were made intelligently, dispassionately, and, so

far as possible, uninfluenced by transient political

considerations. Congress should accord the Commission and its

processes some deference unless and until the Commission has

demonstrably failed in its duties.

By bypassing the deliberative processes of Congress itself,

the Feeney Amendment reflects a profoundly troubling

disregard of the legislature's role in establishing Federal

sentencing policy. If passed, the Feeney Amendment would

alter core features of Federal criminal sentencing and

appellate practice. Yet the Amendment has never been the

subject of a hearing in either the House or Senate, and

neither house has had the benefit of meaningful consultation

with any of the institutions most affected by the Amendment.

The American Bar Association is firmly committed to the

maintenance of a just and effective Federal sentencing

system. I am confident that you and your colleagues will give

the Feeney Amendment the careful scrutiny it requires. I am

hopeful that such scrutiny will lead you to oppose the Feeney

Amendment and to support a careful study of judicial

departures by the Sentencing Commission. . . .

The bill before us defiantly enacts laws prohibiting such acts as what is called ``virtual child pornography.'' The United States Supreme Court gave us a bright-line test to determine whether or not computer- generated images can constitute illegal child pornography. The Court said that if the image is not otherwise obscene it must involve real children in the production to be illegal. Pornography which was produced without real children under the Ashcroft case is not illegal.

In a direct violation of that case, this bill prohibits such images, whether or not it was produced with real children, unless the defendant can prove his innocence.

The Court, of course, dealt with that issue and said that we could not require a defendant in an American judicial court to prove his innocence, so that provision is clearly unconstitutional.

Mr. Speaker, we have a number of problems with this case, including the mandatory minimums. I just want to point out that the Chief Justice of the United States Supreme Court, United States Judicial Conference, the Sentencing Commission, the American Bar Association, the Federal Bar Association, the Leadership Conference on Civil Rights, the Washington Legal Foundation, the CATO Institute, and a host of other sentencing and judicial system experts have pleaded with Congress not to impair the ability of courts to impose just and responsible sentences.

I would ask also that a letter from the NAACP also be inserted into the Record at this point.

National Association for the

Advancement of Colored People,

Washington, DC, April 10, 2003.

Re NAACP opposition to S. 151, the ``Child Abduction

Prevention Act of 2003.''

Members,

House of Representatives,

Washington, DC.

Dear Representative: On behalf of the National Association

for the Advancement of Colored People (NAACP), the nation's

oldest, largest and most widely-recognized grass roots civil

rights organization, I am writing to urge you to oppose the

conference report to S. 151, the ``Child Abduction Prevention

Act of 2003'' in its current form.

While the issue of child abduction is a serious, heart-

wrenching and too often tragic issue that deserves to be

dealt with aggressively at a federal level, Title IV of the

final bill would radically limit federal judicial discretion

to impose just sentences for almost all federal offenses; not

just those relating to child abduction. Because this

provision overrules a key Supreme Court decision and

constitutes a dramatic encroachment on the judiciary, it is

opposed not only by civil rights organizations across the

board, but also by Supreme Court Chief Justice Rehnquist, the

Federal Judicial Conference, the Federal Sentencing

Commission, the American Bar Association, the Federal Bar

Association as well as countless law professors, prosecutors

and public defenders.

The potential impact of this provision on the African

American community and on ethnic minority American

communities throughout the nation is almost incomprehensible.

Racial bias in our nation's criminal justice system is

widespread and well documented. For example, according to

reports from the US Department of Justice and the US

Department of Health and Human Services, people of color

commit drug offenses at a rate proportional to our percentage

of the US population, roughly 25% for African Americans and

Hispanic Americans combined. Yet almost 75% of the people

charged in this nation with a drug offense are either

Hispanic or African American.

The impact this racial bias has on our communities is

devastating. According to the US Department of Justice report

issued just last week, an alarming 12% of all African

American men between the ages of 20 and 34 are in jail or in

prison. One out of every three black men born in the United

States will spend time behind bars in their lifetime.

The federal prison system now holds over 160,000 inmates,

more than any single state prison system. Furthermore, the

federal prison population has more than quadrupled in the

last 20 years for mostly non-violent offenses even while the

rate of incarceration has actually slowed in many states.

Under Title IV, the growth rate is predicted to be

staggering.

I hope that you will consider the far-reaching impact this

legislation will have on individual lives as well as whole

communities and even our nation. I urge you again to oppose

the final conference report unless Title IV is eliminated or

at least amended to address only child abduction cases.

Thank you in advance for your attention to this matter. If

you have any questions, I hope that you will feel free to

contact me at (202) 638-2269.

Sincerely,

Hilary O. Shelton,

Director.

Mr. Speaker, for those reasons we should vote against this report and send the measure back to committee for serious consideration. Many of the problems can be fixed if we would seriously consider the bill in a regular deliberative legislative process.

So I urge my colleagues not to vote on the conference report, and I reserve the balance of my time.

Mr. Speaker, I yield 5 minutes to the gentlewoman from Texas (Ms. Jackson-Lee) a member of the Committee on the Judiciary.

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

Mr. Speaker, I yield myself such time as I may consume to read just one paragraph of the letter the gentleman from Wisconsin just referred to.

``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.''

In other words, Mr. Speaker, we did not ask for a change in the law, we just asked for a review consistent with the law. This bill changes the law, changes the standard for review. What the Congressional Black Caucus asked for was just a review under the current law.

Mr. Speaker, I submit for the Record the letter just referred to by the gentleman from Wisconsin from the Congressional Black Caucus.

Congress 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 mitigating factors may be

appropriate in other circumstances. However, we feel that the

defendants' 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.

Sincerely,

Maxine Waters; Sanford Bishop; Eddie Bernice Johnson;

Floyd H. Flake; Albert R. Wynn; Carrie P. Meek; Eva M.

Clayton; Major R. Owens; Walter Tucker; William Clay;

Charles B. Rangel; William J. Jefferson.

James E. Clyburn; Earl Hilliard; Bennie M. Thompson; Cleo

Fields; Cynthia McKinney; John Lewis; Corrine Brown;

Donald M. Payne; Alcee Hastings; Kweisi Mfume; Louis

Stokes; Melvin L. Watt; Ronald V. Dellums.

Mr. Speaker, could you advise how much time remains on both sides?

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

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

Mr. Speaker, I would like to point out that the Congressional Black Caucus did not complain about the Supreme Court reinstating the law as it was.

Mr. Speaker, I yield 3 minutes to the gentlewoman from California (Ms. Waters), a member of the Committee on the Judiciary.

Mr. Speaker, I yield 3 minutes to the gentleman from North Dakota (Mr. Pomeroy).

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

Mr. Speaker, I am frequently asked what we can do to repeal some of the mandatory minimum sentences which frequently impose bizarre, Draconian, and unreasonable sentences. Sometimes these requests come from relatives or friends of people, women whose boyfriends deal drugs, and the young lady does not deal drugs, does not use drugs, but she is around the boyfriend enough so that there is no question, she probably broke the law, took a message, drove a car to a meeting, so prosecutors can show she was involved, but not involved to the point where she ought to serve 20-some years, more than bank robbers serve.

When they ask what they can do about these kinds of Draconian sentences, I tell them the first thing they have to do to repeal the existing mandatory minimums is to stop passing new ones. Today we are going to pass a new set of mandatory minimum sentence laws. If anybody asks in the future where these mandatory minimums come from, Members can point to bills like the one today.

Finally, Mr. Speaker, a lot has been said about the Ashcroft decision. The Ashcroft decision was clear. You cannot prohibit child pornography, illegal child pornography unless real children were involved. The provisions in this bill allow prosecution whether or not real children are involved. The Court goes to great lengths to say whatever problems there are in prosecution, it is a problem for the defense. And if nobody knows whether they are computer-generated or involving real children, in that case they cannot successfully prosecute. They require real children to be involved in the production; and without real children, it cannot be illegal. This statute plainly on its face violates that Supreme Court decision and is unconstitutional.

Mr. Speaker, I hope we can send this back to committee, improve some of the provisions, and pass the AMBER Alert bill like we should. But in its present condition, I hope we will reject the conference report with a ``no'' vote.

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

Mr. Speaker, pursuant to House Resolution 188, I call up the conference report on the Senate bill (S. 151) to amend title 18, United States Code, with respect to the sexual exploitation of children, and ask for its immediate consideration.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on the conference report for S. 151.

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

Mr. Speaker, this conference report contains provisions of H.R. 1104, the Child Abduction Protection Act, which overwhelmingly passed the House 410 to 14 less than 2 weeks ago, and the provisions of S. 151, the PROTECT Act of 2003, which passed the other body 84 to nothing on February 24.

Over the last several days, during the course of lengthy staff meetings and an open, working meeting of conferees, we have worked diligently to resolve differences between the House and the Senate. I believe we were successful in crafting a bipartisan conference report that recognizes a comprehensive effort is needed to better protect children. In order to accomplish this, the legislation includes provisions to help prevent crimes against children, to assist in the safe recovery of abducted children, to enhance the investigations and prosecutions of these crimes, and to ensure that the offenders are held accountable and unable to repeat these crimes.

An abducted child is a parent's worst nightmare. We must assure that law enforcement in our communities have every possible tool to prevent abductions in the first place, and when an abduction occurs, to recover a missing child quickly and safely, and to ensure that the criminal receives sure and swift justice, including an appropriate sentence in prison.

The overarching goal of this comprehensive package is to stop those who prey on children before they can harm children. This is accomplished by destroying the illicit markets that encourage exploitation and abduction of children, strengthening penalties to reflect the seriousness of these crimes, halting repeat offenders, and enhancing law enforcement agencies to effectively prevent, investigate and prosecute crimes against children.

For instance, this legislation responds to the April 16, 2002, Supreme Court decision in Ashcroft v. The Free Speech Coalition that struck down a 1996 law written to combat computer-generated pornography. As the president for the National Center for Missing and Exploited Children stated, ``The Court's decision will result in the proliferation of child pornography in America unlike anything we have seen in more than 20 years.''

Congress has an obligation to prevent the resurgence of the child pornography market. This conference report will help do so by amending the definition of computer-generated child pornography so that it will withstand a constitutional challenge.

Additionally, the conference report provides strong support to recover abducted children quickly and safely through a prompt and effective public alert system. Such a system can be the difference between the life and death for that child.

To accomplish this, the conference report codifies the AMBER Alert program currently in place in the Departments of Justice and Transportation, and authorizes increased funding to help States deploy a child abduction communication warning network. While our goal must always be to prevent the abduction of the child before it occurs, our communities should also have an effective and responsive AMBER Alert system to assist in the quick and safe return of the kidnapped child.

I am happy to report that this compromise legislation doubles the authorized funding for the National Center for Missing and Exploited Children, the Nation's resource center for child protection, to $20 million a year through 2005. The center assists in the recovery of missing children and raises public awareness of ways to protect children from abduction, molestation, and sexual exploitation.

Another vital component in the effort to protect children are strong laws that hold the criminal accountable. 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 any other violent criminal to repeat their offenses against children. This number demands attention, especially in light of the fact that a single child molester on average shatters the lives of over 100 children.

Under this legislation, sexual predators will no longer slip through the cracks of the system and harm other children. To this end, the legislation provides a 20-year mandatory minimum sentence of imprisonment for non-familial abductions of a child under the age of 18, lifetime supervision for sex offenders, and mandatory life imprisonment for second-time offenders. The compromise legislation restricts the opportunity for pretrial release for crimes of child abduction and sex offenses and extends the statutes of limitation.

Finally, this conference report contains provisions to address the long-standing and growing problem of downward departures from the Federal sentencing guidelines. Outrageously, between 1996 and 2001, U.S. courts have lowered the sentences of one out of every five of those convicted of sexually abusing a child or sexually exploiting a child through child pornography.

Strong sentencing is an essential component in any effort to fight crimes against children. All of our efforts in this bill and in previous anticrime measures are fruitless if, at the end of the day, judges are permitted to give offenders a slap on the wrist, which is exactly what is happening today with increased frequency.

I am proud of the efforts of the conferees to quickly send this legislation to the President. It was a fair and open process, and the exhaustive negotiations yielded extensive changes to the base text of the legislation that passed the House. Most of these changes were made to accommodate the concerns of my colleagues in the minority party, both in the Senate and in the House.

I am extremely proud of the extraordinary effort my now-weary staff expended to help craft this conference report and to get to it the floor today. I would like to extend special thanks to Sean McLaughlin, Will Moschella, Beth Sokul, Jay Apperson and Katy Crooks of the Committee on the Judiciary staff. Their dedication is greatly appreciated.

The bottom line is that this comprehensive legislative package will crack down on child abductors, build and expand on the work of the National Center for Missing and Exploited Children, give Federal authorities additional tools to prevent and solve these horrific crimes, and provide meaningful sentencing reform for all crimes. I urge my colleagues to protect America's children from the worst predators in our society by supporting this bipartisan child protection legislation.

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

Mr. Speaker, I yield 4 minutes to my colleague, the gentleman from Wisconsin (Mr. Green).

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

Mr. Speaker, the gentlewoman from Texas asked why we have to have restrictions on downward departures, and I will give her one example.

In the case of the United States v. Robert Parish, a defendant who was convicted of possession of child pornography. He was in possession of 1,300 images of child pornography, some of which depicted graphic violent sexual exploitation of very young children. He got a downward departure.

The majority of those 1,300 child pornography images which he possessed depicted adolescent girls, including one in which a very young girl, wearing a dog collar around her neck, is having sexual intercourse with an adult male. The defendant was also in the midst of communicating on line with a 15-year-old female high school student when, thankfully, he was arrested.

Now, what happened when he was convicted? The sentencing guidelines have a range of 33 to 41 months imprisonment for a conviction of those crimes. The trial court gave him 8 months. The trial court found that the defendant's conduct was outside the typical heartland of these types of cases, and that the defendant was susceptible to abuse in prison. The trial court felt that the combination of factors, including the defendant's ``stature,'' ``demeanor,'' ``naivete,'' and the nature of the offense justified the departure from the minimum of 33 months in the guidelines to just 8 months.

This is why we have the restriction on downward departures for sex crimes in this bill.

Now, I am a bit puzzled that the gentlewoman from Texas (Ms. Jackson- Lee) is complaining about the fact that we provide for a de novo review of downward departures for all crimes, not just crimes against children, but all crimes. When this legislation was originally debated on March 27, she voted in favor of it, and I introduced in the Congressional Record a letter signed by a majority of the members of the Congressional Black Caucus who were in office at the time asking the Clinton Justice Department, headed by Attorney General Janet Reno, to seek a de novo review of the downward departure that the trial judge gave to Stacey Koon, who is the police officer who was convicted of violating the civil rights of Rodney King.

Fortunately, that passed and that is included in this legislation. What we are doing in this legislation on de novo review is exactly what the next speaker, the gentlewoman from California (Ms. Waters), and those who cosigned this letter, asked the Clinton Justice Department to do.

Now, unfortunately, the Supreme Court of the United States, in the case of Koon v. United States, decided that there could only be a review on appeal of a departure from the sentencing guidelines based upon abuse of discretion by the trial judge. We overturn that part of the Koon v. U.S. ruling and allow for de novo review on appeal. Sometimes, maybe, if you ask for something too much, you might get it.

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

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

Mr. Speaker, I have the letter that the members of the Congressional Black Caucus sent to Attorney General Janet Reno on August 6, and while they did not ask for a change in the law, what they did ask was for the Justice Department to appeal the sentence.

Now, what happened in the Stacey Koon case is that the Court of Appeals agreed with the Justice Department and established de novo review. Mr. Koon's lawyer appealed to the Supreme Court, and the Supreme Court reversed the Court of Appeals and established the abuse of discretion standard.

Now, what this legislation does is to establish the de novo review standard for all crimes should there be a review of the sentence on appeal.

Mr. Speaker, I submit for the Record the letter dated August 6, 1993 from members of the Congressional Black Caucus.

Congress 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 mitigating factors may be

appropriate in other circumstances. However, we feel that the

defendants' 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.

Sincerely,

Maxine Waters; Sanford Bishop; Eddie Bernice Johnson;

Floyd H. Flake; Albert R. Wynn; Carrie P. Meek; Eva M.

Clayton; Major R. Owens; Walter Tucker; William Clay;

Charles B. Rangel; William J. Jefferson.

James E. Clyburn; Earl Hilliard; Bennie M. Thompson; Cleo

Fields; Cynthia McKinney; John Lewis; Corrine Brown;

Donald M. Payne; Alcee Hastings; Kweisi Mfume; Louis

Stokes; Melvin L. Watt; Ronald V. Dellums.

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

Mr. Speaker, I yield 3 minutes to the gentleman from Indiana (Mr. Pence).

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

Mr. Speaker, this vote is going to be the end of a long period where the provisions of this legislation were carefully considered in the Committee on the Judiciary in the House and in the other body. The compromise that was reached by the conferees is a good compromise. It will make a difference to protect children. It will give parents of abducted children the comfort of knowing that those who have harmed their children are going to be dealt with seriously, as well as setting up the machinery to alert the public and the news media as well as the police to try to find an abducted child and return that child home to his or her parents.

This is legislation that deserves all of our support. I ask for an ``aye'' vote on this conference report. I hope that the other body will act quickly and that the President of the United States can sign this legislation very promptly because our children will be better protected as a result.

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. Speaker, I had hoped that we would have been able to come together to reach consensus on how best to deal with the difficult problem of child abduction in this country and to pass an AMBER alert bill. The recent rash of child abductions clearly indicate that additional steps need to be taken to protect our children from sexual predators.

Unfortunately, the conference was delayed and hung up by provisions which have nothing to do with Amber alert and which should have been dealt with separately. First and foremost, is the highly controversial amendment offered by Rep. Tom Feeney, which would totally hamstring any remaining discretion federal judges have in making sentencing determinations. This provision was added on the floor two weeks ago without proper hearings or committee debate and clearly is not ready for prime time.

It is opposed by Chief Justice Rehnquist, by the Federal Judicial Conference, by the American Bar Association, by the Federal Bar Association, by the Leadership Conference on Civil Rights, by the NAACP and by countless law professors, prosecutors, and public defenders.

In a nutshell, the Freeney Amendment, as introduced, would make it next to impossible

for federal judges to reduce sentences below the guidelines, even where mitigating factors such a military service, community involvement and youth are present. Guess who is going to be harmed disproportionally by this harsh approach to sentencing--minorities in general and African Americans in particular.

Consider the fact that a full 12 percent of African American men aged 20-34 are in prison--more than 8 times the comparable rate of white males in the same age group. According to the Bureau of Justice Statistics, nearly one out of every three black men will spend time in prison during their lifetime.

So when you toughten sentencing, as the Feeney amendment would do, you should know that you are busting up African American families and decimating our inner cities. You are also creating massive problems concerning reentry when these individuals leave the prison system in another 10 or 15 years. The very least we should do is to leave these critical life decisions in the reasonable discretion of the Federal judge who is closest to the situation. To use the popular AMBER alert measure to alter this long standing principle, and without proper hearings or consideration is to me shameful.

Now my friends on the other side of the aisle will claim not to worry, that they fixed the Feeney amendment which they will say is limited to sex offenses. But the truth is that the revised Feeney language would radically alter the sentencing regime for every single criminal case in the legal system. It does this by adding a whole host of new procedural requirements for a judge to show any form of mercy in all federal cases. The bill also adds new requirements on the Justice Department and the Sentencing Commission with regard to downward departures in all Federal cases. At the end of the day, what we will have is something very close to the original purpose of the Feeney Amendment--mandatory minimums in all federal criminal cases.

There are other problems in the bill before us, including new death penalties, eliminating statutes of limitation, and criminalizing so- called ``RAVE'' parties. As a result of these provisions and the very broad based and dangerous Feeney amendment, I must reluctantly urge a NO vote on this short sighted measure.

[April 9, 2003]

Vote No on Child Abduction Prevention Act (S. 151), Which Deprives

Federal Judges of Discretion to Make the Punishment Fit the Crime

Dear Representative: On Thursday, April 10, the House will

consider the Child Abduction Prevention Act (S. 151), Title

IV of which would radically limit federal judicial discretion

to impose just sentences for federal offenses. This measure,

which was attached to the House child abduction bill without

committee considerations, goes far beyond any effort to crack

down on child abductors. It overrules a key Supreme Court

sentencing decision and constitutes a drastic encroachment on

the independence of the judiciary and the U.S. Sentencing

Commission. Such far-reaching changes in the laws and

procedures that govern our federal criminal justice system

should not be undertaken without hearings and meaningful

debate.

Title IV directs the Sentencing Commission to limit a

federal judge's power to depart from the Sentencing

Guidelines. Departures are in integral part of the Sentencing

Reform Act that Congress enacted in 1984. That bipartisan

reform struck as balance between uniformity and judicial

discretion and was enacted after years of study and

consideration of problems in the previous sentencing system.

Congress understood that a guidelines system that encompasses

every relevant sentencing factor is neither possible nor

desirable. Departures are a necessary and healthy part of the

guideline system.

Departures do not reflect an avoidance of the law by

federal judges but rather their conscientious compliance with

the Congressional mandate to impose a guideline sentence

unless the court finds a circumstance not adequately

considered by the Commission that warrants a departure.

The Sentencing Reform Act already contains substantial

limits on judicial discretion. The overwhelming majority of

federal sentences, other than those requested by the

government to reward defendants who have provided assistance

in prosecuting others or to manage the caseload in border

districts, are within the guidelines written by the

Sentencing Commission, which is appointed by the President

and confirmed by the Senate. Judges may only depart from the

guidelines if the case involves circumstances not adequately

considered by the Commission. The government may appeal any

downward departure.

Title IV overturns an important Supreme Court decision. In

the 1996 case of Koon v. United States, which was in relevant

part a unanimous decision, the Supreme Court interpreted the

departure standard in a way that limited departures but left

some room for judicial discretion. Title IV of S. 151

recklessly overturns that landmark decision, which recognized

that departures are an integral part of the guidelines system

that seeks ``to reduce unjustified disparities and so reach

toward the evenhandedness and neutrality that are the

distinguishing marks of any principled system of justice [but

that at the same time preserve the] uniform and constant * *

* Federal judicial tradition for the sentencing judge to

consider every convicted person as an individual and every

case as a unique study in the human failings that sometimes

mitigate, sometimes magnify, the crime and the punishment to

ensue.'' 518 U.S. 81, 113 (1996). The current bill overturns

the basic structure of the carefully crafted guidelines

system, without meaningful input from judges or practitioners

and based on numbers called into question by the statistics

maintained by the Sentencing Commission.

Departures preserve some measure of fairness in the

Sentencing Guidelines. Without the discretionary authority to

depart, all crimes regardless of the circumstances would have

to be sentenced exactly the same; one size must fit all,

predetermined by the body of experts sitting in Washington,

D.C. The Sentencing Guidelines will become a little more than

mandatory minimum sentencing laws, which cause rampant

injustice and unwarranted racial disparity.

The departure process is already under review. Departures

are the one area of the Guidelines were the Commission can

see if its sentencing policies are working or whether an

adjustment needs to be made. A high departure rate in certain

types of cases can indicate flaws in the guidelines that the

Commission needs to address. This is the careful system of

checks and balances that Congress crafted when it created the

guidelines. The Sentencing Commission has repeatedly

demonstrated its willingness to police the departure power

and recently announced that it will be conducting a study of

the issue. We urge Congress to let this process work.

Thank you for considering our views. Please contact Kyle

O'Dowd (202-872-8600, ext. 226) for the National Association

of Criminal Defense Lawyers or Ronald Weich for the

Leadership Conference on Civil Rights (202-788-1818) if we

can provide more information.

Leadership Conference on Civil Rights, National Association

of Criminal Defense Lawyers, National Legal Aid and Defender

Association, National Association of Federal Defenders,

Families Against Mandatory Minimums.

Mr.SENSENBRENNER. Mr. Speaker, I yield back the balance of my time, and I move the previous question on the conference report.

The previous question was ordered.

Mr. Speaker, I thank the gentlewoman for yielding me this time.

I rise in support of the rule. The rule was actually necessitated over a debate about what this bill should include.

Some of the opponents of the rule suggested it should include just the AMBER Alert system, and as they well know, actually the AMBER Alert system has already been instituted by Bush administration. It reminds me of an experience that Adlai Stevenson shared when he was running for President in 1956. At the end of what he thought was a great speech of about 40 or 45 minutes, a woman from the audience came up and said, Mr. Stevenson, I thought your speech was simply superfluous. To which he responded, to test whether she really had a full grasp of the English language, Thank you, Madam; I am thinking of having it published posthumously, to which she replied, Wonderful, the sooner, the better.

Mr. Speaker, I applaud the gentleman from Wisconsin (Chairman Sensenbrenner) in his effort to make sure that what we are doing today is not superfluous. The AMBER Alert system is wonderful at attempting to retrieve children that are kidnapped and transported over State borders, but it is already in effect.

What we have tried to do in the committee under the leadership of the chairman is to deter and punish people and put them behind bars for a long time, who are actually about to kidnap, abuse, or sexually offend against minors. That is what this bill ultimately did, thanks to the leadership of the gentleman from Wisconsin (Chairman Sensenbrenner).

One of the provisions that has been added, I have a particular interest in. It has been referred to as the Feeney amendment. This bill with the amendment in it, as it has been modified in conference, addresses a serious problem of downward departures from the Federal Sentencing Guidelines by judges across the country. Although the guidelines continue to state that departures should be rare occurrences, they have actually proven to have been anything but.

The Department of Justice testified before the Subcommittee on Crime, Terrorism and Homeland Security that the rate of downward departures on grounds other than substantial assistance to the government has climbed steadily every year for many years. In fact, the rate of such departures is up by an overwhelming 50 percent in just the last 5 years alone. And by the way, the rate of departures downwards is 33 times higher than the rate the Federal judges depart upwards from the sentencing guidelines.

The Department of Justice believes that much of the damage is traceable to the Supreme Court decision in King v. United States. Actually, that decision has led to an accelerated rate of downward departures by judges.

What this bill now does is to contain a number of provisions designed to ensure a more faithful adherence to the laws of the United States, as passed by this Congress. Specifically, the amendment, as it was adjusted in conference, would put strict limits on departures for child crimes and sex offenders by allowing sentences outside the guideline only upon grounds that are specifically enumerated by the judge. This is important because it limits the judge's discretion, forces the judge to explain what he has done, and provides an opportunity for the prosecutors to appeal if the judge has been completely unfaithful.

There are a number of other reported provisions that are contained in the Feeney amendment. It calls for the Sentencing Commission to review and revise the departures from guidelines for all other cases that do not involve offenses against children, provides for the Department of Justice to have access to existing judge-identifying database maintained by the Commission, and it does also provide there will be a report to Congress every year by the Department of Justice reflecting the reforms of internal appellate review practices for these downward departures.

Finally, it provides that no more than three of the commissioners to the Sentencing Guideline Commission can come from the ranks of the Federal judiciary.

This is a great victory today. It is a great victory for children. It is a great victory for those of us who do not want to just retake possession of children that have been kidnapped or abused, but those of us who want to prevent the abuse and the kidnapping to begin with.

Mr. Speaker, will the gentleman yield?

Mr. Speaker, I am going to say to my good friend in that, in the first place, the primary source rule probably ought to be in effect here. I was not part of the conference committee, and what I have is a review of that.

I do note that the gentleman from Wisconsin (Chairman Sensenbrenner) is on the floor, paying close attention; so at a minimum, I hope he will correct me for any deficiencies.

As I understand it, with respect to being more restrictive in terms of when Federal judges can depart downward from the guidelines, the original Feeney amendment actually applied to all Federal offenses. With respect to that downward departure restriction that we are doing now, it only applies to offenses against children, sex offenses, kidnapping, abuse, pornography. It does not apply to offenses outside that specific realm.

As I understand what the conference committee report did, it is actually Hatch-Sensenbrenner-Graham, referring to Senator Bob Graham, who is a colleague of ours from Florida. I am sorry, Lindsey Graham; it is tough when we have got too many Grahams running around.

In fairness to the gentleman, I should suggest that with respect to providing for de novo reviews of downward departures, that will apply to all Federal offenses, and the gentleman will remember the King v. United States case, the Rodney King incident where, for example, the Congressional Black Caucus was very concerned and issued a letter suggesting that we provide this de novo review; so I think we have got the best of both worlds.

Mr. Speaker, I thank the gentlewoman for yielding time to me. I am grateful to the gentlewoman.

In the first place, the honorable gentleman has me at a disadvantage because he has been a member of the other part of our government, and I am respectful of the fact that he has some wisdom and insights that I do not.

I would suggest, however, that what we are doing here is not eliminating the ability of judges to depart from the sentencing guidelines; we are preserving their right and asking them to explain why they did so.

Finally, I would make the point to the gentleman that if the departure ratio was 33 times higher than sentencing guidelines, for every time that there is one below the guidelines, I would suggest to him that we might be hearing from the American Civil Liberties Union, the Criminal Defense Association, and the American Bar Association with a sense of outrage that people with disparate treatment are being abused by having too much sentences imposed on them.

By the way, historically in America there have been suggestions, and I do not have any studies to back it up, that racial and ethnic minorities have been particularly abused along those lines.

I would suggest we have struck a balance here.

Mr. Speaker, I yield 4 minutes to the gentlewoman from Texas (Ms. Jackson-Lee), my good friend.

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

Mr. Speaker, I yield myself 3 minutes.

I would like to engage my colleague from Florida in a colloquy if he would be so inclined. I ask my colleague his understanding of the modifications that took place in conference, because Members have come to several of us

asking us our understanding; and quite frankly, I am not clear and perhaps he can help us to understand whether or not it, in fact, was modified as it pertains to all sex crimes or was it modified to include just sexually exploited situations as it pertains to children.

I yield to the gentleman from Florida.

Mr. Speaker, so the antiquated sexual offenses are not contemplated under the gentleman's amendment as he understands it?

Mr. Speaker, I would urge my good friend from Florida, and he is my good friend, to take into consideration when we decry downward departures that the people that are on the firing line, the Article III judges, make those departures after very careful consideration.

Having served in that branch of government at one point and being an opponent, as almost universally the Federal judges were, of mandatory sentencing and sentencing guidelines, it is not to be taken lightly.

I agree with the gentleman that the appellate review is more than necessary and reporting regarding same should be important. But please do not take the downward departures to mean that the judges did not see something that we do not have an opportunity, when we make these laws, to clearly understand what the judge in fact saw and heard in the sentencing provision, or even in the trial.

I could cite numerous examples where downward departures have saved families and lives. I would hope my friend would understand that.

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

I would make the comment that the hope would be that we do not chill the Federal judiciary with departure restrictions. I think it would be a mistake on our behalf.

Mr. Speaker, I am pleased to yield 3 minutes to my good friend, the gentleman from Texas (Mr. Lampson), a gentleman who has been and continues to be a stalwart in the way of providing for the AMBER Alert, a leader in this regard.

Mr. Speaker, I am very pleased to yield 2 minutes to my good friend, the gentlewoman from Ohio (Mrs. Jones), who was formerly a member of the Ohio judiciary.

Mr. Speaker, I am very pleased to yield 2 minutes to the gentlewoman from Illinois (Ms. Schakowsky).

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

Mr. Speaker, several measures are brought to the attention of the body, and specifically they are now known as the Feeney amendment. I may be able to add a little clarity by putting forward that the bill, the bill as it is presently before us, that this particular rule is contemplating, establishes de novo appellate review of departures, prohibits downward departure on remands based on new grounds, requires government motion for extra one-level

adjustment based on extraordinary acceptance of responsibility, and prohibits the Commission from ever altering this amendment.

It chills departure by imposing more burdensome reporting requirements on judges who depart, and gives the Department of Justice access to Commission data files that identify each judge's departure practices. And it requires the Department of Justice to report downward departures to Judiciary Committees, unless within 90 days the Attorney General reports to Congress on new regulations for opposing and appealing downward departures.

Our colleague, the ranking member of the Committee on Rules, the gentleman from Texas (Mr. Frost), as well as our colleague on the other side of the aisle, the gentlewoman from Washington (Ms. Dunn), and many Members of this body have worked very hard to ensure that we have the AMBER Alert, which has proved itself to be more than useful in our society for a very, very important and worthy cause.

That said, it is unfortunate that in this particular measure for AMBER Alert, some ill-conceived, maybe unconstitutional, very restrictive measures have been put forward in the substantive bill.

With that, I would urge Members to pay particular caution to the rule itself, and when they examine voting for AMBER Alert, to be mindful that there are a number of provisions that they are voting for that are not just covered by the headline, but are covered by the rights of individuals in our society and the rights of the members of the judiciary who have a firsthand opportunity to make a determination as to what should be done in the way of sentencing.

When I served in the judiciary, one of the things that I was proud of was exercising discretion in a meaningful manner, and I always tried to err on the side of reconstructing families. I think this legislation is prohibitive in many respects. And I think no less an authority than Associate Justice Antonin Scalia, in his remarks very recently, said to us that mandatory sentencing can and, in fact, has led to an increase in the significant number of persons in our society, 2 million now in America, that are in prison.

We make these laws and we talk all the time about unfunded mandates, and we make these laws without fully realizing the implications as to what may transpire once they are made. The Federal judiciary will be impacted by what we do in the name of something that is the right thing to do, AMBER Alert.

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

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

Mr. Speaker, most respectfully, the majority leader's comments are taken not lightly by any of us. But I would urge that we understand that this law that we are passing establishes new separate departure procedures and standards for child-related offenses and sex offenses. Permissible departures are those that the Commission specifically enumerates. It limits age and physical impairment departures in child and sex cases. It prohibits gambling dependence in child and sex cases. It prohibits aberrant behavior departures in child and sex cases. It prohibits family ties departures in child and sex cases. And one that is particularly troubling, because I saw this case in my past responsibilities, it prohibits diminished capacity departures in child and sex cases.

Everything is not as cut and dried as we would have it be, and I urge Members, while supporting AMBER Alert, to be mindful that we are supporting a number of provisions that would be addressed by the court system for some time to come.