Mr. President, I am pleased that today we will finally pass into law a very important bill designed to protect children. As an original cosponsor of the National AMBER Alert Network Act, S. 121, I have worked with my Senate colleagues to…
Mr. President, I am pleased that today we will finally pass into law a very important bill designed to protect children.
As an original cosponsor of the National AMBER Alert Network Act, S. 121, I have worked with my Senate colleagues to do all that we possibly can to speedily pass it into law. Twice now we rapidly passed our bill through the Senate on unanimous, bipartisan votes--last fall and again in January. Both times House leaders chose not to pass it, instead delaying its assured passage into law by using the bill as a ``sweetener'' for a package of other controversial provisions that the Senate has not previously considered. The Smart family--who credit the AMBER Alert for the safe return of Elizabeth--has repeatedly joined us to urge House leaders to promptly take up and pass our Senate bill.
Had House leaders opted to stand up and do what is right from the beginning, we would already have a nationwide AMBER Alert system in place to save our children's lives when they are abducted. We will never know how many children could have been saved by a nationwide AMBER Plan--if the House had simply passed our bill when the Senate did, I daresay the number of children rescued from their abductors and death would be much higher. Efforts to protect our children do not deserve to be used as pawns by groups who play politics by attaching it to more controversial measures.
That being said, I am pleased that AMBER Alert legislation is included in the conference report, as it will aid states in their fight against the disturbingly increasing trend of child abductions and their often tragic ends. Our plan will enhance the AMBER Alert system created after the 1996 kidnapping and murder of 9-year-old Amber Hagerman of Arlington, TX. Since 1996, AMBER Alerts have helped rescue 53 children from their abductors nationwide by using broadcasters, law enforcement officials, road signs and a variety of other tools to instantly disseminate information about child abductions.
Today 39 States have statewide AMBER Alert plans. Our AMBER Alert legislation included in the conference report will create voluntary standards that would help States determine the criteria for AMBER Alerts and for quickly disseminating official information during AMBER Alerts. A newly appointed coordinator within the Justice Department will oversee the communication network for abducted children, working with states, broadcasters, and law enforcement agencies to set up and supplement AMBER plans and responses.
Our plan will give law enforcement agencies a powerful tool, while providing flexibility for states to implement the alert system. States also need financial help to create effective Amber Alert systems, and this conference report creates two Federal grant programs to help States establish AMBER plans. One, administered by the Department of Transportation, will give States assistance creating Statewide notification and communications systems, including message boards and road signs to help in the recovery of abducted children. The other, administered by the Justice Department, will help States create communications plans with law enforcement agencies and the communities they serve. My State of Vermont does not yet have an AMBER Alert system, and law enforcement officials in Vermont have begun laying the groundwork for a system there. They welcome the Federal help our bill will offer to get a system up and running.
As a father and grandfather I know that an abducted child is a family's worst nightmare, and one that happens far too often. The families of children taken by strangers need our help, and they will get it with the passage of the AMBER Alert legislation.
The conference report we consider today includes another very important piece of legislation this one designed to protect children from being exploited by child pornographers. I should know because I helped to write this bill in the Senate. Indeed, I am the lead cosponsor of the Senate bill, S.151, which we sent over to the House with a vote of 84-0.
Ironically, the House and the conference committee have added so many extra controversial provisions to the conference report bill that one of its core elements, and the element that gives the conference report its title--the PROTECT Act--is buried near the end in Title V. Title V is largely the bill that Senator Hatch and I jointly crafted, held hearings on, and moved through the Senate as the PROTECT Act. I would like to discuss both the content and history of the provisions in this title of the conference reported bill.
When Senator Hatch and I introduced S. 151 in January, I supported passing a bill that was identical to the measure that we worked so hard to craft in the last Congress. That bill had passed the Judiciary Committee and the Senate unanimously in the 107th Congress. It did not become law last year because, even though the Senate
was still meeting, considering and passing legislation, the House of Representatives had adjourned and would not return to take action on this measure, which had passed the Senate unanimously, or to work out our differences.
As I said when we introduced the Hatch-Leahy PROTECT Act and again as the Judiciary Committee considered this measure, although this bill is not perfect, it is a good faith effort to provide powerful tools for prosecutors to deal with the problem of child pornography within constitutional limits. We failed to do that in the 1996 Child Pornography Protection Act ("CPPA"), a significant portion of which the Supreme Court struck down last year. We must not make the same mistake again. The last thing we want to do is to create years of legal limbo for our nation's children, after which the courts strike down yet another law as unconstitutional.
I also said at our Judiciary Committee markup and again when the Senate passed this bill unanimously that I hoped we could pass the bill in the same form as it unanimously passed in the last Congress. Unfortunately, my colleagues on the other side of the aisle and in the House have jointly decided not to follow this route. Despite this fact, I have continued to work with Senator Hatch to craft the strongest bill possible that will produce convictions that will stick under the Constitution.
I was also glad to learn that, after we passed the bill unanimously, the administration ``strongly supported'' the Senate version of the bill. However, the House still chose not to enact the Senate bill, instead adding numerous controversial provisions to it. That is a shame, because it was no easy feat to move a bill fraught with such constitutional difficulties as the PROTECT Act to the point where not a single Senator voted against it.
I want to take a moment to speak again about the history of this important bill and the joint effort that it took to get to this point. In May of 2002, I came to the Senate floor and joined Senator Hatch in introducing the PROTECT Act , after the Supreme Court's decision in Ashcroft v. Free Speech Coalition ("Free Speech"). Although there were some others who raised constitutional concerns about specific provisions in that bill, I believed that unlike legislative language proposed by the administration in the last Congress, it was a good faith effort to work within the first amendment.
Everyone in the Senate agrees that we should do all we can to protect our children from being victimized by child pornography. That would be an easy debate and vote. The more difficult thing is to write a law that will both do that and will produce convictions that stick. In 1996, when we passed the CPPA many warned us that certain provisions of that Act violated the first amendment. The Supreme Court's decision last year in Free Speech has proven them correct.
I believed and continue to believe that we should not sit by and do nothing. It is important that we respond to the Supreme Court's decision. It is just as important, however, that we avoid repeating our past mistakes. Unlike the CPPA, this time we must respond with a law that passes constitutional muster. Our children deserve more than a press conference on this issue. They deserve a law that will last, rather than one that will be stricken from the law books.
It is important that we do all we can to end the victimization of real children by child pornographers, but it is also important that we pass a law that will withstand first amendment scrutiny. We need a law with real bite, not one with false teeth.
After joining Senator Hatch in introducing the PROTECT Act in the 107th Congress, as Chairman of the Judiciary Committee in the last Congress, I convened a hearing on October 2, 2002 on the legislation. We heard from the Administration, from the National Center for Missing and Exploited Children, NCMEC, and from experts who came and told us that our bill, as introduced, would pass constitutional muster, but the House-passed bill supported by the administration would not.
I then placed the Hatch-Leahy PROTECT Act on the Judiciary Committee's calendar for the October 8, 2002, business meeting. I continued to work with Senator Hatch to improve the bill so that it could be quickly enacted. Unfortunately the Judiciary Committee was unable to consider it because of procedural maneuvering by my colleagues that had nothing to do with this important legislation.
I still wanted to get this bill done. That is why, for a full week last October, I worked to clear and have the full Senate pass a substitute to the bill that tracked the Hatch-Leahy proposed committee substitute in nearly every area.
Indeed, the substitute I offered even adopted parts of the House bill which would help NCMEC work with local and State law enforcement on these cases. Twice, I spoke on the Senate floor imploring that we approve such legislation. As I stated then, every single Democratic Senator cleared that measure. I then urged Republicans to work on their side of the aisle to clear this measure which was substantially similar to the joint Hatch-Leahy substitute so that we could swiftly enact a law that would pass constitutional muster. Unfortunately, they did not. Facing the recess before the mid-term elections, we were stymied again.
Even after the last election, during our lameduck session, I continued to work with Senator Hatch to pass this legislation in the Senate. As I had stated I would do prior to the election, I called a meeting of the Judiciary Committee on November 14, 2002. In the last meeting of the Judiciary Committee under my Chairmanship in the 107th Congress, I placed S. 2520, the Hatch-Leahy PROTECT Act, on the agenda yet again. At that meeting the Judiciary Committee amended and approved this legislation. We agreed on a substitute and to improvements in the victim shield provision that I authored.
I did not agree with certain of Senator Hatch's committee amendments because I thought that they risked having the bill declared unconstitutional. I nevertheless both called for the committee to approve the bill and voted for the bill in its amended form. That is the legislative process and it was followed for this portion of the bill. We studied and argued the issues. I compromised on some issues, and Senator Hatch compromised on others. Even though the bill was not exactly as either of us would have wished, we both worked fervently to seek its passage.
The same day as the bill unanimously passed the Judiciary Committee, I sought to gain the unanimous consent of the full Senate to pass the Hatch-Leahy PROTECT Act as reported, and I worked with Senator Hatch to clear the bill on both sides of the aisle. I am pleased that the Senate did pass the bill by unanimous consent. I want to thank Senator Hatch for all he did to help clear the bill for passage in the 107th Congress. Unfortunately, the House failed to act on this measure last year and the administration decided not to push for passage. If they had, we could have passed a bill, sent it to the President, and had a new law to protect children on the books months ago.
Instead, we were forced to repeat the entire process again, and we did it. I am glad to have been able to work hand-in-hand with Senator Hatch on the real ``PROTECT Act''--now Title V of the massive bill we are considering--because, it is a bill that gives prosecutors and investigators the tools they need to combat child pornography. The Hatch-Leahy PROTECT Act strives to be a serious response to a serious problem. Let me outline some of the important provisions in Title 5 that I helped to write and move through the Senate.
I was glad that the House retained the Senate version of Section 503 of the bill, which created two new crimes aimed at people who distribute child pornography and those who use such material to entice children to do illegal acts. Each of these new crimes carries a 15-year maximum prison sentence for a first offense and double that term for repeat offenders. First, the bill criminalizes the pandering of child pornography, creating a new crime to respond to the Supreme Court's recent ruling striking down the CPPA's definition of pandering. This provision is narrower than the old pandering definition in at least one way that responds to a specific Court criticism. The new crime only applies to the people who actually pander the child pornography or solicit it, not to all those who possess the material ``downstream,'' and it
requires the government to demonstrate that the defendant acted with the specific intent that the material is believed to be child pornography.
The bill also contains a directive to the Sentencing Commission which asks it to distinguish between those who pander or distribute such material and those who only ``solicit'' the material. As with narcotics cases, distributors and producers are more culpable than users and should be more harshly punished for maximum deterrent effect. With the many problematic sentencing provisions that were included in the conference report, this provision that I crafted does it the correct way. It points out an important distinction between possessors and distributors but ultimately leaves it to the bipartisan commission to set the guidelines.
I would have liked for the pandering provision to be crafted more narrowly so that ``purported'' material was not included and so that all pandering prosecutions would be linked to ``obscenity'' doctrine. That is the way that Senator Hatch and I originally wrote and introduced this provision in the last Congress. Unfortunately, the Senate amendment process has resulted in some expansions to this once non-controversial provision that may subject it to a constitutional challenge. Thus, while it responds to some specific concerns raised by the Supreme Court, there are constitutional issues that the courts will have to seriously consider with respect to this provision. I will discuss these issues later.
Second, section 503 creates a new crime that I proposed to take direct aim at one of the chief evils of child pornography: namely, its use by sexual predators to entice minors either to engage in sexual activity or the production of more child pornography. This was one of the compelling arguments made by the government before the Supreme Court in support of the CPPA, but the Court rejected that argument as an insufficient basis to ban the production, distribution or possession of ``virtual'' child pornography. This bill addresses that same harm in a more targeted and narrowly tailored manner. It creates a new felony, which applies to both actual and virtual child pornography, for people who use such material to entice minors to participate in illegal activity. This will provide prosecutors a potent new tool to put away those who prey upon children using such pornography--whether the child pornography is virtual or not.
Next, this bill attempts to revamp the existing affirmative defense in child pornography cases both in response to criticisms of the Supreme Court and so that the defense does not erect unfair hurdles to the prosecution of cases involving real children. Responding directly to criticisms of the Court, the new affirmative defense applies equally to those who are charged with possessing child pornography and to those who actually produce it, a change from current law. It also allows, again responding to specific Supreme Court criticisms, for a defense that no actual children were used in the production of the child pornography--i.e. that it was made using computers.
The final bill includes the House provision on banning virtual and non-obscene child pornography, a provision that I have counseled against in both bills because it renders the bill weaker against constitutional attack. One addition to the bill that I helped to include is the inclusion of a definition of material as ``graphic'' in nature. Had that definition, which narrowed the field to hard core child pornography, been applied to the entire definition, the measure would have been much stronger against constitutional attack. By also including ``lascivious simulated'' material in the virtual porn definition, however, the conference report risks having the entire provision stricken.
At the same time, I was pleased the House agreed to accept the provision I authored that protects prosecutors from unfair surprise in the use of this affirmative defense by requiring that a defendant give advance notice of his intent to assert it, just as defendants are currently required to give if they plan to assert an alibi or insanity defense. As a former prosecutor I suggested this provision because it affects the real way that these important trials are conducted. With the provision, the government will have sufficient notice to marshal the expert testimony that may be needed to rebut this ``virtual porn'' defense in cases where real children were victimized.
This improved affirmative defense measure also provides important support for the constitutionality of much of this bill after the Free Speech decision. Even Justice Thomas specifically wrote that it would be a key factor for him. This is one reason for making the defense applicable to all non-obscene, child pornography, as defined in 18 U.S.C. 2256. In the bill's current form, however, the affirmative defense is not available in one of the new proposed classes of virtual child pornography, which would be found at 18 U.S.C. 2256(8)(C). This omission also may render that provision unconstitutional under the first amendment.
The bill also provides much needed assistance to prosecutors in rebutting a false ``virtual porn'' defense by removing a restriction on the use of records of performers portrayed in certain sexually explicit conduct that are required to be maintained under 18 U.S.C. 2257, and expanding such records to cover computer images. These records, which will be helpful in proving that the material in question is not ``virtual'' child pornography, may be used in federal child pornography and obscenity prosecutions under this act. The purpose of this provision is to protect real children from exploitation. It is important that prosecutors have access to this information in both child pornography and obscenity prosecutions, since the Supreme Court's recent decision has had the effect of narrowing the child pornography laws, making it more likely that the general obscenity statutes will be important tools in protecting children from exploitation. In addition, the Act raises the penalties for not keeping accurate records, further deterring the exploitation of minors and enhancing the reliability of the records.
Next, the Hatch-Leahy bill contains several provisions altering the definition of ``child pornography'' in response to the Free Speech case. One approach would have been simply to add an ``obscenity'' requirement to the child pornography definitions. Outlawing all obscene child pornography--real and virtual; minor and youthful-adult; simulated and real--would clearly pass a constitutional challenge because obscene speech enjoys no protection at all. Under the Miller obscenity test, such material--one, ``appeals to the prurient interest,'' two, is utterly ``offensive'' in any ``community,'' and three, has absolutely no serious ``literary, artistic or scientific value.''
Some new provisions of this bill do take this ``obscenity'' approach, like the new section 1466A, which I crafted with Senator Hatch. Other provisions, however, take a different approach. Specifically, the House virtual porn provision 2256(8) include persons who are ``indistinguishable'' from an actual minor. This adopts language from Justice O'Connor's concurrence in the Free Speech case. The problem with that is that Justice O'Connor was not the deciding vote in the Free Speech case, she was the seventh vote to strike down the law. Thus, while this language is defensible, I predict that this provision will be the center of much constitutional debate. Although I will explain in more detail later, these new definitional provisions risk crossing the constitutional line.
Title V, which was already in the unanimously passed Senate bill before the House saw fit to make the bill more controversial, itself contains a variety of other measures designed to increase jail sentences in cases where children are victimized by sexual predators. First, it enhances penalties for repeat offenders of child sex offenses by expanding the predicate crimes which trigger tough, mandatory minimum sentences. Second, the bill requires the U.S. Sentencing Commission to address a disturbing disparity in the current Sentencing Guidelines. The current sentences for a person who actually travels across State lines to have sex with a child are not as high as for child pornography. The commission needs to correct this oversight immediately, so that prosecutors can take these dangerous sexual predators off the street. These are all strong measures designed to protect children and increase prison sentences for child molesters and those who otherwise exploit children but--unlike the ill-considered Feeney and
Hatch-Sensenbrenner amendments--they are done the right way within the structure that Congress established under the Sentencing Reform Act of 1984.
Also retained from the original Hatch-Leahy PROTECT Act are several provisions designed to protect the children who are victims in these horrible cases. Privacy of the children must be paramount. It is important that they not be victimized yet again in the criminal process. This bill provides for the first time ever a provision that I suggested. It is an explicit shield law that prohibits the name or other non-physical identifying information of the child victim, other than the age or approximate age, from being admitted at any child pornography trial. It is also intended that judges can and will take appropriate steps to ensure that such information as the child's name, address or other identifying information not be publicly disclosed during the pretrial phase of the case or at sentencing. The conference report also retained a Senate provision requiring the judge to instruct the jury, upon request of the government, that no inference should be drawn against the United States because of information inadmissible under the new shield law.
The conferees also voted to adopt a provision from the original Hatch-Leahy PROTECT Act that amended certain reporting provisions governing child pornography. Specifically, it allows Federal authorities to report information they receive from NCMEC to State and local police without a court order. In addition, the bill removes the restrictions under the Electronic Communications Privacy Act (ECPA) for reporting the contents of, and information pertaining to, a subscriber of stored electronic communications to NCMEC when a mandatory child porn report is filed with NCMEC pursuant to 42 U.S.C. 13032.
While this change may invite rogue Federal, State or local agents to try to circumvent all subpoena and court order requirements under ECPA and allow them to obtain subscriber emails and information by triggering the initial report to NCMEC themselves, it should be well understood that this is not the intention behind this provision. These important safeguards are not being altered in any way, and a deliberate use of the tip line by a government agent to circumvent the well established statutory requirements of these provisions would be a serious violation of the law. Nevertheless, we should still consider further clarification in the future to guard against subverting the safeguards in ECPA from government officials going on ``fishing expeditions'' for stored electronic communications under the rubric of child porn investigations.
As I made clear when the Senate bill was introduced and again when it passed the Senate, I continue to express my disappointment in the Department of Justice information sharing regulations related to NCMEC tip line. According to a recent Government Accounting Office (GAO) report, due to outdated turf mentalities, the Attorney General's regulations exclude both the United States Secret Service and the U.S. Postal Inspection Service from direct access to important tip line information. That is totally unacceptable, especially in the post 9-11 world, where the importance of information sharing is greater than ever. How can the Administration justify support of this provision, which allows state and local law enforcement officers such access, when they are simultaneously refusing to allow other federal law enforcement agencies access to the same information? I once more urge the Attorney General to end this unseemly turf battle and to issue regulations allowing both the Secret Service (now in the Department of Homeland Defense) and the Postal Inspection Service, both of whom perform valuable work in investigating these cases, to have access to this important information so that they can better protect our nation's children.
Section 506 of the conference report also adopted the Senate provision providing for extraterritorial jurisdiction where a defendant induces a child to engage in sexually explicit conduct outside the United States for the purposes of producing child pornography which they intend to transport to the United States. The provision is crafted to require the defendant to have the intent of actual transport of the material into the United States, unlike the House bill, which criminalized even an intent to make such material ``accessible.'' Under that overly broad wording, any material posted on a foreign web site could be covered, whether or not it was ever intended that the material be downloaded in the United States. Under the bill we consider today, however, proof of a specific intent to send such material to the United States is required.
Finally, Section 510 of the bill provides a new private right of action for the victims of child pornography that was part of the Senate bill. This provision has teeth, including injunctive relief and punitive damages that will help to put those who produce child pornography out of business for good. I commend Senator Hatch for his leadership on this provision and his recognition that such punitive damages provisions are important means of deterring misconduct. These provisions are important, practical tools to put child pornographers out of business for good and in jail where they belong. These are provisions that were in the Senate Hatch-Leahy bill and could have already been law had the House not chosen to hold them hostage to try to gain passage of the more controversial elements of the House package.
The committee process is there for a reason. It is there because it causes us to work together and improve bills as they go along. The Senate version of the PROTECT Act, much of which is included in the conference reported bill, is a prime example of the merits of that process. I only wish that other portions of this bill had been so considered. Let me explain.
As I mentioned previously, the Senate Hatch-Leahy PROTECT Act--most of which is now stuck in at the end of the bill--is a good faith effort to tackle the child pornography problem, and I have supported its passage from the outset. Until our conference, Senator Hatch and I worked closely together to make this bill as strong as possible. In fact, Senator Hatch and I were able to offer a joint amendment in the Judiciary Committee that strengthened the bill further against constitutional attack. Here are some of the improvements that we jointly made to the bill as introduced and which are in the final bill.
The Hatch-Leahy committee amendment created a new specific
intent requirement in the pandering crime. The provision is
now better focused on the true wrongdoers and requires that
the government prove beyond a reasonable doubt that the
defendant actually intended others to believe that the
material in question is obscene child pornography. This is a
positive step.
The Hatch-Leahy committee amendment narrowed the definition
of ``sexually explicit conduct'' for prosecutions of computer
created child pornography. Although I continue to have
serious reservations about the constitutionality of
prosecuting cases involving such ``virtual child
pornography'' after the Supreme Court's decision in Free
Speech Coalition v. Ashcroft, narrowing the definition of the
conduct covered provides another argument that the provision
is not as overbroad as the one in the CPPA. I had also
proposed a change that contained an even better definition,
in order to focus the provision to true ``hard core'' child
pornography, and I was glad that this provision--relating to
``graphic'' pornography, was included in the final conference
report.
The Hatch-Leahy committee amendment refined the definition
of virtual child pornography in the provision that Senator
Hatch and I worked together to craft last year, which will be
a new 18 U.S.C. 1466A. These provisions rely to a large
extent on obscenity doctrine, and thus are more rooted in the
Constitution than other parts of the bill. I was pleased that
the Hatch-Leahy amendments included a definition that the
image be ``graphic''--that is, one where the genitalia are
actually shown during the sex act--and that the House agreed
to adopt this definition for the virtual porn provision as a
whole for two reasons.
First, because the old law would have required proof of
``actual'' minors in cases with ``virtual'' pictures, I
believe that this clarification will remove a potential
contradiction from the new law which pornographers could have
used to mount a defense.
Second, it will provide another argument supporting the
law's constitutionality because the new provision is narrowly
tailored to cover only the most ``hard core'' child
pornography. If only we would have gone the extra step of
requiring this level of obscenity for all virtual child
pornography, I think the bill would be safe from
constitutional challenge, instead of skating along the
constitutional edge.
The Hatch-Leahy committee amendment also clarified that
digital pictures are covered by the PROTECT Act, an important
addition in today's world of digital cameras
and camcorders. I am glad that the final bill adopted that
change.
These were important changes, and I was glad to work with Senator Hatch to craft them. It is unfortunate that this bipartisan cooperation did not extend to the controversial provisions that were added to the bill in the House and in the conference.
Even Title V of this law--the real PROTECT Act--is not perfect, however, and I would have liked to see some additional improvements to the bill. Let me outline some of them.
First, with regard to the tip line, I would have liked to further clarify that law enforcement agents may not and should not ``tickle the tip line'' to avoid the key protections of the Electronic Communications Privacy Act (ECPA). This might have included modifying 42 U.S.C. 13032 to clarify that the initial tip triggering the report may not be generated by the government's investigative agents themselves. A tip line to NCMEC is just that--a way for outsiders to report wrongdoing to NCMEC and the government, not for the government to generate a report to itself without following otherwise required lawful process. It was not the intent of any part of this bill to alter that purpose.
Second, regarding the affirmative defense, I would have liked to ensure that there is an affirmative defense for each new category of child pornography and for all cases where a defendant can prove in court that a specific, non-obscene image was made not using any child but only actual, identifiable adults. That will no doubt be a basis for attacking the constitutionality of this law. I specifically made this suggestion in conference negotiations but my Republican colleagues from both the House and the Senate refused to adopt a ``complete'' affirmative defense, instead leaving holes that will surely be raised in constitutional attacks on the bill.
As a general matter, it is worth repeating that we could have avoided all these problems were we to take the simple approach of outlawing ``obscene'' child pornography of all types, which we do in one new provision that I suggested and which is the new Section 1466A established in the conference report. That approach would produce a law beyond any possible challenge. This approach is also supported by NCMEC, which we all respect as the true expert in this field.
Following is an excerpt from NCMEC's answer to written questions submitted after our hearing, which I will place in the Record in its entirety:
Our view is that the vast majority (99-100%) of all child
pornography would be found to be obscene by most judges and
juries, even under a standard of beyond a reasonable doubt in
criminal cases. Even within the reasonable person under
community standards model, it is highly unlikely that any
community would not find child pornography obscene. . . .
In the post Free Speech decision legal climate, the
prosecution of child pornography under an obscenity approach
is a reasonable strategy and sound policy.
Thus, according to NCMEC, the approach that is least likely to raise constitutional questions--using established obscenity law--is also an effective one. In short, the obscenity approach is the most narrowly tailored to prevent child pornography. New section 1466A adopts this obscenity approach, but because that is not the approach that other parts of the PROTECT Act uses, I recognize that it contains provisions about which some may have legitimate constitutional questions.
Specifically, in addition to the provisions that I have already discussed, there were two amendments adopted in the Judiciary Committee in the last Congress and one in this Congress to which I objected that are included in the bill as we consider it today. I felt and still feel that these alterations from the original language that Senator Hatch and I introduced needlessly risk a serious constitutional challenge to a bill that provided prosecutors the tools they needed to do their jobs. The bill would be even stronger than it is now were they changed. Let me discuss my opposition to these changes adopted by the Judiciary Committee in this Congress and the last.
Although I worked with Senator Hatch to write the new pandering provision in the PROTECT Act, I did not support two of Senator Hatch's amendments extending the provision to cover (1) ``purported'' material, and (2) material not linked to obscenity. Although our bill, unlike the House bill which had a pandering provision with no link to obscenity at all, had at least one provision which covered predominantly unprotected speech, it was needlessly altered in the legislative process and made vulnerable to attack.
First, during our markup in the last Congress I objected to an amendment from Senator Hatch to include ``purported'' material in the pandering provision. ``Purported'' material criminalizes speech even when there is no underlying material at all--whether obscene or non- obscene, virtual or real, child or adult. The pandering provision is an important tool for prosecutors to punish true child pornographers who for some technical reason are beyond the reach of the normal child porn distribution or production statutes. It is not meant to federally criminalize talking dirty over the internet or the telephone when the person never possesses any material at all. That is speech, and criminalizing it goes too far.
The original pandering provision in S. 2520 as introduced last Congress was quite broad, and some argued that it presented constitutional problems as written, but I thought that prosecutors needed a strong tool, so I supported Senator Hatch on that provision.
I was heartened that Professor Schauer of Harvard, a noted first amendment expert, testified at our hearing last year that he thought that the original provision was constitutional, barely. Unfortunately, Professor Schauer has since written to me stating that this new amendment to include ``purported'' material ``would push well over the constitutional edge a provision that is now up against the edge, but probably barely on the constitutional side of it.'' I placed his letter in the Record upon introduction of the bill in this Congress on January 13, 2003.
The second amendment to the pandering provision to which I objected expanded it to cover cases not linked in any way to obscenity. It would allow prosecution of anyone who ``presented'' a movie that was intended to cause another person to believe that it included a minor engaging in sexually explicit conduct, whether or not it was obscene and whether or not any real child was involved. Any person or movie theater that presented films like Traffic, Romeo and Juliet, and American Beauty would be guilty of a felony. The very point of these dramatic works is to cause a person to believe that something is true when in fact it is not. These were precisely the overbreadth concerns that led 7 justices of the Supreme Court to strike down parts of the 1996 Act. We do not want to put child porn convictions on hold while we wait another 6 years to see if the law will survive constitutional scrutiny.
Because these two changes endanger the entire pandering provision, because they are unwise, and because that section is already strong enough to prosecute those who peddle child pornography, I opposed those expansions of the provision which are in the bill we consider today. At least with those provisions, however, we debated and carefully considered alternatives. As I have said, with respect to other provisions in the bill the process has been fundamentally flawed.
Although I joined Senator Hatch in introducing this bill, even when it was introduced last year I expressed concern over certain provisions. One such provision was a new definition of ``identifiable minor.'' When the bill was introduced, I noted that this provision might both confuse the statute unnecessarily and endanger the already upheld ``morphing'' section of the CPPA. I said I was concerned that it could present both overbreadth and vagueness problems in a later constitutional challenge. Unfortunately, this provision remains problematic and susceptible to constitutional challenge. I was even more concerned with the House bill, which included 100 percent virtual child pornography from the start.
Unfortunately, as we consider the bill today, we have the House provision designed to cover ``virtual'' child pornography--that is, 100 percent computer generated pictures not involving any real children.
The ``identifiable minor'' provision in the current law may be used without
any link to obscenity doctrine. Therefore, what potentially saved the original version we introduced in the 107th Congress was that it applied to child porn made with real persons. The provision was designed to cover all sorts of images of real kids that are morphed or altered, but not something entirely made by computer, with no child involved.
The provision we now consider, however, dislodges, in my view, that sole constitutional anchor. The new provision could be read to include images that never involved real children at all but were 100 percent computer generated. That was not the original goal of the Senate provision.
There are other provisions in this bill that deal with obscene virtual child pornography that I support, such as those in new section 1466A, which are linked to obscenity doctrine. This provision, however, was intended to ease the prosecutor's burden in cases where images of real children were cleverly altered to avoid prosecution. By changing the Senate's identifiable minor provision into the House's virtual porn provision, the conference needlessly endangered its constitutionality.
For these reasons, I was glad to work in a bipartisan manner to shore up this provision in conference. Unfortunately, despite our best efforts, I fear we did not do everything possible to strengthen it against constitutional attack. Let me explain.
The new ``virtual'' porn provision in section 502 lumps together such truly ``hard core'' sexual activities such as intercourse, bestiality, and S&M with simple lascivious exhibition of the genitals and simulated intercourse where any part of a breast is shown. Equating such disparate types of conduct, however, does not mesh with community standards and is precisely the type of ``one size fits all'' approach that the Supreme Court rejected in the area of virtual pornography in the Free Speech case. The contrast between this broad definition and the tighter definition in new Section 1466A, crafted by Senator Hatch and myself, is striking. Although I was glad that we included the same definition of ``graphic'' conduct found in new section 502 as in Section 1466A, we have also left intact the less focused language that imperils the bill. The provision may be open to overbreadth attacks.
I am pleased that the conference addressed the vagueness concern in the new statute 2256(2) as it applies in virtual cases. By removing the requirement of ``actual'' conduct, we corrected the vagueness issue and have prevented clever defendants from seeking to argue that this new provision still requires proof ``actual'' sexual acts involving real children.
The Supreme Court made it clear that we can only outlaw child pornography in two situations: No. 1, where it is obscene, or No. 2, where it involves real kids. That is the law as stated by the Supreme Court, whether or not we agree with it.
Senator Hatch and I agree that legislation in this area is important. But regardless of our personal views, any law must be within constitutional limits or it does no good at all. Section 502, which would include most ``virtual'' child pornography in the definition of child pornography, in my view, crosses the constitutional line and needlessly risks protracted litigation that could assist child pornographers in escaping punishment.
I supported passage of the original PROTECT Act as Senator Hatch and I introduced it and as it passed the Senate unanimously in the last Congress. Even so, I was willing to work with him to further amend the bill in the Judiciary Committee. Some amendments that we considered in committee I supported because they improved the bill. Others went too far. I had hoped the House would simply adopt the unanimously passed Senate bill and we would have already had a law on the books. Unfortunately, the House chose to proceed otherwise. Nevertheless I continued to work side by side with Republicans in conference to work through a variety of controversial and largely unrelated provisions. I wish I could say that my efforts have been reciprocated. One wonders whether everyone is placing the interests of our children first.
A media report on this legislation at the end of the last Congress reported the wide consensus that the Hatch-Leahy bill was more likely than the House bill to withstand scrutiny, but quoted a Republican House member as stating: ``Even if it comes back to Congress three times we will have created better legislation.''
To me, that makes no sense. Why not create the ``better legislation'' right now for today's children, instead of inviting more years of litigation and putting at risk any convictions obtained in the interim period before the Supreme Court again reviews the constitutionality of Congress' effort to address this serious problem? That is what the Senate passed version of the PROTECT Act sought to accomplish.
As I have explained, I believe that this issue is so important that I have been willing to compromise and to support a measure even though I do not agree with each and every provision that it contains. That is how legislation is normally passed. I am disappointed that the Administration and the House decided to play politics with this issue and add controversial positions that could bog the bill down.
There are a few additional measures in the conference report that I want to mention. First, Section 604 of the conference report, which was proposed by Senator Grassley, amends Section 170101(e) of the Violent Crime Control and Law Enforcement Act of 1994. That section would amend several provisions of the sexual registry established under that law. First, it would add additional crimes to those that are included in the registry. Second, it would require that such registries be made available over the Internet. Finally, and quite significantly, this provision would not only require a ``process'' be established for contesting the accuracy of any information on the registry, but would also require that the instructions for following that process be readily available on the Internet. For the first time, then, we are explicitly requiring that there is a mechanism for those who believe that information has been erroneously posted on the registry to challenge that information and seek to have it removed.
Second, I want to thank the conferees for supporting measures included in the Protecting Our Children First Act, S. 773, a bipartisan bill that I introduced in both this Congress and the last, joined by Senators Hatch, Kennedy, DeWine, Biden, Shelby, Lincoln, and Reid, to reauthorize the National Center for Missing and Exploited Children. As the nation's top resource center for child protection, NCMEC spearheads national efforts to locate and recover missing children and raises public awareness about ways to prevent child abduction, molestation, and sexual exploitation. NCMEC works to make our children safer by being a national voice and advocate for those too young to vote or speak up for their own rights.
We had proposed reauthorization through 2007 but have at least achieved agreement to extend its activities through 2005. We were able to double the grants from $10 million to $20 million a year so that the National Center can help more children and families. We also authorize the U.S. Secret Service to provide forensic and investigative assistance to the National Center, and we strengthen NCMEC's Cyber Tipline to provide online users an effective means of reporting Internet-related child sexual exploitation in distribution of child pornography, online enticement of children for sexual acts, and child prostitution.
Third, I am pleased that conferees agreed to include in the conference report Leahy-Kennedy-Biden legislation that will establish a transitional housing grant program within the Department of Justice to provide to victims of domestic violence, stalking, or sexual assault the necessary means to escape the cycle of violence.
Today, more than 50 percent of homeless individuals are women and children fleeing domestic violence. They are homeless because, in their desperate attempt to leave their abusers, they find themselves with few, if any, funds to support themselves. Shelters offer a short-term solution, but are often overcrowded and unable to provide all of the support that is needed. Transitional housing allows women to bridge the gap between escaping from a domestic violence situation and becoming fully self-sufficient. Such assistance is limited, however, because no federal funds exist for transitional housing programs geared specifically
to victims of domestic violence. We last authorized such a transitional housing grant program as part of the reauthorization of the Violence Against Women Act in 2000. This program would have been administered through the Department of Health and Human Services and would have provided $25 million in fiscal year 2001. Unfortunately, funds were never appropriated for the program, and the authorization expired.
If we truly seek an end to domestic violence, then transitional housing must be available to all those fleeing their abusers. First of all, such housing provides women and children a stable, sustainable home base. Second, it gives these victims opportunity to participate in educational programs, to work full-time jobs, to learn new job skills, and to search for adequate child care in order to gain self- sufficiency. Without such resources, many women and children eventually return to situations where they are abused or even killed.
This conference report amends the Violence Against Women Act of 1994 to authorize $30 million for each of fiscal years 2004-2008 for the Attorney General to award grants to organizations, States, units of local government, and Indian tribes to help victims of domestic violence, stalking, or sexual assault who need transitional housing or related assistance as a result of fleeing their abusers, and for whom emergency shelter services or other crisis intervention services are unavailable or insufficient. Funds may be used for programs that provide short-term housing assistance, including rental or utilities payments assistance and assistance with related expenses. The funds may also support services designed to help individuals locate and secure permanent housing. Lastly, these resources may be used to help integrate domestic violence victims into the community by providing services, such as transportation, counseling, child care services, case management, employment counseling, and other assistance.
This new grant program will make a significant impact in many areas of the country, such as my State of Vermont, where the availability of affordable housing is at an all-time low. There are many dedicated people working to provide victims of domestic violence with resources, but they can not work alone. We must provide women and children who have endured domestic violence with a safe place to gain the skills and stability needed to make the transition to independence. I thank the conferees for adding this language to the conference report and recognizing that this is an important component of reducing and preventing crimes that take place in domestic situations. Together, we can help the victims of these crimes to move on with their lives.
Fourth, I am pleased that the conference report includes a provision that I introduced in the last Congress to clarify that an airplane is a vehicle for purposes of terrorist and other violent acts against mass transportation systems. A significant question about this point was raised in an important criminal case and deserves our prompt attention.
On June 11, 2002, a U.S. District Judge in Boston dismissed one of the nine charges against Richard Reid stemming from his alleged attempt to detonate an explosive device in his shoe while onboard an international flight from Paris to Miami on December 22, 2001. The dismissed count charged defendant Reid with violating section 1993 of title 18, United States Code, by attempting to ``wreck, set fire to, and disable a mass transportation vehicle.''
Section 1993 is a new criminal law that was added, as section 801, to the USA PATRIOT Act to punish terrorist attacks and other acts of violence against, inter alia, a ``mass transportation'' vehicle or ferry, or against a passenger or employee of a mass transportation provider. I had urged that this provision be included in the final anti-terrorism law considered by the Congress. A similar provision was originally part of S. 2783, the ``21st Century Law Enforcement and Public Safety Act,'' that I introduced in the 106th Congress at the request of the Clinton Administration.
The district court rejected defendant Reid's arguments to dismiss the section 1993 charge on grounds that one, the penalty provision does not apply to an ``attempt'' and two, an airplane is not engaged in ``mass transportation.'' ``Mass transportation'' is defined in section 1993 by reference to the ``the meaning given to that term in section 5302(a)(7) of title 49, U.S.C., except that the term shall include schoolbus, charter and sightseeing transportation.'' Section 5302(a)(7), in turn, provides the following definition: ``mass transportation'' means transportation by a conveyance that provides regular and continuing general or special transportation to the public, but does not include school bus, charter or sightseeing transportation.'' The court explained that ``commercial aircraft transport large numbers of people every day'' and that the definition of ``mass transportation'' ``when read in an ordinary or natural way, encompasses aircraft of the kind at issue here.'' U.S. v. Reid, CR No. 02-10013, at p. 10, 12 (D. MA, June 11, 2002).
Defendant Reid also argued that the section 1993 charge should be dismissed because an airplane is not a ``vehicle.'' The court agreed, citing the fact that the term ``vehicle'' is not defined in section 1993 and that the Dictionary Act, 1 U.S.C. Sec. 4, narrowly defines ``vehicle'' to include ``every description of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land.'' Emphasis in original opinion. Notwithstanding common parlance and other court decisions that have interpreted this Dictionary Act definition to encompass aircraft, the district court relied on the narrow definition to conclude that an aircraft is not a ``vehicle'' within the meaning of section 1993.
The new section 1993 was intended to provide broad Federal criminal jurisdiction over terrorist and violent acts against all mass transportation systems, including bus services, airplanes, railroads and other forms of transportation available for public carriage. The more inclusive definition would also cover cruise ships. Unfortunately terrorist attacks against Americans is not a new threat. In 1985, four terrorists brutally attacked the Achille Lauro Cruise Ship. The wheelchair-bound Leon Klinghoffer, a stroke victim, was shot once in the head and once in the back by the terrorists who then pushed him over the side of the ship into the Mediterranean.
Section 609 of the conference report adds a definition of ``vehicle'' to 18 USC 1993 and clarifies the breadth of the meaning of this term both in common parlance and under this new criminal law to protect mass transportation systems. Specifically, it defines this term to mean ``any carriage or other contrivance used, or capable of being used, as a means of transportation on land, water or through the air.''
Having reviewed all the positive elements of the conference report, I want to speak to the conference process itself. I am deeply disappointed by the process that characterized Tuesday's AMBER Alert and PROTECT Act conference. By taking bipartisan, noncontroversial bills and adding numerous controversial, unrelated measures, the Republicans have decided yet again to play games with important measures to protect our children. They are rolling the dice with the safety of America's children. I do not say this lightly, and I say it with a heavy heart, but House and Senate Republicans are now holding the passage of AMBER and the PROTECT Act hostage to these very troubling additions.
With respect to new matters never considered by this body, the conference committee in this matter tried no less a feat than to rewrite the criminal code on the back of an envelope. That type of effort is unwise and doomed to failure.
There are many things in this bill that I support--indeed as a former prosecutor I brought my personal experiences to bear and I wrote much of it. That is why even after the House Republicans loaded the bill with numerous controversial, unrelated provisions, I worked in good faith to come to agreement on many provisions. In fact, staff members of the conferees met all through the weekend and late into the early hours of Tuesday morning to find common ground. It is unfortunate that our good faith was repaid with attempts to add even more extraneous controversial provisions at the conference meeting.
Tuesday's conference, which was convened in the spirit of bipartisan cooperation, turned political, however,
when Republicans sprung a lengthy and complex amendment on the Democrats. This 9-page document was not a simple substitute for a portion of the bill. It was a highly complex amendment requiring careful consideration. The sponsors denied a request to break briefly in order to give conferees a moment to analyze the document. After meeting for three days in good faith, the Democratic conferees were effectively slapped in the face with a totally new proposal. Then, to add insult to injury, the sponsors of the amendment misrepresented its contents in the conference meeting and quickly forced a vote before the conferees had a chance to review or debate the amendment.
I was sorely disappointed by the way that this amendment was explained to the conferees. One sponsor said not once or twice, but three separate times: ``It's important to note that the compromise is limited to these serious crimes against children and sex crimes and does not broadly apply to other crimes.'' In fact, the amendment was not limited as he described, and did apply broadly to downward departures in sentencing for all Federal crimes.
After the conferees were forced to vote on the Hatch-Sensenbrenner amendment, Senator Hatch's office, at 2:00 a.m., substantially changed the text of his own amendment--the amendment that had already been voted upon in open conference. With no new meeting and no new vote of the conferees, the Republicans changed the conference report as it was voted on, and filed it in the House. The 2:00 a.m. text came closer to reflecting the original description of the amendment, but was still not limited, as was promised, to crimes against children.
The substance of the Hatch-Sensenbrenner amendment--whether in the form that was voted on in conference, or in the form that was circulated after the conference adjourned--is just as outrageous as the way in which it was adopted. This amendment modifies in very limited ways the Feeney amendment, which was added to the bill on the House floor after only 20 minutes of debate. This far-reaching proposal will undermine the Federal sentencing system and prevent judges from imposing just and responsible sentences. In short, it amounts to an attack on the Federal judiciary.
Speaking about the original Feeney amendment, Chief Justice Rehnquist wrote: ``this legislation, if enacted, would do serious harm to the basic structure of the sentencing guideline system and would seriously impair the ability of courts to impose just and responsible sentences.'' In another bald mischaracterization of the Hatch- Sensenbrenner amendment, Senator Hatch claimed in the conference meeting that he had addressed the Chief Justice's concerns. He said, ``Chief Justice Rehnquist is worried about the breadth and scope of the Feeney Amendment. He's not worried about this [language]. I don't think any federal judge would worry about this language. They know this language is to protect our children in our society, and we're limiting it to that.'' In fact, the Hatch-Sensenbrenner amendment does not address the problems raised in Chief Justice Rehnquist's letter, which were directed at the assault on the sentencing structure that is retained in the amendment.
In addition to the Chief Justice of the United States, this is an issue on which we have heard from the Judicial Conference, other distinguished judges, the Sentencing Commission, the former chairmen of the Sentencing Commission, the American Bar Association, the Washington Legal Foundation, the Leadership Conference on Civil Rights, the Cato Institute, the National Petroleum Refiners Association and a number of other business associations, all of which opposed the House language.
Just this week, Justice Kennedy voiced grave concerns over the excessive application of mandatory minimum sentences. He said, ``When the guilt determination phase and the sentencing is over,'' Kennedy said, ``the legal system loses all interest in the prisoner. And this must change. Winston Churchill said a society is measured by how it treats the least deserving of its people. And two million people in prison in this country is just unacceptable.''
A number of the groups opposed to the original proposal have expressed continued opposition. Others have not had time to write about the new version because this proposal is being rushed through the legislative process.
The language that was adopted in the conference report establishes new and separate departure procedures for child-related and sex offenses. So, we will have one set of sentencing rules for pornographers and a more flexible set of sentencing rules for other Federal defendants, including terrorists, murderers, mobsters, civil rights violators, and white collar criminals. No one here believes that sex offenders deserve anything less than harsh sentences, but I cannot understand why we would treat the terrorists better.
The conference report also overturns a unanimous Supreme Court decision, Koon v. United States, by establishing a new standard of appellate review in all departure cases. This provision, like so many others, is not limited to cases involving children. The Court in Koon interpreted the departure standard in a way that limited departures but left some room for judicial discretion. By contrast, the new provision would appear to require appellate courts to consider the merits of a departure before it can decide what standard of review to apply to the merits. That is because, in order to determine which standard of review applies--``due deference'' or ``de novo''--the appellate court must first decide whether the departure advances the objectives of 18 USC 3553(a)(2) (incapacitation, deterrence, etc.) or is authorized under 18 USC 3553(b) (a mitigating circumstance of a kind, or to a degree, not adequately considered by the Sentencing Commission) or is justified by the facts of the case. This sloppily drafted, circular provision is likely to tie up the courts in endless litigation, draining already scarce judicial resources, and costing the taxpayers money.
The Republican supporters of this amendment seem to believe that our Federal judges cannot be trusted. I have always advocated doing a thorough review of our Federal judge nominees when they come before the Senate for lifetime appointments. Perhaps that is the difference between my view of Federal judges and those of my colleagues across the aisle who seem to believe they should rubber stamp the President's nominees to these lifetime positions. I believe we should pick our Federal judges carefully and them trust them once appointed, not rubber-stamp them and then feign disbelief when we are unhappy with their decisions.
The amendment effectively creates a judicial ``black list'' of judges that stray from the draconian mandates of this bill. The Hatch- Sensenbrenner language retains the Feeney amendment's attempt to intimidate Federal judges by compiling a ``hit list'' of all judges who impose sentences that the Justice Department does not like in any type of criminal case. It takes a sledge hammer to the concept of separation of powers.
In a further demonstration of hostility to our Federal judiciary as envisioned by our constitution, the Hatch-Sensenbrenner amendment removes almost all discretion for Federal judges to depart from the sentencing guidelines in some extraordinary cases.
At the conference's one meeting, during the brief period afforded for debate on the Hatch-Sensenbrenner amendment, I pointed out that the amendment retained language from the original Feeney amendment that eliminated the ability of Federal judges to depart and give lower sentences based upon extraordinary military service.
The sponsors of the amendment dismissed my concern. They said that I was wrong--that their amendment did not eliminate the departure for extraordinary military service. They were both quite certain on this point, even after I raised it a second time. One sponsor said, ``I don't know where you're getting your language from.'' Another assured us that ``this nine-page amendment has been very well drafted . . . It does exactly what we have said.''
After the conference had adjourned and they took the time to familiarize themselves with their own amendment, they discovered that I was correct. They were, in fact, eliminating the departure for extraordinary military service in all Federal criminal cases--for congressional medal of honor winners, for example, and veterans who
had been seriously wounded while defending their nation in battle. What is worse, they were doing this during a time of war, when future veterans are literally risking their lives for America. Realizing that this might not go down well on the floor of the United States Senate, they quietly dropped the provision from the final conference report.
I have discussed this issue at some length not to embarrass any member or his staff, but to make the point that Congress should spend more than a few minutes considering legislation with such far-reaching consequences. The conference report blithely overturns the basic structure of the carefully crafted guidelines system without any serious process in either the House or the Senate, and without any meaningful input from judges and practitioners.
With respect to the few parts of the Hatch-Sensenbrenner amendment that are limited to crimes against children, it may not be the end of the guidelines system, but it is very likely the beginning of the end. Once we prohibit judges from exercising discretion in one set of cases, we will have established a prototype for future attacks on the guidelines system--a form of ``mission creep'' in this uncompromising, anti-judge agenda. The same ``tough on crime'' political posturing that fuels the relentless drive for more mandatory minimums and death penalties will lead to future expansions of the Hatch-Sensenbrenner amendment to crimes having nothing to do with minors.
My Republican colleagues on the conference claim that there is a crisis on the Federal bench of downward departures in sentencing. In fact, downward departure rates are well below the range contemplated by Congress when it authorized the Sentencing Guidelines, except for departures requested by the government.
The overwhelming majority of downward departures are requested by Federal prosecutors to reward cooperation by defendants or to manage the high volume of immigration cases in certain border districts. When the government does not like a specific downward departure, it can appeal that decision, and it often wins--approximately 80 percent of such appeals are successful. This amendment is a solution in search of a problem.
Rather than rush to change the law with no factual basis for doing so, the Democrats in this conference asked for hearings on the topic. In fact, Senator Graham, the new chairman of the newly constituted Crime, Corrections and Victims' Rights Subcommittee indicated that he planned to hold hearings on this topic very soon--that is, until the Feeney amendment and the subsequent Hatch-Sesenbrenner amendment overtook events. The Republican conferees now claim that no study is necessary. They believe that no hearings are necessary. They would rather significantly increase incarceration rates at taxpayer expense than take the time to determine whether such severe changes are necessary or appropriate.
The Hatch-Sensenbrenner amendment not only maintains the worst aspects of the controversial Feeney Amendment--provisions that have nothing to do with child protection--but also adds in new provisions that were not in the original Feeney amendment. For example, it limits the number of Federal judges who can serve on the Sentencing Commission because, as Chairman Sensenbrenner explained, ``we don't want to have the Commission packed with Federal judges that have a genetic predisposition to hate any kind of sentencing guidelines.'' I, for one, believe that judges are extremely valuable members of the Commission. They bring years of highly relevant experience, not to mention reasoned judgment, to the table. The Republicans apparently believe that their knowledge is of limited value.
I find it ironic that the Republicans, in forcing through this measure, will undercut one of the signature achievements of Ronald Reagan's Presidency--a firm, tough, fair system of sentencing in the Federal criminal justice system. The Sentencing Reform Act of 1984 struck a balance between uniformity and judicial discretion and was enacted after years of study and consideration of the problems in the previous sentencing system. Congress understood that a guidelines system that encompasses every relevant sentencing factor is neither possible nor desirable. Departures, both upward and downward, are an integral and healthy part of the guideline system. They do not reflect an avoidance of the law by Federal judges but rather their conscientious compliance with the congressional mandate to impose a guideline sentence unless the court finds a circumstance not adequately considered by the Commission that warrants a departure.
Moving beyond the sentencing amendments offered at the conference, there are several provisions of the conference report that are equally problematic.
Section 106 of the conference report, entitled ``two strikes and you're out,'' is one of the many controversial provisions in the House- passed bill that have never been considered in the Senate. It mandates life imprisonment without parole for defendants who have twice been convicted of certain crimes against children.
Another section of the conference report creates several new mandatory minimum sentences, and raises some existing ones, for crimes involving child pornography and prostitution.
We can all agree that those who commit crimes against children should be severely punished. In fact, the bill that Senator Hatch and I authored--the real PROTECT Act, which is buried in title V of the conference report--contains a number of very strong sentencing provisions. But I believe we can accomplish our common goal of ensuring that those who prey on children receive tough punishment without further expanding the mandatory sentencing scheme that is gradually replacing the guidelines system.
The arguments against mandatory minimums are well known. The Chief Justice of the United States has observed that mandatory minimum sentences ``frustrate the careful calibration of sentences, from one end of the spectrum to the other, which the Sentencing Guidelines were intended to accomplish.'' Another conservative member of the Court, Justice Kennedy, testified before a House subcommittee in 1994 that mandatory minimums were ``imprudent, unwise, and often an unjust mechanism for sentencing.'' As I mentioned previously, Justice Kennedy reiterated that thought just this week, before another House committee. Justice Breyer, who served on the original Sentencing Commission, has written that mandatory minimums prevent the Commission from developing a rational, coherent, and fair set of punishments. Most judges in the Federal system, Republicans and Democrats alike, agree with these criticisms.
Senator Hatch has also expressed reservations about statutory mandatory sentences. In a 1993 law review article, Senator Hatch observed that mandatory minimums are fundamentally inconsistent with the guidelines system. He wrote:
Whereas the guidelines permit a degree of individualization
in determining the appropriate sentence, mandatory minimums
employ a relatively narrow approach under which the same
sentence may be mandated for widely divergent cases. Whereas
the guidelines provide for graduated increases in sentence
severity for additional wrongdoing or for prior convictions,
mandatory minimums often result in sharp variations in
sentences based on what are often only minimal differences in
criminal conduct or prior record. Finally, whereas the
guidelines incorporate a ``real offense'' approach to
sentencing, mandatory minimums are basically a ``charge-
specific'' approach wherein the sentence is triggered only if
the prosecutor chooses to charge the defendant with a certain
offense or to allege certain facts.
Senator Hatch concluded that Congress should make greater use of the various alternative sentencing methods proposed by the Commission, including increased statutory maximums.
I am disappointed that Congress is poised, once again, to demonstrate that we are ``tough on crime'' by enacting new mandatory minimum sentences. That being said, I am pleased that the conference accepted my proposals to modify the two strikes provision to eliminate its harshest and most disproportionate applications. Among other things, the conference clarified that the ``two strikes'' law would not apply to a defendant whose only prior sex conviction was a misdemeanor under state law. The conference also provided a limited affirmative defense for defendants convicted under certain Federal statutes that have less culpable applications. Congress provided a
similar defense in the three strikes law, and it is appropriate that we included one here as well.
We should also have included in the two strikes provision a carve-out for Indian country. Unfortunately, the conference refused in a party line vote to allow Indian nations to decide for themselves whether or not to be part of the new two strikes regime.
There is no question that the two strikes law will disproportionately affect Indian country. Sentencing Commission data indicates that approximately 75 percent of cases to which the two strikes provision will be applied will involve Native Americans on reservations. Thus, the two strikes provision will have the effect of singling out Native Americans for harsher treatment.
Congress has confronted this problem before, when passing various criminal laws with particularly harsh sentences. In those situations, we have allowed the tribes to decide whether they want to be covered. The amendment that I offered, and that the Republican conferees rejected, was identical to provisions for Indian Country in current criminal statutes such as the ``three strikes'' law, the juvenile delinquency statute, and the Federal death penalty statute. These provisions preserve the sovereignty of the Indian tribes by providing their governing bodies with authority to control the laws affecting their land and people. For Congress to treat the ``two strikes'' provision differently is simply wrong.
Another provision of the conference report dealing with statutes of limitations raises concerns about the message we are sending to law enforcement. Section 202 extends the statute of limitations for certain crimes against children. This provision is substantially narrower than the version passed by the House, which covered a laundry list of crimes having nothing at all to do with children.
The purpose of section 202 is to address the problem--highlighted in several recent cases--of child victims who fail to notify authorities that they have been victimized until years and even decades after the event. Current law deals with this problem by allowing prosecution of certain offenses involving the abuse of a child until the child turns 25. Section 202 goes further, extending the limitations period for the entire life of the child.
During the conference, I expressed concern that section 202's lifetime extension of the limitations period would reduce law enforcement's incentive to move quickly and aggressively to solve these very serious crimes. I therefore proposed a modification along the lines that Congress adopted last year in the context of corporate fraud. More specifically, I proposed that a 3 or 5 year limitations period should exist, and start to run, once the facts constituting the offense were known, or reasonably should have been known, by Federal law enforcement authorities. This modification would have benefitted victims by requiring authorities to focus on their case, and to take immediate steps to bring the perpetrator to justice, as soon as the crime was brought to their attention. Senate Republicans fought for similar language in the Sarbanes-Oxley bill. Their opposition to it outside the context of corporate crime suggests a troubling double standard.
A final point on section 202: I am pleased that the conference agreed to drop language from the original House-passed bill that would have extended the limitations period retroactively. That language, which would have revived the government's authority to prosecute crimes that were previously time-barred, is of doubtful constitutionality. We are already pushing the constitutional envelope with respect to several of the ``virtual porn'' provisions in this bill. I am pleased that we are not doing so in section 202 as well.
The next section of the conference report is another example of hastily drafted language that has not been vetted thoroughly by either house of Congress. Section 203 adds certain crimes against children to the list of offenses that carry a rebuttable presumption against pre- trial release. Like the other provisions in titles I and II, this section has never been considered by the Senate, and received only the most cursory consideration by the House.
I have two problems with this provision. First, as with sentencing determinations, I believe that judges, not Congress, should determine who gets bail. Clearly, judges are in the better position to determine whether, for public safety reasons, an accused offender should be detained.
Second, I am concerned that the complete absence of legislative findings supporting the new presumption could imperil its constitutionality under the Excessive Bail Clause. At a minimum, it could give defendants a good argument that the presumption should be overcome more easily than the authors of this provision perhaps intended. That is what happens when we do not take the time to do things the right way.
For the same reason, I am troubled by section 521 of the conference report, which makes it a crime to use a ``misleading'' domain name with the intent to deceive a person into viewing obscenity on the Internet, or with the intent to deceive a minor into viewing ``material that is harmful to minors'' on the Internet. This provision is similar to section 108 of the House-passed bill, which was added as a floor amendment with no prior consideration in either body.
I have serious doubts about whether section 521 will survive constitutional challenge. For one thing, its failure to define the term ``misleading'' may unduly chill constitutionally-protected speech. For example, it is unclear whether a website like ``northernlights.com'' would be considered ``misleading'' if it contains images of naked persons that are deemed harmful to minors.
Section 521 does create a ``safe harbor'' for those who include the word ``porn'' or ``sex'' in their Internet domain name. This form of mandatory labeling of the site of a mainstream business, which includes material constitutionally protected as to adults, but which may be deemed inappropriate for some level of minors, also raises constitutional concerns. In addition, labeling domain names in this manner could turn sites into attractive nuisances, drawing more childrens' eyes to the site and thus having the opposite of its intended effect.
My uncertainty about the constitutionality of this provision is, of course, compounded by the fact that there is virtually no legislative record on it. It has never been introduced in the Senate, and received a grand total of 10 minutes of debate before being passed as a floor amendment in the House. And in case any judge is reading this and wondering, there was no discussion of this provision during the one afternoon that the conference committee actually met.
In recent years, Congress's efforts to regulate protected speech on the Internet have not fared well in the Supreme Court, which takes its responsibility to uphold the first amendment a bit more seriously than some of my Republican colleagues. It would not surprise me if the Court was especially dismissive of this current effort.
I am also concerned about the inclusion of the Illicit Drug Anti- Proliferation Act in this conference report. This bill has drawn serious grass-roots opposition, and I know that I am not alone in hearing from many constituents about their serious and well-considered objections to it. Despite this opposition, and even though the Senate has never held a hearing on this bill, the conference committee agreed to include it in this hastily-assembled package.
I know that Senator Biden has made changes to the bill since the last Congress, beginning with its title, and I appreciate his flexibility. But these changes do not address some of the questions that have been raised about this legislation.
The bill's primary purpose is to expand the existing ``crack house statute,'' (21 USC 856) which makes it unlawful to knowingly open or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance, or to make a place available to someone else for use for such purposes or for storing a controlled substance. The bill would expand the statute to include those who lease, rent, or use property, including temporary occupants, and would allow for civil suits against violators.
The crack house statute has been on the books for more than 15 years, and for most of its existence, Federal prosecutors have used it solely against
property owners who have been directly involved in committing drug offenses. The House Judiciary Committee, however, heard evidence last year that the Drug Enforcement Administration and prosecutors are now using the ``crack house statute'' to pursue even business owners who take serious precautions to avoid drug use at their events. Business owners have come to Congress and told us there are only so many steps they can take to prevent any of the thousands of people who may attend a concert or a rave from using drugs, and they are worried about being held personally accountable for the illegal acts of others. Those concerns may well be overstated, but they deserve a fuller hearing.
In addition, the provision allowing civil suits dramatically increases the potential liability of business owners. Of course, this is a good thing when applied against those who are knowingly profiting from illegal drug use. But we have been told that even conscientious promoters may think twice before holding large concerts or other events where some drug use may be inevitable despite their best efforts. I do not know enough to know whether that claim is exaggerated, but I think we would have been well-served by making a greater effort to find out.
Finally, I want to speak on a very important piece of legislation that I attempted to add in conference. I am deeply disappointed that the Republican House and Senate conferees refused to include in the conference agreement the ``Hometown Heroes Survivors Benefits Act of 2003,'' tri-partisan legislation that I introduced earlier this year with ten cosponsors, including the lead Republican cosponsor Senator Graham of South Carolina, who served as a member of this conference. This legislation would improve the Department of Justice's Public Safety Officers' Benefits (PSOB) program by allowing families of public safety officers who suffer fatal heart attacks or strokes to qualify for Federal survivor benefits.
Every year, hundreds of public safety officers nationwide lose their lives and thousands more are injured while performing duties that subject them to great physical risks. While we know that PSOB benefits can never be a substitute for the loss of a loved one, the families of all our fallen heroes deserve our support for making the ultimate sacrifice.
The PSOB Program currently provides a one-time financial benefits payment to the families of law enforcement officers, firemen, emergency response squad members, and ambulance crew members who are killed in the line of duty. Unfortunately, PSOB guidelines do not allow survivors of public safety officer who die of a heart attack or stroke while acting in the line of duty to collect those benefits, ignoring the fact that service-connected heart conditions are silent killers of public safety officers nationwide.
I sought to include our tri-partisan bill in the conference report to fix the loophole in the PSOB program. This language would ensure that the survivors of public safety officers who die of heart attacks or strokes in the line of duty or within 24 hours of a triggering incident while on duty--regardless of whether a traumatic injury is present at the time of the heart attack or stroke--are eligible to receive financial assistance. Representative Etheridge and I introduced identical versions of this legislation last Congress, and the House bill passed that body, but an anonymous Republican hold in the Senate killed it.
I am saddened that the House and Republican conferees voted to strike Hometown Heroes from consideration by the conference. They squandered a chance to pass legislation to support our first responders and their families by striking it in a strict party line vote.
Public safety is dangerous, exhausting, and stressful work. A first responder's chances of suffering a heart attack or stroke greatly increase when he or she puts on heavy equipment and rushes into a burning building to fight a fire and save lives. The families of these brave public servants deserve to participate in the PSOB Program if their loved ones die of a heart attack or other cardiac-related ailment while selflessly protecting us from harm.
It is time for both the Senate and House to show their support and appreciation for these extraordinarily brave and heroic public safety officers by passing the Hometown Heroes Survivors Benefit Act.
Mr. President, I would like to take a moment to thank my staff for all their hard work on these provisions to protect our nation's children. I want to recognize Julie Katzman, Steve Dettelbach, Tara Magner, Ed Pagano, Phil Toomijian, Jessica Berry, Tim Lynch and Marguererite McConihe for their dedication to these important measures. Their diligence and professionalism do credit to this body.
I also wish to recognize the staff of the other Senate conferees for their hard work, including Robin Toone, Neil MacBride, Tonya Robinson, Eric Rosen, Chad Groover, Mike Volkov, Reed O'Connor, Wan Kim, James Galyean, and William Smith.
Finally, I wish to thank the staffs of the Democratic House conferees, including Perry Apelbaum, Bobby Vassar, Greg Branes, Ted Kalo, as well as Chairman Sensenbrenner's professional staff, especially Will Moschella, Phil Kiko, Beth Sokul, Sean McLaughlin and Jay Apperson.