[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,

[[Page S5130]]

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

[[Page S5131]]

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

[[Page S5132]]

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

[[Page S5133]]

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

[[Page S5134]]

     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

[[Page S5135]]

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.

  

                          ____________________