[Congressional Record Volume 146, Number 155 (Friday, December 15, 2000)]
[Extensions of Remarks]
[Pages E2224-E2226]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      THE OPERATION OF AIMEE'S LAW

                                 ______
                                 

                            HON. MATT SALMON

                               of arizona

                    in the house of representatives

                       Friday, December 15, 2000

  Mr. SALMON. Mr. Speaker, after years of work, and several 
Congressional Hearings, Aimee's Law passed both the House and Senate 
overwhelmingly, and was signed into law by President Bill Clinton on 
October 28, 2000. The bill will take effect on January 1, 2002, giving 
us more than a year to be sure it is implemented properly. It is 
essential that we do so, because too many lives are shattered each year 
at the hands of dangerous predators.
  Using a mechanism that is workable, constitutional and respectful of 
states' rights, Aimee's Law will help to reduce repeat attacks 
perpetrated by released murderers, rapists, and child molesters that 
account for over 14,000 crimes of this nature each year.
  These crimes share one characteristic: they are all preventable. If 
we simply keep murderers, rapists, and child molesters behind bars or, 
at a minimum, properly monitor them upon release, thousands of serious 
crimes would be prevented. Aimee Willard, the young woman for whom this 
legislation is named, died with every pint of blood drained from her 
body because Nevada recklessly released a murderer who reoffended in 
Pennsylvania. Aimee was a most extraordinary young woman; loved by her 
family and friends, an All American Athlete, an individual some of her 
peers believed could one day serve in the United States Congress, or as 
a teacher to our children. If this law is diminished in any respect it 
will be an assault on her memory.
  I acknowledge that the mechanism used in Aimee's Law is novel--and is 
now, in some respects, more complex than originally drafted, due to 
revisions we made at the request of the States--but it is certainly 
workable. Of course, if those who had opposed Aimee's Law had instead 
joined us in working for the most straight-forward solution to the 
crisis we face with dangerous recidivists, application of the 
legislation would be even easier. If opponents now point to the 
provisions that were added to address their concerns, and argue that 
those provisions now make the law unworkable, then Congress should 
remove the safe-harbor provisions and hold states fully accountable for 
their errors in releasing murderers and sexual predators, the way the 
bill was originally introduced.
  Let's address the concerns of the bill's critics in further detail. 
The small band of congressional opponents to the bill, and the state 
advocacy groups that opposed it, lodge three main arguments against the 
legislation: (1) the bill is unworkable; (2) the bill runs afoul of the 
Constitution; and (3) the bill would pressure states to rachet up 
penalties on murder, rape and child molestation offenses.
  I will address the last charge first. Shouldn't we celebrate a law 
that incentivizes states to increase penalties for violent crimes? We 
have in the past. The truth in sentencing reforms of the 1980s and 
early 1990s are at least partially responsible for the dip in violent 
crime we have seen over the past several years. Keeping violent 
criminals behind bars reduces crime.
  The trend of reduced crime is welcome, but more, much more, needs to 
be done. According to the FBI's Uniform Crime Report released last 
month, one violent crime occurs every 22 seconds. A forcible rape 
occurs every 6 minutes and a murder every 34 minutes. The success 
enjoyed in reducing crime over the past several years does make further 
reductions challenging. Targeting recidivist crime among the most 
dangerous criminals--murderers and rapists--as well as pedophiles, who 
are most likely to reoffend if given the opportunity, is smart public 
policy. The time served for these crimes is outrageously low. The 
average time served by a rapist released from state prison is just 5\1/
2\ years. For molesting a child it is about 4 years. And for homicide 
it is 8 years. My constituents and I consider those figures to be 
shockingly low, and I have no doubt most Americans would agree.
  Reasonable people can quibble about the technical operation of the 
law, but to argue that one of Aimee's Law defects is that it will

[[Page E2225]]

encourage states to increase these murderously low sentences misses the 
point--this is one of the central purposes of the legislation. The 
following comments were offered by opponents of Aimee's Law, and while 
I do not agree with everything contained within them, they deserve 
repetition here because they point to the value of the law. It will 
rachet up sentences.
  Senator Joe Biden: ``As a practical matter, this bill can only 
promote a `race to the top' as States feel compelled to rachet up their 
sentences. . . .''
  Senator Russ Feingold: ``Here, of course, we are not preparing to 
pass a new federal murder, rape, or sexual offense statute. But we 
might as well do that because in Aimee's Law we are forcing the states 
through the use of federal law enforcement assistance funds to increase 
their penalties for these offenses. . . . Basically, this policy could 
force states to either enact the death penalty or never release a 
person convicted of murder on parole.''
  Senator Fred Thompson: ``If you remember what I said a while ago, the 
name of the game is for the States to keep ratcheting up their 
incarceration time so they are within the national average. . . . The 
safest thing for it to do would be to give life sentences without 
parole. . . . For some people, I think that is a good idea anyway.''
  Representative Jerrold Nadler: ``Here we are telling them, you had 
better keep ratcheting up your terms of imprisonment, no matter what 
you think is right, to match everybody
  It's not as if murderers, rapists and child molesters become Boy 
Scouts after their release from prison. The recidivism rates for sex 
offenders are especially high. As the best experts who have studied 
this issue will tell you, ``Once a molester, always a molester.'' The 
Department of Justice found in 1997 that, within just three years of 
release from prison, an estimated 52 percent of discharged rapists and 
48 percent of other sexual offenders were rearrested for a new crime, 
often another sex offense.
  Of course, states have the right to release convicted murderers, 
rapists and child molesters into their cities and neighborhoods. 
However, the question is, who should pay when one of these violent 
predators commits another murder, rape or sex offense in a different 
state? Should Pennsylvania, which has already paid a huge human cost 
with the loss of Aimee Willard, have to pay for the prosecution and 
incarceration of her killer, Arthur Bomar? Or should Nevada, which knew 
that Bomar was a vicious killer but decided to release him anyway, pay 
for the costs wrongfully inflicted on the state of Pennsylvania? The 
answer is obvious.
  And it is not merely a question of fairness. Aimee's Law will also 
lead to more sensible decisions by states on which criminals to 
release, and which to keep behind bars. Previously, when a state 
released a murderer or sexual predator, it actually received at least a 
perceived economic benefit in the form of reduced incarceration costs. 
Moreover, since these criminals sometimes left the state, the state was 
rid of its problem. By reducing this perverse financial incentive, it 
may focus the decision purely where it should be, on the community 
safety issue: will release of this prisoner pose a danger to the 
community?
  As to the concern that the bill is unworkable, I ask the critics 
this: what effort did you make to smooth out the edges you claim are 
rough? If half the effort spent trying to derail this legislation had 
been spent on perfecting the bill, I have no doubt a cleaner product 
would have emerged. But, the perfect should never be the enemy of the 
good. The bodies continue to pile up and some of the states' groups--
the National Governors Association, the National Conference of State 
Legislatures, and the Council of State Governments--aggressively tried 
to kill a bill that will protect their citizens. But they failed, in 
part, because it is clear to the Congress that the states need to do 
more to protect the public from second attacks committed by convicted 
murderers, rapists and child molesters.
  I will now address the operational and constitutional concerns raised 
about the bill. I will first begin with the premise behind Aimee's Law.
  Aimee's Law targets an extremely narrow category of crimes: murder, 
rape, and child molestation. We're not targeting jaywalkers, 
shoplifters, or even drug dealers. We're targeting the worst of the 
worst. Any opponent of this bill must answer the following: ``Should a 
pedophile have a second chance to live in your neighborhood?'' Or, as 
so often is the case, a
  The definitions attached to murder, rape and dangerous sexual 
offenses could not be clearer. For murder and rape we use the 
definition of these crimes found in the FBI's Uniform Crime Report. All 
50 states are familiar and comfortable with these definitions. Out of 
recognition that states have varying laws when it comes to child 
molestation offenses, Aimee's Law adopts the definition for dangerous 
sexual offense found in chapter 109A of title 18. Given that the U.S. 
Department of Justice is tasked with administrating the law, using 
federal definitions for the crimes covered is sensible.
  The next issue is when Aimee's Law applies. It was my intent, and is 
my interpretation, that the law applies to all second convictions that 
occur after the law takes effect on January 1, 2002. If this is judged 
not the case I would support the broadest possible reach that respects 
constitutional boundaries. Applying the law to all second convictions 
has at least four salutary effects: (1) From this day forward, states 
will begin the process of reforming their systems to end the revolving 
door for these most heinous crimes; (2) States will be encouraged to 
adopt Stephanie's Law, which has been constitutionally upheld as a way 
for states to keep dangerous sexual predators off of the streets after 
their prison sentences have expired; (3) States will find it useful to 
tighten dangerous loopholes in the Interstate Compact for Parole and 
Probation; for example, including changes consistent with the proposal 
submitted by the National Institute of Corrections; and (4) States will 
have a powerful incentive to work with the Department of Justice to 
better account for and monitor the thousands of murderers and sex 
predators already roaming the streets. America has been lax for far too 
long. Delay in implementing the law fully will cost additional lives.
  This is how Senate Judiciary Chairman Orrin Hatch explained the 
operation of Aimee's Law during Floor debate:

       Aimee's Law operates as follows: In cases in which a State 
     convicts a person of murder, rape, or a dangerous sexual 
     offense, and that person has a prior conviction for any one 
     of those offenses in a designated State, the designated State 
     must pay, from Federal law enforcement assistance funds, the 
     incarceration and prosecution cost of the other State. In 
     such cases, the Attorney General would transfer the Federal 
     law enforcement funds from the designated State to the 
     subsequent State.
       A State is a designated State and is subject to penalty 
     under Aimee's Law if (1) the average term of imprisonment 
     imposed by the State on persons convicted of the offense for 
     which that person was convicted is less than the average term 
     of imprisonment imposed for that offense in all States; or 
     (2) that person had served less than 85 percent of the prison 
     term to which he was sentenced for the prior offense.

  Senator Hatch also offered this observation: ``The purpose of Aimee's 
Law is toHatch adds that the effect of truth-in-sentencing and 
sentencing reform is a more than 12 percent increase in the average 
time served by violent criminals in state prisons. That, I submit, is a 
positive development.
  All that is needed in determining the expenses involved in a fund 
transfer is a handheld calculator. The calculations required to 
determine if a state is exempt from the fund transfer in Aimee's Law is 
more complicated, but certainly within the grasp of the professionals 
at the Department of Justice.
  The state organizations' claim that the safe harbor provision makes 
Aimee's Law unworkable rings hollow given their intense lobbying for 
such protection. The FBI already collects detailed statistics on rape 
and murder, which make a national average easy to identify. As for 
dangerous sex offenses against children, this will take additional 
work, but it's worth it to protect kids from the lifetime devastation 
caused by molestation. I suspect that nearly all Americans would desire 
annual reporting of statistics that measure where their state ranks in 
comparison with other states for the specific crimes covered in Aimee's 
Law.
  I expect that DOJ will annually compile a national average for the 
crimes of murder, rape and child molestation. DOJ will also compile the 
average term of imprisonment for those crimes in each state. If a state 
is above the national average for a particular crime it will be exempt 
in cases in which the released offender served 85 percent of his 
sentence. The numbers that DOJ produces for any given year will be the 
number used for all convictions that occur during that year. Remember, 
this section was added at the insistence of the states to protect 
states that are doing at least an average job of protecting their 
citizens and neighboring citizens. The original bill contained no such 
language. There is no need or desire on the part of the author of 
Aimee's Law to

[[Page E2226]]

make this section any more complicated than necessary.
  As an example, let's say Offender 1 commits a covered offense in 
state A in 1999 and then is released in 2003 and commits a covered 
offense in state B in 2005 and is convicted in that same year. DOJ 
should authorize a fund transfer if State A's term of imprisonment for 
the covered offense was less than the national average, using the 
latest sentencing data (probably from 2004). I do not expect DOJ to 
search back to 1999 to determine whether state A was behind the 
national average. Again, the national average is simply a benchmark to 
provide some relief to states, that do at least an average job of 
keeping certain violent offenders behind bars. Even if this state is 
average or better on sentences imposed, Aimee's Law would apply in this 
case if the criminal had failed to serve 85 percent of his sentence for 
his prior offense in 1999.
  I'm more interested in murderers, rapists and child molesters serving 
appropriately long sentences than serving any particular percentage of 
their term. Most can agree, however, that a murderer, rapist, or child 
molester released before 85 percent of the expiration of a (minimum)
  As to payment schedule, the Attorney General and the state affected 
have great latitude in arranging the transfer. Any federal crime funds 
(excluding funds designated to victims) can be used so long as the 
funds have not already been distributed. There is also flexibility as 
to the term of the payment.
  As has been the case for administering the truth-in-sentencing grant 
program and other DOJ programs, the agency will presumably need to 
issue guidelines. I am confident that the U.S. Department of Justice 
can implement the law in a manner consistent with congressional intent 
that is both workable and fair.
  Unable to defeat Aimee's Law in the court of public opinion or in 
Congress, some critics are girding for a constitutional challenge. 
Again, I would implore them not to spend their time on an effort, that 
if successful, would be welcomed by the child molester community. In 
any event, a careful review of Supreme Court decisions suggest that a 
challenge would be futile.
  Some critics contend that Aimee's Law could run afoul of the spending 
clause because it coerces states, is not unambiguous and could induce 
the states to take action that is unconstitutional. The suggestion has 
also been raised that there could be a violation of the ex post facto 
clause.
  In upholding the spending power of Congress in South Dakota v. Dole, 
the Supreme Court did, indeed, place limits on this power: (1) the 
requirement must be related to the purpose of the funding; (2) the 
condition can pressure but not coerce; (3) the condition cannot induce 
unconstitutional behavior; and (4) the condition must be unambiguous. A 
careful review exonerates Aimee's Law of all raised constitutional 
issues.
  Aimee's Law is clearly related to the source of funding, dollars to 
fight crime. No one even contests this point.
  While Aimee's Law certainly provides encouragement to states to 
increase sentences and improve post-incarceration policies, it does not 
rise to the level of coercion. Some opponents of the measure suggest 
that Aimee's Law does not create a large enough penalty to encourage 
states to take this action, since roughly seven out of eight repeat 
offenses occur in the same state as the first offense. I do believe 
that the transfer mechanism will result in increased public safety 
efforts on the part of the states, but the bill does so in a fair and 
reasonable manner.
  Aimee's Law does not pressure states to adopt unconditional means to 
protect public safety, only reasonable ones. There are several 
constitutional steps states can take to reduce their potential 
liability under Aimee's Law. The law will provide a powerful incentive 
for states to better communicate with each other concerning each 
other's convicts. It should also provide increased incentive for the 
states to amend the Interstate Compact to give states the right to 
reject dangerous out-of-state offenders. States can also do a better 
job of monitoring their own released prisoners. They may also civilly 
commit certain offenders. I have never suggested nor would I condone a 
state that took action that exceeded constitutional boundaries.
  Finally, Aimee's Law unambiguously imposes a condition on Federal 
money that passes constitutional muster. The language only affects 
federal money not yet distributed. The expectations are clear: A state 
will lose future federal crime dollars if it fails to protect other 
states from certain released criminals. The mechanism Aimee's Law uses 
may be novel. But, it is not constitutionally prohibited. The leading 
Supreme Court case on this matter, Pennhurst State School and Hospital 
v. Halderman, 451 U.S. 1 (1981) states: ``[L]egislation enacted 
pursuant to the spending power is much in the nature of a contract: in 
return for federal funds, the States agree to comply with federally 
imposed conditions. The legitimacy of Congress' power to legislate 
under the spending power thus rests on whether the State voluntarily 
and knowingly accepts the terms of the `contract.' '' Again, Aimee's 
Law only involves federal crime funds not yet distributed.
  Ex post facto concerns are similarly misplaced, since the clause 
applies to laws criminalizing behavior after that behavior has already 
taken place. The Supreme Court recently ruled in Johnson v. United 
States, 120 S. Ct. 1795 (2000) that for a law to have problems with 
this clause it must apply to conduct completed before its enactment and 
raise the penalty from whatever the law provided when he acted. Aimee's 
Law will have no effect on any particular criminal sentence already 
meted out. Aimee's Law does create an incentive for states to properly 
monitor those out of prison still under its jurisdiction. The bill 
should also spur states to develop laws similar to Stephanie's Law that 
provide for the post-incarceration civil confinement of certain 
dangerous sexual predators. Additionally, Aimee's Law should encourage 
states to increase penalties for crimes not yet committed, which is 
proper, constitutional, and necessary given the outrageously low 
sentences currently served by the average murderer, rapist, and child 
molester.
  In conclusion, Aimee's Law will make America safer. While the safe 
harbor provision--added at the insistence of the states--has added 
complexity to the legislation, Aimee's Law is still a workable, 
constitutional effort to protect innocent citizens from a completely 
preventable type of interstate crime. The safe harbor was added as a 
way to offer relief to states with an above average criminal 
sanctioning system. If their is concern about its applicability, it 
could easily be removed. But perhaps we should watch this law in action 
before we begin tinkering with it. And for those who would seek to 
undermine, weaken, or repeal it, be warned that victims from around the 
country, the National Fraternal Order of Police, and the 
supermajorities in the House and Senate who support the bill stand 
ready to expose and block any effort to undo the benefits of Aimee's 
Law.

                          ____________________