[Congressional Record Volume 149, Number 58 (Thursday, April 10, 2003)]
[Senate]
[Pages S5137-S5157]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page S5137]]

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                                 Senate

                          AMBER LEGISLATION--

                              (Continued)

  The PRESIDING OFFICER (Mr. Cornyn). The Senator from Massachusetts 
retains the floor.
  Mr. KENNEDY. Mr. President, I am going to send to the desk the 
underlying legislation which also strikes the provisions in title IV. 
It will limit them to the serious crimes against children. This is what 
was basically agreed to in the conference report, the AMBER 
legislation, and the provisions in that Feeney amendment that apply to 
children as was, I think, represented by the chairman of the Judiciary 
Committee.
  I send the legislation of the committee to the desk and ask for its 
appropriate referral.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
measure will be received and appropriately referred.
  The Senator from Utah.
  Mr. HATCH. Mr. President, I now renew any unanimous consent request, 
without losing my right to the floor, that we have 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.
  The PRESIDING OFFICER. Is there objection?
  Mrs. FEINSTEIN. Reserving the right to object, Mr. President.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. I would like to speak for a few minutes on this bill, 
if I might.
  Mr. HATCH. If the Senator will withhold, I will yield a few minutes 
to the Senator, but I first want to do this unanimous consent request.
  The PRESIDING OFFICER. Is there objection to the unanimous consent 
request?
  Without objection, it is so ordered.
  The Senator from Utah.
  Mr. HATCH. Would the Chair explain what the parliamentary order is.
  The PRESIDING OFFICER. There will now be up to 30 minutes of debate, 
evenly divided, on the conference report. At the expiration of the 
time, a vote will occur on the report, without any intervening action 
or debate.
  Mr. HATCH. With that understanding then, I yield to the distinguished 
Senator from California.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I must say I really think this is 
unfortunate. When Senator Hutchison and I proposed the AMBER alert in 
the last session and when Senator Leahy was good enough to see that it 
passed through the committee very rapidly, the Senate voted on it, the 
House did not. This year Senator Hatch was good enough, as chairman, to 
see that it passed through the Judiciary Committee very rapidly. The 
Senate passed the bill. It went to the House, and it became confused in 
what is a rather monumental discussion.
  I want to make a couple of comments on the AMBER alert bill, and then 
I want to make a few comments on the remainder of the bill.
  More than any other single law enforcement tool, I deeply believe, as 
does Senator Hutchison, that the AMBER alert can result in an abducted 
child being brought home safely. We know it works, and we know it is a 
program that should be nationwide.
  To date, in 39 States and 49 local and regional jurisdictions, there 
is an AMBER alert. This is up from 16 States and 32 local and regional 
jurisdictions just last August. These alerts have been extremely 
successful. They have resulted in the return of 53 abducted children 
across the country. Hallelujah. That is 53 families who did not have to 
suffer the pain of losing a loved one, 53 families who did not have to 
live through the trauma of losing a child, and that is why this 
legislation is so important. That is why I am going to vote for this 
bill.
  The first hours after a child is taken are critical. If the child is 
not found in those first few hours, chances increase dramatically that 
he or she will disappear forever, and this is the power of the AMBER 
alert. An alert can be issued within minutes of an abduction and 
disseminate key information.
  Since the State of California first adopted the AMBER alert just 9 
months ago, 25 AMBER alerts have been issued involving 31 victims. Each 
of these alerts ended with the child being united with their family. 
One cannot argue with results like that.
  The provision included in the conference report has a number of key 
components. It would authorize $20 million for the Department of 
Transportation and $5 million to the Department of Justice for the 
development of AMBER alert systems in States where they do not exist; 
it would build upon the President's Executive order by authorizing a 
national coordinator; and it would reduce the number of false alerts.
  The bill would provide a framework for the Justice Department to 
establish minimum standards for the regional coordination of AMBER 
alerts. It is a good bill. We need it.
  The report also includes several provisions similar to legislation 
that I sponsored, with Senator Hatch, which would enhance national 
efforts to investigate, prosecute, and prevent crimes against children. 
I really regret that these provisions have become enmeshed with other 
concerns over the conference report.
  I heard Senator Kennedy speak in the Judiciary Committee this 
morning. I have heard him speak on the floor this afternoon. I 
understand his concerns. I do not believe judges should have to report 
their sentences on child crime to the Congress of the United States. I 
think that is a mistake. It should not happen.

[[Page S5138]]

  With respect to Koon v. the United States, I think it is a mistake to 
let appellate courts change the standard of review. I hope the 
Judiciary Committee will consider these things in the future.
  Let me state what is in the report that I agree with. It mandates 
that sex offenders be supervised for a minimum of 5 years after they 
are released from prison. I agree.
  It ensures that the murder of a child committed as part of a pattern 
of assaulting or torturing a child is considered first-degree murder. I 
agree.
  It increases the maximum and minimum penalties for anyone who 
sexually exploits a child. For first conviction, a maximum penalty is 
30 years, increased from 20 years. And the minimum sentence is 15 
years, increased from 10 years. I happen to agree.
  It creates a mandatory minimum penalty for kidnapping of not less 
than 20 years. Some do not agree with mandatories. I understand that. I 
respect that. But in the instance of a child, I agree with mandatories.
  It creates a crime with a maximum penalty of 30 years for a U.S. 
citizen traveling within or outside the United States to engage in 
illegal sexual conduct with children. I agree.
  It requires a person convicted a second time of a Federal sex offense 
involving children to receive a penalty of life imprisonment unless a 
death sentence is imposed.
  Now, if a person is going to be convicted of sexually abusing 
children twice, the question comes, should there be a third time? I 
have to say there shouldn't be a third time. I support this provision.
  It makes it a crime to attempt international parental kidnapping. 
Currently, only actual parental kidnapping is illegal. The attempt 
should be illegal, as well. I support that.
  It removes the statute of limitations for child abduction and sex 
crimes. I agree with that.
  It creates a Federal crime with a 2-year maximum penalty for creating 
a domain name with the intent to deceive a person into viewing obscene 
material on the Internet. The maximum penalty is 4 years if the intent 
is to deceive a minor. I agree.
  It creates a rebuttal presumption against bail for a person accused 
of raping or kidnapping a victim who was under 18.
  It expands reporting requirements for missing children from 18 to 21 
years. Current law requires a host of Federal agencies to report a case 
of a child under 18 who is missing to the National Crime Information 
Center. In this case, the age of a missing child for reporting purposes 
is increased to 21.
  It provides more funding for the National Center for Missing and 
Exploited Children, increasing funding by $10 million in both fiscal 
years 2004 and 2005.
  I wish it did not have to happen this way. I would have felt much 
better if we had a chance in the Judiciary Committee to hold the 
requisite decisions and debate this more fully. I am very hopeful those 
things which are very controversial--and there are a few in this bill--
we will have an opportunity to hear further and amend, if necessary.
  What is important is to get the AMBER alert established nationally. 
If we had been at this for a month or two, I would not feel the way I 
do today. But we passed this bill in this body in the last Congress. 
Yet here we are today. I wish it could be a clean bill. I wish it could 
be just AMBER alert, but I am very pleased and will support the passage 
of this legislation.
  I yield the floor.
  Mr. LEAHY. Mr. President, I am pleased that today we will finally 
pass into law a very important bill designed to protect children.
  As an original cosponsor of the National AMBER Alert Network Act, S. 
121, I have worked with my Senate colleagues to do all that we possibly 
can to speedily pass it into law. Twice now we rapidly passed our bill 
through the Senate on unanimous, bipartisan votes--last fall and again 
in January. Both times House leaders chose not to pass it, instead 
delaying its assured passage into law by using the bill as a 
``sweetener'' for a package of other controversial provisions that the 
Senate has not previously considered. The Smart family--who credit the 
AMBER Alert for the safe return of Elizabeth--has repeatedly joined us 
to urge House leaders to promptly take up and pass our Senate bill.
  Had House leaders opted to stand up and do what is right from the 
beginning, we would already have a nationwide AMBER Alert system in 
place to save our children's lives when they are abducted. We will 
never know how many children could have been saved by a nationwide 
AMBER Plan--if the House had simply passed our bill when the Senate 
did, I daresay the number of children rescued from their abductors and 
death would be much higher. Efforts to protect our children do not 
deserve to be used as pawns by groups who play politics by attaching it 
to more controversial measures.
  That being said, I am pleased that AMBER Alert legislation is 
included in the conference report, as it will aid states in their fight 
against the disturbingly increasing trend of child abductions and their 
often tragic ends. Our plan will enhance the AMBER Alert system created 
after the 1996 kidnapping and murder of 9-year-old Amber Hagerman of 
Arlington, TX. Since 1996, AMBER Alerts have helped rescue 53 children 
from their abductors nationwide by using broadcasters, law enforcement 
officials, road signs and a variety of other tools to instantly 
disseminate information about child abductions.
  Today 39 States have statewide AMBER Alert plans. Our AMBER Alert 
legislation included in the conference report will create voluntary 
standards that would help States determine the criteria for AMBER 
Alerts and for quickly disseminating official information during AMBER 
Alerts. A newly appointed coordinator within the Justice Department 
will oversee the communication network for abducted children, working 
with states, broadcasters, and law enforcement agencies to set up and 
supplement AMBER plans and responses.
  Our plan will give law enforcement agencies a powerful tool, while 
providing flexibility for states to implement the alert system. States 
also need financial help to create effective Amber Alert systems, and 
this conference report creates two Federal grant programs to help 
States establish AMBER plans. One, administered by the Department of 
Transportation, will give States assistance creating Statewide 
notification and communications systems, including message boards and 
road signs to help in the recovery of abducted children. The other, 
administered by the Justice Department, will help States create 
communications plans with law enforcement agencies and the communities 
they serve. My State of Vermont does not yet have an AMBER Alert 
system, and law enforcement officials in Vermont have begun laying the 
groundwork for a system there. They welcome the Federal help our bill 
will offer to get a system up and running.
  As a father and grandfather I know that an abducted child is a 
family's worst nightmare, and one that happens far too often. The 
families of children taken by strangers need our help, and they will 
get it with the passage of the AMBER Alert legislation.
  The conference report we consider today includes another very 
important piece of legislation this one designed to protect children 
from being exploited by child pornographers. I should know because I 
helped to write this bill in the Senate. Indeed, I am the lead 
cosponsor of the Senate bill, S.151, which we sent over to the House 
with a vote of 84-0.
  Ironically, the House and the conference committee have added so many 
extra controversial provisions to the conference report bill that one 
of its core elements, and the element that gives the conference report 
its title--the PROTECT Act--is buried near the end in Title V. Title V 
is largely the bill that Senator Hatch and I jointly crafted, held 
hearings on, and moved through the Senate as the PROTECT Act. I would 
like to discuss both the content and history of the provisions in this 
title of the conference reported bill.
  When Senator Hatch and I introduced S. 151 in January, I supported 
passing a bill that was identical to the measure that we worked so hard 
to craft in the last Congress. That bill had passed the Judiciary 
Committee and the Senate unanimously in the 107th Congress. It did not 
become law last year because, even though the Senate

[[Page S5139]]

was still meeting, considering and passing legislation, the House of 
Representatives had adjourned and would not return to take action on 
this measure, which had passed the Senate unanimously, or to work out 
our differences.
  As I said when we introduced the Hatch-Leahy PROTECT Act and again as 
the Judiciary Committee considered this measure, although this bill is 
not perfect, it is a good faith effort to provide powerful tools for 
prosecutors to deal with the problem of child pornography within 
constitutional limits. We failed to do that in the 1996 Child 
Pornography Protection Act ("CPPA"), a significant portion of which the 
Supreme Court struck down last year. We must not make the same mistake 
again. The last thing we want to do is to create years of legal limbo 
for our nation's children, after which the courts strike down yet 
another law as unconstitutional.
  I also said at our Judiciary Committee markup and again when the 
Senate passed this bill unanimously that I hoped we could pass the bill 
in the same form as it unanimously passed in the last Congress. 
Unfortunately, my colleagues on the other side of the aisle and in the 
House have jointly decided not to follow this route. Despite this fact, 
I have continued to work with Senator Hatch to craft the strongest bill 
possible that will produce convictions that will stick under the 
Constitution.
  I was also glad to learn that, after we passed the bill unanimously, 
the administration ``strongly supported'' the Senate version of the 
bill. However, the House still chose not to enact the Senate bill, 
instead adding numerous controversial provisions to it. That is a 
shame, because it was no easy feat to move a bill fraught with such 
constitutional difficulties as the PROTECT Act to the point where not a 
single Senator voted against it.
  I want to take a moment to speak again about the history of this 
important bill and the joint effort that it took to get to this point. 
In May of 2002, I came to the Senate floor and joined Senator Hatch in 
introducing the PROTECT Act , after the Supreme Court's decision in 
Ashcroft v. Free Speech Coalition ("Free Speech"). Although there were 
some others who raised constitutional concerns about specific 
provisions in that bill, I believed that unlike legislative language 
proposed by the administration in the last Congress, it was a good 
faith effort to work within the first amendment.
  Everyone in the Senate agrees that we should do all we can to protect 
our children from being victimized by child pornography. That would be 
an easy debate and vote. The more difficult thing is to write a law 
that will both do that and will produce convictions that stick. In 
1996, when we passed the CPPA many warned us that certain provisions of 
that Act violated the first amendment. The Supreme Court's decision 
last year in Free Speech has proven them correct.
  I believed and continue to believe that we should not sit by and do 
nothing. It is important that we respond to the Supreme Court's 
decision. It is just as important, however, that we avoid repeating our 
past mistakes. Unlike the CPPA, this time we must respond with a law 
that passes constitutional muster. Our children deserve more than a 
press conference on this issue. They deserve a law that will last, 
rather than one that will be stricken from the law books.
  It is important that we do all we can to end the victimization of 
real children by child pornographers, but it is also important that we 
pass a law that will withstand first amendment scrutiny. We need a law 
with real bite, not one with false teeth.
  After joining Senator Hatch in introducing the PROTECT Act in the 
107th Congress, as Chairman of the Judiciary Committee in the last 
Congress, I convened a hearing on October 2, 2002 on the legislation. 
We heard from the Administration, from the National Center for Missing 
and Exploited Children, NCMEC, and from experts who came and told us 
that our bill, as introduced, would pass constitutional muster, but the 
House-passed bill supported by the administration would not.
  I then placed the Hatch-Leahy PROTECT Act on the Judiciary 
Committee's calendar for the October 8, 2002, business meeting. I 
continued to work with Senator Hatch to improve the bill so that it 
could be quickly enacted. Unfortunately the Judiciary Committee was 
unable to consider it because of procedural maneuvering by my 
colleagues that had nothing to do with this important legislation.
  I still wanted to get this bill done. That is why, for a full week 
last October, I worked to clear and have the full Senate pass a 
substitute to the bill that tracked the Hatch-Leahy proposed committee 
substitute in nearly every area.
  Indeed, the substitute I offered even adopted parts of the House bill 
which would help NCMEC work with local and State law enforcement on 
these cases. Twice, I spoke on the Senate floor imploring that we 
approve such legislation. As I stated then, every single Democratic 
Senator cleared that measure. I then urged Republicans to work on their 
side of the aisle to clear this measure which was substantially similar 
to the joint Hatch-Leahy substitute so that we could swiftly enact a 
law that would pass constitutional muster. Unfortunately, they did not. 
Facing the recess before the mid-term elections, we were stymied again.
  Even after the last election, during our lameduck session, I 
continued to work with Senator Hatch to pass this legislation in the 
Senate. As I had stated I would do prior to the election, I called a 
meeting of the Judiciary Committee on November 14, 2002. In the last 
meeting of the Judiciary Committee under my Chairmanship in the 107th 
Congress, I placed S. 2520, the Hatch-Leahy PROTECT Act, on the agenda 
yet again. At that meeting the Judiciary Committee amended and approved 
this legislation. We agreed on a substitute and to improvements in the 
victim shield provision that I authored.
  I did not agree with certain of Senator Hatch's committee amendments 
because I thought that they risked having the bill declared 
unconstitutional. I nevertheless both called for the committee to 
approve the bill and voted for the bill in its amended form. That is 
the legislative process and it was followed for this portion of the 
bill. We studied and argued the issues. I compromised on some issues, 
and Senator Hatch compromised on others. Even though the bill was not 
exactly as either of us would have wished, we both worked fervently to 
seek its passage.
  The same day as the bill unanimously passed the Judiciary Committee, 
I sought to gain the unanimous consent of the full Senate to pass the 
Hatch-Leahy PROTECT Act as reported, and I worked with Senator Hatch to 
clear the bill on both sides of the aisle. I am pleased that the Senate 
did pass the bill by unanimous consent. I want to thank Senator Hatch 
for all he did to help clear the bill for passage in the 107th 
Congress. Unfortunately, the House failed to act on this measure last 
year and the administration decided not to push for passage. If they 
had, we could have passed a bill, sent it to the President, and had a 
new law to protect children on the books months ago.
  Instead, we were forced to repeat the entire process again, and we 
did it. I am glad to have been able to work hand-in-hand with Senator 
Hatch on the real ``PROTECT Act''--now Title V of the massive bill we 
are considering--because, it is a bill that gives prosecutors and 
investigators the tools they need to combat child pornography. The 
Hatch-Leahy PROTECT Act strives to be a serious response to a serious 
problem. Let me outline some of the important provisions in Title 5 
that I helped to write and move through the Senate.
  I was glad that the House retained the Senate version of Section 503 
of the bill, which created two new crimes aimed at people who 
distribute child pornography and those who use such material to entice 
children to do illegal acts. Each of these new crimes carries a 15-year 
maximum prison sentence for a first offense and double that term for 
repeat offenders. First, the bill criminalizes the pandering of child 
pornography, creating a new crime to respond to the Supreme Court's 
recent ruling striking down the CPPA's definition of pandering. This 
provision is narrower than the old pandering definition in at least one 
way that responds to a specific Court criticism. The new crime only 
applies to the people who actually pander the child pornography or 
solicit it, not to all those who possess the material ``downstream,'' 
and it

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requires the government to demonstrate that the defendant acted with 
the specific intent that the material is believed to be child 
pornography.
  The bill also contains a directive to the Sentencing Commission which 
asks it to distinguish between those who pander or distribute such 
material and those who only ``solicit'' the material. As with narcotics 
cases, distributors and producers are more culpable than users and 
should be more harshly punished for maximum deterrent effect. With the 
many problematic sentencing provisions that were included in the 
conference report, this provision that I crafted does it the correct 
way. It points out an important distinction between possessors and 
distributors but ultimately leaves it to the bipartisan commission to 
set the guidelines.
  I would have liked for the pandering provision to be crafted more 
narrowly so that ``purported'' material was not included and so that 
all pandering prosecutions would be linked to ``obscenity'' doctrine. 
That is the way that Senator Hatch and I originally wrote and 
introduced this provision in the last Congress. Unfortunately, the 
Senate amendment process has resulted in some expansions to this once 
non-controversial provision that may subject it to a constitutional 
challenge. Thus, while it responds to some specific concerns raised by 
the Supreme Court, there are constitutional issues that the courts will 
have to seriously consider with respect to this provision. I will 
discuss these issues later.
  Second, section 503 creates a new crime that I proposed to take 
direct aim at one of the chief evils of child pornography: namely, its 
use by sexual predators to entice minors either to engage in sexual 
activity or the production of more child pornography. This was one of 
the compelling arguments made by the government before the Supreme 
Court in support of the CPPA, but the Court rejected that argument as 
an insufficient basis to ban the production, distribution or possession 
of ``virtual'' child pornography. This bill addresses that same harm in 
a more targeted and narrowly tailored manner. It creates a new felony, 
which applies to both actual and virtual child pornography, for people 
who use such material to entice minors to participate in 
illegal activity. This will provide prosecutors a potent new tool to 
put away those who prey upon children using such pornography--whether 
the child pornography is virtual or not.

  Next, this bill attempts to revamp the existing affirmative defense 
in child pornography cases both in response to criticisms of the 
Supreme Court and so that the defense does not erect unfair hurdles to 
the prosecution of cases involving real children. Responding directly 
to criticisms of the Court, the new affirmative defense applies equally 
to those who are charged with possessing child pornography and to those 
who actually produce it, a change from current law. It also allows, 
again responding to specific Supreme Court criticisms, for a defense 
that no actual children were used in the production of the child 
pornography--i.e. that it was made using computers.
  The final bill includes the House provision on banning virtual and 
non-obscene child pornography, a provision that I have counseled 
against in both bills because it renders the bill weaker against 
constitutional attack. One addition to the bill that I helped to 
include is the inclusion of a definition of material as ``graphic'' in 
nature. Had that definition, which narrowed the field to hard core 
child pornography, been applied to the entire definition, the measure 
would have been much stronger against constitutional attack. By also 
including ``lascivious simulated'' material in the virtual porn 
definition, however, the conference report risks having the entire 
provision stricken.
  At the same time, I was pleased the House agreed to accept the 
provision I authored that protects prosecutors from unfair surprise in 
the use of this affirmative defense by requiring that a defendant give 
advance notice of his intent to assert it, just as defendants are 
currently required to give if they plan to assert an alibi or insanity 
defense. As a former prosecutor I suggested this provision because it 
affects the real way that these important trials are conducted. With 
the provision, the government will have sufficient notice to marshal 
the expert testimony that may be needed to rebut this ``virtual porn'' 
defense in cases where real children were victimized.
  This improved affirmative defense measure also provides important 
support for the constitutionality of much of this bill after the Free 
Speech decision. Even Justice Thomas specifically wrote that it would 
be a key factor for him. This is one reason for making the defense 
applicable to all non-obscene, child pornography, as defined in 18 
U.S.C. 2256. In the bill's current form, however, the affirmative 
defense is not available in one of the new proposed classes of virtual 
child pornography, which would be found at 18 U.S.C. 2256(8)(C). This 
omission also may render that provision unconstitutional under the 
first amendment.
  The bill also provides much needed assistance to prosecutors in 
rebutting a false ``virtual porn'' defense by removing a restriction on 
the use of records of performers portrayed in certain sexually explicit 
conduct that are required to be maintained under 18 U.S.C. 2257, and 
expanding such records to cover computer images. These records, which 
will be helpful in proving that the material in question is not 
``virtual'' child pornography, may be used in federal child pornography 
and obscenity prosecutions under this act. The purpose of this 
provision is to protect real children from exploitation. It is 
important that prosecutors have access to this information in both 
child pornography and obscenity prosecutions, since the Supreme Court's 
recent decision has had the effect of narrowing the child pornography 
laws, making it more likely that the general obscenity statutes will be 
important tools in protecting children from exploitation. In addition, 
the Act raises the penalties for not keeping accurate records, further 
deterring the exploitation of minors and enhancing the reliability of 
the records.
  Next, the Hatch-Leahy bill contains several provisions altering the 
definition of ``child pornography'' in response to the Free Speech 
case. One approach would have been simply to add an ``obscenity'' 
requirement to the child pornography definitions. Outlawing all obscene 
child pornography--real and virtual; minor and youthful-adult; 
simulated and real--would clearly pass a constitutional challenge 
because obscene speech enjoys no protection at all. Under the Miller 
obscenity test, such material--one, ``appeals to the prurient 
interest,'' two, is utterly ``offensive'' in any ``community,'' and 
three, has absolutely no serious ``literary, artistic or scientific 
value.''
  Some new provisions of this bill do take this ``obscenity'' approach, 
like the new section 1466A, which I crafted with Senator Hatch. Other 
provisions, however, take a different approach. Specifically, the House 
virtual porn provision 2256(8) include persons who are 
``indistinguishable'' from an actual minor. This adopts language from 
Justice O'Connor's concurrence in the Free Speech case. The problem 
with that is that Justice O'Connor was not the deciding vote in the 
Free Speech case, she was the seventh vote to strike down the law. 
Thus, while this language is defensible, I predict that this provision 
will be the center of much constitutional debate. Although I will 
explain in more detail later, these new definitional provisions risk 
crossing the constitutional line.
  Title V, which was already in the unanimously passed Senate bill 
before the House saw fit to make the bill more controversial, itself 
contains a variety of other measures designed to increase jail 
sentences in cases where children are victimized by sexual predators. 
First, it enhances penalties for repeat offenders of child sex offenses 
by expanding the predicate crimes which trigger tough, mandatory 
minimum sentences. Second, the bill requires the U.S. Sentencing 
Commission to address a disturbing disparity in the current Sentencing 
Guidelines. The current sentences for a person who actually travels 
across State lines to have sex with a child are not as high as for 
child pornography. The commission needs to correct this oversight 
immediately, so that prosecutors can take these dangerous sexual 
predators off the street. These are all strong measures designed to 
protect children and increase prison sentences for child molesters and 
those who otherwise exploit children but--unlike the ill-considered 
Feeney and

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Hatch-Sensenbrenner amendments--they are done the right way within the 
structure that Congress established under the Sentencing Reform Act of 
1984.
  Also retained from the original Hatch-Leahy PROTECT Act are several 
provisions designed to protect the children who are victims in these 
horrible cases. Privacy of the children must be paramount. It is 
important that they not be victimized yet again in the criminal 
process. This bill provides for the first time ever a provision that I 
suggested. It is an explicit shield law that prohibits the name or 
other non-physical identifying information of the child victim, other 
than the age or approximate age, from being admitted at any child 
pornography trial. It is also intended that judges can and will take 
appropriate steps to ensure that such information as the child's name, 
address or other identifying information not be publicly disclosed 
during the pretrial phase of the case or at sentencing. The conference 
report also retained a Senate provision requiring the judge to instruct 
the jury, upon request of the government, that no inference should be 
drawn against the United States because of information inadmissible 
under the new shield law.

  The conferees also voted to adopt a provision from the original 
Hatch-Leahy PROTECT Act that amended certain reporting provisions 
governing child pornography. Specifically, it allows Federal 
authorities to report information they receive from NCMEC to State and 
local police without a court order. In addition, the bill removes the 
restrictions under the Electronic Communications Privacy Act (ECPA) for 
reporting the contents of, and information pertaining to, a subscriber 
of stored electronic communications to NCMEC when a mandatory child 
porn report is filed with NCMEC pursuant to 42 U.S.C. 13032.
  While this change may invite rogue Federal, State or local agents to 
try to circumvent all subpoena and court order requirements under ECPA 
and allow them to obtain subscriber emails and information by 
triggering the initial report to NCMEC themselves, it should be well 
understood that this is not the intention behind this provision. These 
important safeguards are not being altered in any way, and a deliberate 
use of the tip line by a government agent to circumvent the well 
established statutory requirements of these provisions would be a 
serious violation of the law. Nevertheless, we should still consider 
further clarification in the future to guard against subverting the 
safeguards in ECPA from government officials going on ``fishing 
expeditions'' for stored electronic communications under the rubric of 
child porn investigations.
  As I made clear when the Senate bill was introduced and again when it 
passed the Senate, I continue to express my disappointment in the 
Department of Justice information sharing regulations related to NCMEC 
tip line. According to a recent Government Accounting Office (GAO) 
report, due to outdated turf mentalities, the Attorney General's 
regulations exclude both the United States Secret Service and the U.S. 
Postal Inspection Service from direct access to important tip line 
information. That is totally unacceptable, especially in the post 9-11 
world, where the importance of information sharing is greater than 
ever. How can the Administration justify support of this provision, 
which allows state and local law enforcement officers such access, when 
they are simultaneously refusing to allow other federal law enforcement 
agencies access to the same information? I once more urge the Attorney 
General to end this unseemly turf battle and to issue regulations 
allowing both the Secret Service (now in the Department of Homeland 
Defense) and the Postal Inspection Service, both of whom perform 
valuable work in investigating these cases, to have access to this 
important information so that they can better protect our nation's 
children.
  Section 506 of the conference report also adopted the Senate 
provision providing for extraterritorial jurisdiction where a defendant 
induces a child to engage in sexually explicit conduct outside the 
United States for the purposes of producing child pornography which 
they intend to transport to the United States. The provision is crafted 
to require the defendant to have the intent of actual transport of the 
material into the United States, unlike the House bill, which 
criminalized even an intent to make such material ``accessible.'' Under 
that overly broad wording, any material posted on a foreign web site 
could be covered, whether or not it was ever intended that the material 
be downloaded in the United States. Under the bill we consider today, 
however, proof of a specific intent to send such material to the United 
States is required.
  Finally, Section 510 of the bill provides a new private right of 
action for the victims of child pornography that was part of the Senate 
bill. This provision has teeth, including injunctive relief and 
punitive damages that will help to put those who produce child 
pornography out of business for good. I commend Senator Hatch for his 
leadership on this provision and his recognition that such punitive 
damages provisions are important means of deterring misconduct. These 
provisions are important, practical tools to put child pornographers 
out of business for good and in jail where they belong. These are 
provisions that were in the Senate Hatch-Leahy bill and could have 
already been law had the House not chosen to hold them hostage to try 
to gain passage of the more controversial elements of the House 
package.
  The committee process is there for a reason. It is there because it 
causes us to work together and improve bills as they go along. The 
Senate version of the PROTECT Act, much of which is included in the 
conference reported bill, is a prime example of the merits of that 
process. I only wish that other portions of this bill had been so 
considered. Let me explain.
  As I mentioned previously, the Senate Hatch-Leahy PROTECT Act--most 
of which is now stuck in at the end of the bill--is a good faith effort 
to tackle the child pornography problem, and I have supported its 
passage from the outset. Until our conference, Senator Hatch and I 
worked closely together to make this bill as strong as possible. In 
fact, Senator Hatch and I were able to offer a joint amendment in the 
Judiciary Committee that strengthened the bill further against 
constitutional attack. Here are some of the improvements that we 
jointly made to the bill as introduced and which are in the final bill.

       The Hatch-Leahy committee amendment created a new specific 
     intent requirement in the pandering crime. The provision is 
     now better focused on the true wrongdoers and requires that 
     the government prove beyond a reasonable doubt that the 
     defendant actually intended others to believe that the 
     material in question is obscene child pornography. This is a 
     positive step.
       The Hatch-Leahy committee amendment narrowed the definition 
     of ``sexually explicit conduct'' for prosecutions of computer 
     created child pornography. Although I continue to have 
     serious reservations about the constitutionality of 
     prosecuting cases involving such ``virtual child 
     pornography'' after the Supreme Court's decision in Free 
     Speech Coalition v. Ashcroft, narrowing the definition of the 
     conduct covered provides another argument that the provision 
     is not as overbroad as the one in the CPPA. I had also 
     proposed a change that contained an even better definition, 
     in order to focus the provision to true ``hard core'' child 
     pornography, and I was glad that this provision--relating to 
     ``graphic'' pornography, was included in the final conference 
     report.
       The Hatch-Leahy committee amendment refined the definition 
     of virtual child pornography in the provision that Senator 
     Hatch and I worked together to craft last year, which will be 
     a new 18 U.S.C. 1466A. These provisions rely to a large 
     extent on obscenity doctrine, and thus are more rooted in the 
     Constitution than other parts of the bill. I was pleased that 
     the Hatch-Leahy amendments included a definition that the 
     image be ``graphic''--that is, one where the genitalia are 
     actually shown during the sex act--and that the House agreed 
     to adopt this definition for the virtual porn provision as a 
     whole for two reasons.
       First, because the old law would have required proof of 
     ``actual'' minors in cases with ``virtual'' pictures, I 
     believe that this clarification will remove a potential 
     contradiction from the new law which pornographers could have 
     used to mount a defense.
       Second, it will provide another argument supporting the 
     law's constitutionality because the new provision is narrowly 
     tailored to cover only the most ``hard core'' child 
     pornography. If only we would have gone the extra step of 
     requiring this level of obscenity for all virtual child 
     pornography, I think the bill would be safe from 
     constitutional challenge, instead of skating along the 
     constitutional edge.
       The Hatch-Leahy committee amendment also clarified that 
     digital pictures are covered by the PROTECT Act, an important 
     addition in today's world of digital cameras

[[Page S5142]]

     and camcorders. I am glad that the final bill adopted that 
     change.

  These were important changes, and I was glad to work with Senator 
Hatch to craft them. It is unfortunate that this bipartisan cooperation 
did not extend to the controversial provisions that were added to the 
bill in the House and in the conference.
  Even Title V of this law--the real PROTECT Act--is not perfect, 
however, and I would have liked to see some additional improvements to 
the bill. Let me outline some of them.
  First, with regard to the tip line, I would have liked to further 
clarify that law enforcement agents may not and should not ``tickle the 
tip line'' to avoid the key protections of the Electronic 
Communications Privacy Act (ECPA). This might have included modifying 
42 U.S.C. 13032 to clarify that the initial tip triggering the report 
may not be generated by the government's investigative agents 
themselves. A tip line to NCMEC is just that--a way for outsiders to 
report wrongdoing to NCMEC and the government, not for the government 
to generate a report to itself without following otherwise required 
lawful process. It was not the intent of any part of this bill to alter 
that purpose.

  Second, regarding the affirmative defense, I would have liked to 
ensure that there is an affirmative defense for each new category of 
child pornography and for all cases where a defendant can prove in 
court that a specific, non-obscene image was made not using any child 
but only actual, identifiable adults. That will no doubt be a basis for 
attacking the constitutionality of this law. I specifically made this 
suggestion in conference negotiations but my Republican colleagues from 
both the House and the Senate refused to adopt a ``complete'' 
affirmative defense, instead leaving holes that will surely be raised 
in constitutional attacks on the bill.
  As a general matter, it is worth repeating that we could have avoided 
all these problems were we to take the simple approach of outlawing 
``obscene'' child pornography of all types, which we do in one new 
provision that I suggested and which is the new Section 1466A 
established in the conference report. That approach would produce a law 
beyond any possible challenge. This approach is also supported by 
NCMEC, which we all respect as the true expert in this field.
  Following is an excerpt from NCMEC's answer to written questions 
submitted after our hearing, which I will place in the Record in its 
entirety:

       Our view is that the vast majority (99-100%) of all child 
     pornography would be found to be obscene by most judges and 
     juries, even under a standard of beyond a reasonable doubt in 
     criminal cases. Even within the reasonable person under 
     community standards model, it is highly unlikely that any 
     community would not find child pornography obscene. . . .
       In the post Free Speech decision legal climate, the 
     prosecution of child pornography under an obscenity approach 
     is a reasonable strategy and sound policy.

  Thus, according to NCMEC, the approach that is least likely to raise 
constitutional questions--using established obscenity law--is also an 
effective one. In short, the obscenity approach is the most narrowly 
tailored to prevent child pornography. New section 1466A adopts this 
obscenity approach, but because that is not the approach that other 
parts of the PROTECT Act uses, I recognize that it contains provisions 
about which some may have legitimate constitutional questions.
  Specifically, in addition to the provisions that I have already 
discussed, there were two amendments adopted in the Judiciary Committee 
in the last Congress and one in this Congress to which I objected that 
are included in the bill as we consider it today. I felt and still feel 
that these alterations from the original language that Senator Hatch 
and I introduced needlessly risk a serious constitutional challenge to 
a bill that provided prosecutors the tools they needed to do their 
jobs. The bill would be even stronger than it is now were they changed. 
Let me discuss my opposition to these changes adopted by the Judiciary 
Committee in this Congress and the last.
  Although I worked with Senator Hatch to write the new pandering 
provision in the PROTECT Act, I did not support two of Senator Hatch's 
amendments extending the provision to cover (1) ``purported'' material, 
and (2) material not linked to obscenity. Although our bill, unlike the 
House bill which had a pandering provision with no link to obscenity at 
all, had at least one provision which covered predominantly unprotected 
speech, it was needlessly altered in the legislative process and made 
vulnerable to attack.
  First, during our markup in the last Congress I objected to an 
amendment from Senator Hatch to include ``purported'' material in the 
pandering provision. ``Purported'' material criminalizes speech even 
when there is no underlying material at all--whether obscene or non-
obscene, virtual or real, child or adult. The pandering provision is an 
important tool for prosecutors to punish true child pornographers who 
for some technical reason are beyond the reach of the normal child porn 
distribution or production statutes. It is not meant to federally 
criminalize talking dirty over the internet or the telephone when the 
person never possesses any material at all. That is speech, and 
criminalizing it goes too far.
  The original pandering provision in S. 2520 as introduced last 
Congress was quite broad, and some argued that it presented 
constitutional problems as written, but I thought that prosecutors 
needed a strong tool, so I supported Senator Hatch on that provision.
  I was heartened that Professor Schauer of Harvard, a noted first 
amendment expert, testified at our hearing last year that he thought 
that the original provision was constitutional, barely. Unfortunately, 
Professor Schauer has since written to me stating that this new 
amendment to include ``purported'' material ``would push well over the 
constitutional edge a provision that is now up against the edge, but 
probably barely on the constitutional side of it.'' I placed his letter 
in the Record upon introduction of the bill in this Congress on January 
13, 2003.
  The second amendment to the pandering provision to which I objected 
expanded it to cover cases not linked in any way to obscenity. It would 
allow prosecution of anyone who ``presented'' a movie that was intended 
to cause another person to believe that it included a minor engaging in 
sexually explicit conduct, whether or not it was obscene and whether or 
not any real child was involved. Any person or movie theater that 
presented films like Traffic, Romeo and Juliet, and American Beauty 
would be guilty of a felony. The very point of these dramatic works is 
to cause a person to believe that something is true when in fact it is 
not. These were precisely the overbreadth concerns that led 7 justices 
of the Supreme Court to strike down parts of the 1996 Act. We do not 
want to put child porn convictions on hold while we wait another 6 
years to see if the law will survive constitutional scrutiny.
  Because these two changes endanger the entire pandering provision, 
because they are unwise, and because that section is already strong 
enough to prosecute those who peddle child pornography, I opposed those 
expansions of the provision which are in the bill we consider today. At 
least with those provisions, however, we debated and carefully 
considered alternatives. As I have said, with respect to other 
provisions in the bill the process has been fundamentally flawed.
  Although I joined Senator Hatch in introducing this bill, even when 
it was introduced last year I expressed concern over certain 
provisions. One such provision was a new definition of ``identifiable 
minor.'' When the bill was introduced, I noted that this provision 
might both confuse the statute unnecessarily and endanger the already 
upheld ``morphing'' section of the CPPA. I said I was concerned that it 
could present both overbreadth and vagueness problems in a later 
constitutional challenge. Unfortunately, this provision remains 
problematic and susceptible to constitutional challenge. I was even 
more concerned with the House bill, which included 100 percent virtual 
child pornography from the start.
  Unfortunately, as we consider the bill today, we have the House 
provision designed to cover ``virtual'' child pornography--that is, 100 
percent computer generated pictures not involving any real children.
  The ``identifiable minor'' provision in the current law may be used 
without

[[Page S5143]]

any link to obscenity doctrine. Therefore, what potentially saved the 
original version we introduced in the 107th Congress was that it 
applied to child porn made with real persons. The provision was 
designed to cover all sorts of images of real kids that are morphed or 
altered, but not something entirely made by computer, with no child 
involved.
  The provision we now consider, however, dislodges, in my view, that 
sole constitutional anchor. The new provision could be read to include 
images that never involved real children at all but were 100 percent 
computer generated. That was not the original goal of the Senate 
provision.
  There are other provisions in this bill that deal with obscene 
virtual child pornography that I support, such as those in new section 
1466A, which are linked to obscenity doctrine. This provision, however, 
was intended to ease the prosecutor's burden in cases where images of 
real children were cleverly altered to avoid prosecution. By changing 
the Senate's identifiable minor provision into the House's virtual porn 
provision, the conference needlessly endangered its constitutionality.
  For these reasons, I was glad to work in a bipartisan manner to shore 
up this provision in conference. Unfortunately, despite our best 
efforts, I fear we did not do everything possible to strengthen it 
against constitutional attack. Let me explain.
  The new ``virtual'' porn provision in section 502 lumps together such 
truly ``hard core'' sexual activities such as intercourse, bestiality, 
and S&M with simple lascivious exhibition of the genitals and simulated 
intercourse where any part of a breast is shown. Equating such 
disparate types of conduct, however, does not mesh with community 
standards and is precisely the type of ``one size fits all'' approach 
that the Supreme Court rejected in the area of virtual pornography in 
the Free Speech case. The contrast between this broad definition and 
the tighter definition in new Section 1466A, crafted by Senator Hatch 
and myself, is striking. Although I was glad that we included the same 
definition of ``graphic'' conduct found in new section 502 as in 
Section 1466A, we have also left intact the less focused language that 
imperils the bill. The provision may be open to overbreadth attacks.

  I am pleased that the conference addressed the vagueness concern in 
the new statute 2256(2) as it applies in virtual cases. By removing the 
requirement of ``actual'' conduct, we corrected the vagueness issue and 
have prevented clever defendants from seeking to argue that this new 
provision still requires proof ``actual'' sexual acts involving real 
children.
  The Supreme Court made it clear that we can only outlaw child 
pornography in two situations: No. 1, where it is obscene, or No. 2, 
where it involves real kids. That is the law as stated by the Supreme 
Court, whether or not we agree with it.
  Senator Hatch and I agree that legislation in this area is important. 
But regardless of our personal views, any law must be within 
constitutional limits or it does no good at all. Section 502, which 
would include most ``virtual'' child pornography in the definition of 
child pornography, in my view, crosses the constitutional line and 
needlessly risks protracted litigation that could assist child 
pornographers in escaping punishment.
  I supported passage of the original PROTECT Act as Senator Hatch and 
I introduced it and as it passed the Senate unanimously in the last 
Congress. Even so, I was willing to work with him to further amend the 
bill in the Judiciary Committee. Some amendments that we considered in 
committee I supported because they improved the bill. Others went too 
far. I had hoped the House would simply adopt the unanimously passed 
Senate bill and we would have already had a law on the books. 
Unfortunately, the House chose to proceed otherwise. Nevertheless I 
continued to work side by side with Republicans in conference to work 
through a variety of controversial and largely unrelated provisions. I 
wish I could say that my efforts have been reciprocated. One wonders 
whether everyone is placing the interests of our children first.
  A media report on this legislation at the end of the last Congress 
reported the wide consensus that the Hatch-Leahy bill was more likely 
than the House bill to withstand scrutiny, but quoted a Republican 
House member as stating: ``Even if it comes back to Congress three 
times we will have created better legislation.''
  To me, that makes no sense. Why not create the ``better legislation'' 
right now for today's children, instead of inviting more years of 
litigation and putting at risk any convictions obtained in the interim 
period before the Supreme Court again reviews the constitutionality of 
Congress' effort to address this serious problem? That is what the 
Senate passed version of the PROTECT Act sought to accomplish.
  As I have explained, I believe that this issue is so important that I 
have been willing to compromise and to support a measure even though I 
do not agree with each and every provision that it contains. That is 
how legislation is normally passed. I am disappointed that the 
Administration and the House decided to play politics with this issue 
and add controversial positions that could bog the bill down.
  There are a few additional measures in the conference report that I 
want to mention. First, Section 604 of the conference report, which was 
proposed by Senator Grassley, amends Section 170101(e) of the Violent 
Crime Control and Law Enforcement Act of 1994. That section would amend 
several provisions of the sexual registry established under that law. 
First, it would add additional crimes to those that are included in the 
registry. Second, it would require that such registries be made 
available over the Internet. Finally, and quite significantly, this 
provision would not only require a ``process'' be established for 
contesting the accuracy of any information on the registry, but would 
also require that the instructions for following that process be 
readily available on the Internet. For the first time, then, we are 
explicitly requiring that there is a mechanism for those who believe 
that information has been erroneously posted on the registry to 
challenge that information and seek to have it removed.
  Second, I want to thank the conferees for supporting measures 
included in the Protecting Our Children First Act, S. 773, a bipartisan 
bill that I introduced in both this Congress and the last, joined by 
Senators Hatch, Kennedy, DeWine, Biden, Shelby, Lincoln, and Reid, to 
reauthorize the National Center for Missing and Exploited Children. As 
the nation's top resource center for child protection, NCMEC spearheads 
national efforts to locate and recover missing children and raises 
public awareness about ways to prevent child abduction, molestation, 
and sexual exploitation. NCMEC works to make our children safer by 
being a national voice and advocate for those too young to vote or 
speak up for their own rights.
  We had proposed reauthorization through 2007 but have at least 
achieved agreement to extend its activities through 2005. We were able 
to double the grants from $10 million to $20 million a year so that the 
National Center can help more children and families. We also authorize 
the U.S. Secret Service to provide forensic and investigative 
assistance to the National Center, and we strengthen NCMEC's Cyber 
Tipline to provide online users an effective means of reporting 
Internet-related child sexual exploitation in distribution of child 
pornography, online enticement of children for sexual acts, and child 
prostitution.
  Third, I am pleased that conferees agreed to include in the 
conference report Leahy-Kennedy-Biden legislation that will establish a 
transitional housing grant program within the Department of Justice to 
provide to victims of domestic violence, stalking, or sexual assault 
the necessary means to escape the cycle of violence.
  Today, more than 50 percent of homeless individuals are women and 
children fleeing domestic violence. They are homeless because, in their 
desperate attempt to leave their abusers, they find themselves with 
few, if any, funds to support themselves. Shelters offer a short-term 
solution, but are often overcrowded and unable to provide all of the 
support that is needed. Transitional housing allows women to bridge the 
gap between escaping from a domestic violence situation and becoming 
fully self-sufficient. Such assistance is limited, however, because no 
federal funds exist for transitional housing programs geared 
specifically

[[Page S5144]]

to victims of domestic violence. We last authorized such a transitional 
housing grant program as part of the reauthorization of the Violence 
Against Women Act in 2000. This program would have been administered 
through the Department of Health and Human Services and would have 
provided $25 million in fiscal year 2001. Unfortunately, funds were 
never appropriated for the program, and the authorization expired.
  If we truly seek an end to domestic violence, then transitional 
housing must be available to all those fleeing their abusers. First of 
all, such housing provides women and children a stable, sustainable 
home base. Second, it gives these victims opportunity to participate in 
educational programs, to work full-time jobs, to learn new job skills, 
and to search for adequate child care in order to gain self-
sufficiency. Without such resources, many women and children eventually 
return to situations where they are abused or even killed.
  This conference report amends the Violence Against Women Act of 1994 
to authorize $30 million for each of fiscal years 2004-2008 for the 
Attorney General to award grants to organizations, States, units of 
local government, and Indian tribes to help victims of domestic 
violence, stalking, or sexual assault who need transitional housing or 
related assistance as a result of fleeing their abusers, and for whom 
emergency shelter services or other crisis intervention services are 
unavailable or insufficient. Funds may be used for programs that 
provide short-term housing assistance, including rental or utilities 
payments assistance and assistance with related expenses. The funds may 
also support services designed to help individuals locate and secure 
permanent housing. Lastly, these resources may be used to help 
integrate domestic violence victims into the community by providing 
services, such as transportation, counseling, child care services, case 
management, employment counseling, and other assistance.
  This new grant program will make a significant impact in many areas 
of the country, such as my State of Vermont, where the availability of 
affordable housing is at an all-time low. There are many dedicated 
people working to provide victims of domestic violence with resources, 
but they can not work alone. We must provide women and children who 
have endured domestic violence with a safe place to gain the skills and 
stability needed to make the transition to independence. I thank the 
conferees for adding this language to the conference report and 
recognizing that this is an important component of reducing and 
preventing crimes that take place in domestic situations. Together, we 
can help the victims of these crimes to move on with their lives.
  Fourth, I am pleased that the conference report includes a provision 
that I introduced in the last Congress to clarify that an airplane is a 
vehicle for purposes of terrorist and other violent acts against mass 
transportation systems. A significant question about this point was 
raised in an important criminal case and deserves our prompt attention.
  On June 11, 2002, a U.S. District Judge in Boston dismissed one of 
the nine charges against Richard Reid stemming from his alleged attempt 
to detonate an explosive device in his shoe while onboard an 
international flight from Paris to Miami on December 22, 2001. The 
dismissed count charged defendant Reid with violating section 1993 of 
title 18, United States Code, by attempting to ``wreck, set fire to, 
and disable a mass transportation vehicle.''
  Section 1993 is a new criminal law that was added, as section 801, to 
the USA PATRIOT Act to punish terrorist attacks and other acts of 
violence against, inter alia, a ``mass transportation'' vehicle or 
ferry, or against a passenger or employee of a mass transportation 
provider. I had urged that this provision be included in the final 
anti-terrorism law considered by the Congress. A similar provision was 
originally part of S. 2783, the ``21st Century Law Enforcement and 
Public Safety Act,'' that I introduced in the 106th Congress at the 
request of the Clinton Administration.
  The district court rejected defendant Reid's arguments to dismiss the 
section 1993 charge on grounds that one, the penalty provision does not 
apply to an ``attempt'' and two, an airplane is not engaged in ``mass 
transportation.'' ``Mass transportation'' is defined in section 1993 by 
reference to the ``the meaning given to that term in section 5302(a)(7) 
of title 49, U.S.C., except that the term shall include schoolbus, 
charter and sightseeing transportation.'' Section 5302(a)(7), in turn, 
provides the following definition: ``mass transportation'' means 
transportation by a conveyance that provides regular and continuing 
general or special transportation to the public, but does not include 
school bus, charter or sightseeing transportation.'' The court 
explained that ``commercial aircraft transport large numbers of people 
every day'' and that the definition of ``mass transportation'' ``when 
read in an ordinary or natural way, encompasses aircraft of the kind at 
issue here.'' U.S. v. Reid, CR No. 02-10013, at p. 10, 12 (D. MA, June 
11, 2002).
  Defendant Reid also argued that the section 1993 charge should be 
dismissed because an airplane is not a ``vehicle.'' The court agreed, 
citing the fact that the term ``vehicle'' is not defined in section 
1993 and that the Dictionary Act, 1 U.S.C. Sec. 4, narrowly defines 
``vehicle'' to include ``every description of carriage or other 
artificial contrivance used, or capable of being used, as a means of 
transportation on land.'' Emphasis in original opinion. Notwithstanding 
common parlance and other court decisions that have interpreted this 
Dictionary Act definition to encompass aircraft, the district court 
relied on the narrow definition to conclude that an aircraft is not a 
``vehicle'' within the meaning of section 1993.
  The new section 1993 was intended to provide broad Federal criminal 
jurisdiction over terrorist and violent acts against all mass 
transportation systems, including bus services, airplanes, railroads 
and other forms of transportation available for public carriage. The 
more inclusive definition would also cover cruise ships. Unfortunately 
terrorist attacks against Americans is not a new threat. In 1985, four 
terrorists brutally attacked the Achille Lauro Cruise Ship. The 
wheelchair-bound Leon Klinghoffer, a stroke victim, was shot once in 
the head and once in the back by the terrorists who then pushed him 
over the side of the ship into the Mediterranean.
  Section 609 of the conference report adds a definition of ``vehicle'' 
to 18 USC 1993 and clarifies the breadth of the meaning of this term 
both in common parlance and under this new criminal law to protect mass 
transportation systems. Specifically, it defines this term to mean 
``any carriage or other contrivance used, or capable of being used, as 
a means of transportation on land, water or through the air.''
  Having reviewed all the positive elements of the conference report, I 
want to speak to the conference process itself. I am deeply 
disappointed by the process that characterized Tuesday's AMBER Alert 
and PROTECT Act conference. By taking bipartisan, noncontroversial 
bills and adding numerous controversial, unrelated measures, the 
Republicans have decided yet again to play games with important 
measures to protect our children. They are rolling the dice with the 
safety of America's children. I do not say this lightly, and I say it 
with a heavy heart, but House and Senate Republicans are now holding 
the passage of AMBER and the PROTECT Act hostage to these very 
troubling additions.
  With respect to new matters never considered by this body, the 
conference committee in this matter tried no less a feat than to 
rewrite the criminal code on the back of an envelope. That type of 
effort is unwise and doomed to failure.
  There are many things in this bill that I support--indeed as a former 
prosecutor I brought my personal experiences to bear and I wrote much 
of it. That is why even after the House Republicans loaded the bill 
with numerous controversial, unrelated provisions, I worked in good 
faith to come to agreement on many provisions. In fact, staff members 
of the conferees met all through the weekend and late into the early 
hours of Tuesday morning to find common ground. It is unfortunate that 
our good faith was repaid with attempts to add even more extraneous 
controversial provisions at the conference meeting.
  Tuesday's conference, which was convened in the spirit of bipartisan 
cooperation, turned political, however,

[[Page S5145]]

when Republicans sprung a lengthy and complex amendment on the 
Democrats. This 9-page document was not a simple substitute for a 
portion of the bill. It was a highly complex amendment requiring 
careful consideration. The sponsors denied a request to break briefly 
in order to give conferees a moment to analyze the document. After 
meeting for three days in good faith, the Democratic conferees were 
effectively slapped in the face with a totally new proposal. Then, to 
add insult to injury, the sponsors of the amendment misrepresented its 
contents in the conference meeting and quickly forced a vote before the 
conferees had a chance to review or debate the amendment.

  I was sorely disappointed by the way that this amendment was 
explained to the conferees. One sponsor said not once or twice, but 
three separate times: ``It's important to note that the compromise is 
limited to these serious crimes against children and sex crimes and 
does not broadly apply to other crimes.'' In fact, the amendment was 
not limited as he described, and did apply broadly to downward 
departures in sentencing for all Federal crimes.
  After the conferees were forced to vote on the Hatch-Sensenbrenner 
amendment, Senator Hatch's office, at 2:00 a.m., substantially changed 
the text of his own amendment--the amendment that had already been 
voted upon in open conference. With no new meeting and no new vote of 
the conferees, the Republicans changed the conference report as it was 
voted on, and filed it in the House. The 2:00 a.m. text came closer to 
reflecting the original description of the amendment, but was still not 
limited, as was promised, to crimes against children.
  The substance of the Hatch-Sensenbrenner amendment--whether in the 
form that was voted on in conference, or in the form that was 
circulated after the conference adjourned--is just as outrageous as the 
way in which it was adopted. This amendment modifies in very limited 
ways the Feeney amendment, which was added to the bill on the House 
floor after only 20 minutes of debate. This far-reaching proposal will 
undermine the Federal sentencing system and prevent judges from 
imposing just and responsible sentences. In short, it amounts to an 
attack on the Federal judiciary.
  Speaking about the original Feeney amendment, Chief Justice Rehnquist 
wrote: ``this legislation, if enacted, would do serious harm to the 
basic structure of the sentencing guideline system and would seriously 
impair the ability of courts to impose just and responsible 
sentences.'' In another bald mischaracterization of the Hatch-
Sensenbrenner amendment, Senator Hatch claimed in the conference 
meeting that he had addressed the Chief Justice's concerns. He said, 
``Chief Justice Rehnquist is worried about the breadth and scope of the 
Feeney Amendment. He's not worried about this [language]. I don't think 
any federal judge would worry about this language. They know this 
language is to protect our children in our society, and we're limiting 
it to that.'' In fact, the Hatch-Sensenbrenner amendment does not 
address the problems raised in Chief Justice Rehnquist's letter, which 
were directed at the assault on the sentencing structure that is 
retained in the amendment.
  In addition to the Chief Justice of the United States, this is an 
issue on which we have heard from the Judicial Conference, other 
distinguished judges, the Sentencing Commission, the former chairmen of 
the Sentencing Commission, the American Bar Association, the Washington 
Legal Foundation, the Leadership Conference on Civil Rights, the Cato 
Institute, the National Petroleum Refiners Association and a number of 
other business associations, all of which opposed the House language.
  Just this week, Justice Kennedy voiced grave concerns over the 
excessive application of mandatory minimum sentences. He said, ``When 
the guilt determination phase and the sentencing is over,'' Kennedy 
said, ``the legal system loses all interest in the prisoner. And this 
must change. Winston Churchill said a society is measured by how it 
treats the least deserving of its people. And two million people in 
prison in this country is just unacceptable.''
  A number of the groups opposed to the original proposal have 
expressed continued opposition. Others have not had time to write about 
the new version because this proposal is being rushed through the 
legislative process.
  The language that was adopted in the conference report establishes 
new and separate departure procedures for child-related and sex 
offenses. So, we will have one set of sentencing rules for 
pornographers and a more flexible set of sentencing rules for other 
Federal defendants, including terrorists, murderers, mobsters, civil 
rights violators, and white collar criminals. No one here believes that 
sex offenders deserve anything less than harsh sentences, but I cannot 
understand why we would treat the terrorists better.
  The conference report also overturns a unanimous Supreme Court 
decision, Koon v. United States, by establishing a new standard of 
appellate review in all departure cases. This provision, like so many 
others, is not limited to cases involving children. The Court in Koon 
interpreted the departure standard in a way that limited departures but 
left some room for judicial discretion. By contrast, the new provision 
would appear to require appellate courts to consider the merits of a 
departure before it can decide what standard of review to apply to the 
merits. That is because, in order to determine which standard of review 
applies--``due deference'' or ``de novo''--the appellate court must 
first decide whether the departure advances the objectives of 18 USC 
3553(a)(2) (incapacitation, deterrence, etc.) or is authorized under 18 
USC 3553(b) (a mitigating circumstance of a kind, or to a degree, not 
adequately considered by the Sentencing Commission) or is justified by 
the facts of the case. This sloppily drafted, circular provision is 
likely to tie up the courts in endless litigation, draining already 
scarce judicial resources, and costing the taxpayers money.
  The Republican supporters of this amendment seem to believe that our 
Federal judges cannot be trusted. I have always advocated doing a 
thorough review of our Federal judge nominees when they come before the 
Senate for lifetime appointments. Perhaps that is the difference 
between my view of Federal judges and those of my colleagues across the 
aisle who seem to believe they should rubber stamp the President's 
nominees to these lifetime positions. I believe we should pick our 
Federal judges carefully and them trust them once appointed, not 
rubber-stamp them and then feign disbelief when we are unhappy with 
their decisions.
  The amendment effectively creates a judicial ``black list'' of judges 
that stray from the draconian mandates of this bill. The Hatch-
Sensenbrenner language retains the Feeney amendment's attempt to 
intimidate Federal judges by compiling a ``hit list'' of all judges who 
impose sentences that the Justice Department does not like in any type 
of criminal case. It takes a sledge hammer to the concept of separation 
of powers.
  In a further demonstration of hostility to our Federal judiciary as 
envisioned by our constitution, the Hatch-Sensenbrenner amendment 
removes almost all discretion for Federal judges to depart from the 
sentencing guidelines in some extraordinary cases.
  At the conference's one meeting, during the brief period afforded for 
debate on the Hatch-Sensenbrenner amendment, I pointed out that the 
amendment retained language from the original Feeney amendment that 
eliminated the ability of Federal judges to depart and give lower 
sentences based upon extraordinary military service.
  The sponsors of the amendment dismissed my concern. They said that I 
was wrong--that their amendment did not eliminate the departure for 
extraordinary military service. They were both quite certain on this 
point, even after I raised it a second time. One sponsor said, ``I 
don't know where you're getting your language from.'' Another assured 
us that ``this nine-page amendment has been very well drafted . . . It 
does exactly what we have said.''
  After the conference had adjourned and they took the time to 
familiarize themselves with their own amendment, they discovered that I 
was correct. They were, in fact, eliminating the departure for 
extraordinary military service in all Federal criminal cases--for 
congressional medal of honor winners, for example, and veterans who

[[Page S5146]]

had been seriously wounded while defending their nation in battle. What 
is worse, they were doing this during a time of war, when future 
veterans are literally risking their lives for America. Realizing that 
this might not go down well on the floor of the United States Senate, 
they quietly dropped the provision from the final conference report.
  I have discussed this issue at some length not to embarrass any 
member or his staff, but to make the point that Congress should spend 
more than a few minutes considering legislation with such far-reaching 
consequences. The conference report blithely overturns the basic 
structure of the carefully crafted guidelines system without any 
serious process in either the House or the Senate, and without any 
meaningful input from judges and practitioners.
  With respect to the few parts of the Hatch-Sensenbrenner amendment 
that are limited to crimes against children, it may not be the end of 
the guidelines system, but it is very likely the beginning of the end. 
Once we prohibit judges from exercising discretion in one set of cases, 
we will have established a prototype for future attacks on the 
guidelines system--a form of ``mission creep'' in this uncompromising, 
anti-judge agenda. The same ``tough on crime'' political posturing that 
fuels the relentless drive for more mandatory minimums and death 
penalties will lead to future expansions of the Hatch-Sensenbrenner 
amendment to crimes having nothing to do with minors.
  My Republican colleagues on the conference claim that there is a 
crisis on the Federal bench of downward departures in sentencing. In 
fact, downward departure rates are well below the range contemplated by 
Congress when it authorized the Sentencing Guidelines, except for 
departures requested by the government.

  The overwhelming majority of downward departures are requested by 
Federal prosecutors to reward cooperation by defendants or to manage 
the high volume of immigration cases in certain border districts. When 
the government does not like a specific downward departure, it can 
appeal that decision, and it often wins--approximately 80 percent of 
such appeals are successful. This amendment is a solution in search of 
a problem.
  Rather than rush to change the law with no factual basis for doing 
so, the Democrats in this conference asked for hearings on the topic. 
In fact, Senator Graham, the new chairman of the newly constituted 
Crime, Corrections and Victims' Rights Subcommittee indicated that he 
planned to hold hearings on this topic very soon--that is, until the 
Feeney amendment and the subsequent Hatch-Sesenbrenner amendment 
overtook events. The Republican conferees now claim that no study is 
necessary. They believe that no hearings are necessary. They would 
rather significantly increase incarceration rates at taxpayer expense 
than take the time to determine whether such severe changes are 
necessary or appropriate.
  The Hatch-Sensenbrenner amendment not only maintains the worst 
aspects of the controversial Feeney Amendment--provisions that have 
nothing to do with child protection--but also adds in new provisions 
that were not in the original Feeney amendment. For example, it limits 
the number of Federal judges who can serve on the Sentencing Commission 
because, as Chairman Sensenbrenner explained, ``we don't want to have 
the Commission packed with Federal judges that have a genetic 
predisposition to hate any kind of sentencing guidelines.'' I, for one, 
believe that judges are extremely valuable members of the Commission. 
They bring years of highly relevant experience, not to mention reasoned 
judgment, to the table. The Republicans apparently believe that their 
knowledge is of limited value.
  I find it ironic that the Republicans, in forcing through this 
measure, will undercut one of the signature achievements of Ronald 
Reagan's Presidency--a firm, tough, fair system of sentencing in the 
Federal criminal justice system. The Sentencing Reform Act of 1984 
struck a balance between uniformity and judicial discretion and was 
enacted after years of study and consideration of the problems in the 
previous sentencing system. Congress understood that a guidelines 
system that encompasses every relevant sentencing factor is neither 
possible nor desirable. Departures, both upward and downward, are an 
integral and healthy part of the guideline system. They do not reflect 
an avoidance of the law by Federal judges but rather their 
conscientious compliance with the congressional mandate to impose a 
guideline sentence unless the court finds a circumstance not adequately 
considered by the Commission that warrants a departure.
  Moving beyond the sentencing amendments offered at the conference, 
there are several provisions of the conference report that are equally 
problematic.
  Section 106 of the conference report, entitled ``two strikes and 
you're out,'' is one of the many controversial provisions in the House-
passed bill that have never been considered in the Senate. It mandates 
life imprisonment without parole for defendants who have twice been 
convicted of certain crimes against children.
  Another section of the conference report creates several new 
mandatory minimum sentences, and raises some existing ones, for crimes 
involving child pornography and prostitution.
  We can all agree that those who commit crimes against children should 
be severely punished. In fact, the bill that Senator Hatch and I 
authored--the real PROTECT Act, which is buried in title V of the 
conference report--contains a number of very strong sentencing 
provisions. But I believe we can accomplish our common goal of ensuring 
that those who prey on children receive tough punishment without 
further expanding the mandatory sentencing scheme that is gradually 
replacing the guidelines system.
  The arguments against mandatory minimums are well known. The Chief 
Justice of the United States has observed that mandatory minimum 
sentences ``frustrate the careful calibration of sentences, from one 
end of the spectrum to the other, which the Sentencing Guidelines were 
intended to accomplish.'' Another conservative member of the Court, 
Justice Kennedy, testified before a House subcommittee in 1994 that 
mandatory minimums were ``imprudent, unwise, and often an unjust 
mechanism for sentencing.'' As I mentioned previously, Justice Kennedy 
reiterated that thought just this week, before another House committee. 
Justice Breyer, who served on the original Sentencing Commission, has 
written that mandatory minimums prevent the Commission from developing 
a rational, coherent, and fair set of punishments. Most judges in the 
Federal system, Republicans and Democrats alike, agree with these 
criticisms.
  Senator Hatch has also expressed reservations about statutory 
mandatory sentences. In a 1993 law review article, Senator Hatch 
observed that mandatory minimums are fundamentally inconsistent with 
the guidelines system. He wrote:

       Whereas the guidelines permit a degree of individualization 
     in determining the appropriate sentence, mandatory minimums 
     employ a relatively narrow approach under which the same 
     sentence may be mandated for widely divergent cases. Whereas 
     the guidelines provide for graduated increases in sentence 
     severity for additional wrongdoing or for prior convictions, 
     mandatory minimums often result in sharp variations in 
     sentences based on what are often only minimal differences in 
     criminal conduct or prior record. Finally, whereas the 
     guidelines incorporate a ``real offense'' approach to 
     sentencing, mandatory minimums are basically a ``charge-
     specific'' approach wherein the sentence is triggered only if 
     the prosecutor chooses to charge the defendant with a certain 
     offense or to allege certain facts.

  Senator Hatch concluded that Congress should make greater use of the 
various alternative sentencing methods proposed by the Commission, 
including increased statutory maximums.
  I am disappointed that Congress is poised, once again, to demonstrate 
that we are ``tough on crime'' by enacting new mandatory minimum 
sentences. That being said, I am pleased that the conference accepted 
my proposals to modify the two strikes provision to eliminate its 
harshest and most disproportionate applications. Among other things, 
the conference clarified that the ``two strikes'' law would not apply 
to a defendant whose only prior sex conviction was a misdemeanor under 
state law. The conference also provided a limited affirmative defense 
for defendants convicted under certain Federal statutes that have less 
culpable applications. Congress provided a

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similar defense in the three strikes law, and it is appropriate that we 
included one here as well.
  We should also have included in the two strikes provision a carve-out 
for Indian country. Unfortunately, the conference refused in a party 
line vote to allow Indian nations to decide for themselves whether or 
not to be part of the new two strikes regime.
  There is no question that the two strikes law will disproportionately 
affect Indian country. Sentencing Commission data indicates that 
approximately 75 percent of cases to which the two strikes provision 
will be applied will involve Native Americans on reservations. Thus, 
the two strikes provision will have the effect of singling out Native 
Americans for harsher treatment.
  Congress has confronted this problem before, when passing various 
criminal laws with particularly harsh sentences. In those situations, 
we have allowed the tribes to decide whether they want to be covered. 
The amendment that I offered, and that the Republican conferees 
rejected, was identical to provisions for Indian Country in current 
criminal statutes such as the ``three strikes'' law, the juvenile 
delinquency statute, and the Federal death penalty statute. These 
provisions preserve the sovereignty of the Indian tribes by providing 
their governing bodies with authority to control the laws affecting 
their land and people. For Congress to treat the ``two strikes'' 
provision differently is simply wrong.
  Another provision of the conference report dealing with statutes of 
limitations raises concerns about the message we are sending to law 
enforcement. Section 202 extends the statute of limitations for certain 
crimes against children. This provision is substantially narrower than 
the version passed by the House, which covered a laundry list of crimes 
having nothing at all to do with children.
  The purpose of section 202 is to address the problem--highlighted in 
several recent cases--of child victims who fail to notify authorities 
that they have been victimized until years and even decades after the 
event. Current law deals with this problem by allowing prosecution of 
certain offenses involving the abuse of a child until the child turns 
25. Section 202 goes further, extending the limitations period for the 
entire life of the child.
  During the conference, I expressed concern that section 202's 
lifetime extension of the limitations period would reduce law 
enforcement's incentive to move quickly and aggressively to solve these 
very serious crimes. I therefore proposed a modification along the 
lines that Congress adopted last year in the context of corporate 
fraud. More specifically, I proposed that a 3 or 5 year limitations 
period should exist, and start to run, once the facts constituting the 
offense were known, or reasonably should have been known, by Federal 
law enforcement authorities. This modification would have benefitted 
victims by requiring authorities to focus on their case, and to take 
immediate steps to bring the perpetrator to justice, as soon as the 
crime was brought to their attention. Senate Republicans fought for 
similar language in the Sarbanes-Oxley bill. Their opposition to it 
outside the context of corporate crime suggests a troubling double 
standard.
  A final point on section 202: I am pleased that the conference agreed 
to drop language from the original House-passed bill that would have 
extended the limitations period retroactively. That language, which 
would have revived the government's authority to prosecute crimes that 
were previously time-barred, is of doubtful constitutionality. We are 
already pushing the constitutional envelope with respect to several of 
the ``virtual porn'' provisions in this bill. I am pleased that we are 
not doing so in section 202 as well.
  The next section of the conference report is another example of 
hastily drafted language that has not been vetted thoroughly by either 
house of Congress. Section 203 adds certain crimes against children to 
the list of offenses that carry a rebuttable presumption against pre-
trial release. Like the other provisions in titles I and II, this 
section has never been considered by the Senate, and received only the 
most cursory consideration by the House.
  I have two problems with this provision. First, as with sentencing 
determinations, I believe that judges, not Congress, should determine 
who gets bail. Clearly, judges are in the better position to determine 
whether, for public safety reasons, an accused offender should be 
detained.
  Second, I am concerned that the complete absence of legislative 
findings supporting the new presumption could imperil its 
constitutionality under the Excessive Bail Clause. At a minimum, it 
could give defendants a good argument that the presumption should be 
overcome more easily than the authors of this provision perhaps 
intended. That is what happens when we do not take the time to do 
things the right way.
  For the same reason, I am troubled by section 521 of the conference 
report, which makes it a crime to use a ``misleading'' domain name with 
the intent to deceive a person into viewing obscenity on the Internet, 
or with the intent to deceive a minor into viewing ``material that is 
harmful to minors'' on the Internet. This provision is similar to 
section 108 of the House-passed bill, which was added as a floor 
amendment with no prior consideration in either body.
  I have serious doubts about whether section 521 will survive 
constitutional challenge. For one thing, its failure to define the term 
``misleading'' may unduly chill constitutionally-protected speech. For 
example, it is unclear whether a website like ``northernlights.com'' 
would be considered ``misleading'' if it contains images of naked 
persons that are deemed harmful to minors.
  Section 521 does create a ``safe harbor'' for those who include the 
word ``porn'' or ``sex'' in their Internet domain name. This form of 
mandatory labeling of the site of a mainstream business, which includes 
material constitutionally protected as to adults, but which may be 
deemed inappropriate for some level of minors, also raises 
constitutional concerns. In addition, labeling domain names in this 
manner could turn sites into attractive nuisances, drawing more 
childrens' eyes to the site and thus having the opposite of its 
intended effect.
  My uncertainty about the constitutionality of this provision is, of 
course, compounded by the fact that there is virtually no legislative 
record on it. It has never been introduced in the Senate, and received 
a grand total of 10 minutes of debate before being passed as a floor 
amendment in the House. And in case any judge is reading this and 
wondering, there was no discussion of this provision during the one 
afternoon that the conference committee actually met.
  In recent years, Congress's efforts to regulate protected speech on 
the Internet have not fared well in the Supreme Court, which takes its 
responsibility to uphold the first amendment a bit more seriously than 
some of my Republican colleagues. It would not surprise me if the Court 
was especially dismissive of this current effort.
  I am also concerned about the inclusion of the Illicit Drug Anti-
Proliferation Act in this conference report. This bill has drawn 
serious grass-roots opposition, and I know that I am not alone in 
hearing from many constituents about their serious and well-considered 
objections to it. Despite this opposition, and even though the Senate 
has never held a hearing on this bill, the conference committee agreed 
to include it in this hastily-assembled package.
  I know that Senator Biden has made changes to the bill since the last 
Congress, beginning with its title, and I appreciate his flexibility. 
But these changes do not address some of the questions that have been 
raised about this legislation.
  The bill's primary purpose is to expand the existing ``crack house 
statute,'' (21 USC 856) which makes it unlawful to knowingly open or 
maintain any place for the purpose of manufacturing, distributing, or 
using any controlled substance, or to make a place available to someone 
else for use for such purposes or for storing a controlled substance. 
The bill would expand the statute to include those who lease, rent, or 
use property, including temporary occupants, and would allow for civil 
suits against violators.
  The crack house statute has been on the books for more than 15 years, 
and for most of its existence, Federal prosecutors have used it solely 
against

[[Page S5148]]

property owners who have been directly involved in committing drug 
offenses. The House Judiciary Committee, however, heard evidence last 
year that the Drug Enforcement Administration and prosecutors are now 
using the ``crack house statute'' to pursue even business owners who 
take serious precautions to avoid drug use at their events. Business 
owners have come to Congress and told us there are only so many steps 
they can take to prevent any of the thousands of people who may attend 
a concert or a rave from using drugs, and they are worried about being 
held personally accountable for the illegal acts of others. Those 
concerns may well be overstated, but they deserve a fuller hearing.
  In addition, the provision allowing civil suits dramatically 
increases the potential liability of business owners. Of course, this 
is a good thing when applied against those who are knowingly profiting 
from illegal drug use. But we have been told that even conscientious 
promoters may think twice before holding large concerts or other events 
where some drug use may be inevitable despite their best efforts. I do 
not know enough to know whether that claim is exaggerated, but I think 
we would have been well-served by making a greater effort to find out.
  Finally, I want to speak on a very important piece of legislation 
that I attempted to add in conference. I am deeply disappointed that 
the Republican House and Senate conferees refused to include in the 
conference agreement the ``Hometown Heroes Survivors Benefits Act of 
2003,'' tri-partisan legislation that I introduced earlier this year 
with ten cosponsors, including the lead Republican cosponsor Senator 
Graham of South Carolina, who served as a member of this conference. 
This legislation would improve the Department of Justice's Public 
Safety Officers' Benefits (PSOB) program by allowing families of public 
safety officers who suffer fatal heart attacks or strokes to qualify 
for Federal survivor benefits.
  Every year, hundreds of public safety officers nationwide lose their 
lives and thousands more are injured while performing duties that 
subject them to great physical risks. While we know that PSOB benefits 
can never be a substitute for the loss of a loved one, the families of 
all our fallen heroes deserve our support for making the ultimate 
sacrifice.
  The PSOB Program currently provides a one-time financial benefits 
payment to the families of law enforcement officers, firemen, emergency 
response squad members, and ambulance crew members who are killed in 
the line of duty. Unfortunately, PSOB guidelines do not allow survivors 
of public safety officer who die of a heart attack or stroke while 
acting in the line of duty to collect those benefits, ignoring the fact 
that service-connected heart conditions are silent killers of public 
safety officers nationwide.
  I sought to include our tri-partisan bill in the conference report to 
fix the loophole in the PSOB program. This language would ensure that 
the survivors of public safety officers who die of heart attacks or 
strokes in the line of duty or within 24 hours of a triggering incident 
while on duty--regardless of whether a traumatic injury is present at 
the time of the heart attack or stroke--are eligible to receive 
financial assistance. Representative Etheridge and I introduced 
identical versions of this legislation last Congress, and the House 
bill passed that body, but an anonymous Republican hold in the Senate 
killed it.
  I am saddened that the House and Republican conferees voted to strike 
Hometown Heroes from consideration by the conference. They squandered a 
chance to pass legislation to support our first responders and their 
families by striking it in a strict party line vote.
  Public safety is dangerous, exhausting, and stressful work. A first 
responder's chances of suffering a heart attack or stroke greatly 
increase when he or she puts on heavy equipment and rushes into a 
burning building to fight a fire and save lives. The families of these 
brave public servants deserve to participate in the PSOB Program if 
their loved ones die of a heart attack or other cardiac-related ailment 
while selflessly protecting us from harm.
  It is time for both the Senate and House to show their support and 
appreciation for these extraordinarily brave and heroic public safety 
officers by passing the Hometown Heroes Survivors Benefit Act.
  Mr. President, I would like to take a moment to thank my staff for 
all their hard work on these provisions to protect our nation's 
children. I want to recognize Julie Katzman, Steve Dettelbach, Tara 
Magner, Ed Pagano, Phil Toomijian, Jessica Berry, Tim Lynch and 
Marguererite McConihe for their dedication to these important measures. 
Their diligence and professionalism do credit to this body.
  I also wish to recognize the staff of the other Senate conferees for 
their hard work, including Robin Toone, Neil MacBride, Tonya Robinson, 
Eric Rosen, Chad Groover, Mike Volkov, Reed O'Connor, Wan Kim, James 
Galyean, and William Smith.
  Finally, I wish to thank the staffs of the Democratic House 
conferees, including Perry Apelbaum, Bobby Vassar, Greg Branes, Ted 
Kalo, as well as Chairman Sensenbrenner's professional staff, 
especially Will Moschella, Phil Kiko, Beth Sokul, Sean McLaughlin and 
Jay Apperson.
  Mr. GRASSLEY. Mr. President, I rise today in support of the 
conference report on the PROTECT Act, S. 151. As a conferee on that 
Conference Committee, I proudly support this important bill. It is 
undoubtedly, one of the most significant and comprehensive pieces of 
legislation ever drafted to protect children. By marrying the AMBER 
alert bill with the Senate's PROTECT Act, and the House's Child 
Abduction Prevention Act, we will be ensuring a greater measure of 
protection for our children and greatly impacting their safety.
  I am proud to have been a cosponsor of the Senate's version of the 
PROTECT Act. This portion of the conference bill does many important 
things. Because of advances in modern technology, prosecutors and 
experts are finding it more and more difficult to determine which 
images of child pornography are of real children and which are computer 
generated. This makes it very difficult to prove that an image is of a 
real child in a criminal case. To solve this problem, the bill makes it 
illegal to possess any material that contains a visual image of a minor 
engaging in sexually explicit conduct. Because child pornography, 
including morphed child pornography, is used to seduce children, the 
bill also makes it illegal to try to induce a child, through any means, 
including by computer, to participate in any activity that is illegal. 
The bill also makes any identifying information of a child, with the 
exception of age, inadmissible evidence in a court of law. Finally, to 
combat a grave problem that is growing worse daily, the bill requires 
the Attorney General to appoint 25 additional trial attorneys that 
would focus on the investigating and prosecuting Federal child 
pornography and obscenity laws.
  Another important inclusion in this bill is the Public Outreach 
Title, which deals with the AMBER alert and the National Center for 
Missing and Exploited Children. The Senate Judiciary Committee heard 
very poignant testimony about how the AMBER alert, had it been 
available, could have been used to save young children, like Polly 
Klaas. We also heard testimony of how the California AMBER alert was 
successfully used to find two Lancaster teenagers, last summer. That 
hearing built a good record for why we need a nationally coordinated 
AMBER alert communications network. Additionally, the Public Outreach 
Title increase the support for the National Center for Missing and 
Exploited Children; gives the US Secret Service the authority to render 
investigative and forensic support to missing children; and creates a 
cyber tipline. This title will greatly enhance the ability of law 
enforcement to find our Nation's missing children.

  While the bill makes significant progress in strengthening Federal 
child pornography laws and in enhancing public outreach, so that 
missing and exploited children can be recovered, the bill also includes 
the Houses' tough on crime penalties for Federal sex offenses. The bill 
increases penalties for crimes like kidnaping, sex tourism, child 
abuse, and child torture. It also includes a ``two-strikes'' provision 
that would establish a mandatory life sentence for twice convicted sex 
offenders.

[[Page S5149]]

This one provision alone will help keep some of the worst violent child 
molesters off the streets and out of the exploitation business. The 
bill also includes new rules for supervised release of sex offenders, 
so that criminals with deep-seated aberrant sexual tendencies will not 
just be released to the public without some measure of protecting the 
public once the criminal is let out of prison. Additionally, the bill 
removes the statute of limitations for sex crimes against minors. This 
provision will be particularly helpful in cases where there is old DNA 
evidence, but still no suspect. It is my hope that these new sanctions 
will have a tremendous deterrent impact, and when taken all together 
they will provide for greater security for America's most precious 
resource--it's children.
  Although the underlying bill is an exceptional piece of legislation, 
I felt that there were a few additional provisions that would make the 
bill even better. I appreciate the way some members of the conference 
worked with me to include these additional provisions on the bill. 
First, I was able to get accepted an amendment to include child 
pornography manufacturers and distributors in the Federal sex offender 
registry. Because child pornography is a gateway to child molestation, 
just as marijuana is a gateway to harder drugs, those who deal in this 
type of material should be included in the offender registry, so that 
the public is on notice of these criminals.
  I was also able to get approved a technical amendment to the 
Communications Decency Act. This amendment would conform the language 
of the CDA to the Supreme Court's decision in Reno v. ACLU, 521 U.S. 
844 (1997). The amendment strikes the indecency provisions, which the 
court ruled were unconstitutionally vague, and limits the scope of the 
CDA to obscenity and child pornography, which can be restricted since 
they do not benefit from first amendment protection.
  The conference also accepted two sense-of-Congress provisions. The 
first provision expresses that it is the sense of the Congress that the 
Child Exploitation and Obscenity Section of the Department of Justice 
should focus its investigative and prosecutorial efforts on major 
producers, distributors, and sellers of obscene material and child 
pornography that use misleading methods to market their material to 
children. This provision was recommended in the 2000 report of the COPA 
Commission, a congressional commission tasked with studying how to 
protect children from pornography online. The second provision, which 
is also taken from the COPA Commission report, expresses that it is the 
sense of the Congress that the online commercial adult industry should 
voluntarily refrain from placing obscenity, child pornography, or 
harmful-to-minors material on the front pages of their Web sites. By 
taking this step, these Web sites will be helping to protect minors 
from material that may negatively impact their social, moral, and 
psychological development.
  With improved child pornography laws, enhanced public outreach, and 
tougher sentences for sex offenders who victimize minors, this 
conference report will be essential to keeping our children safe from 
individuals who wish to do them harm. I urge my colleagues to vote for 
the conference report on S. 151, The PROTECT Act.
  Mr. BIDEN. Mr. President, I am pleased the Senate is considering the 
conference report to accompany S. 151, the Protect Act. As a member of 
the conference committee tasked with reconciling the differences 
between the House and Senate bills, I am gratified to see action being 
taken on this measure today. The conference report before us addresses 
one of the most important issues in America--protecting our kids from 
sexual and physical abuse. Enactment of this measure could literally 
save lives.
  This bill will expand the nationwide AMBER Alert System to ensure 
maximum coordination between state and local law enforcement in their 
efforts to catch predators that kidnap kids. ``Amber alerts''--
typically distributed through radio and television broadcasts and 
electronic highway signs--gained prominence after last summer's 
unfortunate and high-profile child abduction cases. These bulletins 
proved invaluable in their ability to disperse information about the 
missing children quickly and broadly--and they remain a critically 
important law enforcement tool.
  The conference report that we consider today will expand and improve 
the program by establishing an AMBER Coordinator within the Department 
of Justice to enhance and centralize the operation of the 
communications system. It will establish minimum standards for 
coordination between various AMBER plans, particularly between state 
plans. And, perhaps most important, it will authorize two grants--one 
in the Department of Transportation to help sustain the AMBER alert 
programs themselves and a second in the Department of Justice to fund 
education, training, and related equipment. This common-sense 
legislation has been delayed far too long. We know that the AMBER Alert 
System helps save abducted children, and we should not let a single 
additional day pass before voting this measure into law. With this 
legislation, safeguards will soon be in place to protect children and 
their families.
  The conference report also includes a negotiated version of the 
PROTECT Act, which this body unanimously adopted in February. The 
measure responds to last year's Supreme Court decision in Ashcroft v. 
Free Speech Coalition by writing a tough new child pornography law 
that, we hope, will allow prosecutors to go after those who traffic in 
child pornography--while not running afoul of the Court's first 
amendment holdings. Importantly, in addition to prohibiting the 
production and distribution of pornographic material depicting 
children, this bill achieves a range of other improvements to the law:
  First, it strengthens penalties against repeat offenders. Second, it 
protects the privacy of children victimized by pornographers by 
preventing the introduction of any non-physical identifying 
information--like the child's name or social security number--into 
evidence at court. Third, it facilitates information-sharing between 
internet providers, who report incidents of child pornography and 
exploitation on their sites, and State law enforcement officers. And 
finally, it provides a civil remedy for victims of child pornography--
including injunctive relief to stop immediately the bad conduct. These 
important improvements put children and their needs first. Is the 
legislation perfect? No. But it will move us substantially down the 
road to protecting out kids from predators, while preserving important 
first amendment principles.

  I am pleased that several bipartisan proposals which I sponsored in 
the Senate will be included in this conference report. Like the AMBER 
Alert and child porn provisions, these additional initiatives will also 
protect our kids from child predators. I would like to take a moment to 
explain several of the provisions that I worked to see included in this 
conference report.
  Section 108 establishes the Child Safety Pilot Program, an initiative 
that for the first time will permit groups like the Boys and Girls 
Clubs to apply directly to the Justice Department for background checks 
for their volunteers. It is a proposal that has been a long time in the 
making, and I am very pleased the conferees agreed to its adoption.
  This section is drawn from legislation that I authored along with 
Senator Thurmond in the 107th Congress, the National Child Protection 
and Volunteers for Children Improvement Act. That bill passed the 
Senate unanimously but was not acted upon by the other body. I first 
raised concerns about the current state of background checks for 
volunteers in 2000 with the introduction of S. 3252. That bill and the 
bill that passed the Senate last year would have markedly simplified 
the current process for background checks for volunteers who work with 
kids.
  Today, 87 million of our children are involved in activities provided 
by child and youth organizations which depend heavily on volunteers to 
deliver their services. Millions more elderly and disabled adults are 
served by public and private service organizations. Organizations 
across the country, like the Boys and Girls Clubs, often rely solely on 
volunteers to make these safe havens for kids a place where they can 
learn. The Boys and Girls Clubs and others don't just provide services 
to kids--their work reverberates throughout our communities, as the 
after-

[[Page S5150]]

school programs they provide help keep kids out of trouble. This is 
juvenile crime prevention at its best, and I salute the volunteers who 
help make these programs work.
  Unfortunately, some of these volunteers come to their jobs with less 
than the best of intentions. According to the National Mentoring 
Partnership, between 1 and 7 percent of children in child care 
settings, foster homes and schools are sexually abused. Organizations 
have tried to weed out bad apples, and today most conduct background 
checks on applicants who seek to work with children. Regrettably, these 
checks can often take months to complete, can be expensive, and many 
organizations do not have access to the FBI's national fingerprint 
database. These time delays and scope limitations are dangerous: a 
prospective volunteer could pass a name-based background check in one 
state, only to have a past felony committed in another jurisdiction go 
undetected.
  Effective December 20, 1993, the National Child Protection Act, NCPA, 
P.L. 103-209, encouraged States to adopt legislation to authorize a 
national criminal history background check to determine an employee's 
or volunteer's fitness to care for the safety and well-being of 
children. On September 13, 1994, the Violent Crime Control and Law 
Enforcement Act of 1994 (P.L. 103-322) expanded the scope of the NCPA 
to include the elderly and individuals with disabilities.
  As envisioned by Congress, the NCPA was to encourage states to have 
in effect national background check procedures that enable a 
``qualified entity'' to determine whether an individual applicant is 
fit to care for the safety and well-being of children, the elderly, or 
individuals with disabilities. The procedures permit this entity to ask 
an authorized state agency to request that the Attorney General run a 
nationwide criminal history background check on an applicant provider.
  ``Qualified entity'' is defined at 42 U.S.C. 5119c as ``a business or 
organization, whether public, private, for-profit, not-for-profit, or 
voluntary, that provides care or care placement services, including a 
business or organization that licenses or certifies others to provide 
care or care placement services. . . .''
  The authorized agency should access and review state and Federal 
criminal history records through the national criminal history 
background check system and make reasonable efforts to respond to an 
inquiry within 15 business days. Congress addressed this issue again in 
1998 through enactment of the Volunteers for Children Act, Sections 221 
and 222 of P.L. 105-251, ``VCA''. The VCA amended the NCPA to permit 
child care, elder care, and volunteer organizations to request 
background checks through state agencies in the absence of state laws 
implementing the NCPA.
  Thus, the NCPA, as amended by the VCA, authorizes national 
fingerprint-based criminal history background checks of volunteers and 
employees (including applicants for employment) of qualified entities 
who provide care for children, the elderly, or individuals with 
disabilities, and those who have unsupervised access to such 
populations (regardless of employment or volunteer status), for the 
purpose of determining whether they have been convicted of crimes that 
bear upon their fitness to have responsibility for the safety and well-
being of children, the elderly, or individuals with disabilities.
  Three years ago, organizations seeking to conduct background checks 
on their employees and volunteers made me aware of serious problems 
with the current background check system, problems that were 
jeopardizing the safety of children. Groups like the Boys and Girls 
Clubs of America alerted me that, despite the authorities provided in 
the NCPA and the VCA, national check requests were often delayed, in 
some jurisdictions they were never processed, and that the prohibitive 
costs of some of these checks were discouraging entities from seeking 
the reviews.
  Under current law, whether they want a state or national criminal 
background check, organizations must apply through their state-
authorized agency. The state agency then performs the state check and 
forwards the request to the FBI for a national check. The FBI responds 
back to the state agency, which then forwards the information back to 
the volunteer organization. In Delaware, the State Police Bureau of 
Identification works with groups to fingerprint prospective workers and 
check their backgrounds.
  A patchwork of statutes and regulations govern background checks at 
the state level; there are currently over 1,200 State statutes 
concerning criminal record checks. This has led to widely different 
situations in each state: different agencies are authorized to perform 
the checks for different types of organizations, distinct forms and 
information are required, and the results are returned in various 
formats that can be difficult to interpret. States have not been 
consistent in their interpretation of the NCPA and VCA. Put simply, the 
current system is extremely cumbersome, particularly for those 
organizations that must check criminal records in multiple states, and 
for those groups employing seasonal workers, such as summer camps, for 
whom time is of the essence when seeking the results of background 
checks.
  After careful study of this issue it became clear to me that the 
concerns of groups such as the National Mentoring Partnership and the 
Boys and Girls Clubs are not merely anecdotal. In 1998, the FBI's 
Criminal Justice Information Services, CJIS, Division performed an 
analysis of fingerprints submitted for civil applicants purposes. CJIS 
found that the average transmission time from the point of fingerprint 
to the state bureau was 51.0 days, and from the state bureau to the FBI 
was another 66.6 days, for a total of 117.6 days from fingerprinting to 
receipt by the FBI. The worst performing jurisdiction took 544.8 days 
from fingerprinting to receipt by the FBI. In a survey conducted by the 
National Mentoring Partnership, mentoring organizations on average 
waited 6 weeks for the results of a national criminal background check 
to be returned.
  The danger these delays post to mentoring groups and others cannot be 
overstated. Suppose a group seeks to hire a volunteer who grew up in a 
neighboring jurisdiction to work with children. The group has the 
volunteer fingerprinted at their local police department, forwards 
those prints along to the agency designated by state statute or 
procedure to receive such requests, and then waits for the national 
results. FBI data indicates they will wait close to four months, on 
average, for the final results of the background check. That's too 
long. It forces groups to choose between taking a risk on someone's 
background, not making the hire at all, or seeking out only candidates 
from their jurisdiction for whom a full national background check may 
not be necessary.
  Delay is not the only problem with the current system. The NCPA/VCA 
caps the fees the FBI can charge for national background checks at $24 
for employees. For state fees, the NCPA/VCA requires States to 
``establish fee systems that insure that fees to nonprofit entities for 
background checks do not discourage volunteers from participating in 
child care programs.'' In a survey of mentoring organizations, the 
National Mentoring Partnership found that organizations were paying on 
average $10 for a State records check, plus the fee for a national 
check. For organizations utilizing hundreds of volunteers and 
employees, the costs of conducting thorough background checks can be 
exorbitant. Small, community-based organizations with limited funding 
often must choose between funding services to children and checking the 
criminal history records of prospective volunteers.
  Section 108 does three things. First, subsection (a)(2) establishes a 
State Pilot Program that will facilitate the ability of youth-serving 
organizations in three States designated by the Attorney General to 
check the backgrounds of their volunteers. The intent of this provision 
is for State Pilot Program to operate as the Congress intended the 
National Child Protection Act to operate. That is, youth-serving 
organizations who attempt to check the backgrounds of volunteers under 
this section shall be able to access the FBI's national criminal 
history database when necessary. The requesting process will go through 
the appropriate State agency. The State will review its criminal 
history records, and then forward the organization's request along to 
the FBI if a national check is required. Under 108(a)(2)(D), all 
criminal

[[Page S5151]]

history records will be provided to the State agency. The language in 
that section which reads ``consistent with the National Child 
Protection Act'' is intended to result in that State agency then making 
a determination of the potential volunteer's fitness to work with 
children. While (a)(2)(D) does permit the National Center for Missing 
and Exploited Children to access the criminal history records of the 
potential volunteer under (a)(2)'s State Pilot Program, it is my view 
that the Conferees intended this section result in fitness 
determinations being made by the appropriate State agency as under 
current law. Subsection (a)(2)(F) ensures that this determination will 
be provided to the organization in a timely fashion.

  Second, subsection (a)(3) establishes a Child Safety Pilot Program. 
Under this subsection, three youth-serving organizations will be 
permitted to allocate a number of Federal background checks to their 
members or affiliates over an 18-month period. Current law does not 
permit these organizations to provide fingerprint cards directly to the 
FBI's criminal history records system in order to check the backgrounds 
of potential volunteers. This subsection changes that. Ninety days 
after the date of enactment of this conference report, the Attorney 
General will notify the Boys and Girls Clubs of America, the National 
Mentoring Partnership, and the National Council of Youth Sports that 
they have been statutorily designated to make 100,000 background check 
requests of the FBI. Allocations of these checks are set out in 
(a)(3)(C). The three eligible organizations may not accept fingerprint 
cards under this Pilot Program from any of their members or affiliates 
located in the three States designated by the Attorney General to 
participate in the State Pilot Program described in (a)(2). The 
organizations are required to obtain a signed statement from the 
potential volunteer along with the volunteer's fingerprints. Once the 
Attorney General receives fingerprint cards from the volunteer 
organizations, subsection (a)(3)(F) gives him 14 business days to 
provide any resulting criminal history records information to the 
National Center for Missing and Exploited Children. The Attorney 
General shall charge these three organizations no more than $18 to 
perform these checks. The National Center for Missing and Exploited 
Children will work with the three organizations to develop standards to 
determine how to evaluate the criminal history records information 
provided by the FBI, and to set standards to guide the fitness 
determination described in (a)(3)(G)(i). Nothing in this subsection 
requires the NCMEC to make such a fitness determination; the language 
of (a)(3)(G)(i) is discretionary. It is my view that the conferees 
intended this subsection to permit NCMEC to work with the eligible 
organizations in determining the fitness of prospective volunteers to 
work with children. However, it is my view that the conferees did not 
intend for NCMEC to perform this function unless adequate 
appropriations are allocated to it pursuant to subsection (c)(1). NCMEC 
shall not be liable for any fitness determination made pursuant to 
(a)(3)(G)(i), consistent with the limitation on liability set forth in 
section 305(a) of the conference report.
  Third, subsection (d) requires the Attorney General to report to 
Congress on the implementation of the pilot programs at their 
conclusion, and to make legislative recommendations to Congress on 
whether the National child Protection Act requires amendments to ensure 
that organizations like those described in section 108 have access to 
prompt, effective, and affordable national criminal history background 
checks. It is important to point out that section 108 establishes only 
a pilot program for 100,00 checks. Members of the National Mentoring 
Partnership alone rely upon close to one million volunteers. The boys 
and Girls Clubs have close to 150,000 volunteers. Hundreds of thousands 
more volunteer with little leagues, soccer leagues, and other youth 
sports leagues affiliated with the National Council of Youth Sports. We 
should be doing more than establishing a pilot program, and I am 
disappointed the department of Justice continues to maintain that 
enactment of my legislation that passed the Senate last year, S. 1868, 
could overburden its fingerprinting infrastructure. Ensuring that those 
who volunteer to work with out kids in an investment that we should be 
willing to make. I intend to work to expand this Child Safety Pilot 
Program until ultimately all of those who want to access the FBI's 
criminal history records system are able to do so, consistent with the 
privacy protections provided by current law.
  I thank Robbie Callaway and Steve Salem of the Boys and Girls Clubs 
of America for their strong support for my original bill and for this 
section would not be included in this conference report we take up 
today. Margo Pedroso of the National Mentoring Partnership has been 
extremely helpful to me and my staff in terms of educating Congress 
concerning the extent of the current problem, and I thank her and her 
organization for their support for this section. John Walsh with 
America's Most Wanted provided effective, timely advocacy for this 
provision and I am extremely grateful for his tireless commitment to 
protecting the Nation's children from criminals. I am also thankful for 
the efforts of Sally Cunningham of the National Council of Youth Sports 
for her organization's support for this program this year.
  This bill also contains a provision I sponsored that reauthorizes 
Child Advocacy Centers. Child Advocacy Centers bring together law 
enforcement, prosecutors, child protective services and medical and 
mental health professionals to provide comprehensive, child-focused 
services to child victims of crimes. They provide immediate attention 
to young victims of sexual and physical abuse so that they are not 
``twice abused,'' first by the perpetrator and second by a system which 
used to shuttle them from a medical clinic to a counseling center to 
the police station to the D.A.'s office.
  Operating in all 50 states, Child Advocacy Centers served over 
116,000 child victims last year. Of these victims, 26,934 received 
onsite medical exam, 27,684 received counseling and 69,443 went through 
a forensic interview process especially designed for children. Seventy-
six percent of the children they serviced were under the age of 12. In 
Delaware, there are currently two operational Centers. Last year, Child 
Advocacy Centers in Delaware handled 1,000 cases where child victims as 
young as three alleged physical or sexual abuse.
  Widely cited as an efficient, cost-effective mechanism of handling 
child abuse cases, Child Advocacy Centers are widely supported by 
police, prosecutors and the courts. Not surprisingly, communities with 
centers report increased successful prosecution of perpetrators, more 
consistent follow-up to child abuse reports, increased medical and 
mental health referrals for victims, and more compassionate support for 
child victims. It is also worth noting that in a May 1998 publication 
titled, New Directions from the Field, the Department of Justice 
included Children's Advocacy Centers as their number one recommendation 
for improving services to children who directly experience or witness 
violence--number one.
  Mr. President, in 1994, this body passed the Violence Against Women 
Act, which I authored. This act made it clear that victims of domestic 
violence were victims in need of the full extent of this nation's 
medical and legal resources. My child advocacy provision is designed to 
bring this same type of concentrated focus, general awareness, and 
coordinated response to victims of child abuse
  Section 607 is of the conference report includes my Secure 
Authentication Feature and Enhanced Identification Defense Act of 2003, 
also known as the ``SAFE ID'' Act. I would also like to thank Senator 
Hatch for joining me in introducing this legislation as a stand-alone 
bill and for helping to ensure that it became part of this conference 
report.
  Mr. President, two of the terrorists who perpetrated the acts of 9/11 
held false identification documents, which they purchased from a broker 
of false IDs. That broker was convicted under State law, but sentenced 
merely to probation. The judge and the prosecutor publicly lamented 
that the law did not subject such a person to harsher penalties.
  These events focused new attention on an existing, growing problem--
the ease with which individuals and organizations can forge and steal 
IDs and use

[[Page S5152]]

them to harm our society. These circumstances weaken our efforts in the 
fight against terrorism; identity theft; underage drinking and drunk 
driving; driver's license, passport and birth certificate fraud; even 
child abduction. In the post-9/11 era, we must do more to prevent the 
creation of false, misleading or inaccurate government IDs. This has 
become an issue of national importance and therefore merits a national 
response.
  In recent years, the ability of criminals to produce authentic-
looking fake IDs has grown immensely. Today, unfortunately, it is 
becoming increasingly common for criminals to either steal or forge, 
and traffic in, the very items that issuing authorities use to verify 
the authenticity of their IDs.
  These ``authentication features'' are the holograms, watermarks, and 
other symbols, letters and codes used in identification documents to 
prove that they are authentic. Unfortunately, today ID's carrying 
authentication features can be purchased on the Internet or through 
mail order outfits. In addition, breeder documents, such as birth 
certificates, are desk-top published, with an illegitimate embossed or 
foil seal. Put another way, not only do crooks forge 
identification documents, they also now illegally fake or steal the 
very features issuing authorities use to fight that crime.

  Under current law, it is not illegal to possess, traffic in, or use 
false or misleading authentication features whose purpose is to create 
fraudulent IDs. That is why I have authored the SAFE ID Act. The SAFE 
ID Act would prohibit the fraudulent use of authentication features in 
identity documents. Specifically, the SAFE ID Act adds authentication 
features to the list of items covered by an existing law prohibiting 
fraud and related activity in connection with identification documents. 
In addition, the act requires forfeiture of any violative items, such 
as false authentication features and relevant equipment.
  The act defines ``authentication feature'' as ``any hologram, 
watermark, certification, symbol, code, image, sequence of numbers or 
letters, or other feature that either individually or in combination 
with another feature is used by the issuing authority on an 
identification document, document-making implement, or means of 
identification to determine if the document is counterfeit, altered, or 
otherwise falsified.''
  Holograms have long been used on credit cards, and are beginning to 
be deployed in identification documents. The term ``hologram'' is meant 
to include diffractive optical gratings and other optically variable 
devices, regardless of their manner of fixation to, or formation in, a 
document substrate.
  Watermarks take a variety of forms including fabricated paper 
watermarks and digital watermarks. Watermarks have a long history of 
use as authentication features in paper, and were traditionally 
fabricated during the wet paper phase of the paper-making process by 
varying the thickness of paper fiber. Such conventional watermarks are 
now fabricated in a number of other ways, including chemical treatment. 
Generally, the watermark pattern--e.g., a logo--is revealed by viewing 
the document at an angel, or subject to certain illumination.
  A second type of watermark is a digital code, sometimes referred to 
as a digital watermark. This code is secretly conveyed by an 
identification document using a number of steganographic technologies. 
In one, artwork on the document is altered in very slight respects to 
effect changes to the luminance, chromaticity, or reflectance at 
different locations across the artwork. This pattern is imperceptible 
to the human eye, but can be revealed by digitally scanning the 
document, examining the resulting data for these slight variations, and 
interpreting these variations to discern the digital code. The artwork 
encoded in this fashion can be a photograph, a logo--e.g., a seal of 
the issuing authority--or ornamentation--e.g., guilloche patterning. In 
other steganographic techniques, the background of the card is tinted 
with a subtle patterning, or a patterned texture is formed on the 
document. Again, such patterns are too slight to be recognized by human 
observers as conveying the digital watermark code, but the code can be 
discerned by scanning, and then analyzing the scan data.
  This type of watermark finds application in detecting counterfeit, 
altered, and otherwise falsified documents in a number of different 
ways. For example, a photograph on a driver's license may 
steganographically convey a digital watermark code that identifies the 
issuing authority (e.g., the State of New Jersey). If the license is 
altered--by substituting a different photo--then analysis of the 
license will reveal the substitution because the photograph will not 
convey the expected digital code. Likewise, the blank stock on which 
driver's licenses are printed may convey, e.g., in a tint pattern, a 
digital code that identifies the issuing authority. If a suspect 
driver's license is found not to convey the expected code, it will be 
recognized as non-authentic.

  In still other documents, the watermark can serve as a logical cross-
check of other data or security features on the card. For example, the 
digital watermark code with which a driver's license is 
steganographically marked can convey a ``hash'' of the ASCII characters 
forming the lawful owner's name that is originally printed on the 
license. If the name on the license is altered, the hash resulting from 
that name will be different, and will not longer match the hash 
conveyed by the digital watermark code. Likewise, the birthdate printed 
on the license can be hashed and serve as the watermark. If the printed 
birthdate is altered, its hash will no longer match that conveyed by 
the steganographic encoding. By such arrangements, alteration of text 
and other elements of an identification document can readily be 
discerned by reference to digital watermarks.
  Sometimes authentication features are used in the creation of so-
called ``novelty IDs.'' These are documents that appear to be 
identification documents from recognized issuing authorities, but in 
fact are not. (An Internet search on the term reveals hundreds of web 
sites.) Sometimes such documents follow the exact layout of text, 
photo, and design elements used in authentic identity documents. 
However, such mimicry is not essential for such a ``novelty ID'' to be 
accepted as legitimate (e.g., a liquor store owner in California may 
not know what a genuine Vermont driver's license looks like). Such non-
identical documents commonly make use of features that are relied upon 
by others in ascertaining the genuineness of an identification 
document. The definition of ``authentication feature'' thus embraces 
such features, and provisions elsewhere in the amended statute prohibit 
the use of such features on so-called ``novelty IDs.''
  Subpart (4) extends the former statutory definition of ``false 
identification document'' from documents that are counterfeit ab inito, 
to also include documents that were originally issued lawfully, but 
subsequently altered for a purpose of deceit.
  In like manner, subpart (5) makes clear that ``false identification 
document'' includes both features that were never genuine, but appear 
to be genuine, as well as features that originally were genuine but 
were subsequently (i) tampered with or altered for purposes of deceit; 
or (ii) diverted, or intended for diversion, without the authorization 
of the issuing authority.
  Subpart (6) is amended to define ``issuing authority.'' This term 
includes ``quasi-governmental organizations,'' such as The Port 
Authority of New York and New Jersey, and governmentally chartered 
entities (e.g., the United States Postal System and the U.S. Federal 
Reserve System).
  Mr. President, this section will give law enforcement officials a 
powerful tool to crack down on identity thieves. According to the U.S. 
Department of Justice, up to 700,000 people in the United States may be 
victimized by identity bandits each year, costing the average victim 
more than $1,000. Additionally, banks lost at least $1 billion to 
identity thieves last year. The SAFE ID Act will also go a long way 
toward combating the nationwide problem of underage drinking. Underage 
drinking is a serious problem with dangerous, and sometimes deadly 
consequences. The SAFE ID Act will help prevent underage drinking by 
making it harder for fraudulent criminals to provide young people with 
fake IDs. It perhaps goes without saying that legislation such as this, 
which makes it

[[Page S5153]]

harder to obtain fake IDs, will also make it harder for those who 
abduct innocent children to mask their identity and thereby avoid 
detection.
  Mr. President, it is rare that we have before us legislation that 
would effectively address problems as disparate as homeland defense, 
identity theft, underage drinking, and child abduction. The SAFE ID Act 
would do just that, by cutting the legs out from under those who would 
misuse technology to mislead government authorities.
  I am pleased that we were also able to include in the conference 
agreement the text of the Illicit Drug Anti-Proliferation Act, a bill 
which I introduced with Senator Grassley in the Senate as S. 226, and 
that Representatives Coble and Smith introduced in the House of 
Representatives.
  This legislation arose out of a series of hearings Senator Grassley 
and I held in the Senate Caucus on International Narcotics Control on 
the risk that the so-called ``club drug'' Ecstasy poses to young people 
and the predatory behavior of some promoters of all-night dance 
parties--known as ``raves''--in distributing the drug to them.
  The bill provides federal prosecutors the tools needed to combat the 
manufacture, distribution or use of any controlled substance at any 
venue whose purpose is to engage in illegal narcotics activity.
  Rather than create a new law, it merely amends a well-established 
statute to make clear that anyone who knowingly and intentionally uses 
their property--or allows another person to use their property--for the 
purpose of distributing or manufacturing or using illegal drugs can be 
held accountable, regardless of whether the drug use is ongoing or 
occurs at a single event.
  The bill is aimed at the defendant's predatory behavior, regardless 
of the type of drug or the particular place in which it is being used 
or distributed. One problem that we are facing currently involves so-
called ``club drugs'' and raves. According to the Partnership for a 
Drug Free America, teens who report attending a rave are seven times 
more likely to have tried Ecstasy than teens who report not attending a 
rave. I find this statistic quite troubling and I hope that the changes 
made by the conference report before us today will make promoters think 
twice before endangering kids in this manner.
  Despite the conventional wisdom that Ecstasy and other club drugs are 
``no big deal,'' a view that even the New York Times magazine espoused 
in a cover story, these drugs can have serious consequences, and can 
even be fatal. Earlier this year we got some encouraging news: after 
years of steady increase, Ecstasy use is finally beginning to decrease 
among teens. That said, the rate of use remains unacceptably high and 
we still have quite a bit of work to do to counter the widespread 
misconception that Ecstasy is harmless, fashionable and hip.
  At a 2001 Drug Caucus hearing, witnesses testified that rogue rave 
organizers commonly go to great lengths to portray their events as safe 
so that parents will allow their kids to attend. But the truth is that 
some of these raves are drug dens where use of Ecstasy and other ``club 
drugs''--such as the date rape drugs Rohypnol, GHB and Ketamine--is 
widespread.
  We know that there will always be certain people who will bring drugs 
into musical or other events and use them without the knowledge or 
permission of the promoter or club owner. This is not the type of 
activity that my bill would address. My bill would help in the 
prosecution of rogue promoters who not only know that there is drug use 
at their event but also hold the event for the purpose of illegal drug 
use or distribution. That is quite a high bar. The coalition of 
Licensed Beverage Associations and the International Association of 
Assembly Managers, who initially expressed concerns that my bill would 
make their members liable for the actions of their patrons, have 
endorsed my legislation because they realized that my bill was not 
aimed at responsible party promoters.
  I am confident that the overwhelming majority of promoters are 
decent, law abiding people who are going to discourage drug use--or any 
other illegal activity--at their venues. But there are a few promoters 
out there who are taking steps to profit from drug activity at their 
events. Some of these folks distribute drugs themselves or have their 
staff distribute drugs, get kickbacks from drug sales, have thinly 
veiled drug messages on their promotional flyers, tell security to 
ignore drug use or sales, or send patients who need medical attention 
to a hospital across town so that people won't link emergency room 
visits with their club.
  My bill has met fierce resistance from a number of groups who have 
not felt the need to be constrained by the facts. Earlier this week the 
Drug Policy Alliance, a group whose goal is to end criminal penalties 
for marijuana, sent out an alert to get people to call their Senators 
and Representatives to register their disapproval of my bill. The 
background information they provided on the issue discussed my bill 
interchangeably with a House bill that I have never had any association 
with, have never supported, and was not being discussed by the 
conference committee. Rather than quoting the legal standard in my 
bill--which makes clear that an individual would have to knowingly 
maintain a place for the purpose of drug use--the Drug Policy Alliance 
chose to quote from the House bill that (1) has a legal standard--that 
the individual ``knows or reasonably ought to know'' that a controlled 
substance will be used at their event--that is far lower than that in 
my bill and (2) is specifically targeted at raves and promoters. What 
is more, on their web site, the Drug Policy Alliance makes the 
outlandish claim that:
  The ``RAVE'' Act threatens free speech and musical expression while 
placing at risk any hotel/motel owner, concern promoter, event 
organizer, nightclub owner or arena/stadium owner for the drug 
violations of 3rd parties--real or alleged--even if the event promoter 
and/or property owner made a good-faith effort to keep their event 
drug-free. It applies not just to electronic-music parties, but any 
type of public gathering, including theatrical productions, rock 
concerns, DJ nights at local bars, and potentially even political 
rallies. Moreover, it gives heightened powers and discretion to 
prosecutors, who may use it to target events they personally don't 
like--such as Hip-Hop events and gay and lesbian fundraisers.
  The law that my bill amends, 21 U.S.C. 856, has been on the book for 
nearly two decades and I am unaware of it ever being used to prosecute 
a legitimate business. My bill would not change that fact.
  The reason that I introduced this bill was not to ban dancing, kill 
the ``rave scene'' or silence electronic music--all things of which I 
have been accused. Although this legislation grew out of testimony I 
heard at a number of hearings about the problems identified at raves, 
the criminal and civil penalties in the bill would also apply to people 
who promoted any type of event for the purpose of drug use or 
distribution. If rave promoters and sponsors operate such events as 
they are so often advertised--as places for people to come dance in a 
safe, drug-free environment--then they have nothing to fear from this 
law. In no way is this bill aimed at stifling any type of music or 
expression--it is only trying to deter illicit drug use and protect 
kids.
  Again, I am glad that this measure was included in the conference 
report. I believe it is a fitting addition to a bill whose purpose is 
to protect children.
  I am pleased that we were also able to include in the conference 
agreement section 10 of S. 152, the ``DNA Sexual Assault Justice Act of 
2003,'' a bill which I introduced with Senators Specter, Cantwell and 
Clinton, along with 20 bipartisan cosponsors, in the Senate and that 
Representatives Green and Maloney introduced in the House of 
Representatives. This bill unanimously passed the Senate in the 107th 
Congress as S. 2513.
  Section 611 would amend Title 18 to encourage federal prosecutors to 
bring ``John Doe/DNA indictments'' in federal sex crimes. Specifically, 
the provision amends 18 U.S.C. Sec. 3282 to authorize explicitly 
federal prosecutors to issue an indictment identifying an unknown 
defendant by this DNA profile within the 5-year statute of limitations. 
If the indictment is issued within the 5-year statute of limitations, 
the statute is then tolled until the perpetrator is identified through 
his or her DNA profile at a later date. The John

[[Page S5154]]

Doe/DNA indictment would permit prosecution at anytime once there was a 
DNA ``cold hit'' through the national DNA database system.
  While the Justice Department is permitted currently to bring John 
Doe/DNA indictments under Rule 7 of the Federal Rules of Criminal 
Procedure, see, e.g., United States v. Fawcett, 115 F.2d 764, 767 (3d 
Cir. 1940) (an indictment is an accusation against a person, not 
against a name, and hence the name is not of the substance of the 
indictment), they have not been frequently used in federal sex 
offenses. Accordingly, section 611 in no way should be construed, by 
negative implication, as suggesting that a DNA profile is the only 
alternative method of identification in criminal indictments.

  Joe Doe/DNA indictment strike the right balance between encouraging 
swift and efficient investigations, recognizing the durability and 
credibility of DNA evidence and preventing an injustice if a cold hit 
happens years after the crime if law enforcement did not promptly 
process forensic evidence. Providing incentives for law enforcement to 
test quickly crime scene DNA from sexual assaults will also help 
identify sex offenders (who are often recidivists) to permit their 
speedy apprehension and prosecution.
  In conclusion, Mr. President, this conference report will do a lot to 
protect our kids. I commend the Chairman of the Judiciary committee 
Senator Hatch for his efforts. Our ranking member Senator Leahy 
dedicated himself to passing a meaningful Amber Alert bill. The staffs 
of the Senate and House Judiciary Committees worked long hours to get 
us to this point today. I am especially grateful for the efforts of 
Makan Delrahim, Mike Volkov, Reed O'Connor and Jennifer Wagner of 
Senator Hatch's staff. Thanks also to Bruce Cohen, Ed Pagano, Julie 
Katzman, Steve Dettelbach, Tim Lynch, Tara Magnere and Jessica Berry of 
Senator Leahy's staff. The majority and minority staffs of the House 
Judiciary Committee worked equally hard to produce this conference 
report. I am appreciative of the efforts of Phil Kiko, Steve Pinkos, 
Will Moschella, Jap Apperson, Sean McLaughlin, Beth Sokul and Katy 
Crooks of Congressman Sensenbrenner's staff. Also I would like to thank 
Ted Kalo with Congressman Conyers and Bobby Vassar and Greg Barnes with 
Congressman Scott for their working during the conference committee.
  Finally, and most importantly, I thank my Judiciary Committee staff 
for their efforts on behalf of this conference report. Neil MacBride, 
Eric Rosen, Tonya Robinson, Marcia Lee, Jonathan Meyer, Louisa Terrell 
and my very able law clerk Tracy Carney each ensured that many of my 
legislative priorities were included in this conference report and in 
so doing they helped to ensure our kids will be safer tomorrow then 
they are today. I urge my colleagues to vote in favor of the conference 
report.
  Mr. LEVIN. Mr. President, I am deeply concerned about sentencing-
related provisions included in the legislation now under consideration. 
The bill which the Senate passed in February of this year addressed an 
important issue--on which their was unanimous bipartisan agreement--of 
cracking down on child pornography. While I am pleased that the bill 
before us retains the provisions of that bill, it also proposes 
wholesale, and in my view unwise, changes to procedures for judicial 
departures from the sentencing guidelines in criminal cases.
  The bill before the Senate contains a provision requiring de novo 
review of all sentencing departure cases appealed to the circuit 
courts. This provision overturns, without there having been any State 
debate on the issue, the interpretation of the ``due-deference'' 
standard for review of district court sentencing decisions contained in 
the Supreme Court's 1996 decision in Koon v. United States. In that 
case, the Court said:

       We agree that Congress was concerned about sentencing 
     disparities, but we are just as convinced that Congress did 
     not intend, by establishing limited appellate review, to vest 
     in appellate courts wide ranging authority over district 
     court sentencing decisions. Indeed, the text of section 3742 
     manifests an intent that district courts retain much of their 
     traditional sentencing discretion. Section 3742(e), as 
     enacted in 1984, provided ``[t]he court of appeals shall give 
     due regard to the opportunity of the district court to judge 
     the credibility of the witnesses, and shall accept the 
     findings of fact of the district court unless they are 
     clearly erroneous.'' In 1988, Congress amended the statute to 
     impose the additional requirement that courts of appeals 
     ``give due deference to the district court's application of 
     the guidelines to the facts . . .

  The bill also threatens to chill the use of judicial discretion to 
depart from the sentencing guidelines by imposing burdensome reporting 
requirements on judges who depart. Further, it requires the Attorney 
General to provide both the House and Senate Judiciary Committees with 
a report containing information--including the identity of the district 
court judge--on every downward departure in any case. The Judicial 
Conference of the United States has said, in an April 3, 2003, letter 
to Senator Hatch:

       We oppose the systematic dissemination outside the court 
     system of judge-identifying information in criminal case 
     files. . . . We urge Congress to meet its responsibility to 
     oversee the functioning of the criminal justice system 
     through the 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.

  Surely we should hear from the Judicial Conference which has some 
serious concerns about the impact of this provision on judicial 
decisionmaking.
  The bill could also have the effect of dramatically altering the 
composition of the U.S. Sentencing Commission. The Sentencing 
Commission consists of seven members. Under current law, at least three 
of it members must be Federal judges selected by the President from a 
list of six judges submitted by the Judicial Conference. By removing 
the requirement that judges hold at least three of the seven seats on 
the Sentencing Commission, the bill threatens the integrity and future 
good judgement of the Commission. I do not believe that this is a wise 
change because judges have a unique perspective on the issue of 
criminal sentencing.
  These are just a few among the many troublesome provisions that were 
inserted into a piece of legislation after its passage in the Senate 
had enjoyed broad bipartisan support. The Senate has not had the 
opportunity to consider the potential impact of these provisions 
through either hearings or floor debate. Mr. President, I am 
disappointed that they are now being considered in a conference report 
which we will not have opportunity to amend.
  Mr. DODD. Mr. President, I rise today to speak about the CARE Act 
which is an important piece of legislation that was passed yesterday. 
The CARE Act will help thousands of charitable organizations across the 
country perform the important work that they do every day on behalf of 
people and causes that need and deserve our assistance.
  Every day in America, men and women and sometimes children--working 
and volunteering under the auspices of countless charitable 
organizations--feed hungry children, provide hot meals and home visits 
to senior citizens, clean our parks and lakes and rivers, care for 
neglected and abused animals, and provide clothes, food, and shelter 
for the homeless and mentally ill. These activities take place each day 
despite great costs to workers and volunteers in terms of time and 
resources.
  I would daresay that were this bill not to become law, volunteers and 
charitable organizations around the country would be no less committed 
and dedicated to their work. But because we have passed this 
legislation and because this legislation or a reasonable facsimile 
thereof will hopefully become law in the near future, it is my belief 
that the work performed by charitable organizations and volunteers 
throughout America will be supported, strengthened, and expanded upon 
for years to come.
  One of the most important provisions in this bill will allow those 
who do not itemize their deductions to receive a tax deduction for 
their charitable contributions. This deduction will benefit millions of 
low and middle-income families who are already making significant 
charitable contributions each year, and it will encourage even more 
charitable contributions in future years.
  This bill also authorizes preferential treatment of gifts made from 
IRAs. This provision is important to many

[[Page S5155]]

major charities and universities throughout our Nation.
  I am also very pleased that the CARE Act restores funding for the 
Social Services Block Grant. The social services block grant pays for 
critical services for millions of children, families, seniors, and 
persons with disabilities each year. Congress has been ignoring its 
responsibility to those in need for too long. Since 1995, annual 
funding for SSBG has been cut by more than $1 billion, from a high of 
$2.8 billion to the current level of $1.7 billion. This bill will 
restore the amount to $2.8 billion in the next fiscal year which is 
especially important now since we are seeing States across America cut 
and sometimes even eliminate the very services that SSBG was enacted to 
support because of the budget deficits they are currently faced with.
  I do not believe it is an exaggeration to say that, if you want to 
know what America is all about, visit one of America's charities. There 
you will find the American spirit burning brightly. It is a spirit of 
compassion, selflessness, equal opportunity, and initiative. Those are 
the values that have made our Nation great. Those are the values that 
are nurtured each and every day in these organizations. And those are 
the values that will be given new strength and potency by this 
legislation.
  I commend those of our colleagues who have worked hard to bring this 
legislation to the floor today. And I look forward to continuing to 
work with them in the days to come to enact it into law.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I appreciate the remarks of the 
distinguished Senator from California. There is no question she and the 
distinguished Senator from Texas have been major movers of this 
legislation and she has been a strong supporter of the bill that this 
is attached to that does so much for children. I personally would have 
preferred to have just passed AMBER alert, but I am overjoyed we have 
this child legislation.
  By the way, the judges did not have to report to the Congress, they 
only have to report to the Sentencing Commission, which is made up in 
part of judges. I wanted to correct that in the Record because I know 
my colleague will appreciate knowing that.
  One of the most startling statistics is to find almost 4 million kids 
out of the 23 million children in our country between 12 and 18 have 
been abused. It is unbelievable. A study conducted by the Bureau of 
Prisons found that 76 percent of defendants convicted of child 
pornography or of traveling in interstate commerce to engage in sex 
with minors, admitted to undetected sex crimes, with an average of 30.5 
victims; on average, 76 percent of people convicted of child 
pornography or of traveling in interstate commerce to engage in sex 
with minors, admitted to undetected--in other words, crimes that nobody 
knows about--sex crimes with minors with an average of 30.5 additional 
child sex victims. Every one of them.
  It is time we get tough. This bill is a tough bill, as it should be. 
This bill will help solve some of the problems of society, as it 
should.
  I have to confess, I have been underwhelmed by some of the arguments, 
underwhelmed by some of the arguments in this area. All I can say is 
that we do not do away with downward departures; they better be the 
departures allowed by the Sentencing Commission and not just conjured 
out of thin air by the judges.
  I have to also confess the distinguished Senator from Massachusetts 
is continuously bringing up Justice Rehnquist and Justice Kennedy. 
Their letters were to the Feeney amendment which has been drastically 
modified by the Hatch-Sensenbrenner-Graham amendment. That argument, in 
and of itself, does not stand or hold water. I will not say that it is 
a misrepresentation, as has been indicated on the other side, but I 
will say it does not hold any water.
  Now, there have been some complaints from some that the conference 
committee refused to pass a stand-alone AMBER alert and PROTECT Act 
bill. They complain that the conference bill contains measures that 
they had not considered and are opposed to including in the conference 
bill. We have a wonderful system of government in this country. Our 
system divides the Congress into two coequal branches of Government 
because that is the case. It is not unusual the legislation covering 
the same topics pass both Houses with language and subject matter that 
is not entirely the same. Just because the two legislative bodies do 
not agree on each and every provision, we do not simply walk away from 
the legislation. Instead, we convene a conference between the two 
legislative bodies in an attempt to harmonize the legislation.
  Sometimes the conference between the two bodies reaches agreement, 
and sometimes the two bodies do not. In this case, we did. Both bills--
the House bill and the Senate bill--dealt with crimes that victimized 
children. However, the two bills were not identical in every respect. 
The House bill included significant provisions that add stiff 
punishments to those who actually victimize children, as well as other 
punishment-related issues.
  The House passed a measure that would have provided for a study on 
volunteer background checks, but we from the Senate side insisted that 
the bill go further, to include a pilot program so the volunteers would 
have access immediately. A majority of the conferees, after considering 
all of the measures, have agreed to this conference bill.
  While all may not agree to each and every specific compromise made by 
the conference, this bicameral system has succeeded in compiling and 
producing comprehensive child protective legislation. In fact, it would 
be safe to say that some of the 400 Members of the House who voted for 
this today, who voted for this conference bill, agreed to each and 
every provision in the conference bill, but as with every piece of 
legislation, overall they voted to pass it.
  That is how our system works. I urge my colleagues to vote in favor 
of this measure because this measure is a measure that can help to put 
an end to some of these crimes against children that are so affecting 
our society.
  I want to pay tribute to John Walsh, to the people who run the Boys 
and Girls Clubs of America, and my friend, Wintley Phipps, who runs the 
Dream Academy to help children of prisoners who have family members in 
prison; to bring mentors and tutors into their lives to help them come 
into the digital world and brings mentors and teachers to help them 
understand computers, to help them understand there is a better way. 
Many of these kids, 65 to 85 percent of them, depending on the 
jurisdiction, would go to crime themselves.
  I want to compliment those groups I mentioned and many others I wish 
I had time to mention, who are fighting these battles on the front 
lines against these child molesters, pornographers, rapists, et cetera. 
They deserve our respect and they deserve this legislation.
  We all deserve this legislation. As a father of 6 children, and a 
grandfather of 21, I have to tell you I want all my kids and 
grandchildren protected. My kids are now adults so hopefully they can 
protect themselves, but my grandchildren by and large are not. I am 
worried about children all over this country. When you think the 
average convicted child molester has personally abused 30.5 kids, it is 
time to get tough on them. Frankly, it is time to quit playing games 
with the sentencing guidelines in this area.
  I don't see why judges should be offended or concerned if we have 
them review decisions on guidelines, downward departures by the lower 
court, especially when those departures are unjustified, unwarranted, 
and in many cases ridiculous.
  Let me address something else that has me deeply troubled about what 
I have heard on the floor about the main complaint by our friends on 
the other side--some of our friends on the other side; very few, I 
believe. I believe the vast majority of Democrats are for this bill. I 
hope they will vote for it. I will be shocked if they do not.
  But the main complaint by Democrats appears to be they do not like 
this compromise that provides for meaningful review of the sentencing 
guideline provisions. Why anyone would oppose provisions that simply 
grant appellate courts the opportunity to give meaningful review to 
criminal sentences is just simply beyond me. The House had Sentencing 
Commission

[[Page S5156]]

hearings. The Senate has had Sentencing Commission hearings--regardless 
of the representations by my distinguished friend from Massachusetts. 
We had extensive hearings back in the year 2000. We all know a lot 
about this.
  This measure, through compromise, has taken steps to address a 
growing problem both bodies identified in guideline sentencing.
  But I am even more troubled by remarks I have heard or read from the 
Associated Press, where Republicans were accused of:

     . . . kidnapping the AMBER alert bill in an attempt to 
     achieve partisan and wholly unrelated goals, getting judicial 
     sentencing guidelines.

  Understand, those who support this bill want to strengthen 
punishments. That is what the supporters have voted for; that is what 
the supporters who plan to vote for this bill want.
  However, the insinuation that supporters of this bill have kidnapped 
anything is offensive. I am appalled that was said in public and in the 
press.
  The AMBER alert provision is named after Amber Hagerman, from 
Arlington, TX. This child was kidnapped and murdered. This tragic crime 
has led to AMBER alerts in various States and is one of the provisions 
included in this bill for nationwide implementation. To invoke her name 
in connection with kidnapping is simply offensive. I suspect that when 
her family reads about that, instead of feeling proud about a law that 
is named in Amber's memory, this kidnapping reference in connection 
with her name will only prove more hurtful.
  Let's put these unwarranted snipes--and that is what they are--aside. 
Let's vote on this bill and send it to the President immediately. It 
will be signed by Easter and those criminals who even think of stepping 
outside the law with respect to any of these offences will know the 
full weight of the law will be brought down to bear on them.
  Mr. President, I again urge my colleagues to pass this bipartisan 
compromise agreement. The House of Representatives passed this 
legislation this morning by a vote of 400-25. I am pleased we will act 
tonight by voting on this critical measure to protect our children.
  This bill enjoys widespread support, and the need for the measures 
contained in the bill is well demonstrated. Law enforcement 
organizations around the country have expressed their support for this 
bill. Victims' families and citizens alike have done so. Earlier I read 
a letter we received from Elizabeth Smart's family in support of the 
bill. Even citizens from Senator Kennedy's home State of 
Massachusetts--such as Maggie Bish whose daughter Molly, was abducted 
in 2000 and hasn't been found--have expressed their support for this 
legislation.
  I now urge my colleagues to vote in support of this bill and forward 
it to the President for his signature as soon as possible.
  I know that some on the other side do not agree with each and every 
measure contained within it. I suspect that there are those among the 
400 Members in the House who voted for this conference bill did not 
agree with each and every provision. They might not have agreed with 
the specifics of Representative Feeney's amendment. However, overall, 
they believed that the conference bill includes child protection 
measures that will ultimately benefit those in our society who are most 
vulnerable.

  The fact is, this legislation has many provisions that will help 
prevent crimes against children, as well as help keep those who prey 
upon the innocent out of our society and away from our children. I am 
not going to list all of them again here. But I note that provisions 
such as the AMBER Alert and Code Adam systems will allow the public to 
assist law enforcement in the timely search for and safe return of 
child victims. Stronger penalties for pedophiles and child molesters, 
and especially recidivists, will ensure that those who victimize 
children will stay behind bars where they deserve to be. Enhanced 
investigative tools will enable law enforcement officers to prosecute 
those who exploit children. The sentencing reforms will prevent 
sentencing abuses in cases involving child and sexual crimes where too 
often we have seen lenient sentences imposed. They will also ensure 
that appellate courts can adequately review sentences by district 
courts.
  Mr. President, I would also like to take this opportunity to 
recognize the tireless work of the dedicated staff members on both 
sides of the aisle whose work around the clock made this legislation 
possible. First, on my staff, I want to specifically commend my former 
staffer Wan Kim, who recently re-joined the United States Attorney's 
Office for the District of Columbia as an Assistant United States 
Attorney. He, along with Mike Volkov, Reed O'Conner, Jennifer Wagner, 
Ted Lehman, Dabney Friedrich, and my Chief Counsel and Staff Director 
Makan Delrahim, all poured their hearts into this legislation. On 
Senator Leahy's staff, I want to thank Julie Katzman, Steve Dettelbach, 
Tara Magner, Jessica Berry, and Ed Pagano. On Senator Biden's staff, 
Neil McBride, Tonya Robinson and Eric Rosen. On Senator Session's 
staff, William Smith and Andrea Sanders. On Senator Grassley's staff, 
Chad Groover. On Senator Graham's staff, James Galyean. On Chairman 
Sensenbrenner's staff, I want to commend Will Moschella, Phil Kiko, Jay 
Apperson, Beth Sokul, Katy Crooks and Sean McLaughlin for their hard 
work and dedication.
  It is time for us to vote.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. HATCH. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Chambliss). Without objection, it is so 
ordered.


                           Order Of Procedure

  Mr. HATCH. Mr. President, I ask unanimous consent that the vote with 
respect to this conference report occur at 6:40 today, and that 
immediately following that vote, the Senate proceed to executive 
session and a vote on calendar No. 60, the nomination of Ross Swimmer, 
to be Special Trustee for American Indians; further, I ask consent that 
following that vote, the President be immediately notified of the 
Senate's action, and the Senate then resume legislative session.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Mr. President, we have no objection on this side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is on agreeing to the conference report to accompany S. 
151.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. Kerry) 
and the Senator from Connecticut (Mr. Lieberman) are necessarily 
absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``aye''.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                      [Rollcall Vote No. 132 Leg.]

                                YEAS--98

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Edwards
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (FL)
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin

[[Page S5157]]


     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                             NOT VOTING--2

     Kerry
     Lieberman
       
  The conference report was agreed to.
  (Disturbance in the galleries.)
  Mr. HATCH. Mr. President, I move to reconsider the vote.
  Mr. GREGG. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________