[Congressional Record Volume 149, Number 58 (Thursday, April 10, 2003)]
[Senate]
[Pages S5113-S5135]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROSECUTORIAL REMEDIES AND OTHER TOOLS TO END THE EXPLOITATION OF
CHILDREN TODAY (PROTECT) ACT OF 2003--CONFERENCE REPORT
Mr. HATCH. Mr. President, I ask unanimous consent that the Senate
proceed to the consideration of the conference report to accompany S.
151, the PROTECT Act.
The PRESIDING OFFICER. The clerk will report the conference report.
The legislative clerk read as follows:
The committee of conference on the disagreeing votes of the
two Houses on the amendments of the House to the bill (S.
151), to prevent child abduction and the sexual exploitation
of children, and for other purposes, having met, have agreed
that the Senate recede from its disagreement to the
[[Page S5114]]
amendment of the House, and agree to the same with an
amendment, signed by a majority of the conferees on the part
of both Houses.
The Senate proceeded to consider the conference report.
(The conference report is printed in the House proceedings of the
Record of April 9, 2003.)
Mr. HATCH. I rise in support of the conference report on S. 151, the
Prosecutorial Remedies and Other Tools to end the Exploitation of
Children Today Act of 2003, which truly represents landmark bipartisan
legislation to protect our children.
On Tuesday of this week, the House and Senate conferees met and
reached agreement on this important piece of bipartisan legislation.
Earlier this morning, the House of Representatives passed the
legislation by an overwhelming vote of 400 to 25.
I was hoping I could come to the floor to make a statement commending
the Senate for working together as we had on so many other occasions on
many important issues like this important piece of legislation which is
needed to protect our children.
Unfortunately, this is not a proud day for the Senate, and unless we
get this bill passed, it will be a sad day.
The spirit of bipartisanship appears to me to be fading, as my
Democratic colleagues seek to obstruct and delay rather than working
together to solve our Nation's problems and pass this important piece
of legislation. Having listened to the distinguished Senator from
Massachusetts, I have hope that there will not be obstruction or delay
on this bill, and perhaps there won't be as he seeks his point of
order. The spirit of obstructionism that I have been worried about,
which we have experienced all year long, has now reached a difficult
point here. If there is a desire to stop this bill in the Senate
through a point of order, or otherwise, then I think it would exhibit a
willingness to sacrifice the protection of our own children for
political advantages. I hope that is not the case.
If it is, I will be deeply saddened by this turn of events, and I
urge my colleagues on the other side to rethink their strategy and
approach to so many issues.
In particular, when it comes to this issue of protecting our
children, I think we ought to get this bill done. We need to cast aside
partisan disputes and quickly pass this measure and send it to the
President for signature as soon as possible.
Let me take a moment to commend the House of Representatives, and
Judiciary Committee Chairman Sensenbrenner in particular, for their
tireless dedication to this legislation. Chairman Sensenbrenner has
demonstrated his commitment time and time again to passing this measure
quickly during this new session of Congress. Thanks to our House
colleagues, we in the Senate now have an opportunity to pass not only
an AMBER alert bill, but a truly comprehensive package of measures that
will protect our children from vicious criminals, pornographers, sexual
abusers, and kidnappers. These types of individuals who prey on our
Nation's youth are nothing less than the scum of the earth who deserve
every ounce of punishment which we as a nation can fairly and justly
mete out.
The problem of child abuse and child exploitation is simply mind-
boggling. The recent wave of child abductions across the Nation,
including the kidnapping of Elizabeth Smart in my own State of Utah,
has highlighted the need for legislation to enhance our ability to
protect our Nation's children against predators of all types.
I have a letter addressed to the Senate and the House of
Representatives, signed by Ed and Lois Smart, Elizabeth's mother and
father, as well as Elizabeth Smart, dated April 9, 2003. I ask
unanimous consent that it be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
April 9, 2003.
U.S. Senate,
U.S. House of Representatives,
Washington, DC.
An Open Letter To The United States Senate and House of
Representatives:
We wish to express our sincerest appreciation to all of you
who have played such a key role in moving forward legislation
that includes the National Amber Alert. We applaud those
members of the conference committee who exhibited the
foremost cooperation in working out a compromise that will
greatly benefit every child in America.
Today, we are writing to encourage you to quickly pass this
legislation so that it can be signed into law. The Amber
Alert as well as other preventative measures will make an
immediate difference in safely rescuing those who are
abducted and in preventing crimes against children.
We can't begin to express our joy and gratitude in having
Elizabeth back home. It is our hope and prayer that immediate
passage will save countless families from the trauma and
sorrow caused by the senseless acts of those who prey on
children.
Sincerely,
Edward Smart.
Lois Smart.
Elizabeth Smart.
Mr. HATCH. Mr. President, I will take a moment to address some of the
significant components of this measure. First, the PROTECT Act of 2003,
which I and Senator Leahy introduced following the Supreme Court's
decision in Ashcroft v. Free Speech Coalition, has been my top
legislative priority since last year. Congress has long recognized that
child pornography produces three distinct, disturbing, and lasting
harms to our children. First, child pornography whets the appetites of
pedophiles and prompts them to act out their perverse sexual fantasies
on real children. Second, it is a tool used by pedophiles to break down
the inhibitions of children. Third, child pornography creates an
immeasurable and indelible harm on the children who are abused to
manufacture it.
It goes without saying that we have a compelling interest in
protecting our children from harm. The PROTECT Act strikes a necessary
balance between this goal and the first amendment. The PROTECT Act has
been carefully drafted to avoid constitutional concerns. The end result
of all of our hard work is a bill of which we can be proud, one that is
tough on pedophiles and child pornographers in a measured and
constitutional way.
The legislation also addresses AMBER alert, America's Missing
Broadcast Emergency Response. The bill will extend the AMBER alert
system across our Nation. Our entire Nation recently rejoiced with the
Smart family after Elizabeth was found alive and reunited with her
loved ones. Her discovery, facilitated by everyday citizens who
followed this case, demonstrates the importance of getting information
about these disappearances out to the public quickly.
When a child is abducted, time is of the essence. All too often, it
is only a matter of hours before a kidnapper commits an act of violence
against the child. Alert systems, such as the AMBER alert system,
galvanize entire communities to assist law enforcement in the timely
search for and safe return of child victims.
This legislation will enhance our ability to recover abducted
children by establishing a coordinator within the Department of Justice
to assist States in developing and coordinating alert plans nationwide.
The act also provides for a matching grant program through the
Department of Justice and the Department of Transportation for highway
signs, education and training programs, and the equipment necessary to
facilitate AMBER alert systems. I support the national AMBER Alert
Network Act because it will improve our ability on a national level to
combat crimes against our children.
Also, I want to take a moment to highlight another very important
measure. The legislation includes the Code Adam Act, which would
require Federal buildings to establish procedures for locating a child
that is missing in the building. The provision is named after the son
of John Walsh, the host of America's Most Wanted and the John Walsh
Show. As everybody knows, John Walsh's son, Adam, was kidnapped from a
mall in Florida and murdered in 1981. Retail stores around the country,
including Wal-Mart, have initiated Code Adam systems in memory of Adam,
and they have successfully recovered many missing children. This would
implement the same system for building alerts in all Federal buildings.
It is a measure I am proud to support in memory of John Walsh's son,
Adam, and in honor of John Walsh's commitment and vigilance to fighting
for crime victims and our children throughout the country.
On Tuesday, John Walsh attended the meeting of the conferees to
discuss this legislation. Yesterday, John Walsh issued the following
statement:
[[Page S5115]]
This incredible bill may be one of the most important
pieces of child protection legislation passed in the last 20
years. I commend Senator Hatch's leadership on the Judiciary
Committee and Chairman Sensenbrenner's leadership on the
House Judiciary. Pushing this bipartisan legislation through
is very appropriate during ``National Crime Victims' Rights
Week.'' This bill, which is a loud voice for the smallest
victims--children--has sent a loud message to those who would
prey upon our most vulnerable segment of society.
I also want to highlight other important measures contained in the
conference report that will enhance existing laws, investigative tools,
criminal penalties, and child crime resources in a variety of ways.
As the chart shows--the print is small--in addition to the PROTECT
Act, AMBER Act, and the Code Adam Act, the legislation would, No. 1,
provide a judge with the discretion to extend the term for supervision
of released sex offenders up to a maximum of life; No. 2, extend the
statute of limitations for child abductions and sex crimes to the life
of a child; No. 3, denies pretrial release for child rapists and child
abductors; No. 4, require a mandatory sentence of life imprisonment for
twice-convicted serious child sex offenders; No. 5, increase penalties
for kidnapping of under 18-year-old victims by nonfamily members; No.
6, add new wiretap predicates that relate to sexual exploitation crimes
against children; No. 7, increase penalties and provide prosecutors
with enhanced tools to prosecute those who lure children to porn Web
sites using misleading domain names; No. 8, reauthorize and double the
annual grant to the National Center for Missing and Exploited Children
to $20 million each year through 2005; No. 9, authorize funding for the
Sex Offender Apprehension Program to allow money to be used by local
law enforcement to track sex offenders who violate terms of their
release; No. 10, create a national Internet site for information
regarding registered sex offenders; No. 11, establish a pilot program
for national criminal history background checks and a feasibility study
in order to provide a background check process for volunteers working
for organizations, such as the Boys and Girls Clubs of America,
National Mentoring Partnership, and the National Council of Youth
Sports; No. 12, reauthorize grant programs to provide funding of child
advocacy centers; No. 13, reforms sentencing for criminals convicted of
crimes against children and sex crimes.
All of that is done in this particular bill. It is a very important
bill, as you can see.
The bill also institutes sentencing reforms so that criminals
convicted of crimes against children receive the stiff sentences they
deserve. This provision, which was adopted at the conference,
represents a significant compromise from the original House bill
containing the so-called Feeney amendment which passed the House by a
vote of 357 to 58. Indeed, the overall House bill passed the House by
an overwhelming vote of 410 to 14.
In response to concerns raised about the Feeney amendment, I worked
with Chairman Sensenbrenner, Senator Graham, and my colleagues to
develop a bipartisan compromise which was ultimately supported by not
only all of the Republican conferees, but by Democratic conferees as
well--Senator Biden, as well as Congressmen Frost, Matheson, and
Hinojosa.
The compromise proposal would:
No. 1, limit, but not prevent, downward departures only to enumerated
factors for crimes against children and sex offenses;
No. 2, change the standard for review of sentencing matters for
appellate courts to a de novo review, while factual determinations
would continue to be subject to a ``clearly erroneous'' standard;
No. 3, require courts to give specific and written reasons for any
departure from the guidelines of the Sentencing Commission; and
No. 4, require judges to report sentencing decisions to the
Sentencing Commission.
It is important to note that the compromise restricts downward
departures in serious crimes against children and sex crimes and does
not broadly apply to other crimes, but because the problem of downward
departures is acute across the board, the compromise proposal would
direct the Sentencing Commission to conduct a thorough study of these
issues, develop concrete measures to prevent this abuse, and report
these matters back to Congress.
For those who want to oppose these needed sentencing reforms, I
remind them that the Sentencing Reform Act of 1984 was designed ``to
provide certainty and fairness in meeting the purposes of sentencing,
avoiding unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar conduct.''
While the U.S. Sentencing Commission promulgated sentencing
guidelines to meet this laudable goal, courts, unfortunately, have
strayed further and further from this system of fair and consistent
sentencing over the past decade.
Let me refer to this chart. As the chart shows, during the period
1991, in the left part of the chart, to the year 2001, the number of
downward departures--in other words, soft-on-crime departures,
excluding those requested by the Government for substantial assistance
and immigration cases along the Southwest border--has steadily climbed.
In 1991, the number of downward departures was 1,241 and rose by 2001
to a staggering total of 4,098. This chart shows the rate of downward
departures has increased over 100 percent during this period--in fact,
almost four times--and nearly 50 percent over the last 5 years alone.
This problem is perhaps most glaring in the area of sexual crimes and
kidnapping crimes.
This chart of downward departures from sentencing guidelines for sex
crimes shows that during the last 5 years, trial courts granted
downward departures below the mandated sentencing in 19.20 percent of
sexual abuse cases, 21.36 percent of pornography and prostitution
cases, and 12.8 percent of kidnapping and hostage-taking cases. Think
about it: Downward departure in these types of cases that involve our
children. This many departures happens to be very disturbing and
astounding considering the magnitude of the suffering by our Nation's
youth at the hands of pedophiles, molesters, and pornographers.
Let me give one example of the abuse this sentencing reform will
correct. In one particular case, a defendant was charged--this is a
convicted child pornographer--with possession of 1,300 separate images
of child pornography, depicting young children in graphic and violent
scenes of sexual exploitation that were sickening and horrible. For
example, one of the images showed a young girl wearing a dog collar
while engaging in sexual intercourse with an adult male. This same
defendant was engaging in online sexual communications with a 15-year-
old girl.
The sentencing guideline for this defendant mandated--these are the
sentencing guidelines the distinguished Senator from Massachusetts, the
distinguished Senator from Delaware, and a number of us, including
myself, passed long ago--the sentencing guidelines for this defendant
mandated a sentence in the range of 33 to 41 months. Yet the trial
judge departed downward to a sentence of only 8 months, citing, No. 1,
the defendant's height. He was just short of 6 feet tall, and he said
that would make him vulnerable to abuse in prison. No. 2, he said the
defendant was naive. And No. 3, the defendant's demeanor--he was meek
and mild and compassionate.
We all have common sense, but this is simply incredible and
outrageous. Congress has to act, and it has to act now. The compromise
sentencing reform provisions contained in the conference report are a
reasonable and measured response to this problem.
The compromise proposal would simply require judges to sentence these
vicious defendants in accordance with the law and not seek new areas or
new legal justifications for reducing sentences for these defendants
without specific authorization from the U.S. Sentencing Commission.
Contrary to the oft-repeated claims of its opponents, the compromise
proposal is not a mandatory minimum. Judges handling these important
criminal cases can still exercise discretion to depart downward, but
only when the Sentencing Commission specifies the factors that warrant
a downward departure.
[[Page S5116]]
The other major reform in the compromise adopted in the conference
report is consistent with prevailing law, requiring de novo review of a
trial judge's application of facts to law. Indeed, this is the same
standard that applies to appellate review of critical motions to
suppress physical or testimonial evidence. There is no reason for
appellate judges to give deference to the trial judge on such questions
of law.
Even after the compromise amendment, the trial judge's factual
determinations will still be subject to great deference under a
``clearly erroneous'' standard. If a discretionary downward departure
is justifiable, it is difficult to understand why anyone would be
opposed to the appellate courts reviewing them under the same standard
that applies to other important areas of law.
I wish to take a moment to remind everyone to focus on the problem we
face: an epidemic of abuse of our children. According to the National
Center for Missing and Exploited Children--these facts really are not
only astounding, they are deplorable--in our country, 3.9 million of
the Nation's 22.3 million children between the ages of 12 and 17 have
been seriously physically assaulted, and 1 in 3 girls and 1 in 5 boys
are sexually abused before the age of 18. That is unbelievable, but
that is what is going on, and that is why this bill is so important.
That is why we need to pass it today.
Considered in this context, we can have an honest debate about the
issues, but we have an epidemic that needs to be addressed and
addressed now. We simply have no greater resource than our children. It
has been said that the benevolence of a society can be judged on how
well it treats its old people and how well it treats its young. Our
children represent our Nation's future, and I commend all of my
colleagues for their tireless efforts on behalf of children and
families and urge my colleagues to pass this critical
legislation. Quite frankly, our Nation's children deserve no less.
I know there are some misunderstandings from the conference, but
virtually everybody but a number of Democrats have signed off on this,
including a number of Democrats have signed off on this conference
report, knowing what it says, knowing what it means, knowing what it
was represented to mean. I acknowledge some of my dearest friends on
the other side feel otherwise, but I believe it was made quite clear
during conference what this actually means.
I urge my Democratic colleagues to stop any partisanship or partisan
gamesmanship and support this needed legislation. I do not think we
should let our children or our communities down. We need to pass this
legislation without delay and send it to the President.
The epidemic of downward departures in child pornography cases has
created what I like to call the ``Me Too'' sentencing pitch from the
defense. In a recent case in Kansas, the judge departed from the
Sentencing Commission's guideline sentence of 27-33 months in prison,
and imposed only probation. As part of the reason for the departure,
the court stated that it found defense counsel's argument compelling--
that in 27.4 percent of cases involving possession of child
pornography, sentencing courts have downwardly departed. In other
words, the problem is so out of hand, that defense attorney's point to
the downward departure statistics and say, ``Me too, Judge, Me Too.''
That is where we are. That is what we are trying to fix. I have to
say I have done my best to try to accommodate both sides. I do not know
how to accommodate them any differently. Even as late as today, I have
tried to see if there was any possibility, but there is not any. I
think those who stayed for the full conference knew exactly what was
involved, and it is a bipartisan bill. That is apparent from the size
of the vote over in the House.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, all of us understand the enormous human
tragedy that has been suffered by families in this country who have
experienced the abduction of their children. We have had tragic
situations in my own State of Massachusetts. All of us know the primary
importance of taking every possible step in order to make our children
safer. Secondly, if they are abducted, to rescue these children. And
finally, to have an appropriate kind of a penalty for those who would
be involved in such an extraordinary aberration of conduct and travesty
of justice and cruel action. These reasons stimulated the Senate to
pass the AMBER alert bill.
We have passed it in the Senate twice already. First, we passed it
once on September 10 of last year. I think many of us who supported it
at that time were very hopeful we would have had speedy action by the
House of Representatives and that they would have sent back to us. It
did not seem to us it would take a great deal of time given the needs
that are out there in the country. We could understand if the House
might want to take a look at it for a few days but report back
promptly. Nonetheless, we went through the session and there was no
action by the House of Representatives. So, again, on January 21, 2003,
it was sent over unanimously from the Senate of the United States, and
no action later in January, no action in February, no action in March,
and now, finally there is action in April. The House refused to act on
these bills on both occasions. Instead, they sent over a conference
bill loaded up with the provisions they knew would be strongly objected
to in the Senate.
We are enormously supportive of the AMBER bill, but we question and
wonder why it should carry with it such extraneous kinds of material
which this legislation in this conference report carries. In the final
hours of the consideration of the AMBER bill in the House of
Representatives, there was an amendment to the AMBER bill offered by
Congressman Feeney. In a period of 20 minutes, it was accepted without
any hearings. It was a part of the conference. The Feeney amendment
affected the whole issue of sentencing, not just for these kinds of
heinous crimes that take place against children but also against the
underlying concept of our criminal sentencing provisions, affecting
every type of criminal sentence, whether we are talking about
terrorists, murderers, burglars or white-collar crime.
The amendment had nothing to do with the abduction of children, but
would affect all of the other circumstances. It was never very clear
whether that was intended or not. What was brought to my attention and
concerned me was the observation that was made by the Chief Justice of
the Supreme Court. He observed the Feeney amendment will do serious
harm to the basic structure of the sentencing guidelines system and
seriously impair the ability of courts to impose just and responsible
sentences.
We are all for the AMBER legislation. We are all for the appropriate
kinds of penalties for those who are going to violate the law, but this
legislation is much more. However the Feeney amendment would do serious
harm to the basic structure of the sentencing guidelines system and
will seriously impair the ability of courts to impose just and
responsible sentences. This is not just an objection from the Senator
of Massachusetts, or from the Senate Democrats, this is an objection
expressed by the Chief Justice of the United States.
I was personally quite amazed that the Chairman of our committee did
not believe this kind of change in the criminal justice system was
sufficiently important. I am amazed that he would not support the
position of some of us who were conferees who suggested that we ought
to have a day of hearings to call in experts, perhaps even the Chief
Justice of the United States, or Congressman Feeney or others who might
be in favor of the amendment. This would be an opportunity to
understand what the implications were and whether or not it was going
to undermine the criminal justice system, as the Chief Justice of the
Supreme Court has suggested. But, no, that was turned down. That
suggestion that we have a hearing, chaired by Senator Graham of South
Carolina, the chairman of our Criminal Justice Subcommittee on the
Judiciary Committee was turned down. The suggestion that we might hold
a hearing with the understanding that we would expedite any of the
recommendations to make sure we were going to target whatever actions
we were going to take on the subject matter of the AMBER circumstance,
make
[[Page S5117]]
sure we got it right, that was rejected and turned down.
Then a second suggestion was made to ask the Sentencing Commission to
study this and report back in 180 days. Then, we would have an
opportunity to look at what the Sentencing Commission had recommended.
We could then either accept it or reject it or take whatever action in
180 days. The House of Representatives has taken its time in sending
this legislation over. We might be able to make a judgment about
whether this should be done or considered in this particular way.
Over the period of these past days, just prior to going to the
conference, I was amazed at the kind of additional support I received
for the Chief Justice's position. I am sure the chairman of the
committee received it as well.
The Judicial Conference of the United States said:
The Judicial Conference strongly opposes these sentencing
provisions because they undermine the basic structure of the
Sentencing Commission and impair the ability of the courts to
impose just and responsible sentences. We must note our
concern and disappointment with the lack of careful review.
Not 1 day of hearings; not 1 hour of consideration; 20
minutes of debate on the floor and the Senate Judiciary
Committee virtually accepted it.
Then it continues along to those three chairs of the Sentencing
Commission. These are individuals who have been accepted and approved
by advice-and-consent votes in the Senate: Dick Murphy, Richard Conboy,
William Wilkins. William Wilkins, certainly one of the important
conservative jurists who has served in the Federal court system, joined
in saying:
The sentencing provisions are farfetched and effectively
rewrite significant portions of the Sentencing Reform Act of
1984. No hearings have been held on a number of significant
provisions of the current legislation urged our rejection of
it.
The Conference on Civil Rights:
The Feeney amendment would eviscerate the right to depart.
American Bar Association:
This provision would fundamentally alter the carefully
crafted and balanced position formed by the Reform Act
without the customary safeguards and legislative process by
effectively eliminating judicial departures. The Feeney
amendment strikes a blow at judicial independence and sends
an unmistakable message that Congress does not trust the
judgment of the judges it has confirmed to offices.
Then we have the list of 618 professors of criminal law and
procedure:
Although adopted by the House with certainly no public
hearings or debate, the Feeney amendment would effect a
dramatic unwarranted change in Federal sentencing law.
Eight former U.S. attorneys in the Southern and Eastern Districts of
New York, one of the most important districts in the prosecution of
crime, all, Republican--most Republican and a handful of Democrats'
proposed legislation not only disregards the Sentencing Commission's
unique role, it also ignores Congress's own admonition.
Even Cato.
Business Civil Liberties, an organization affiliated with the
conservative Washington Legal Foundation, also said:
It sets a dangerous precedent for further restrictions on
Federal judges.
All of these groups. All within a matter of a few days.
We raised this in our conference and said we believe we ought to have
the time, either for the Judiciary Committee or the Sentencing
Commission, to review it if there were these kinds of observations and
criticisms.
I say this to underscore why these sentencing guidelines are
important. I was here in 1968 when the Brown Commission was set up on
the growth of violence in our society, criminal violence. The
Commission made a series of recommendations. One of them was that we
ought to recodify the Criminal Code because we had so many different
ways of interpreting intent--willfully, wantonly, knowingly,
unwillingly, lasciviously--all different kinds of mental tests that
could be distorted and misrepresented. And we did.
For the first time in 200 years, we recodified it; we took seriously
the recommendations. Unfortunately, the House of Representatives failed
in their responsibilities.
But one of the other very important recommendations was because of
the fact that one of the important reasons this Commission said there
had been the growth of crime was the enormous feeling among those
inside the criminal justice system and outside of the sentencing
provisions that were so wildly out of whack--the same crimes in
different jurisdictions and there was no confidence, either by the
victims or the defendants or any, in the justice system--that the
criminal sentencing provisions were effective, that they worked, or
were based upon justice.
So we went about it. We passed sentencing reform three different
times in the Senate of the United States before the House of
Representatives. It was finally worked out with the Reagan Justice
Department. Strom Thurmond was very much involved. It was a bipartisan
effort. So we were going to try to have some kind of rationality in the
assigning of the penalties for crimes in this country.
It is not without its failings. We understand that. There should be
strengthening and improvement. We understand that. But it has worked
pretty well.
In fact, a number of States are in the process of adopting very
similar guidelines. A number of the States are moving in the direction
which we had established. That is enormously important. I think that is
one of the things that has been effective.
In any event, when the time came for this discussion, I said: Why, if
we can't at least have an examination, since there is widespread
application of these provisions, why don't we just take the provisions
that apply to children, sex crimes, and say: OK, we'll let those
particular provisions that happen to be particularly restrictive, we
will let those apply to those kinds of conditions that are there for
the crimes that are included in the AMBER legislation?
I thought we had a discussion. I thought the chairman of our
Judiciary Committee--who is not the chairman of the conference--the
chairman of the committee agreed. I thought he agreed. Senator Hatch
repeatedly stated that at Tuesday's conference meeting that his so-
called ``compromise'' was limited to sex crimes and children. It
retained much of the underlying Feeney Amendment and dramatically
limited departures in all cases.
In his own works, Senator Hatch's remarks at conference were ``It's
important to note . . . that the compromise is limited to those serious
crimes against children and sex crimes and does not broadly apply to
other crimes''--and he put in a compromise and said to the Senator from
Massachusetts, on the question of having this apply to the children--
this makes sense and this is what this compromise will do. This is what
this compromise will do. These are the words that our chairman of our
Judiciary Committee used:
It's important to note . . . that the compromise is limited
to those serious crimes against children and sex crimes, it does not
apply aptly to other crimes.
Page 31--what do you conclude from that? That the amendment he puts
in was just as he implied, applied to children. Furthermore:
It is important to note that the compromise is limited to
these serious crimes against children--serious crimes against
children and sex crimes does not broadly apply to other
crimes. We're not changing the whole system, which I've tried
to do, at the urging of not of my friend from Massachusetts,
but judges and a number of other people.
Page 37:
Now, the compromise proposal would simply require judges to
sentence these vicious defendants, child criminals, I mean
defendants who are committing crimes against children, in
accordance with the law--[didn't have to sentence them in
accordance with the law]--and not seek to find new areas or
new legal justification for reducing the sentences for these
defendants without specific authorization for the United
States Sentencing Commission.
Do Members of this body believe that when you had a chairman of the
Judiciary Committee filing an amendment, which we had not seen, and
then give us assurance that that was the scope of that amendment, and
then to find out that that was not true and have it apply in a number
of other cases--would the members of the Judiciary Committee of the
Senate feel that they have been treated fairly? No. The answer is no.
It is important to note that the compromise--
Here it is again--
[[Page S5118]]
is limited to these serious crimes against children and does
not broadly apply to other crimes, which is what the Feeney
Amendment did.
Now, look, I have to admit I had my own qualms about the
totality of the Feeney amendment, and that's why I chatted
with the distinguished chairman of the House Judiciary
Committee, and that's why I chatted with a lot of others as
we, and experts in the field, and I believe we've made a
compromise here . . . .
It just goes on.
Then we received the assurances from the chairman of the Judiciary
Committee, and--listen to this--Chief Justice Rehnquist is worried
about the breadth and scope.
He is not worried about this. Where did he get that information?
Where did you get that information, Senator Hatch? That is not an
accurate statement. I don't think any Federal judge should worry about
which language. They know this language is to protect our children in
our society. We are limiting it to that. I am trying to solve this
problem.
I could go on. The fact is, in just a cursory examination of that
language, we saw that was not the case. In fact, the Hatch amendment
went way beyond sex crimes and children. It retained much of the
underlying Feeney amendment and dramatically limited departures in all
cases and eliminated for all cases departures based on age and physical
impairment, gambling dependence, aberrant behavior, family ties,
military, and good works.
This is what is still in there. It establishes de novo appellate
review of all departures. That applies to every single sentence. It
goes to the circuit court. That says to the circuit court judges: You
will look not at the trial court; look at the facts and the sentences,
but you look to de novo, overturning a unanimous Supreme Court.
It applies to every case, overturning a Supreme Court decision.
It prohibits in all cases downward departures on remands of new
grounds. It also chilled the departures in all cases by imposing
burdensome reporting requirement on judges who depart from the
guidelines. And it directed the Sentencing Commission to amend the
guidelines and policy statements ``to ensure that the incidence of
downward departures is substantially reduced'' in all cases.
In the departures, in all cases, by imposing burdensome reporting
requirements--do you know what the requirements are? They have to tell
someone in the Justice Department. Guess who. The Attorney General.
Every time you depart from the guidelines, the Attorney General will be
notified.
Talk about a blacklist for judges. The Attorney General will know. Do
not think that does not send a chill into every judge, to know if he is
going to make that kind of judgment, decision, in accordance with the
sentencing guidelines, that the Attorney General is going to know why.
Obviously, the proponents of the Feeney amendment understood it--in
order to chill that--to create a blacklist of judges. And everyone
knows that list will be published. That will be made available to the
committee. It will be made available in every community where the
judges go.
It still applies, not just to children's issues but to all cases--
does everyone understand that?--in all cases.
Then it directs the Sentencing Commission to amend the guidelines to
ensure that the incidents of downward departures are substantially
reduced in all cases, saying, look, we do not like these downward
departures, in spite of the fact that 80 percent of them were requested
by the Government and in spite of the fact that anytime you have a
downward departure, that is sufficient grounds to appeal. If there is a
concern, they can appeal that. If it is outside the scope of the
sentencing provision, it is remanded. That is the way the system works.
That is what we included. If it will be excessive, in terms of
downward, there is a remedy: Go to appeals. It has worked pretty well.
If not, let's go back and take a look and have a hearing.
But absolutely no--absolutely no.
So then we had spotted those raised, and we had the continued
assurances from the chairman of the Judiciary Committee that we did not
understand it. We just looked at this quickly and did not have a real
grasp of it. This was all done in a period of about 45 or 50 minutes.
We did not really understand it.
The way I have described it is the way it is. This is what happened
later. At 1:30 on Wednesday morning, more than 8 hours after Chairman
Sensenbrenner adjourned the conference, Senator Hatch's office
distributed a new, revised version of the Hatch substitute to the
Feeney amendment. At that hour, my staff was trying to figure out what
exactly was in the old Hatch substitute. It appears, after having
debated the Feeney amendment, the Hatch so-called compromise amendment,
my secondary amendment after having voted on the items in the final
conference report, the Republican conferees decided to change a
substantial portion of that conference report and then file it as a
technical amendment without reconvening the conference, to have the
Members vote on the new language. This procedure was, to say the least,
unorthodox.
At 1:30 in the morning, the revisioners describe it as a ``technical
change . . . made at the request of a democratic Senator.'' No mention
of by whom the request was made. Unless the request was for only minor
changing, it was not fulfilled.
At 1:34, the revision did not limit the Hatch amendment to serious
crimes against children. To the contrary, like the amendment before it
and the Feeney amendment before, the 1:34 revision broadly limits
judicial departures in no-child and non-sex cases in many ways.
It overturns the Koon case by establishing the de novo standard for
appellate review for all cases--still in there.
It still directs the Sentencing Commission to amend the guidelines
and policy statements ``to ensure that the incidence of downward
departures are substantially reduced.''
It still chills departures by imposing the burdensome reporting
requirements.
It is true that at 1:34 the revision improved the bill by limiting
restrictions on enumerated departure grounds to child and sex cases
only. And it strikes the early text limiting military service
departures. But the very idea that the Feeney amendment and the first
Hatch amendment limited military service departures in this time of war
shows how poorly considered the entire legislation has been.
The modest changes made in the 1:34 revision do not ameliorate the
devastating impact the Hatch amendment will have on our system of
criminal justice. They do not conform the amendment to the
representations made by Senator Hatch at our conference meeting. They
do not excuse the travesty of a process that has led to this provision
being inserted into a conference that was meant to deal with the AMBER
alert bill and other provisions involving the protection of children.
In reality, the Hatch amendment had nothing to do with the protecting
of children and everything to do with handcuffing judges, eliminating
fairness in the Federal sentencing system. That is what the Chief
Justice of the United States believes.
Our belief is that if there are changes that are necessary--and there
may very well be--we ought to have those changes made in an area of the
criminal justice system. If we have to change them in order to deal
with terrorism, let's do it. But to do this now, to represent the
changes only applied to the children and not to the other parts of the
provision, is not accurate and is a serious misrepresentation of what
we are doing.
I have been assured that there are provisions in this legislation
that go far beyond even the conference itself. It is interesting, we
established seven members of the Sentencing Commission, and we say not
fewer than three judges will be members of the Sentencing Commission.
That has changed, to be not more than three judges.
The idea that we have seen the number of judges who have served on
the Sentencing Commission, all of whom have been approved with the
advice and consent of the Senate and have been approved--the idea in
the early days of the Sentencing Commission was to bring more judges in
to bring greater confidence and get their involvement in the drafting
of the sentencing guidelines. That was the purpose. Now they complain
about the guidelines and say no more than three judges; so it will
[[Page S5119]]
never be more than three judges. There will always be more on the
outside than judges in the drafting of the sentencing.
That was all put in at conference. If someone can show where that was
in the Senate bill or the House bill--it was not there. It has
important implications in terms of the makeup and the guidance in terms
of the sentencing. But we found that out just in reading through the
process. No justification. No explanation.
Finally, all Members can understand action here in the Senate at the
times of enormous kinds of passion, when we see the circumstances of
children who are abducted and what has happened to them--one cannot
help but to understand that the feeling of the parents and Members is
to just throw the book out and go to it. That would have been
something, if the House of Representatives had done that when the facts
were there last fall--then it would have been something that could have
been done in January--but they did not. They waited all this time. And
then, they have not only taken those actions in terms of enhanced
penalties against the child abductors, all of which I was glad to
support--I would have supported it, and would support it still, not the
other provisions that have been included in it--but if he is truly
committed to protecting the children and upholding the fairness, I
would have hoped we could have at least restricted those provisions to
the sentencing that applied on those circumstances, but they did not.
That is why we are caught, all of us here, in the situation where we
are sufficiently concerned about the dangers that are out there in
terms of the abduction of children and conflicted with the kinds of
violence we are doing to the Sentencing Commission.
It is a lousy way to legislate, Mr. Chairman, and I deplore that we
are in this circumstance. But we will just have to see what steps are
available to us in the remaining time.
Mr. President, I would like to address the question of a judge's
authority to depart from the guidelines.
While this legislation alters the grounds on which a judge may depart
in certain child-related cases, it does not alter the basic legal
authority of a district court to department from the guidelines under
18 U.S.C. 3553 in other cases. Judges retain ultimate authority to
impose a just sentence within statutory limits, and today we reaffirm
that departures are an important and necessary part of that authority.
As one of the authors of the Sentencing Reform Act, I can say that
Congress did not intend to eliminate judicial discretion. We recognized
that the circumstances that may warrant departure from the guideline
range cannot, by their very nature, be comprehensively listed or
analyzed in advance. In interpreting the Act, both the Supreme Court
and the Sentencing Commission have emphasized this point. This is not a
partisan position. Judicial authority to exercise discretion when
imposing a sentence was and is an integral part of the structure of the
Federal sentencing guidelines and indeed of every guideline system in
use today. In the eloquent words of Justice Kennedy, when he wrote for
a unanimous Supreme Court to uphold the district court's authority to
depart downward in Koon:
The goal of the Sentencing Guidelines is, of course, to
reduce unjustified disparities and so reach toward the
evenhandedness and neutrality that are the distinguishing
marks of any principled system of justice. In this respect,
the Guidelines provide uniformity, predictability, and a
degree of detachment lacking in our earlier system. This,
too, must be remembered, however. It has been uniform and
constant in the federal judicial tradition for the sentencing
judge to consider every convicted person as an individual and
every case as a unique study in the human failings that
sometimes mitigate, sometimes magnify, the crime and the
punishment to ensue. We do not understand it to have been the
congressional purpose to withdraw all sentencing discretion
from the United States district judge.
According to Koon v. United States, 518 U.S. 81, 113 (1996).
In Koon, the Supreme Court held that a sentencing judge may depart
based on a factor identified by the Sentencing Commission, or even
based upon a factor discouraged by the Commission, as long as the
discouraged factor nonetheless justifies departure because it is
present in some unusual or exceptional way. Similarly, a sentencing
judge may always depart when a factor, unmentioned in the guidelines,
takes the case outside the heartland of cases covered by the
guidelines.
I do not agree that there is an epidemic of leniency in the Federal
criminal justice system. I do not regard the current rate of non-
substantial assistance departures as excessive. There is no such thing
as an excessive departure rate--the question is whether any particular
departure is warranted or unwarranted. That is a question for appellate
courts, not Congress. One of the reforms embodied in the Sentencing
Reform Act was the appealability of sentences. The government was given
the power to appeal downward departures under the act. Were downward
departures ``excessive'' presumably the government would have brought
more appeals than it has.
The Sentencing Reform Act recognized that departures are a healthy
and necessary component of a just guideline system. In 2001, when we
exclude those districts with departure policies designed to address the
high volume of immigration caseloads, the non-substantial assistance
departure rate is merely 10.2 percent. This reflects the proper
exercise of judicial discretion, by Article III judges, who have been
appointed by presidents of the United States and confirmed by the
Senate, in conformance with the mandate that Congress gave them in 18
U.S.C. Sec. 3553(b).
Indeed, the vast majority of downward departures granted by judges
today are those sought by the government, most to reward substantial
assistance in the prosecution of crime. And, while departures have
increased somewhat of late, government initiated departures lead the
rising departure rate.
I am gratified that the concerns voiced by the Federal Judicial
Conference, the American Bar Association, and others concerning the
high rate of downward departures requested by prosecutors have been
recognized in the version of the Feeney Amendment approved by the
conference committee. The bill now requires that the Sentencing
Commission:
. . . review the grounds of downward departure that are
authorized by the sentencing guidelines, policy statements,
and official commentary of the Sentencing Commission; and
promulgate, pursuant to section 994 of title 28, United
States Code (A) appropriate amendments to the sentencing
guidelines, policy statements, and official commentary to
ensure that the incidence of downward departures are
substantially reduced.
I welcome this call for a thorough and impartial review of all
downward departures, whether requested by the prosecution or the
defense. Only a review embracing all downward departures will provide
the Commission the information necessary to fulfill the mandate of this
legislation.
A district court may depart from a guideline range whenever the
unusual circumstances or combination of circumstance of a case take it
outside of the ``heartland'' of cases covered by the relevant
guideline. Other than in certain child-related cases, this legislation
does not limit or lessen the myriad potential grounds for departure
currently available to district courts in making sentencing decisions
nor is it intended to discourage departure decisions when the unusual
circumstances of a case justify a sentence outside the recommended
range. It also is not intended to transfer authority over sentencing
decisions from judges to prosecutors.
In that light, I must express my deep concern for the provision of
the legislation that requires the Commission to report to the Judiciary
Committees of the Congress and even to the Attorney General
confidential court records and even ``the identity of the sentencing
judge.'' I do not believe that this provision serves any legitimate
interests of the Congress. I do not believe that authorizing disclosure
of this information to the executive branch is warranted. I have deep
concerns that this provision lacks the respect owed by the Congress to
a co-equal branch.
I remain convinced that his legislation is flawed and results from a
hasty and unreliable process that ill serves us. It is my view that the
directive to the Commission ``to promulgate . . amendments . . . to
ensure that the incidence of downward departures are substantially
reduced'' is inappropriate. It puts the cart before the horse and is
based on faulty numbers of the incidence of departures that have been
[[Page S5120]]
relied upon by some proponents of the legislation. The better course
would be for the Commission to study and report on the question.
Because the Feeney amendment was presented without discussion or debate
and at the last possible moment, Congress was deprived of balanced and
full information concerning the issue of whether departure decisions
are made in inappropriate instances. Even without the opportunity to
respond in detail to the amendment, the Commission did produce
statistics and information that refute the reliability and credibility
of the information used in promoting the notion that departures
decisions are made too frequently or inappropriately. Indeed, a fact
that was withheld by proponents of the amendment, close to 90 percent
of departure decisions are made at the request of or with the support
of the government and that number may be even higher.
For these reasons, I hope and expect that this legislation will not
unduly restrict departures or impede the appropriate development of
guideline departure common law. And we need to review the entire system
in light of these changes to make sure that we are letting judges carry
out their responsibility to impose just and responsible sentences.
I ask unanimous consent that the following letters in opposition to
the proposal be included in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Supreme Court of
the United States,
Washington, DC.
Hon. Patrick Leahy,
U.S. Senator, Russell Senate Office Building, Washington, DC.
Dear Senator Leahy: I am responding to your letter of March
31, 2003, that requested the views of the Judicial Conference
of the United States on a number of specific provisions of a
sentencing-related amendment to H.R. 1104. By now you will
have received Ralph Mecham's letter, dated April 3, which was
sent to other Judiciary Committee members as well, expressing
the concerns of the judiciary about the amendment. More
specifically, the Judicial Conference:
1. Opposes legislation that would eliminate the courts'
authority to depart downward in appropriate situations unless
the grounds relied upon are specifically identified by the
Sentencing Commission as permissible for the departure.
2. Consistent with the prior Judicial Conference position
on congressionally mandated guideline amendments, opposes
legislation that directly amends the sentencing guidelines,
and suggests that, in lieu of mandated amendments, Congress
should instruct the Sentencing Commission to study suggested
changes to particular guidelines and to report to Congress if
it determines not to make the recommended changes.
3. Opposes legislation that would alter the standard of
review in 18 U.S.C. Sec. 3742(c) from ``due deference''
regarding a sentencing judge's application of the guidelines
to the facts of a case to a ``de novo'' standard of review.
4. Opposes any amendment to 28 U.S.C. Sec. 994(w) that
would impose specific record keeping and reporting
requirements on federal courts in all criminal cases or that
would require the Sentencing Commission to disclose
confidential court records to the Judiciary Committees upon
request.
5. Urges Congress that, if it determines to pursue
legislation in this area notwithstanding the Judicial
Conference's opposition, it do so only after the Judicial
Conference, the Sentencing Commission, and the Senate have
had an opportunity to consider more carefully the facts about
downward departures and the implications of making such a
significant change to the sentencing guideline system.
I believe these Conference positions respond to most of the
questions posed in your letter. Please note, however, that
the Conference did not specifically oppose the provisions
mentioned in your third and fourth questions. These
provisions would amend U.S.S.G. Sec. 3E1.1 and promulgate new
policy statement U.S.S.G Sec. 2K2.23. The Conference
considered these provisions in adopting its opposition to
direct congressional amendments of the sentencing guidelines.
The Conference did not take positions on the provisions noted
in your seventh and eighth questions. These would primarily
affect the Department of Justice.
As stated in the April 3 letter, the Judicial Conference
believes that 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. Before such
legislation is enacted there should, at least, be a thorough
and dispassionate inquiry into the consequences of such
action.
Sincerely,
William H. Rehnquist.
____
Judicial Conference
of the United States,
Washington, DC, April 3, 2003.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary, U.S. Senate, Dirksen
Senate Office Building, Washington, DC.
Dear Mr. Chairman: This provides the views of the Judicial
Conference of the United States with regard to Section 109
(``Sentencing Reform'') of S. 151, the ``Child Abduction
Prevention Act,'' as passed by the House of Representatives
on March 27, 2003. The Judicial Conference strongly opposes
several of these sentencing provisions because they undermine
the basic structure of the sentencing system and impair the
ability of courts to impose just and responsible sentences.
At the outset, we must note our concern and disappointment
with the lack of careful review and consideration that this
proposal has received. While it constitutes one of the most
fundamental changes to the basic structure of sentencing in
the federal criminal justice system in nearly two decades,
the review by Congress to date consists of a hearing at the
subcommittee level in the House of Representatives on only
part of Section 109 and limited debate on an amendment on the
House floor. The Senate has held no hearings on this
legislation at all. Neither the Judicial Conference nor the
Sentencing Commission has been given a fair opportunity to
consider and comment on this proposal. In our opinion,
provisions that would have a significant impact on the
administration of criminal justice should not be resolved
without careful study and deliberation. The risk of
unintended consequences should not be taken on such an
important matter.
Section 109(a) of this bill would amend 18 U.S.C.
Sec. 3553(b) to restrict courts' authority to depart downward
from the sentencing guideline range to those situations
specifically identified by the Sentencing Commission as
grounds for downward departures. The Sentencing Reform Act of
1984 created a system of prescriptive sentencing, but
Congress wisely recognized that any system that provides for
sentencing based upon fixed sentencing factors should include
a means to impose a just and responsible sentence on the rare
defendant whose offense is not addressed by those sentencing
factors. The means chosen was to allow for either upward or
downward departures if the court finds ``an aggravating or
mitigating circumstance of a kind, or to a degree, not
adequately considered by the Sentencing Commission.'' This
system recognizes that a court should possess the authority
to consider unforseen circumstances it deems relevant to
sentencing determinations, and we urge the current system be
retained.
Sections 109(b), (g) and (i) make specific changes to
existing sentencing guidelines to among other things,
restrict the bases for downward departures. The Judicial
Conference opposes direct congressional amendment of the
sentencing guidelines because such amendments undermine the
basic premise in establishment of the Commission--that an
independent body of experts appointed by the President and
confirmed by the Senate is best suited to develop and refine
sentencing guidelines. We recommend instead that the
Sentencing Commission be directed by Congress to study the
amendment of any particular guideline and either adjust the
guideline or report to Congress the basis for its contrary
decision.
Section 109(d) would alter the standard of appellate court
review of departure decisions from ``due deference''
regarding a sentencing judge's application of the guidelines
to a ``de novo'' standard of review. In Koon v. United
States, 518 U.S. 81 (1996), the Supreme Court interpreted the
``due deference'' standard to require appellate courts to
review district court departure decisions for abuse of
discretion. The Judicial Conference opposes rescission of the
current standard, which recognizes that district judges are
better positioned to decide departures, and the substitution
of de novo review, which would not adequately guide courts in
subsequent departure cases that, by their very nature, are
not amenable to useful generalization.
Section 109(h) would amend 28 U.S.C. Sec. 994(w) to require
the chief judge of each district to assure that certain
sentencing records, including the judgment, statement of
reasons plea agreement, indictment or information, and
presentence report, are forwarded to the Sentencing
Commission. Current law, by contrast, requires the sentencing
court or other officer to transmit to the Sentencing
Commission a ``written report of the sentence'' and other
information as determined by the Sentencing Commission,
recognizing that the Commission is best able to determine the
information it needs to fulfill its statutory
responsibilities. We oppose this additional burden upon the
courts.
This section would further require the Commission, upon
request, to provide these newly specified documents to the
Senate and House Judiciary Committees. This provision raises
two serious concerns. First, presentence reports are retained
within the control of the courts and the Department of
Justice in order to protect the safety and privacy of
individuals identified in the course of criminal prosecutions
and sentencings. In the absence of strict accommodations to
protect this sensitive information, we believe this practice
should be retained. Second, we oppose the systematic
dissemination outside the court system of judge-identifying
information in criminal case files. The Sentencing Commission
compiles and releases annually comprehensive
[[Page S5121]]
statistics on all federal sentences. Among other things,
this data provides for each court the percentage of
defendants who receive substantial assistance departures
and the percentage of defendants who receive other
downward departures. We urge Congress to meet its
responsibility to oversee the functioning of the criminal
justice system through use of this and other information
without subjecting individual judges to the risk of unfair
criticism in isolated cases where the record may not fully
reflect the events leading up to and informing the judge's
decision in a particular case.
In the event that Congress determines to go forward with
this legislation, we urge that, at the least, the Judiciary
Committees await the results of ongoing studies into downward
departures being conducted by the Sentencing Commission and
the General Accounting Office. To underline this point, an
Associate Deputy Attorney General testified to a House
Judiciary subcommittee why the ``disturbing trend'' in
downward departures in non-immigration cases on grounds other
than substantial assistance to the government justified
``long overdue reform'' in sentencing procedures. The
Department of Justice statement cited statistics to prove
this point; that is, these downward departures rose from 9.6
percent of cases in FY 1996 to 14.7 percent of cases in 2001.
The fact is that there were 5,825 more non-substantial
assistance downward departures in FY 2001 than in FY 1996. Of
the increase, 4,057 occurred in the five southwest ``border
court'' districts and 1,755 occurred in the other 89 United
States district courts. In other words, the ``border''
districts accounted for almost 70 percent of the increase.
The ``disturbing trend'' is not a national trend, but one
more vivid measure of the crisis in the administration of
criminal justice on the border. S. 151 recognizes that high
downward departures in the border courts are a special
circumstance and cannot be eliminated. By no means do
``border court'' problems and statistics support the
elimination of this type of downward departures in all other
district courts.
It is also important to note that, popular conceptions
notwithstanding, the fact that a defendant is granted a
``downward departures'' does not mean that the defendant was
not punished adequately for the crime. Eight-five percent of
defendants granted non-substantial assistance departures in
FY 2001 were sentenced to prison.
Finally, we strongly recommend that, after the data on
downward departures is compiled and analyzed, hearings be
held so that the views of the various entities with interest
in federal criminal sentencing can be carefully considered
with regard to the ramifications of his proposal. Congress
should not alter the sensitive structure of the sentencing
system without reasonable certainty as to the consequences of
such legislation.
We appreciate your consideration of the views of the
Judicial Conference on this significant legislation. If you
have any questions regarding these views, please do not
hesitate to contact me at 202/273-3000. If you prefer, you
may have your staff contact Michael W. Blommer of the Office
of Legislative Affairs at 202/502-1700.
Sincerely,
Leonidas Ralph Mecham,
Secretary.
____
U.S. Sentencing Commission,
Washington, DC, April 2, 2003.
Subject: S. 151/H.R. 1104, the ``Child Abduction Prevention
Act.''
Hon. Orrin Hatch,
Chairman, Senate Committee on the Judiciary, Hart Office
Building, Washington, DC.
Hon. Patrick Leahy,
Ranking Member, Senate Committee on the Judiciary, Dirksen
Office Building, Washington, DC.
Dear Senators Hatch and Leahy: We, the voting members of
the United States Sentencing Commission, join in expressing
our concerns over the amendment entitled ``Sentencing
Reform'' recently attached to the Child Abduction Prevention
Act of 2003, H.R. 1104, 108th Cong. (2003) (hereinafter
``H.R. 1104''). In the past, with an issue of such magnitude,
Congress has directed that the Commission conduct a review
and analysis which would be incorporated in a report back to
Congress. The Commission is uniquely qualified to serve
Congress by conducting such studies due to its ability to
analyze its vast database, obtain the views and comments of
the various segments of the federal criminal justice
community, review the academic literature, and report back to
Congress in a timely manner. Indeed, such a process is
contemplated by the original legislation which established
the Commission over 15 years ago. See 28 U.S.C. Sec. 994(o).
It is the Commission's understanding that the impetus for
this proposed amendment to H.R. 1104 was congressional
concern over the increasing rate of departures from guideline
sentences for reasons other than substantial assistance. We
share this concern. In fact, the Commission is undertaking an
expansive review and analysis of all non-substantial
assistance departures. That work has already yielded
important preliminary data.
Based on this preliminary data, it appears that there are a
number of factors that need to be examined and understood
before drawing conclusions on the non-substantial assistance
departure rate. One such factor is the impact on the non-
substantial assistance departure rate resulting from policies
implemented in a number of districts in an effort to deal
with high volume immigration caseloads. For example, in 2001,
the overall non-substantial assistance departure rate was
18.3 percent. If those districts with departure policies
crafted to address these high volume immigration caseloads
are filtered out, the non-substantial assistance departure
rate is reduced to 10.2 percent.
In addition to the impact of the problems unique to
districts with high volume immigration caseloads, other
factors deserve analysis:
(1) the impact, if any, of departures for reasons other
than substantial assistance that are the subject of plea
agreements and the extent of judicial oversight of such plea
agreements;
(2) the extent to which courts depart for reasons
identified by the Sentencing Commission and specified in the
guidelines as compared to factors unmentioned in the
guidelines;
(3) the extent, if at all, of disparity in departures
within circuits and districts and whether such disparities
may be unwarranted;
(4) the advisability of creating different grounds for
upward and downward departures;
(5) the extent of appeals of departures; and
(6) whether there are particular offense types that reflect
unwarranted rates of departure.
When Congress created the Sentencing Commission as part of
the Sentencing Reform Act of 1984, it did so with the idea
that the Sentencing Commission would establish policies that
would provide certainty and fairness in sentencing and would
avoid unwarranted sentencing disparities among defendants.
See 28 U.S.C. Sec. 991(b)(1). Congress also recognized,
however, that guideline sentences would not fit all cases and
instructed the Commission to maintain sufficient flexibility
in the drafting of guidelines to permit individualized
sentences when warranted by mitigating or aggravating factors
not otherwise taken into account. See 28 U.S.C.
Sec. 991(b)(1)(B). Based on this congressional policy, the
Commission developed the concept of permitting courts to
depart either upwards or downwards in unusual or atypical
cases that fell outside the ``heartland'' of a particular
guideline. The Commission adopted the departure policy not
only to carry out congressional intent but also in
recognition of the limits of adopting a perfect guideline
system that would address all human conduct that might be
relevant to a sentencing decision. Such a policy also was
important in order to give feedback to the Commission as to
whether a particular guideline should be reexamined because
of an unusually high upward or downward departure rate. These
departures have developed over time and have been adjusted
throughout the history of the guidelines with the benefit of
input from Congress, the federal criminal justice community,
and considerable sentencing data.
We would note that there are numerous non-substantial
assistance departures, both upward and downward, that appear
in other than Chapter Five of the Guidelines Manual. The
proposed amendment to H.R. 1104 deletes many of these
departure provisions. For example, Chapter Four provides for
a departure if the court finds that a defendant's criminal
history category significantly either under- or over-
represents the seriousness of a defendant's criminal history.
See USSG Sec. 4A1.3. Similarly, USSG Sec. 2B1.1 in Chapter
Two provides for a departure either up or down if the court
determines that the offense level, which is primarily
determined by the amount of the loss, either substantially
under- or over-states the seriousness of the offense. Were
the proposed amendment to be adopted, it would bar a court
from downwardly departing in an appropriate case in each of
the above examples.
The amendments being proposed in this legislation change
not only departure guideline policy, but also alter the
traditional way in which guideline revisions are implemented.
The Commission would respectfully suggest that in order for
the Commission to fulfill its statutory purposes as well as
be of assistance to Congress in addressing its concern with
respect to increased departure rates--a concern which the
Commission shares--Congress might instead direct the
Commission to review departures, recommend changes where
appropriate, and then report back to Congress within 180
days. Such an approach would be in accordance with the
procedure set forth by Congress when it established the
Commission as well as with historical precedent. See 28
U.S.C. Sec. 994(o).
Thank you for your consideration of our concerns.
Sincerely,
Diana E. Murphy,
Chair.
Ruben Castillo,
Vice Chair.
John R. Steer,
Vice Chair.
William K. Sessions, III,
Vice Chair.
Michael O'Neill,
Commissioner.
The PRESIDING OFFICER (Mr. Smith). The Senator from Utah.
[[Page S5122]]
Mr. HATCH. Mr. President, I don't know anybody on the Senate floor
who can roar better than my ``lion'' friend from Massachusetts. He is a
great Senator. And he certainly feels very deeply on this issue.
Apparently I have irritated him, and I feel sorry about that, but he is
totally wrong in what he says. I can see why he might feel that way.
Now, let me just say this, that I believe the letters that he was
referring to, with regard to the courts of this country complaining
about this, were before the compromise we enacted in this particular
conference report. I got a lot of complaints, too. That is why I tried
to make the change and worked it out with Chairman Sensenbrenner and
others in the House who were not very happy to make the change.
My friend called and said: Can you do something in this area? I said
I would try, which I did. And we came up with the Hatch-Graham-
Sensenbrenner amendment. I apologize for my voice, but I have semi-
laryngitis. But we came up with the Hatch-Graham-Sensenbrenner
amendment, which I believed moved this in the right direction and I
thought would please my friend from Massachusetts, but it did not.
Now, it needs to be pointed out that this is a bipartisan conference
report. On the Senate side, we voted for this report 5 to 2, meaning it
was bipartisan. On the House side, they voted in larger numbers for
this report.
I have to mention that neither the distinguished Senator from
Massachusetts nor the distinguished Senator from Vermont signed the
conference report, so they did not agree with it. And I understand that
they are upset about the language in the report. I cannot help that.
But we are talking about only 2 percent of the cases that are
affected by this departure language--only 2 percent of all the cases. I
thought I did a pretty good job in getting it done.
I have to mention one other thing: the distinguished Senator from
Massachusetts talking about a blacklist for judges, because he claims
that these reports have to be sent to the Attorney General.
Well, remember, sometimes Attorneys General are Republican and
sometimes they are Democrat. I think most Attorneys General really try
to do a good job. I know the current one is trying to do his best job
against crime in this society. The current Attorney General approved
and was for the original Feeney language--which we changed--and so were
many Members of the House. They were not happy with this change.
Let me just make some points here that are important. It is not
surprising that the American Civil Liberties Union, the Federal Public
Defenders, the American Bar Association, and the Judicial Conference
have opposed the Feeney amendment.
One seriously wonders what would have been heard from the ABA, the
ACLU, the Leadership Conference on Civil Rights, and others if upward
departures--in other words, making it tougher on crime--had grown at
the absurd and dizzying rates that downward departures have.
Can anyone seriously believe that they would have been asking for
more time to study this issue if upward departures had gone out of
control, like these downward departures, that are skyrocketing?
So everybody in our country understands, we have judges on the
bench--not many, but enough--who, in these child molestation, child
degradation, and child pornography cases--these children's criminal
cases--who are continually reducing the sentences recommended by the
Sentencing Commission for these criminals who are hurting our children.
Look at this chart. Since 1991, when there were 1,241 downward
departures--or lesser sentences for these types of people--we are now
up to 4,098 in 2001. And I am sure it was much higher for 2002 and that
for 2003 it will be much higher.
Can anyone seriously believe that these liberal groups would be
asking for more time to study this issue, as is being asked for here? I
suspect there would be a loud, steady drumbeat for swift legislative
action by Congress to stop such an outrage--not more time for the
Sentencing Commission to study the issue--that is, if the upward
departures, in other words, the tougher on crime departures, were
followed by the courts. Well, that isn't the case. These are downward
departures, making it easier on these pedophiles, sex criminals, child
rapists, child pornographers.
I further suspect that these groups would not have waited as long and
as patiently as we have in watching downward departures increase
steadily year after year, making it easy on criminals who do these
types of things to our children.
Additionally, I am not surprised the Judicial Conference is opposed
to this amendment, if it is.
It is important to note, however, the compromise is limited to these
serious crimes against children and sex crimes. But because the problem
of downward departures is acute across the board, the compromise
proposal would direct the Sentencing Commission to timely conduct a
thorough study of these issues, develop concrete measures to prevent
and limit this abuse--this abuse of downward departures, making it easy
on child molesters--and report these matters back to Congress.
In fact, to place this matter in historical context, in debate on the
Sentencing Reform Act, the distinguished Senator from Massachusetts
observed, with respect to the Judicial Conference and sentencing
disparity, the following:
With all due respect to the Judicial Conference, the judges
themselves have not been willing to face this issue and to
make recommendations and to try and remedy this situation.
He acknowledges that some judges are out of control on these issues.
And I think this chart shows they are out of control in children's
cases, and it is time to stop it. That is what this bill does.
Along these lines, consider the following disparity, demonstrating
the increasing undermining of the sentencing guidelines by some of
these judges. The average downward departure rate for nonsubstantial
assistance cases in the Fourth Circuit is 5.2 percent, while in the
Tenth Circuit it is 23.3 percent. The average downward departure rates
are making for easier sentences for these sex criminals. It is this
type of sentencing disparity that risks turning our criminal justice
system of sentencing into--to borrow yet another phrase from Senator
Kennedy on this issue--``a system of roulette.''
I urge support for this conference bill. It squarely increases
punishment for child-related crimes and ensures that those who commit
these crimes are incarcerated accordingly. And it says the game is over
for judges: You will have some departure guidelines from the Sentencing
Commission, but you are not going to go beyond those, and you are not
going to go on doing what is happening in our society today on
children's crimes, no matter how softhearted you are. That is what we
are trying to do here. We are tired of it. I am tired of having
children abused. This bill will go a long way toward stopping that kind
of abuse.
Let me talk about departure rates and the amounts for child-related
crimes. The conference report addresses the glaring penalty gaps that
exist in the sentencing guidelines. The bill represents a compromise
from various points of view. I did my best to try to get a compromise
that I hoped my colleagues on the other side would be happy with.
They are not, some of them. But I have to say that the distinguished
Senator from Delaware was. He voted with us on this conference report,
as he should have. I believe others on the committee should have also.
For instance, there was one view that believed all downward departures
should be banned, all of them. That was a view by some. The Feeney
amendment, approved in the House before conference, moderated that view
by merely limiting departures. I cosponsored an amendment in the
conference with Chairman Sensenbrenner and Senator Graham that we have
been talking about that went even further by limiting departures
related to crimes victimizing children. This bill puts a stop to the
very troubling practice of certain trial courts which depart from the
sentencing guidelines in crimes involving children and sex crimes.
The following very troubling statistics related to child crimes
demonstrate why this is necessary. According to the Sentencing
Commission's 2001 Sourcebook of Federal Sentencing Statistics, trial
courts reduce the sentence of those convicted of sexual
[[Page S5123]]
abuse of children from the guidelines over 16 percent of the time.
Think of it. Why do we have these sentencing rules to begin with if
they are not going to be followed, especially in these children's
cases?
On average, child courts reduce the sentences of those convicted of
sexual abuse by an astonishing 63 percent from the guideline range. I
would think my colleagues would want to put a stop to that kind of
inappropriate decisionmaking by some judges. For those convicted of
pornography and/or prostitution-related offenses, trial courts departed
from the recommended guidelines over 18 percent of the time, reducing
these defendants' sentences by a staggering 66 percent. Think about it.
We are going to let that continue just because some of these groups
don't like it or want to be more compassionate towards these criminals?
This many departures and this amount of sentencing reductions are
astounding given the trauma inflicted on victims of these particular
types of offenses, and require us in Congress to step in and ensure the
sentences in these areas remain uniform and consistent with national
expectations.
Let me add an overall perspective to this compromise. The compromise
agreed to in conference will affect only crimes against children and
sex crimes; that is, sexual abuse, pornography, prostitution, and
kidnapping/hostage taking. These types of cases represent only 2
percent of the Federal criminal caseload. This is only 2 percent of the
cases that would have been affected by the original Feeney amendment--
they all would have been affected by the original Feeney amendment--and
only 2 percent of the cases that would have been affected by the
version that passed the House by an overwhelming 357 to 58 vote. And we
have complaints about this?
Hopefully in the future the Sentencing Commission will more closely
monitor these types of disparities and will step in to fix these
problems in a timely manner. However, when they do not, it is incumbent
upon the Congress to do so. That is precisely what this bill does. We
say in this bill: We are sick of this, judges. You are not going to do
this anymore except within the guidelines set by the Sentencing
Commission. There will be downward departures, but they will meet the
guidelines and not just be off-of-the-top departures like the 190 pound
man, five feet 11, almost six feet tall, who had committed a child
crime and got reduced 400 percent or more.
It is absurd to suggest the Sentencing Commission should be given
time to study this issue. The Sentencing Commission has been aware that
Congress was greatly concerned about this problem since the year 2000,
even before then. Indeed, these very issues were squarely raised with
the Sentencing Commission during the Senate hearing in October 2000.
Both Senators Thurmond and Sessions directed many questions at the
commissioners and others about their concerns that trial judges
systematically undermine the sentencing guidelines by creating new
reasons to reduce these sentences.
Indeed, Senator Sessions expressed his concerns about the troubling
trend of departures based on novel and creative reasons directly to the
chair of the Sentencing Commission.
Senators Thurmond and Sessions were assured the Sentencing Commission
intended to address this issue by including it in a larger report due
November 2002, addressing how well the guidelines were accomplishing
the statutory purposes of sentencing. It is now 6 months beyond the due
date, and no such report has been produced. In fact, the Sentencing
Commission announced just this past March it has completed portions of
the report on cocaine sentencing and surveys related to Federal judges.
However, as to the departure issues raised at the Senate hearing, the
Sentencing Commission continues to study the issue, 2 years, 3 years
later. It is apparent this issue, while an obvious priority to the
Congress, is simply not a priority to the Sentencing Commission. And we
have done something about it in this conference report that has
bipartisan support. After having decided we can no longer be held
hostage to the schedule set to study this issue by the Sentencing
Commission, only to watch it unilaterally change, action is now even
more necessary.
It has now been over 2 years since Congress highlighted this problem
in an oversight hearing. Further delay would effectively abdicate our
responsibilities as legislators and politically accountable members of
our society, something the Sentencing Commission and the ACLU and the
ABA and other groups are not.
With regard to the Hatch-Sensenbrenner-Graham compromise amendment,
this amendment limits, but does not prevent, downward departures only
to enumerated factors for crimes against children in sex offenses
including, one, kidnapping; two, kidnapping involving a minor victim;
two, sex trafficking of children; three, sexual abuse crimes; four,
sexual exploitation and other abuse of children; five, transportation
for illegal sexual activity and related crimes; and, six, obscenity.
Changes in the standard for review of sentencing matters for all cases
in Federal courts to a de novo review while factual determinations
would continue to be subjected to ``a clearly erroneous'' standard.
We require the courts to give specific and written reasons for any
departure from the guidelines. That is a logical thing to do. We
require the judges to report sentencing decisions to the Sentencing
Commission. They don't like that because that means more work. I have
to confess, I sympathize somewhat with these judges because they are
being paid less than a number of law review graduates in their first
year in private practice. The fact they don't want to increase their
workload, I don't blame them for that. But it seems to me in this case,
it is certainly justified.
Contrary to the oft repeated claims of the opponents, the compromise
proposal is not a mandatory minimum. Judges handling these important
criminal cases can sometimes exercise discretion to depart downward,
but only when the Sentencing Commission specifies the factors that
warrant a downward departure, only when they have the right to do so as
listed by the Sentencing Commission. That seems to me just a gimmick.
Yet we have had all this fuss and bother over this.
Requiring de novo review of a trial judge's application of the facts
to the law is totally reasonable. This is the same standard that
applies to appellate review of critical motions to suppress physical or
testimonial evidence. There is no reason for appellate judges to give
deference to the trial judge in such questions of law.
Even after my compromise amendment, the trial judge's factual
determinations would still be subject to great deference under a
``clearly erroneous'' standard. If a discretionary downward departure
is justifiable, it is difficult to understand why anyone would be
opposed to the appellate court's reviewing them under the same standard
that applies to other important areas of law.
I hope my colleagues are not obstructing this bill, because they are
upset they didn't get their way in the conference--when, in fact, they
were defeated 5 to 2 on these issues. To suggest the conference report
suffers from a procedural flaw, I think, is going way too far. They
argue, incredibly, that the Hatch-Sensenbrenner-Graham amendment to the
Feeney amendment to the House bill was improperly modified in
conference. That is simply ridiculous and we all know it. What occurred
was straightforward.
In response to Democratic concerns raised about the drafting of the
Hatch-Sensenbrenner-Graham amendment to the conference report, we made
a number of technical changes to comport with Democratic Senator
Biden's understanding of the amendment, as well as concerns raised by a
Congressman during the conference, as to the meaning of one particular
provision. In good faith, my staff addressed these technical drafting
issues and made certain revisions to comport with these Democratic
suggestions.
Senator Biden was right. I agreed with these changes. Senator Biden
agreed with these changes as well. He voted for the conference report.
Keep in mind these changes had the effect of cutting back on the
restrictions contained in the Feeney amendment as it applies to
sentencing decisions by judges to ensure that the restrictions apply
only in a limited category of cases. In the end, Democratic members
[[Page S5124]]
to the conference report--Senator Biden and Representatives Frost,
Hinojosa, and Matheson--all supported the conference report.
For some Democratic members to now complain about the process is
simply unfair, and I question those positions. I would like to refer to
the transcript my colleague was referring to because he believes I
represented one thing when in fact I meant another.
Let me start with line 759:
Chairman Hatch. The proposed amendment would, and I hope my
colleague from Massachusetts will listen carefully to this--
Ted, if I could get you to listen to this.
Senator Kennedy. Yes.
Chairman Hatch. Because, hopefully, this will help some of
your concerns.
The proposed amendment would limit, but not prevent,
downward departures only to enumerated factors for crimes
against children and sex offenses, including: one, kidnapping
at Section 1201; two, sex trafficking of children, Section
1591; three, sexual abuse crimes, Chapter 109(a); four,
sexual exploitation and other abuse of children, Chapter 110;
and five, transportation for illegal sexual activity and
related crimes. That's Chapter 117, and also Chapter 71,
dealing with obscenity, I've been informed.
It will change the standard for review of sentencing
matters for appellate courts to a de novo review, while
factual determinations would continue to be subject to the
``clearly erroneous'' standard.
It would require courts to give specific and written
reasons for any departure from the guidelines.
It will require judges to report sentencing decisions to
the Sentencing Commission.
The Sentencing Reform Act of 1984 was designed, as Congress
wrote in the text of that bill, ``to provide certainty and
fairness in meeting the purposes of sentencing, avoiding
unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar
criminal conduct.''
Now, while the United States Sentencing Commission
promulgated sentencing guidelines to meet this laudable goal,
courts have strayed further and further from this system of
fair and consistent sentencing over the past decade.
The rate of discretionary downward departures, excluding
downward departures for defendants' cooperation, has
increased virtually every year since 1991.
But now Chairman Sensenbrenner--and I don't know whether the Senator
from Massachusetts was there at the time; maybe he was not there.
Chairman Sensenbrenner made it very clear. He said:
Now there are several other issues that I think have got to
be addressed. First of all, with respect to the standards of
appellate review, that applies to all cases and it is a de
novo review.
That is what we understood.
This is in direct response to the Supreme Court's decision
in the case of Koon v. United States. Now, you may recall
this involved a conviction for a civil rights violation of
one of the police officers accused of beating up Rodney King,
which we all saw on TV.
The point is, I think everybody else there recognized what the Hatch-
Sensenbrenner-Graham amendment was meant to be. I feel badly that my
colleague feels like he was misled, because I don't think I misled him.
I think the language I just read shows I didn't. I acknowledge and I
express sorrow that he feels the way he does. I feel badly he feels the
way he does because I would never deliberately mislead a colleague
under any circumstances. I might make a mistake or forget something I
might have said earlier, or something like that, but I would never
deliberately mislead a colleague. I certainly didn't in this case. I
don't think anybody there understood it the way it is being seen
through the eyes of some on the other side.
I think to blow up this conference report over this is not only a
mistake, it is a failure to recognize the tremendously irritating and
damaging downward departure situation going on in the country today--
letting these criminals off with regard to children's crimes.
I would add that the Reno Justice Department argued in the Koon case
for a de novo standard for appellate review. This was the right
argument to make.
Mr. DURBIN. Will the Senator yield for a question?
Mr. HATCH. Let me finish first. It was a position supported by the
Congressional Black Caucus. I have a copy of that letter. Let me read
it:
As members of the Congressional Black Caucus, we are
writing to you because of our concern about the sentencing of
Officer Laurence Powell and Sergeant Stacey Koon by Judge
John Davies in the Rodney King civil rights case.
We are troubled that the sentence for the crime was reduced
to 30 months upon the court's consideration of mitigating
facts. Such a reduction for mitigating factors may be
appropriate in other circumstances. However, we feel that the
defendant's special status as police officers, with special
duties owed to the public, should have militated against such
a significant reduction.
As you well know, the maximum possible penalty was ten
years and fines of up to $250,000. Your federal prosecutors
were asking for seven to nine years. Our federal sentencing
guidelines recommended minimum sentences in a range of four
to seven years in prison.
Instead, Judge John Davies made broad use of subjective
factors. He stated that he read only letters addressed to him
from the friends and families of Officer Powell and Sergeant
Koon. He argued that much of the violence visited on Rodney
King was justified by King's own actions. However, these
officers were convicted on charges of violating Rodney King's
civil rights. We believe these mitigating factors did not
justify so large a reduction given the defendants' special
responsibilities as police officers.
In addition, Judge Davies did not afford proper weight to
the racist comments made over police radio by those convicted
on the night of the beating in discounting race as a
motivation for the beating. He similarly failed to take into
account the remarkable lack of remorse shown by Officer
Powell and Sergeant Koon since their conviction.
People of good will all over this country and of all races
were heartened when Officer Powell and Sergeant Koon were
convicted by a jury of their peers, a verdict made possible
by the Justice Department's resolve to file civil rights
charges and by the phenomenal performance of federal
prosecutors. With these severely reduced sentences, however,
we are sending a mixed message. Are police officers going to
be held responsible for excessive use of force or not?
We think what has been lost, in all this, is that police
officers have an enhanced responsibility to uphold the law.
Notwithstanding Judge Davies' authority to modify the
sentencing guidelines, most experts agreed that the minimum
four to seven years sentence should have been followed in
this case.
We realize that the trial judge is afforded sufficient
latitude in sentencing, but we urge the Department of Justice
to appeal these sentences. We need to reexamine these
sentences so that justice can finally be done in this
difficult, painful case. Only then can we begin to put this
behind us.
It is signed by a large number of good Members of Congress.
What we have proposed is that there should be de novo review. We set
a standard that is not an easy standard to overcome. We have shown that
we have an outrageous situation in this country where a number of
judges have been giving extra downward departures far in excess of what
anybody in their right mind would think they should do.
This is happening in criminal cases where children are victims, and
we are trying to stop that because we think there has to be
responsibility here. We believe that in these child molestation cases,
pornography cases, prostitution cases, child rape cases, and kidnaping
cases the sentencing guidelines ought to be followed.
Nothing says these judges cannot follow the downward departure
guidelines if they so choose in their discretion as the trial judges,
but they can no longer conjure up reasons outside the guidelines to
reduce criminals' sentences.
Basically, that is what the conference report says. I would think
everyone in this body would vote for this conference report. I think it
does it right and does what we said it would do in the conference, and
it does what a bipartisan majority in the House and the Senate said it
should do. Frankly, I believe that is right.
Mr. DURBIN. Will the Senator yield for a question?
Mr. HATCH. Yes.
Mr. DURBIN. From the outset, the underlying legislation, the Amber
alert legislation, the virtual pornography legislation passed through
the Senate unanimously twice. There is no controversy concerning the
underlying legislation; the controversy that has arisen came up because
of an amendment offered by Congressman Feeney of Florida which found
its way into the House version of the bill and then became a subject
matter in the conference.
I ask the Senator from Utah this: There appears to be a legitimate
difference of opinion, but a very important difference of opinion,
about the chart that he has brought to the Chamber. I received, and I
believe he also received, a letter from the president of the American
Bar Association yesterday. The American Bar Association president wrote
to us talking about the
[[Page S5125]]
so-called downward departures where a decision is made by a judge to
impose a sentence below the recommended minimum. He said:
In fiscal year 2001--
The last year shown on the Senator's chart--
of 19,416 downward departures awarded Federal defendants,
approximately 15,318 came on Government motion.
Put another way, in 2001, 7 percent of downward departures in the
United States were requested by the prosecutor, by the Government.
I know the Senator from Utah sees it differently, but I would like to
ask him in good faith--this is a good-faith question--many of us are
concerned about sentencing guidelines, whether they are too strong or
too weak and whether we should reassess them. I think that was the
reason the Senator from Massachusetts offered that approach in the
conference. Would the Senator from Utah, in an effort to try to bring
together what he has asked for, bipartisan support, to give us his
promise that he would look into a hearing relative to the sentencing
guidelines so that we can finally bring to rest these questions of fact
behind the downward departures and whether we need to look anew at some
of these sentencing guidelines.
Many of us think that hearing and conversation is long overdue. If
the chairman of the Senate Judiciary Committee would agree to such a
hearing, that might move us closer to the adoption of this conference
report.
Mr. HATCH. I personally believe we can do that. We did have a hearing
in 2000. The hearing was extensive and led to this legislation. By the
way, the number on the chart excluded departure requests made by the
prosecutors under Section 5K1.1 of the Guidelines, when a defendant
provides ``substantial assistance'' to the government. We counted 4,098
downward departures excluding the so-called ``5K1.1 motions'' made by
the government. The number of downward departures has risen from 1,241
in 1991. Any Senator should see that this increase is the reason for
our concern.
I do not disagree with the distinguished Senator. I think it would be
good to find out what the Senator wants to know, and that is, if I
understand him correctly, he is asking for a hearing on downward
departures.
Mr. DURBIN. If the Senator will yield further.
Mr. HATCH. Yes.
Mr. DURBIN. I hope that we can have a hearing that might go beyond
that specific question and to the broader question about sentencing
guidelines today.
Mr. HATCH. I would certainly ask the Subcommittee on Crime to do
that.
Mr. DURBIN. I say to the Senator from Utah, there have been many
times that I have voted for stiff penalties, as he has, for crimes, but
I can also tell the Senator from Utah that I have visited, for example,
the Federal women's prison in Illinois, and I have seen some situations
there that I think are awful. They are miscarriages of justice for
these women to be sentenced to 5, 10, 15, 20 years because of an angry
boyfriend snitching on them and really assessing liability against
them.
Mr. HATCH. Let me interrupt the Senator for one second. I agree with
the Senator. I have seen the girlfriend courier go to prison for 10
years when she did not even know what was in the package, or at least
claimed she did not, while the boyfriend, the drug dealer, pleaded
State's evidence and gets off. Frankly, I do not like that either.
I think we should hold hearings on this, and I will be happy to
recommend it to the Crime Subcommittee or if it should be elevated to
the full committee, we can perhaps do that. I appreciate the
distinguished Senator's willingness to try and help us resolve this
today because this bill needs to pass. I do not see how anybody can
refute what I have been saying here. I do not see how anyone would not
want to get tougher with sentencing with regard to these sexual crimes,
especially when they have gone way outside the downward departure
limits the Sentencing Commission gives them. We do not stop trial
judges from granting downward departures, but they should be done in
compliance with the purposes of the sentencing guidelines.
Mr. DURBIN. If I may respond to the chairman of the committee, I do
not think the Senator would have any argument from any Member of the
Senate, nor would we be here this moment, if he just confined the
changes in conference to crimes involving children, sexual molestation.
I think he will find unanimous approval of that. The fact we have gone
in to de novo review to these departures applies to all crimes. That is
why I am asking we take a look at the broad expanse of the sentencing
guidelines.
Mr. HATCH. I am not willing to redo this bill because the conference
is over. A vast majority has supported it in the House--a huge
majority--and a bipartisan majority on the conference. But I am
certainly willing to look at it. If we need to modify what we have done
here today, I will certainly look at that.
I feel badly the distinguished Senator from Massachusetts feels he
was misled, but I do not see how he was misled. I can see there was an
ambiguity if one did not look at the whole record. He may not have been
there when we decided to use Chairman Sensenbrenner's language, which
was clear and specific. I thought mine was clear, but Chairman
Sensenbrenner's language was more clear than mine. I think everybody
there understood.
The distinguished Senator from Massachusetts and the distinguished
Senator from Vermont, the ranking member, the Democrat leader on the
committee, refused to sign the conference report over perhaps this
misunderstanding, but it is a misunderstanding, not a desire by me to
do something that is improper.
I thank the distinguished Senator for his comments here today. Those
are good points he made, and we will see what we can do.
Let me make a couple other comments before I finish. Let me provide
some additional examples of sentencing departure abuse and why we want
to change this and why this bill makes a very good step in the right
direction.
In one case, a defendant who was convicted of possessing child porn
images, over 280 images, more than 10 of which were clearly identified
as prepubescent children, was sentenced to serve 13 months in prison
and 14 months in home detention, even though the defendant's lawful
guidelines sentencing range was 27 to 33 months in prison. Think about
that.
At sentencing, the defendant threw in the kitchen sink and moved for
a departure on multiple grounds. He argued that his status as a former
prison guard rendered him as particularly susceptible to abuse in
prison. He argued that he needed rehabilitation and treatment. I have
no doubt. He argued his age and his wife's age, his extraordinary
family responsibilities, and his military and work histories justified
a departure. He argued he was entitled to a ``super'' acceptance of
responsibility and argued his conduct was aberrant. Although the
Government opposed all grounds of downward departure, the court imposed
an illegal split sentence and allowed the defendant to spend 14 months
of his 27-month sentence in the home.
Without explaining how many guideline levels it was departing, the
court credited the defendant's claim that he was the only one who could
take care of his wife, who had degenerative arthritis and had back
surgery but nonetheless continued to work as a night janitor--his wife,
that is. The court also credited the defendant's claim that, based on
his service in the military and his civilian career in law enforcement,
his criminal acts were aberrant. Remarkably, these winning arguments
enabled the defendant to spend over half of his 27-month sentence in
the home.
Now let me state why we need this reporting requirement to the
Attorney General that the distinguished Senator from Massachusetts has
inappropriately characterized. It is no secret that the Attorney
General is in charge of every aspect of prosecuting cases in the
Federal courts. Therefore, he has a direct interest in the disposition
of criminal cases. Now let me give you a specific example as to why we
need this reporting requirement.
There is a Federal judge who routinely violates the Sentencing
Commission guidelines because he believes the Sentencing Commission
erroneously calculated the sentencing guidelines. He does not depart
much, just a little reduction in a sentence here and a little reduction
there. But the fact is, he routinely does it. Now
[[Page S5126]]
the Attorney General may not have the resources to try to appeal each
and every time this judge violates the sentencing guidelines. However,
if an Attorney General is aware of someone routinely abusing this
provision, this reporting requirement will allow him to monitor this
and take action when appropriate. That is why we have the requirement
in there.
Now let me give you another illustration, some more examples of what
is going on here and what we are trying to correct with this bill.
A child pornographer was sentenced this year in Montana. Prior to
sentencing, the court raised on its own motion that the defendant
suffered from diminished capacity. The court ruled that this young man
had extraordinary family responsibilities and that he suffered from a
diminished mental capacity. The judgment notes, in part, United States
Sentencing Guidelines section 5(k)(2)(13), diminished capacity:
Defendant was extremely addicted to child pornography and the testimony
of efforts established that defendant had a significantly impaired
ability to control his behavior that he knew to be wrong; that the
extent to which the reduced mental capacity contributed significantly
and substantially to the commission of the offense. The Court departed
downward 8 offense levels from offense level 18 to offense level 10.
This reduced the guideline range from 27 to 33 months to just 6 to 12
months.
The trial court placed Clark on probation for 5 years.
I want to emphasize again a disturbing fact here about child
pornographers. A Bureau of Prisons study shows that 76 percent of child
pornographers and those who had been convicted of traveling in
interstate commerce to commit sex acts with minors admitted to
undetected sex crimes with an average of 30.5 child sex victims. Think
about that. These child sexual predators, if you averaged them,
admitted to undetected sex crimes with an average of 30.5 child sex
victims. Can anyone really say that tougher penalties and sentencing
reforms are not needed when it comes to these horrible crimes?
Does anyone believe that judges should be allowed to grant downward
departures based on reasons that are not contemplated within the
Guidelines themselves?
Now we have supporting letters for this conference report from the
Department of Justice, the National Sheriffs' Association, the Law
Enforcement Alliance of America, Major County Sheriffs' Association,
Fraternal Order of Police, and the National Association of Assistant
U.S. Attorneys.
One of the criticisms that has been raised about the conference
agreement is that it limits the membership of Sentencing Commission to
no more than three Federal judges. Currently, the law requires that the
Sentencing Commission be comprised of at least three Federal judges.
The hearings before the House and Senate Judiciary Committees showed
that trial judges have downwardly departed from the sentencing
guidelines to a level beyond what was originally intended. There may be
an appearance of conflict of interest when judges, desiring to preserve
judicial discretion, serve on the Sentencing Commission whose mission
it is to ensure uniformity in sentencing, which necessarily means less
judicial discretion.
Currently, judges outnumber other voting members of the Sentencing
Commission. Because so, there is a potential for at least an appearance
of a conflict of interest.
Now, I do not argue that there is a conflict or that they are acting
improperly. I am proud of those who have served. But there is a
different attitude in the courts, as Senator Kennedy has suggested. He
has all kinds of letters from judges who do not like this. It means
more work to them.
This change will, hopefully, restore the appearance of balance in the
Sentencing Commission and eliminate any conflict between the
commissioners' desire to retain judicial discretion and uniformity in
sentencing.
Now, the National Center for Missing and Exploited Children, the
NCMEC, expressed its thanks to the House of Representatives and Senate
conferees on agreeing to the language included in the conference report
of the Prosecutorial Remedies and Other Tools to end the Exploitation
of Children Today Act 2003. This was released April 9. NCMEC also
expressed its hope that both Houses of Congress would move swiftly to
approve the report and enact these important provisions into law.
Children throughout the United States will be safer because these key
leaders of the House and Senate were able to come together and reach
consensus on so many vital issues--Robbie Callaway, chairman of the
National Center for Missing and Exploited Children.
I ask unanimous consent that the comments in this press release,
along with a letter from Robbie Callaway, who is with the Boys and
Girls Clubs of America, along with the National Sheriffs' Association,
along with the Law Enforcement Alliance of America, and Major County
Sheriffs' Association, the Federal Law Enforcement Officers
Association, the U.S. Department of Justice, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
April 9, 2003.
National Center for Missing & Exploited Children Commends Senate and
House Conferees
Alexandria, VA.--The National Center for Missing &
Exploited Children (NCMEC) expressed its thanks to the U.S.
House of Representatives and U.S. Senate conferees on
agreeing to the language included in the conference report of
the Prosecutorial Remedies and Other Tools to End the
Exploitation of Children Today Act of 2003. NCMEC also
expressed its hope that both houses of Congress would move
swiftly to approve the report and enact these important
provisions into law.
``Children throughout the United States will be safer
because these key leaders of the House and Senate were able
to come together and reach consensus on so many vital
issues,'' said Robbie Callaway, Chairman of the National
Center for Missing & Exploited Children.
``NCMEC is particularly pleased that the Conferees
finalized language for a true national implementation of the
AMBER Alert,'' said Ernie Allen, President and Chief
Executive Officer of NCMEC. Allen added, ``this legislation
ensures that AMBER Plans become a resource for every state
and every community, and that they are implemented in a
consistent, meaningful manner.'' The conferees provided
funding for notification systems along highways for alerts,
as well as funding grants so that states may implement new
technologies to improve AMBER Alert communications. Such
monies will benefit not just abducted children but every
member of the community when an emergency develops, whether
weather-related, terrorism, or any other.
NCMEC also applauded important changes in attacking the
insidious, expanding problem of child pornography. NCMEC also
thanked Congressional leaders for allowing the U.S. Secret
Service to provide forensic and investigative support to
NCMEC to assist in efforts to find missing children.
Finally, NCMEC commended Congress for taking a tough,
serious look at the problem of sex offenders against children
and how they are handled by the criminal justice system.
Important provisions like changes in the term of supervision
for released sex offenders, eliminating the statute of
limitations for child abductions and sex crimes, mandating
minimum prison sentences for those who kidnap children,
punishing those who participate in child sex tourism, and
other important changes will strengthen society's ability to
cope with these serious crimes and keep children safe.
NCMEC, a private, 501(c)(3) nonprofit organization, works
in cooperation with the U.S. Department of Justice's Office
of Juvenile Justice and Delinquency Prevention. NCMEC was
established in 1984 as a public-private partnership to help
find missing children and combat child sexual exploitation.
It has assisted local law-enforcement agencies on more than
87,000 missing child cases, helping to reunite more than
71,000 children with their families. Today, the organization
reports a 94-percent recovery rate. For more information
about NCMEC, call 1-800-THE-LOST, or visit
www.missingkids.com.
____
April 9, 2003.
U.S. Senate, House of Representatives,
Washington, DC.
An Open Letter to the U.S. Senate and House of
Representatives.
We wish to express our sincerest appreciation to all of you
who have played such a key role in moving forward legislation
that includes the National Amber Alert. We applaud those
members of the conference committee who exhibited the
foremost cooperation in working out a compromise that will
greatly benefit every child in America.
Today, we are writing to encourage you to quickly pass this
legislation so that it can be signed into law. The Amber
Alert as well as other preventative measures will make an
immediate difference in safely rescuing those who are
abducted and in preventing crimes against children.
We can't begin to express our joy and gratitude in having
Elizabeth back home. It is our hope and prayer that immediate
passage will save countless families from the trauma
[[Page S5127]]
and sorrow caused by the senseless acts of those who prey on
children.
Sincerely,
Edward Smart,
Lois Smart,
Elizabeth Smart.
____
Boys & Girls Clubs of America,
Rockville, MD, April 10, 2003.
The Hon. Orrin Hatch,
Chairman Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Chairman Hatch: I am writing to express the gratitude
of Boys & Girls Clubs of America to you and the other Senate
and House Conferees for the conference report on the PROTECT
Act. We are hopeful that final passage will come quickly so
that critically important provisions such as the AMBER alert
system are enacted.
Along with the AMBER system, we are particularly pleased
with the bill's efforts to take on the problem of child
pornography, the reauthorization of the National Center for
Missing and Exploited Children, and national criminal
background screening for youth serving organizations. We are
confident that these provisions will make America's children
safer, and there is nothing more important than that.
We were pleased to work with your committee as well as the
House Judiciary Committee, and know you will continue to call
upon us if we can be helpful in this regard.
Sincerely,
Robbie Callaway,
Senior Vice President.
____
National Sheriffs' Association,
Alexandria, VA, April 4, 2003.
Hon. Orrin Hatch,
Chairman, Committee on the Judiciary, Washington, DC.
Dear Mr. Chairman: I write today to discuss the importance
of H.R. 1104, the Child Abduction Prevention Act and I am
asking for your support of the legislation and for your
support of the Fenney Amendment. Passage of this legislation
will protect our children against predators.
The House version of the bill has several provisions that
protect children. Sheriffs especially support the AMBER Alert
provision. AMBER is a highly successful tool for law
enforcement and its adoption nationally will enhance our
ability to recover children who have been kidnapped. It also
provides citizens with a clear means of providing information
to law enforcement about these cases.
However, there are additional sections in the House bill
that are equally important to sheriffs. Specifically, NSA
supports the Fenney Amendment, which limits the practice of
downward departures from federal sentencing guidelines. The
amendment would put strict limitations on departures by
allowing sentences outside the guidelines range only upon
grounds specifically enumerated in the guidelines as proper
for departure. This eliminates ad hoc departures based on
vague grounds, such as ``general mitigating circumstances.''
The amendment also reforms the existing grounds of departure
set forth in the current guidelines by eliminating those that
have been most frequently abused.
Sheriffs also support provisions like ``Lifetime
Monitoring'' of sex offenders and the ``Two Strikes and
You're Out'' for repeat child molesters. These provisions are
needed to protect our kids from sexual predators. Child
molesters are four times more likely than other violent
criminals to recommit their crime. A typical molester will
abuse between 30 and 60 children before they are arrested, as
many as 380 children during their lifetime. The Two Strikes
and You're Out provision will save thousands of kids from
going through this torture. Each repeat molester represents
hundreds of victims with shattered lives. We can break the
chain of violence with simple, straightforward proposals like
Two Strikes and You're Out and Lifetime Monitoring.
The National Sheriffs' Association welcomes passage of this
legislation. We look forward to working with you to assure
its swift enactment.
Sincerely,
William T. Ferrell,
President.
____
The Law Enforcement Alliance
of America,
Falls Church, VA, April 3, 2003.
Senator Bill Frist,
Majority Leader, U.S. Senate,
Washington, DC.
Dear Majority Leader Frist, On behalf of the more than
75,000 Members and supporters of the Law Enforcement Alliance
of America (LEAA), I write to request your prompt attention
and support for conference and passage of H.R. 1104, ``Child
Abduction Prevention Act'' and S. 151, the ``Protect'' act.
The House recently passed S. 151 with the text of H.R.
1104. The provisions in this legislation are vital
protections that address clear and present dangers in
America's laws to keep our children safe. Judges will be
given the power to enforce supervision of convicted sex
offenders for as long as is necessary and child rapists and
abductors will be barred from pre-trial release. It would
fund important grants to local law enforcement for tracking
down wanted sex offenders and provide for mandatory 20 year
sentences for strangers that kidnap kids.
The legislation would help fund a national AMBER alert
system, put a two strikes rule for child molesters and double
the funding for the National Center for Missing and Exploited
Children.
LEAA is sure you'll agree that this legislation gives our
judges, prosecutors and cops tough tools to fight back at
some of America's most horrible criminals. LEAA respectfully
asks that you do everything in your power to speed the
process for passage of this legislation.
Sincerely,
James J. Fotis,
Executive Director.
____
Major County Sheriffs' Association,
Pontiac, MI, April 4, 2003.
Hon. Orrin Hatch,
U.S. Senate,
Washington, DC.
Dear Senator Hatch: On behalf of the Major County Sheriffs'
Association (MCSA), thank you for your legislative efforts to
protect our children from sexual crime and abduction and to
toughen penalties against those who commit these horrific
acts.
Collectively, the MCSA membership represents over 100
million people throughout the United States. As elected
Sheriffs and law enforcement officials, we take seriously our
responsibility of protecting and serving our citizens,
especially our children. In that regard, we encourage your
efforts to move forward on legislation which safeguards our
children from the hands of those who inflict irreversible
harm and pain through crime and sexual abuse, specifically
House Bill 1104 and Senate Bill 151.
In addition, the MCSA also supports the language set forth
in the Feeney Amendment as passed in House Bill 1104,
sponsored by Congressman James Sensenbrenner, which limits
downward departures from federal sentencing guidelines. When
the perpetrator makes the decision to commit the crime, they
must accept the consequences of their actions which should
include swift, unwavering penalties. We hope the results of
the conference committee scheduled to meet next week will
include the Feeney Amendment.
Thank you for your attention and consideration to this
important issue. We look forward to working with you on this
legislation and any other measure that protects and provides
for the safety of our children. Please feel free to call upon
me for additional information or comment.
Sincerely,
Michael J. Bouchard,
Oakland County Sheriff, Legislative Chair.
____
Federal Law Enforcement
Officers Association,
Lewisberry, PA, April 7, 2003.
Fleoa Supports H.R. 1104--Child Abduction Prevention Act
Dear Members of Congress: On behalf of the 19,000 men and
women of the Federal Law Enforcement Officers Association
(FLEOA), we ask that you support H.R. 1104 and pass this
important piece of legislation to protect the children of our
nation.
The ``Child Abduction Prevention Act'' will enhance Federal
penalties for convictions related to kidnapping, sexual abuse
and murder of children. It will also create a national amber
alert communications network regarding abducted children to
aid in their recovery. The ``Amber Alert System'' is an
important tool to assist law enforcement in obtaining leads
from the public to assist in a quick recovery of abducted
children.
We must protect the children of our nation, for they are
our future. The ``Elizabeth Smart Case'' has demonstrated to
all of us, the need for this important piece of legislation.
As Federal law enforcement officers, we ask that you give us
the necessary tools contained in this legislation to assist
us in investigating these crimes against our children.
If there are any questions, I can be reached at 717-938-
2300.
Sincerely,
Art Gordon,
National Executive Vice President.
____
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, April 4, 2003.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: We write to urge that the House-Senate
Conference Committee quickly reach agreement on the differing
versions of S. 151 and promptly send to the President a
strong child protection bill that will comprehensively
strengthen the Government's ability to prevent, investigate,
prosecute, and punish violent crimes committed against
children.
The House-passed version of S. 151 includes language that
would codify the Administration's ongoing efforts to support
AMBER Alert programs by providing for national coordination
of state and local AMBER Alert programs and by establishing
Federal grant programs for States to support AMBER Alert
communication systems and plans. The Senate previously passed
very similar legislation, S. 121, by a unanimous vote. The
Department strongly supports these AMBER Alert provisions,
which should be included in the final version of S. 151.
Both the House and Senate versions of S. 151 include
provisions designed to revise and strengthen the nation's
child pornography laws in light of Ashcroft v. Free Speech
Coalition, 122 S. Ct. 1389 (2002). The House version's child
pornography provisions are modeled on an Administration
proposal that overwhelmingly passed the House last year
[[Page S5128]]
as H.R. 4623. The Senate's version is likewise a very strong
measure, which also has received the Administration's full
support. On this score, the two bills overlap very
significantly in approach, if not always in wording. We are
confident that the relatively modest differences between the
two versions of these provisions can be readily resolved, and
we would be pleased to offer technical suggestions in that
regard. Swift enactment of these important child pornography
provisions would be an important step in protecting children
from abuse by ensuring effective child pornography
prosecutions.
The House version of S. 151 also includes a number of
important measures designed to enhance the Government's
ability to investigate, prosecute, and punish violent crimes
against children. These measures include: Extending the
length of supervised-release terms for offenders and
establishment of a rebuttable presumption in favor of
pretrial detention; Enhancing law enforcement tools for
identifying and apprehending offenders, by including child
exploitation offenses as wiretap predicates and by
eliminating the statute of limitations for certain offenses;
Increasing penalties to more accurately reflect the extreme
seriousness of these offenses, especially repeat offenses;
Enhancing the Government's ability to punish offenders who
travel abroad to prey on children; and Providing the States
with additional tools and assistance to pursue these common
goals.
The Department has previously testified in strong support
of these provisions, and urges the Conference to include them
in the final bill.
We also wish to express our strong support for Congressman
Feeney's amendment to the House version of S. 151. The Feeney
amendment added section 109 to the bill, which is designed to
address a number of deficiencies in federal sentencing
policy--deficiencies that have proven particularly serious
with respect to child victim offenses.
The amendment would address the longstanding--and still
growing--problem of ``downward departures'' from the Federal
Sentencing Guidelines--i.e., sentences that are significantly
more lenient than those mandated by the Guidelines. The
consistency, predictability, and toughness that Congress
sought to achieve in the Sentencing Reform Act (which
established the Guidelines System) is being undermined by
steadily increasing downward departures:
The rate of downward departures on grounds other than
substantial assistance to the government (i.e., cooperation
in investigating other criminals) has climbed steadily every
year for the last several years. The rate of such departures
in non-immigration cases has climbed from 9.6 percent in FY
1996 to 14.7 percent in FY 2001--an increase of over 50
percent in just 5 years.
Using the measure recently suggested by the ABA as a
benchmark--i.e., excluding downward departures based on
substantial assistance and excluding those from Southwest
border districts (which use departures to process large
numbers of immigration cases)--the rate of downward
departures nationwide has more than doubled over the ten
years from FY 1991 to FY 2001, going from 5.5 percent to 13.2
percent.
The ratio of such downward departures to upward departures
has climbed from 11:1 to a staggering 33:1 in just the last
five years.
Far from being ``highly infrequent''--as required by the
Guidelines Manual--departures based on grounds not
specifically mentioned in the Guidelines amounted last year
to over 20 percent of all downward departures.
The rates of such sentencing leniency vary widely from
district to district: the average downward departure rate in
the Fourth Circuit is 4.2 percent; in the Tenth Circuit, it
is 23.3 percent.
The rates of downward departures in cases involving certain
offenses is nothing short of scandalous. For years, downward
departures in child pornography possession cases have ranged
between 20 percent and 29 percent nationwide. (In FY 2001, it
was 25.1 percent.) Often, these departures are based on much-
abused grounds, such as ``aberrant behavior'' and ``family
ties.'' And some of the grounds of departure employed in such
cases have been as creative as they are outrageous: for
example, a 5'11'', 190-lb. child pornography defendant--who
has accessed over 1,300 pornography pictures and begun an
Internet correspondence with a 15-year-old girl in another
State--was granted a 50 percent downward departure in part on
the ground that he would be ``unusually susceptible to abuse
in prison.'' United States v. Parish, 308 F.3d 1025 (9th Cir.
2002) (rejecting Government's appeal and affirming the
sentence).
The Feeney amendment would enact several reforms to ensure
that the Guidelines are more faithfully and consistently
enforced:
The bill would make it easier for the Government to appeal
illegal downward departures by requiring appellate courts to
undertake a de novo review of departure decisions. There is
nothing unusual at all about applying a de novo standard of
review to a mixed question of law and fact such as the
decision to depart. Indeed, in most other contexts, appellate
courts apply a de novo standard of review to mixed questions
of law and fact, such as suppression issues (probable cause,
voluntariness of a statement, etc.). It makes no sense to
have a de novo standard of review only for mixed questions
that generally favor the defendant.
The bill would require the Sentencing Commission to provide
effective guidance concerning downward departures by
prohibiting such departures on grounds that the Sentencing
Commission has not affirmatively specified as permissible.
Under the amendment, numerous authorized grounds of downward
departure are preserved, and the Commission retains very
broad discretion to add new factors to the list of authorized
grounds of downward departure (with the exception of a few
much-abused grounds of downward departure, such as ``aberrant
behavior,'' that are eliminated by the amendment). Departures
based on grounds not specified by the Commission were always
supposed to be ``highly infrequent,'' and the amendment
simply requires the Commission to do its job of
affirmatively regulating the availability of departures.
Moreover, the existence of such unfettered departure
authority has made Government appeals of improper
sentences more difficult. See, e.g., United States v.
Blazevich, 38 Fed. Appx. 359 (9th Cir. 2002) (rejecting
Government's appeal of downward departure in child
pornography case, because there is ``essentially no limit
on the number of potential factors that may warrant
departure in child pornography case, because there is
``essentially no limit on the number of potential factors
that may warrant departure,'' with the exception of those
few factors that the Sentencing Commission has
proscribed).
The bill would strengthen existing requirements for judges
to explain the basis for their departures, thereby
facilitating appellate review.
The bill would also limit a defendant to one bite at the
apple by generally precluding a second downward departure
after a successful Government appeal. There are too many
cases in which, on remand, the district court simply re-
imposes the same illegal sentence on a different theory,
thereby necessitating a second government appeal. See, e.g.,
United States v. Winters, 174 F.3d 478 (5th Cir. 1999)
(reversing second imposition of the same illegal sentence in
civil rights prosecution against corrections officer); United
States v. O'Brien, 18 F.3d 301 (5th Cir. 1994) (reversing
district court's imposition, after Government successfully
appealed prior downward departure, of an even more lenient
sentence in drug case).
The Feeney Amendment would also enact a number of
additional measures to strengthen the penalties applicable to
those who prey upon our nation's children:
Under current Sentencing guidelines, a defendant is
required to receive an enhanced penalty for engaging in
multiple acts of prohibited sexual contact with minors, but
the enhancement does not apply if the defendant repeatedly
abused the same victim. This irrational and unjust disparity
would be explicitly eliminated by the amendment.
The amendment would require that child pornography
sentences be enhanced based on the number of such images
possessed by the defendant. The current Sentencing Guidelines
fail adequately to account for the volume of the material,
with the result that an offender who sent one image of child
pornography over the Internet receives the same treatment
under the Guidelines as an offender who set up a website
containing thousands of images. The amendment would instead
require that sentences be sharply enhanced for offenses
involving large numbers of images.
The problem of ignoring the Guidelines in favor of ad hoc
leniency is well known and has already been the subject of
much study. In October 2000, a Senate Judiciary Subcommittee,
under the leadership of Senator Thurmond--one of the original
architects of the Sentencing Reform Act--held a lengthy
hearing on the problem and received extensive evidence
examining downward departure rates from many different
angles. The data are already out there, the problem is clear,
and further inaction would be a travesty. Indeed, the Feeney
Amendment was adopted only after the House Judiciary
Committee held two hearings over the last year to review a
variety of possible solutions to the growing leniency
problem, including mandatory minimums, a total ban of
downward departures in certain classes of cases (a position
previously endorsed by the Department on several occasions),
and a de novo review standard for departure appeals (which
had been specifically included in H.R. 1161, as introduced).
Based on the extensive record already before the Congress,
the Feeney Amendment emerged as a compromise position that
preserves district judges' ability to depart, but requires
that this departure authority be subject to more consistent
and careful review and control by the Sentencing Commission
and appellate courts.
The Department strongly urges the conferees to retain these
much-needed provisions of the Feeney Amendment in the final
version of S. 151.
Thank you for your attention to this important matter. If
we may be of further assistance in this or any other matter,
we trust that you will not hesitate to call upon us. The
Office of Management and Budget has advised that there is no
objection from the standpoint of the Administration's program
to the presentation of this report.
Sincerely,
Jamie E. Brown,
Acting Assistant Attorney General.
Mr. HATCH. I notice the distinguished Senator from Vermont is in the
Chamber. I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. I suggest the absence of a quorum.
[[Page S5129]]
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, I am somewhat perplexed that we are in this
situation. Let me explain why. This is not a question of whether people
are for or against those who abuse children. We are all against that,
Republicans and Democrats. It is one of those many areas that would
unite all of us. Those of us who are parents or grandparents always
feel that way. I think of some of the child molesters I prosecuted
before I was in the Senate. Invariably, I sought the stiffest sentences
possible, and got them, including life sentences. So I do not think any
of us has to demonstrate that we are against child molesters. I think
the American people know that, of course, we are all against them. That
is the way I was when I prosecuted them and the way I am in the
legislation I have helped to write.
For example, the AMBER alert bill that is before us: When I was
chairman of the Senate Judiciary Committee last year, I put that
through in record time. We had a hearing. We had a vote in committee.
We brought it up for a roll call vote on the floor in about a week. It
was a record. We sent it over to the other body. Of course, they sat on
it and never passed it.
This year, I joined with Senator Hutchison of Texas, Senator
Feinstein of California, and Senator Hatch of Utah. The four of us put
through AMBER alert again, brought it up, had a rollcall vote on the
Senate floor. Every single Senator who was here that day voted for it.
We sent it over to the other body, where it languished.
This conference report also includes the PROTECT Act, to provide
prosecutors with important tools to fight child pornography. That is a
Hatch-Leahy act. Twice I came to the floor of the Senate and joined
Senator Hatch in urging passage of this measure that we crafted
together. I do not need to suggest whether I am for that or not. I
helped write it.
We have housing for abused children in this legislation. Again, I
helped write that bill. I am the lead sponsor. Obviously, I am for
that.
We had the so-called Reid shoe bomber fix to the criminal law. I am
the lead sponsor of that.
The National Center for Missing and Exploited Children authorization,
I am a lead sponsor of that.
The victims' shield, the cyber-tipline, these are things I have
sponsored and supported. I have no problem with any one of them.
But what happens, and I hate to think this is why the other body has
refused to take up our AMBER alert bill twice now, we suddenly have a
bill that comes back--actually, as my friend Senator Kennedy pointed
out during our only conference meeting in this matter, subject to a
point of order with new and controversial provisions added to a once
non-controversial and bipartisan bill.
It would have been so much better if the other body had simply taken
the bill I got out of the committee last year and we passed in the
Senate, and having failed to do so, it would have been so helpful had
they taken the bill--of Senator Hatch and myself and Senator Kay Bailey
Hutchison and Senator Feinstein--and passed it here, this year, and
gone with that. The House leaders chose not to pass it. They delayed
its passage and tried to use it as a sweetener to add on a number of
controversial items.
I wonder what would have happened had they simply taken the bill and
passed it last year. The President made clear he would sign it after we
passed it by such an overwhelming majority. The other body decided not
to.
I wonder what would have happened had they picked it up and passed it
this year after we passed it through the Senate. The President would
have signed it. Maybe we would already have a nationwide AMBER alert
system today. One wonders how many children might have been saved by
such a nationwide AMBER alert plan if the other body had been willing
to pass that bill last year or earlier this year when we passed it.
So many, Republicans and Democrats alike, came together on parts of
this bill with the idea of protecting children. I worry when efforts to
protect our children are used as pawns by those who play politics by
attaching legislation of a more controversial nature. Of course, the
AMBER alert legislation is in there. I was a main sponsor of that last
year and this year. Of course, I am happy about that and I will speak
further on that later.
I cannot imagine a worse nightmare than a family having an abducted
child. I remember sitting around the clock with families when I was a
prosecutor as we were trying to find their children. I also remember
some cases where we found a child and the child was dead. I remember as
a young prosecutor, trying to keep my composure in the trials when I
prosecuted the people who did that and seeking the maximum sentence.
One, especially, I still have nightmares about to this day, a case in
Chittenden County. I remember it as though it were yesterday even
though it was many years ago.
So that is why I worry when we find ourselves in a situation where
all of this time-consuming discussion on more controversial matters
could have been avoided. We have so much in this legislation, that
Republicans and Democrats alike have joined in, so much that our staffs
have worked on so hard over the last 2 years. So many things of these
measures are helpful and broadly supported by police, Governors, and
those who have to deal with abused and neglected children.
The unfortunate situation is--whether it is overreaching, whether
someone was looking for an opportunity, I do not know--that members of
the other body insisted once again on adding controversial measures
that have already slowed down this important legislation.
These are bills that came out of the House Judiciary Committee and
the Senate Judiciary Committee. We, of all people, should be willing to
set the standards and make sure we follow the rules. We, of all people,
should not add things in controversial provisions that do not belong
here. That is what has been done.
I can think of things I would have liked to have had included in the
conference report--and not controversial matters at that--but
unfortunately, even non-controversial requests by the minority were not
afforded the same consideration as highly controversial proposals by
the majority.
I tried to add the Hometown Heroes Survivors Benefit Act of 2003.
This legislation would improve the Department of Justice Public Safety
Officers Program by allowing families of public safety officers who
suffer fatal heart attacks or strokes to qualify for Federal survivor
benefits. I have been at the funerals of officers who died of a heart
attack after putting their lives on the line to protect their
community.
Each year hundreds of public safety officers nationwide lose their
lives and thousands more are subjected to great physical risks. The
benefits can never be the substitute for the loss of a loved one.
Families of fallen heroes depend upon us for helping out when their
family members make the ultimate sacrifice.
I tried to include the Hometown Heroes bill to fix this loophole and
assure the survivors of public safety officers who die of heart attacks
or strokes, who die within 24 hours of being on the job, are eligible
to receive financial assistance. We passed this bill in the House last
year. Representative Etheridge, in the other body, and I introduced
identical versions of this legislation. The House passed it, but an
anonymous Republican hold in the Senate stopped those benefits for the
families of fallen police and firefighters.
During the conference, I offered this bill as an amendment, hoping to
see it become law. Unfortunately, the majority blocked it.
My colleagues across the aisle overlook the fact that public safety
is dangerous, exhausting, and stressful work. A first responder's
chance of suffering a heart attack or stroke greatly increases when he
or she puts on heavy equipment and rushes into a burning building to
fight a fire or save lives. To not be able to participate in the PSOP
program--I wish my friends on the other side of the aisle allowed
families,
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survivors of those who died in the line of duty that way, to be able to
at least have the benefits that go to other officers. I think it is
unfortunate.
I have heard from police officers, I have heard from firefighters.
They ask, how can this possibly happen? Is this a partisan issue? I
say, I hope it is not. If there is one thing that should unite
Republicans and Democrats, it is support for the families of those who
die in the line of duty. We could have done that. Unfortunately,
Republicans in the House and Republicans in the Senate voted it down. I
hope they will reconsider that decision. I would welcome them back to
the fold. But also, the families of firefighters and police officers,
the first responders, would welcome them back. They face grave
disappointment today. They cannot understand why this was not done.
They would like to see it back. I call on the Republican leadership to
instruct the Members to let this go through.
I am glad the conference report did include a provision I introduced
in the last Congress to clarify an airplane as a vehicle for the
purpose of terrorism and other violent acts. I tried to include this
bill in the omnibus appropriations measure, but the Department of
Justice blocked it. Then, to my surprise, the same provision appeared
in the leaked copy of the Department's new antiterrorism package.
This bill is meant to address a discrete problem that surfaced in the
prosecution of Richard Reid, a man who tried to blow up an
international flight from Paris to Miami. In that case, the court
dismissed a charge against Reid over the question whether the airplane
he attempted to destroy was a mass transportation vehicle. This makes
it very clear that it is. I am glad this clarification was included at
my request.
There are many things in this conference report that I either helped
write or cosponsored that we can all support. The Leahy-Kennedy
legislation establishes a transitional housing grant program within the
Department of Justice to provide to victims of domestic violence,
stalking, and sexual assault, the necessary means to escape the cycle
of violence. That is in here. Today, more than 50 percent of homeless
individuals are women and children fleeing domestic violence. This will
help real women and children, including many in my home State. I
commend my colleagues who, after some initial opposition, joined with
Senator Kennedy and me on this legislation.
I am glad the Protecting Our Children Comes First Act is in this
conference report. It is a bipartisan bill I introduced both in this
Congress and the last, joined by my friend from Utah as well as Senator
DeWine of Ohio and Senators Biden, Shelby, Lincoln, and Harry Reid. Our
bill reauthorizes the National Center for Missing and Exploited
Children. It needs to be reauthorized. That is in here.
We proposed reauthorization through the year 2007, but at least it
has been agreed to through the year 2005. We agreed to double the
grants. We also authorized the U.S. Secret Service to provide forensic
and investigative assistance to the National Center; and we
strengthened the Center's Cyber Tipline to provide online users an
effective means of reporting Internet-related child sexual exploitation
in the distribution of child pornography, online enticement of children
for sexual acts, child prostitution, and child pornography.
Of course, the Hatch-Leahy PROTECT Act is the centerpiece of this
bill. And after all the hard work that Senator Hatch and I completed to
craft this bill, introduce it twice, and usher it through the Senate by
two unanimous votes, I do not have to tell any one how pleased I am
that the House adopted most of our provisions. The key provision from
the House bill that is retained is the so-called ``virtual porn''
provision, which I predict will be the subject of much constitutional
scrutiny. We will see how the House provision fares before the Supreme
Court, I am sure.
So there are a number of things that are good in this bill. That is
why I am frustrated we have this situation. It is because of
overreaching, because of putting controversial measures in that have
received little or no consideration in either body and have delayed
enactment of the better parts of this bill, that we do not yet have a
law passed.
I say this really out of sadness. No. 1, we did not have to be here
today. The Senate passed both the Amber bill and the PROTECT Act twice,
once this year and once in the last Congress, and sent clean bills to
the House both times.
When these bills came out of committee last year, when I was
chairman, the Senate passed them by unanimous votes on the Senate
floor. They passed. We sent them to the other body and they let the
bills sit there. When Senator Hatch took over as chairman of the
committee this year, we passed them out again. Both Senator Hatch and
I, as well as Senators Feinstein and Hutchison, were the main sponsors
of the Amber bill. Senator Hatch and I were the main sponsors of the
PROTECT Act. The Senate passed them out again. Again, they sat over in
the other body for months without action.
Now we find out why. It appears that the Republican majority in the
House was looking for legislation with that kind of universal support
and popularity on which to attach controversial measures that might not
have support in the Senate.
That is unfair. That is unfair to children. That is unfair to those
who may be abducted. That is unfair to those of us who spent years
trying to protect children. It is unfair to those, myself and others in
this body, who were once prosecutors and prosecuted child molesters and
abductors. It is unfair to them and to others.
I will put more material in the Record. I will go back to this. But I
urge my friends on the other side of the aisle to find a way out of
this increasing partisanship because it has delayed passage of this
important legislation, which has so much in it to protect children.
I see my colleagues on the floor. I see the Senator from Alabama who
I assume--he is nodding yes--I assume he is looking for the floor, so I
will yield the floor.
The PRESIDING OFFICER (Mr. Cornyn). The Senator from Alabama.
Mr. SESSIONS. Mr. President, I just will share a few thoughts I think
are very important with regard to this legislation.
We seem to have strong or at least grudging support from everybody on
the underlying portions of the bill. At least that is what we are told
repeatedly. But there is a suggestion that the Feeney amendment is such
a horrible thing that the entire PROTECT bill should not go forward.
I will just say a couple of things about that. The Feeney amendment
was designed to deal with a growing problem of Federal judges downward-
departing from the mandates of the sentencing guidelines and thereby
giving lighter sentences than should be given to criminals. It is a
growing problem.
Senator Hatch had the chart there. Downward departures went from
1,200 in 1991 to over 4,000 in 2001. There have been some erosions of
the clarity of the law about that. In effect, we are at a point of some
danger that the integrity of the guidelines would be undermined.
So I felt from the beginning we ought to give, in this body, serious
consideration to the Feeney amendment and review it and see what we
could do about it. That is my general view of that.
I served as a Federal prosecutor for almost 15 years. I was a Federal
United States Attorney when the sentencing guidelines were passed. I
applied them. I carried around the sentencing guideline manual. I could
look through and find the upward departures and downward departures and
all the statistics and how to figure out how many prior convictions
should be considered in the defendant's criminal history. You would
figure out the nature of the criminal act, did it involve violence, did
the defendant carry a gun, did it involve a particularly vulnerable
victim like a woman or a child. You would do all those things. A lot of
experienced people in criminal justice came together and put the
Sentencing Guidelines together over a decade ago. It was a remarkably
good achievement.
Most experts who knew about it said basically they were compiling and
putting into law what most Federal judges, mainstream Federal judges in
America were doing, anyway. But it compromised those who were
especially harsh and those who were especially light. Frankly, when you
give a lifetime appointment to a Federal
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judge and he or she decides they don't want to enforce child
pornography laws or child abuse laws and they don't think those are
particularly significant crimes that ought to be in Federal court and
they depart downward, and you are in a position where the law is
unclear, they can depart with impunity. If the judge is elected, at
least you can vote him out of office sometime, but you can't do that
for an unelected, lifetime-appointed judge.
For the most part, I think judges follow the guidelines scrupulously.
But these statistics on this chart, which shows an almost fourfold
increase over a decade in downward departures, are troubling.
I served on the Senate Crime Subcommittee. We had hearings in the
year 2000 to confront this problem. In fact, we even asked the
Sentencing Commission to give us some information on it, but they still
have not given us that information.
So the Feeney amendment comes along. It was offered in the House of
Representatives and it applied to all crimes. They put that amendment
on to the AMBER Alert legislation that was going through the House of
Representatives, and made it an appropriate part of the PROTECT Act
that we would conference about, that we would confer about.
I thought it was a matter that ought to be given serious thought. I
had not overtly committed to the Feeney amendment, but as someone who
worked with the sentencing guidelines, I felt that the intent of it was
good.
So there was a big controversy. My colleagues on the other side said:
Well, we are not going to pass this bill that will protect children. We
believe in protecting children, but you can't have the Feeney amendment
on it. It is irrelevant to children. It does other things in the
criminal justice system, and we are not prepared to vote for that. We
are not troubled, in effect, by Federal judges who are downward
departing in record numbers. So we don't want that on the PROTECT Act.
We got a call from a Federal judge who said: It is restricting my
freedom to do what I want to do, and we don't think it is a good idea.
Take the Feeney amendment off.
Well, Chairman Hatch, who has been in this body a long time, and has
been chairman of our committee off and on for a number of years, and
Chairman Sensenbrenner in the House, they knew there was a complaint
about it. They knew people were unhappy about the Feeney amendment. So
they got together and they decided: What could we do about it? And they
decided to offer a suggestion and a provision, an amendment that would
solve the problem. And I, frankly, am amazed it is having any
difficulties getting passed in Congress.
What my colleagues on the other side said was: OK, since this is a
child protect bill, we will not put in this limitation on downward
departures--this legislation that really only tightens up the freedom
of judges to abuse the guidelines. We will not do that for all these
other cases, but since this is a child act, and we have historical and
anecdotal records of child abuse cases where judges have improperly
downward departed, we will just apply the Feeney amendment to those
cases involving minor victims and sex offenders.
Certainly that was very consistent with the intent of the act. It
dealt with the situation of some judges not taking these cases
seriously. And we had a history of it. The legislation dealt with the
problem of repeat offenders because some people seem to think if a
person is caught in a child sexual abuse case, and they come in and
say, ``Oh, judge, I'm sorry, I won't do it again,'' that you can rely
on that.
People in churches have heard people say that, and they have believed
them. But I have been a prosecutor. I have seen the numbers. I have
seen the prosecutions. Most of them have not offended just once or
twice, but they have done it several times over a period of years. They
come back to it again and again and again. I wish that were not so. I
wish it were not so. But you cannot rely on the words of a pedophile,
that they are not going to offend again, because history and science
and criminal justice statistics show that they go back to these
horrible acts again and again, ruining the lives of another child,
another child, and another child. It is a big deal in America. It is
not a little deal.
So the Feeney amendment was really constrained. It did not apply to
all criminal justice cases; it applies to sex cases and those involving
child and sexual abuse.
I would say, as a Federal prosecutor, and knowing the kind of cases
that are prosecuted in Federal court--bank fraud, bank robbery, all
kinds of white-collar crimes, gun cases, drug cases, international
smuggling cases, and all those--I am confident--this may shock some
people--I am confident that less than 2 percent--probably less than 1
percent--of the Federal cases prosecuted in Federal court deal with
child sexual abuse. Most of them--many of them--are tried in State
courts, and the ones that are prosecuted in Federal court are fairly
limited in number.
So what Senator Hatch, Senator Graham of South Carolina, and Chairman
Sensenbrenner offered was a tremendous move in the direction of the
opponents who were concerned about the downward departure rule
contained in the Feeney amendment. And they focused it simply on this
very small but very important number of cases dealing with the abuse,
sexual assault, kidnaping and rape of our citizens in America.
I think that was a very generous amendment. And I would have thought
that would have settled the matter completely. I remain baffled that we
would see this kind of opposition, the kind of opposition that would
suggest they are willing to kill this important legislation that, if
passed, this very day could save the lives of children, could save
other children from being abused by a pedophile, if we pass it. And if
we don't pass it, if we delay it, the victimization of our children
could continue for a long time.
And some say: Well, this Feeney amendment is so extreme and so
controversial. I suggest not, Mr. Chairman. Looking at the vote in the
House of Representatives, when the full Feeney amendment came up,
tightening up the ability of judges to downward depart on all the cases
in the criminal justice system--the 98 percent plus the 2 percent--the
vote was 357 for and 58 against, 1 voting present.
Now, that is an overwhelming vote. And then, when the conference
report came back, after the Hatch-Sensenbrenner modification was put
in, dramatically reducing the number of cases impacted by the Feeney
amendment to 2 percent or so, or less--probably 1 percent or less--
involving sexual abuse cases, it passed 400 to 25. So it comes out of
the House 400 to 25--overwhelming support from Democrats and
Republicans. You have more than 25 liberals, you have liberals and
conservatives, Republicans and Democrats voting for this bill in the
House of Representatives, overwhelmingly. Yet here we are having this
legislation, as critical as it is, being held up over this small
amendment, after Chairman Hatch had worked so hard to settle the issue
and to accommodate my colleagues on the other side of the aisle.
So I think it is important that we understand that. It is important
that we pass this bill now. There is no need for it to continue. Who
knows? This very day--as a matter of fact I know this just because of
the statistics that are out there some child has been sexually abused.
Maybe there is a child being kidnaped right now. This legislation could
help save that child, and other lives.
And I noticed Senator Durbin suggested--and I see Senator Kennedy and
Senator Leahy in the Chamber--well, maybe we could talk about having a
hearing on the sentencing guidelines and minimum mandatory sentences. I
am not opposed to that, but I will just say this: I really care about
sentencing guidelines. I think there should be integrity in the
enforcement of those guidelines.
Federal judges should not get in the habit of eroding the clear
injunctions of those acts. And the way they are doing it today,
sometimes they are not writing opinions and explaining why they are
doing it, leaving it very difficult to determine what has actually
occurred, and making it difficult to appeal. So I think we ought to
have integrity in sentencing. But we, as a Congress, I say to my
colleagues on the floor, passed the guidelines. We set up the mandatory
minimums. We created
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the Sentencing Commission, and we directed them, in large part, on how
to carry out sentencing.
The Congress has taken over sentencing; that is true. And after these
many years of experience with the guidelines, I do not have any doubt
that we could improve it, and that we ought to make some improvement.
In fact, I would say to my colleagues here, who think some of the
sentencing guidelines are too tough--and that is what you hear a lot--
that Senator Hatch and I are the only two Members of this Senate, that
I know of, who have taken any action to fix it.
We offered the Hatch-Sessions bill last year and are reoffering it
this year, that would deal with what I believe to be an unfair
circumstance: The crack cocaine/powder cocaine sentencing disparity. I
don't believe the extent of the disparity is justified. If you want to
complain about something, let's talk about that. Not child pornography,
child sexual abuse, not sexual cases. I don't see a problem in the
guidelines with those cases. If anything, those sentences need to be
toughened up.
I do agree, as a person who regularly and consistently prosecuted
cases, that we can improve the sentencing disparity on crack and powder
cocaine. For every child sex case, there are probably 10 crack and
powder cocaine cases going through Federal court. Let's talk about
that. I would be willing to talk about that.
I also think we should pass the Hatch-Sessions bill first. That
legislation takes a major step forward in creating some fairness in the
system and deals with the courier case, the girlfriend case. It deals
with the sentencing disparity between at some points as much as 100 to
1 between crack and powder cocaine. It narrows that, substantially
eliminating the unfairness there. Let's do it that way. Let's not stop
this bill. This bill needs to go forward.
I understand the concerns about sentencing guidelines in general. How
should we fix it? We should fix it by maintaining integrity in the
sentencing process, not by standing idly by if judges are violating
that process.
No. 2, if we carry out our responsibilities, we will look at the act
as we pass. We will look at the sentences being imposed in the
courtrooms of America and if we were wrong in any of those sentences,
we should change them. The one area I am confident we could do better
in is the crack and powder cocaine issue. I am prepared to act on that.
I have offered legislation that would act on that. It would reduce the
crack cocaine sentences significantly. A lot of people don't want to
appear to be soft on crime. They don't want to appear to reduce any
sentences. But I have been there. I have seen defendant after defendant
go off to jail. Several years in a row my office had some of the
highest average sentences in America for drug cases. I didn't apologize
for that one bit. But if the sentences are not what we need if some,
like powder, are not tough enough and need to be increased, and some
like crack need to be reduced we should eliminate some of the
criticisms about justice in American by being more consistent in how we
sentence. That would create more public confidence in the system, and
we ought to do that. I am prepared to take the lead on that. In fact,
Senator Hatch and I have led on that. We have stepped to the plate and
proposed to make progress.
I suggest that the PROTECT Act needs to move forward. Chairman Hatch
and Chairman Sensenbrenner have done the responsible thing. They have
examined the complaints about the Feeney amendment. They have reduced
those complaints to an extraordinary degree. They kept this legislation
focused on sexual abuse cases, as it should be. We ought to support it.
One thing we know is that sexual offenders and predators are repeat
offenders. A 1998 study of sexual recidivism factors for child
molesters showed that 43 percent of offenders sexually reoffended
within a 4-year follow-up period. Almost half of the people arrested as
child molesters reoffended in a sexual abuse case within 4 years. I
would suggest some of those reoffended and were not caught. There is no
doubt in my mind that within 4 years, if this number is accurate, we
could say with certainty that over half of those offenders in 4 years
reoffended. That is a serious social problem.
One thing we put in this bill is important. We put in a provision
that would allow lifetime supervision after release from custody or
after probation, if that occurs, if the judge feels the defendant poses
a danger to society. That is the right thing to do. I am so glad that
is in this bill. Senator Hatch and I offered language to that effect.
We suggested it last year.
The theory behind it is simply this: science and history tell us that
child molesters are repeat offenders. Pedophiles reoffend. Do we want
to keep them in jail forever? They ought to be kept in jail a long
time--no doubt about that in my mind. Should they be kept in jail
forever? Very few are kept in jail forever, whether they should be or
not. Large numbers of them are released. Under the normal Federal
sentencing guidelines, post conviction supervision is 1 to 5 years. So
after that 5 years is over, these sexual offenders are not even being
supervised by Federal probation officers.
It is a rational and logical and just step to give a Federal judge
the ability to impose post-release supervision for as long as he or she
deems appropriate. That is a good step in the right direction.
According to the Bureau of Justice statistics, released rapists were
10.5 times as likely as nonrapists to be rearrested for rape, and those
who had served time for sexual assault were 7.5 times more likely as
those convicted of any other crime to be rearrested for a new sexual
assault. Do you see what that is saying? Those are stunning numbers,
when you think about it. They tell us that released rapists are 10
times more likely to rape someone else in the future; that tells us
that when you apprehend a rapist, it needs to be taken seriously. We
need to understand that a person who has committed rape in the past has
a much, much greater potential for raping another innocent human being
in the future or for molesting another child in the future. That is why
Federal supervision can be helpful there.
Good Federal probation officers work hard. They stay on top of
offenders. Perhaps they can identify circumstances when offenders may
be getting in trouble or acting in an unhealthy way, to make sure that
the jobs sexual offenders take do not place them in contact with
children. Perhaps probation officers can otherwise monitor offenders'
activities to substantially reduce the likelihood that they would
reoffend.
I thank Senator Hatch for his leadership. We thought we had an
agreement with Senators Leahy and Kennedy and others to move this bill
forward. Unfortunately, we are not moving forward at this moment. I
hope we can break the logjam so that this important legislation will go
forward to final passage.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mrs. HUTCHISON. Mr. President, I will only speak for about 3 or 4
minutes, I tell the Senator from Massachusetts. I appreciate the
recognition.
I want to speak on the AMBER alert portion of this legislation
because we have been working on it for several months. We passed AMBER
alert legislation last year. Senator Feinstein and I cosponsored the
legislation. Senator Hatch and Senator Leahy were very supportive. We
passed AMBER alert again this year and hoped very much that we could
get a clean bill that would be signed quickly by the President.
However, I know provisions were added that are very good provisions.
I am very pleased that we have finally gotten a bill that the House has
passed and would be able hopefully to pass this legislation and send it
to the President.
Because the AMBER alert is proven to save lives, Senator Feinstein
and I have been working very hard to get it passed through the Senate.
Ed Smart, a constituent of the distinguished Senator from Utah, told us
how important AMBER alerts were in helping to find his daughter
Elizabeth. Even though she is one of the few abducted children who was
found after a long period, it was the publicity that made the
difference because a person who saw the picture of the suspect in the
paper then saw the suspect on the street, and the police were able to
walk up to the suspect and Elizabeth Smart was right
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there with him. So it does make a difference that we have this kind of
publicity.
To date, sixty abducted children have been recovered with the
assistance of AMBER alert. In fact, the statistics show that 75 percent
of recovered children are recovered within the first 3 hours. You can
only do this with the large electronic road signs and with media
helping you to get the word out that this is a child in peril. That is
why the AMBER alerts do work, and the quick recovery is the best chance
we have for a recovery at all.
There are Federal grants authorized in this legislation that will
help educate States about AMBER alerts and assist States so they won't
be overused. The legislation will provide for a person who will be in
the Justice Department--the AMBER coordinator--so that a law
enforcement officer who believes a suspect may be going to another
State can make one call to the Justice Department and not worry again
about the recovery effort continuing. The Justice Department can put
the word out to the other contiguous States and really make a
difference.
The AMBER alert bill has had a lot of supporters: The National Center
for Missing and Exploited Children, the National Association of
Broadcasters, and the Fraternal Order of Police have all been
instrumental in passing this legislation. I had hoped we could pass it
earlier. I had hoped we would have passed it last year to get other
States up to speed, so they would have good, solid AMBER alert systems
that would coordinate with the Justice Department. But it is April of
2003 now and it is time to pass this legislation.
Senator Feinstein and I have worked very hard to do this. We thank
Senator Hatch and we thank those who helped us with the original
legislation. I know there are differences in some of the add-ons.
Believe me, we would have liked to have had a clean bill. But we don't
get exactly what we want in the legislative process. There are a lot of
other people with different views and they have to be accommodated.
So I am very pleased we have the bill before us. I intend to support
it, and I hope we can pass it and send it to the President.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KENNEDY. Mr. President, I listened to the Senator from Texas in
terms of her strong support. I know she has been involved in the AMBER
legislation, as others have, such as my friend and colleague from
Vermont. We all remember the work done by the committee itself last
year when we initially sent this over to the House of Representatives.
We waited a long time. It didn't come back. We sent it back over in
January. It didn't come back. Now we have this part come back, of which
we are all in support.
I must say there are procedures that probably would have to be
streamlined, but the provisions that apply to those who are going to be
involved in the abduction and kidnaping of children and the various sex
crimes outlined and considered in the legislation, that is not any
point of dispute. We are in strong support.
The fact is, there are other factors included in this legislation on
which there haven't been hearings and which basically undermine the
criminal justice system, as pointed out by the Chief Justice of the
United States. It is not just the Senator from Massachusetts, it is the
Chief Justice of the U.S. and he has not been known as a coddler of
criminals or lenient on defendants. That is not the reputation of the
Chief Justice of the United States, Mr. Rehnquist. Yet he has serious
reservations about the provisions of this legislation which we have
addressed earlier today and which were addressed in the conference.
So I want to make some additional remarks at this time to once again
let my colleagues know what is really involved in the legislation.
As I mentioned earlier, when we came out of conference, it was said
by the chairman of the committee that rather than have the Sentencing
Commission do a review and report back in 180 days about the sentencing
requirements under this legislation, then we could either enhance or
adjust, or rather than even having hearings by the Criminal Justice
Subcommittee of the Judiciary Committee, then we could move ahead and
consider those on the floor of the Senate. We accepted, after the 6 or
7 minutes of debate and discussion on the floor of the House of
Representatives, and without any hearings whatsoever in the Senate or
in the Judiciary Committee, provisions that have broad application to
all of the sentencing guidelines. We have heard explanations that they
really don't, but they do.
I will review them very quickly here this afternoon once again. There
are three major ways in which this conference report goes beyond the
issues of crimes against children.
First, the bill changes the standard of appellate review in all
cases, not just cases in which children are victims. This overturns a
unanimous Supreme Court decision and radically changes the Federal
sentencing system.
Do we understand that? This legislation overturns a unanimous Supreme
Court decision, without a single day, hour, or minute of hearings. That
is one reason the Chief Justice, the Judicial Conference of Judges, the
American Bar Association, all have expressed their opposition to these
provisions.
Second, the bill imposes new reporting requirements when judges
depart in any case, not just children cases, and this is a blatant
attempt to intimidate the judiciary. It says to judges you will be
called on the carpet if you depart downward. Your name will be given to
the Attorney General and he will report you to Congress. If that isn't
a blacklisting for Federal judges, I don't know what is, Mr. President.
If these judges are not competent to serve on the Federal judiciary,
they should not have been recommended--in these cases, Republican
Presidents--or approved by a Republican Senate. But these are the ones
who are basically applying these guidelines at the present time.
Third, the bill directs the Sentencing Commission to limit downward
departures in all cases, not just child cases. This proposal is based
on the erroneous view that there is excessive leniency in the Federal
sentencing system. The Federal prison population has quadrupled in the
last 20 years. The length of sentences is up dramatically in 20 years.
Those are three major departures from the assurances that were given
by the chairman of the Judiciary Committee in that conference. His
amendment, which is included in the conference, would only apply to the
issues that were before us dealing with children and children's crimes.
These are three examples of where they will affect all of the
sentencing, and that has not been refuted this afternoon.
I want to take a moment of time to consider a response to many of the
claims that have been made here about the problems in the Federal
criminal system--claims, quite frankly, that are not supported by any
record in the Senate, I might add. This is the analysis of eight highly
respected former U.S. attorneys, most of whom are Republicans. They
wrote to the Judiciary Committee:
We write, as former United States Attorneys in the Southern
and Eastern Districts of New York, to express our concern
about Section 109 of S. 151/H.R. 1104, the Child Abduction
Prevention Act. This proposed legislation--which contains
some of the most far-reaching revisions of the federal
sentencing process in many years--was passed by the House of
Representatives on March 27, 2003. Our concern regarding this
legislation is based not only on the questionable
justification for many of its provisions, but also on the
fact that it has already been adopted by one house of
Congress without any meaningful input from the judiciary, the
Sentencing Commission, members of the bar or other interested
experts and members of the criminal justice community.
It continues:
. . . The proposed legislation not only disregards the
Sentencing Commission's unique role in the federal sentencing
process, but also ignores Congress' own admonition that the
views of interested parties in the federal criminal justice
system be carefully considered before changes to the
Guidelines are enacted.
The proposed legislation raises serious questions on its
merits as well. To start, the justification for such sweeping
changes is unclear. Although the number of downward
departures not based on cooperation has increased in the last
several years, 70 percent of that increase is attributable to
departures in a small number of ``border'' districts that
handle an extraordinary number of immigration cases which
place unique demands on
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the criminal justice system. The localized nature of this
increase does not justify a nationwide restriction on the
availability of downward departures in all cases.
The sparse legislative history of this proposal similarly
reflects that it is an unnecessarily broad response to a
particularized concern. The amendment's author has stated
that the legislation is prompted by the fact that a
``disturbing trend has occurred, especially in child
pornography cases'' and that departures have become a
``common occurrence.'' If downward departures have become
commonplace in one particular type of case, then careful
scrutiny of the reasons for this phenomenon, and of the
appropriateness of the Guideline level for that type of case,
may well be warranted. It does not, however, justify a
wholesale restriction of downward departures for all cases
within the criminal justice system.
The legislation also contemplates unwarranted limitations
on the exercise of sentencing discretion by the federal
judiciary. A United States District Judge has the unique and
difficult responsibility of imposing criminal punishment on a
defendant based on an individualized assessment of the facts
and circumstances of a particular case. Indeed, Congress has
explicitly recognized that the Sentencing Guidelines are
intended not only to avoid unwarranted disparity in
sentencing but also to maintain ``sufficient flexibility to
permit individualized sentences when warranted by mitigating
or aggravating factors not taken into account in the
establishment of general sentencing practices.'' 28 U.S.C.
Sec. 991(b)(1)(B). . . .
In fiscal year 2001, putting aside the ``border'' districts
and departures based on cooperation (which require the
government's consent), district judges departed downward only
10.2 percent of the time. Moreover, 85 percent of all
defendants who received non-cooperation downward departures
that year nevertheless were sentenced to prison. What these
statistics reveal is a relatively limited exercise of
sentencing discretion of the sort contemplated by Congress
when it authorized the promulgation of the Guidelines.
The legislation also would overrule the Supreme Court's
decision in Koon v. United States, 518 U.S. 81 (1996). This,
too, is of serious concern. In Koon, all nine Justices of the
Supreme Court recognized that an appellate court should
review a decision to depart from the Guidelines with ``due
deference'' to the district court's decision, and that such a
decision should be overruled only if the district court
abuses its discretion.
That is what the Supreme Court said, but that is not what is in the
Hatch amendment.
Continuing to quote the letter:
The decision correctly recognized that district judges are
uniquely qualified to decide whether a departure from the
Guidelines is justified by the particular circumstances of a
given case or the background of a particular defendant. The
legislation's substitution of a de novo standard of review
would allow appellate courts to second-guess sentencing
decisions without any meaningful guidance as to when those
decisions should or should not be upheld. Moreover, given the
fact that the government currently has the ability to appeal
unauthorized or excessive downward departures and is
successful in such appeals about 80 percent of the time--
Understand that, 80 percent of the time when the Government appeals
these cases, they are successful.
A change in the appellate standard of review appears
unnecessary to enable the appellate courts to overturn
unwarranted departures.
These and other concerns have prompted objections to the
proposed legislation from representatives of a wide variety
of interested parties to this issue. This includes the
Secretary of the Judicial Conference of the United States,
all five current voting members of the United States
Sentencing Commission, all three Chairpersons of the
Commission since its creation, the President of the American
Bar Association, and numerous other bar organizations. As
former members of the Department of Justice, we respectfully
urge you to allow careful consideration of their views, and
those of other interested parties, in a public forum before
deciding upon the wisdom of any of the sentencing reforms
contained in this proposed legislation.
Imagine that, they are requesting us to give some consideration and
have a hearing on it. According to the chairman of the Judiciary
Committee, there is no chance for that. We are just going to be faced
with this situation.
The entire premise of the Feeney amendment is that departure from the
guidelines is a problem that needs to be stamped out. That reflects the
fundamental misunderstanding of the guideline system. We never intended
the Sentencing Reform Act of 1984 to eliminate judicial discretion. We
struck a balance between sentencing uniformity and individualized
sentencing. We recognized that guidelines cannot possibly describe
every single case. We need uniform rules, but then we need flexibility
in individual cases.
There is no epidemic of leniency in the Federal criminal justice
system. The Federal prison population has quadrupled in the last 20
years. It is now larger than any State system.
The departure rate is not excessive. In the committee report
accompanying the 1984 act, we anticipated a departure rate of around 20
percent. That is what the estimates were at the time we accepted the
Federal guidelines. In fact, the rate at which judges today depart over
the objection of the Government is slightly more than 10 percent. So we
are well within the acceptable rates.
If there is any problem at all, it is with Government departures. The
American Bar Association reports that 79 percent of the downward
departures in the United States were requested by the Government.
Unlike judicial departures, which are subject to appellate review,
departures sought by prosecutors are essentially unreviewable. Maybe we
need to look at the procedures adopted by the Department of Justice in
this area.
Why do judges depart? According to the Sentencing Commission, the
second most frequent reason for departure is ``pursuant to a plea
agreement.'' That accounts for 17.6 percent of downward departures
other than substantial assistance. Only a small fraction of departures
are based on the offender traits the Senator from Utah complains
about--family ties, 3.8 percent; rehabilitation, 1.7 percent; mental
conditions, 1.1 percent.
It is only a small number of defendants that benefit from judicial
leniency. In all the talk about leniency, we forget who these judges
are. Many were appointed by Republican Presidents. All were confirmed
by the Senate. Many are former prosecutors or other government
officials. These are not people predisposed to sympathy for criminals.
They are toughminded, responsible pillars of their communities trying
their best to impose just sentences within the constraints of the law.
Almost 80 percent of the time, the prosecutor agrees that leniency is
warranted. Sometimes the Government does not agree, and that is what an
appellate review is for.
Moreover, the Government wins 78.1 percent of all sentencing appeals.
So that mechanism is functioning very well to ensure tough sentences.
In this proposal, judges will now have less discretion, and so the
prosecutor--listen to this, Mr. President--and so the prosecutor will
dictate the sentence in more and more cases. This is a dangerous
development. Judicial discretion in sentencing is an accountability
measure. It is an important way to check the excesses of the
prosecutor. Our system of government is founded on that type of checks
and balances. But by weakening the judiciary and depriving judges of
the tools they need to do justice in individual cases, the proposal
undermines accountability and diminishes justice.
This is not the end of the fight. It took us 10 years, 75 hearings,
and extensive consultation with top judges, prosecutors, defense
attorneys, and other experts to achieve the right balance between
ensuring fairness and consistency in the criminal justice system and
preserving judges' judicial sentencing discretion.
It is not right for us to destroy that balance through an ill-
considered measure that has not received any hearings or any debate in
the Senate.
It is not right to transform the entire Federal guideline system into
a system of mandatory minimum sentences. Just yesterday, Justice
Kennedy vigorously criticized the existing mandatory minimums as unfair
and inconsistent with fundamental principles of justice.
Of course, Chief Justice Rehnquist, as I mentioned, not known to be
particularly sympathetic to criminal defendants, has described this
provision as doing serious harm to the basic structure of the
sentencing guidelines system and impairing the ability of courts to
impose just and responsible sentences.
That is what the Chief Justice has stated about these provisions in
this legislation that we are about to consider, as well as Justice
Kennedy, also nominated by a Republican President and not known to be a
coddler of criminals or lenient in terms of sentencing.
It is a slap in the face of Federal judges, who have to apply the
guidelines system on a daily basis, to include these provisions in the
conference report. It is wrong for my Republican colleagues to
misrepresent the nature of this provision, to suggest
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that it is limited to serious crimes against children, when they know
more serious provisions will apply to all of the offenses. It is wrong
to hold protections for children hostage in order to ram through this
sweeping, ill-advised provision without a single hour or day of
hearings or debate.
I will continue to pursue this issue and do everything I can to
protect the reforms we have achieved on a strong bipartisan basis in
the Sentencing Reform Act of 1984.
I ask unanimous consent that the conference report be defeated, that
the Senate concur in the House amendment with an amendment which is the
text of the conference report with a new title IV.
The PRESIDING OFFICER. Is there objection?
Mr. HATCH. Mr. President, reserving the right to object, if this
change were allowed, as the Senator's unanimous consent request asks,
it would effectively kill this bill, and he knows it. If Senators on
the other side of the aisle want to vote against this conference
report, they can do so.
The point is that we are prepared to vote on this bill today and to
get this to the President for signature before the impending recess so
that there will not be any more children subjected to what Elizabeth
Smart was subjected to, or at least we can have a better set of tools
to solve these problems. Therefore, we cannot agree to this request.
I ask unanimous consent that the consent be modified so that there
now be 30 additional minutes of debate on the conference report, to be
equally divided in the usual form, and that following that time, the
Senate proceed to a vote on adoption of the conference report, with no
further intervening action or debate.
Mrs. FEINSTEIN. Reserving the right to object, if I may.
The PRESIDING OFFICER. The unanimous consent request before the
Senate is the request from the Senator from Massachusetts. The Senator
from Utah has suggested a modification of that request.
Mr. KENNEDY. Under the rules, the Senator can either object or accede
to that request. I retain my right to the floor, Mr. President.
The PRESIDING OFFICER. Is the Senator from Massachusetts calling for
regular order?
Mr. KENNEDY. Regular order.
Mr. HATCH. Then I object.
The PRESIDING OFFICER. Does the Senator from Utah object?
Mr. HATCH. I object to the request of the Senator.
The PRESIDING OFFICER. Objection is heard.
Mr. KENNEDY. I have not lost the floor.
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