[Congressional Record Volume 149, Number 59 (Friday, April 11, 2003)]
[Senate]
[Page S5334]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        THE PROTECT ACT, S. 151

  Mr. BAUCUS. Madam President, although I voted in favor of the 
conference report on S. 151, I must register my profound concern with 
certain provisions that were added to the conference report that have 
nothing to do with protecting children.
  I am referring to title IV of the conference report that mandates 
sweeping changes to the Nation's sentencing laws and guidelines. These 
provisions stem from an amendment added to the bill in the House, and 
later modified under unusual circumstances in the conference committee.
  These provisions will drastically impact the discretion and 
independence of Federal judges and the judiciary to impose just 
sentences not just for child and sex abuse crimes, but for all crimes. 
These provisions will alter the sentencing laws of the United States, 
with little or no public debate or hearing on the issue, and with 
little or no research or study on whether too many Federal judges are 
in fact abusing their discretion or improperly granting departures from 
mandatory minimum sentences.
  As my colleague from Massachusetts pointed out, if the majority on 
the conference committee had limited these changes to the serious 
crimes of sex abuse of children and child pornography, there would be 
little or no objection to these provisions. But they didn't. They 
allowed the de novo appellate review and other provisions to stand, 
provisions which will restrict the ability and discretion of Federal 
judges to grant downward departures for all offenses.
  Unfortunately, as the majority is well aware, the child abduction 
notification provisions and virtual child pornography provisions of S. 
151 are too important to delay any longer than necessary. I cannot vote 
against those provisions--we must do everything we can to strengthen 
the hand of State, Federal, and local law enforcement, as well as 
prosecutors, to protect our children from sexual predators.
  It is just unfortunate that this must-pass legislation was taken 
advantage of to move sweeping reforms of the larger U.S. criminal 
justice system, reforms the Senate did not debate and on which no 
hearings were held. I hope we will be able to revisit this matter in 
the near future.
  Mr. BINGAMAN. Mr. President, yesterday I joined my colleagues in 
voting for S. 151, the PROTECT Act, legislation that is intended to 
help reduce the incidence of child abduction in our country. The bill 
passed unanimously on a vote of 98 to 0. I voted for this bill because 
I believe it contains many important and needed provisions, but I did 
so with reservations about a couple of different sections of the bill 
that, in my view, deserved further deliberation.
  Before I discuss these reservations, let me start by discussing the 
most important provisions in this bill. First, this legislation 
establishes a national AMBER alert system, which includes the 
establishment of an AMBER alert coordinator within the Department of 
Justice to assist states with their AMBER alert plans, and which will 
help to eliminate gaps in the network through better regional 
coordination among plans. I was pleased to be a cosponsor of the stand-
alone version of this bill in both the 107th and 108th Congresses. My 
home State of New Mexico already has an Amber alert plan, which was 
recently codified by our State legislature, and I am hopeful that this 
new Federal legislation will allow my State to receive funding under 
the new grant programs created by this bill.
  Second, the bill includes the so-called ``Code Adam Act,'' which 
would require Federal buildings to establish procedures to locate a 
child that is missing in the building. The original Code Adam--one of 
the country's largest child safety programs--was created by Wal-Mart in 
1994 and is now used in more than 36,000 stores nationwide. It is also 
supported by the National Center for Missing and Exploited Children
  Third, in spite of the many extraneous provisions added by the House, 
the bill includes much of the original PROTECT Act, which passed the 
Senate unanimously last year. These provisions provide needed tools to 
prosecutors to help them deal with the problem of child pornography in 
a way that should pass constitutional muster. Congress first addressed 
this issue in the 1996 Child Pornography Protection Act, but a 
significant portion of that law was struck down by the Supreme Court 
last year. I am pleased with the work of the Senate Judiciary Committee 
in working through the issues raised by the Supreme Court in a 
thoughtful and bipartisan way, and I am hopeful that this new measure 
will help ensure that child pornographers are held accountable for 
their actions.
  I would like to say a few words now about my reservations in voting 
for this bill. Title IV of the bill makes significant new changes to 
Federal sentencing procedures in the name of reform. While many of 
these changes may turn out to be beneficial, at no point in the 
legislative history of this bill was there an opportunity for critical 
questions to be raised and answered about these new sentencing reforms. 
Title IV was added in conference as an amendment with little 
opportunity for the minority to even read the amendment or engage in a 
thoughtful debate. Further, several of my colleagues on the Judiciary 
Committee have noted their objections to what they view as a 
misrepresentation of the amendment in conference. I do not believe this 
is the way in which we should do business, and I am disappointed that 
there was not an opportunity for my colleagues to debate their 
legitimate concerns further.
  In particular, Senator Leahy raised concerns that this amendment 
could potentially undermine the Federal sentencing system and prevent 
judges from imposing just and responsible sentences. As justification, 
Senator Leahy cites remarks by Chief Justice Rehnquist on the nearly 
identical Feeney amendment, which was added to the bill on the House 
floor. In those remarks, the Chief Justice said, ``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.''
  Whether one agrees with the sentencing reform provisions in this bill 
or not, the very fact that the Chief Justice of the United States 
Supreme Court has voiced concerns about it leads me to believe that 
more time was needed for both the Senate and the House to consider the 
scope and potential impact of this legislation.
  Finally, I would like to comment on another piece of the PROTECT Act, 
which was added as an amendment in conference by Senator Biden. The 
Illicit Drug Anti-Proliferation Act, previously known as the RAVE Act, 
modifies the current so-called ``crack house'' statute to make clear 
that anyone who knowingly or intentionally uses his or her property, or 
allows another person to use his or her property, for the purpose of 
distributing, manufacturing, or using illegal drugs will be held 
accountable. The provision also allows for civil suits against 
violators.
  I have received many calls and letters from people in my State who 
have raised legitimate concerns about this legislation. While I fully 
support efforts to ensure that our youth do not fall victim to drugs, 
and while I understand that Senator Biden modified his bill slightly 
from the previous Congress to address concerns that were raised, I 
would have preferred that this legislation be allowed to go through the 
normal legislative process. This would have allowed a public airing of 
the many concerns that I have heard, and would have provided an 
opportunity for the Senate Judiciary Committee to address those 
concerns, as necessary.
  I hope very much that during the remainder of this Congress we can 
revisit both these new provisions related to sentencing and the RAVE 
Act.

                          ____________________