[Congressional Record (Bound Edition), Volume 149 (2003), Part 7]
[Senate]
[Pages 9345-9387]
[From the U.S. Government Publishing Office, www.gpo.gov]




   PROSECUTORIAL REMEDIES AND OTHER TOOLS TO END THE EXPLOITATION OF 
        CHILDREN TODAY (PROTECT) ACT OF 2003--CONFERENCE REPORT

  Mr. HATCH. Mr. President, I ask unanimous consent that the Senate 
proceed to the consideration of the conference report to accompany S. 
151, the PROTECT Act.
  The PRESIDING OFFICER. The clerk will report the conference report.
  The legislative clerk read as follows:

       The committee of conference on the disagreeing votes of the 
     two Houses on the amendments of the House to the bill (S. 
     151), to prevent child abduction and the sexual exploitation 
     of children, and for other purposes, having met, have agreed 
     that the Senate recede from its disagreement to the amendment 
     of the House, and agree to the same with an amendment, signed 
     by a majority of the conferees on the part of both Houses.

  The Senate proceeded to consider the conference report.
  (The conference report is printed in the House proceedings of the 
Record of April 9, 2003.)
  Mr. HATCH. I rise in support of the conference report on S. 151, the 
Prosecutorial Remedies and Other Tools to end the Exploitation of 
Children Today Act of 2003, which truly represents landmark bipartisan 
legislation to protect our children.
  On Tuesday of this week, the House and Senate conferees met and 
reached agreement on this important piece of bipartisan legislation. 
Earlier this morning, the House of Representatives passed the 
legislation by an overwhelming vote of 400 to 25.
  I was hoping I could come to the floor to make a statement commending 
the Senate for working together as we had on so many other occasions on 
many important issues like this important piece of legislation which is 
needed to protect our children.
  Unfortunately, this is not a proud day for the Senate, and unless we 
get this bill passed, it will be a sad day.
  The spirit of bipartisanship appears to me to be fading, as my 
Democratic colleagues seek to obstruct and delay rather than working 
together to solve our Nation's problems and pass this important piece 
of legislation. Having listened to the distinguished Senator from 
Massachusetts, I have hope that there will not be obstruction or delay 
on this bill, and perhaps there won't be as he seeks his point of 
order. The spirit of obstructionism that I have been worried about, 
which we have experienced all year long, has now reached a difficult 
point here. If there is a desire to stop this bill in the Senate 
through a point of order, or otherwise, then I think it would exhibit a 
willingness to sacrifice the protection of our own children for 
political advantages. I hope that is not the case.
  If it is, I will be deeply saddened by this turn of events, and I 
urge my colleagues on the other side to rethink their strategy and 
approach to so many issues.
  In particular, when it comes to this issue of protecting our 
children, I think we ought to get this bill done. We need to cast aside 
partisan disputes and quickly pass this measure and send it to the 
President for signature as soon as possible.
  Let me take a moment to commend the House of Representatives, and 
Judiciary Committee Chairman Sensenbrenner in particular, for their 
tireless dedication to this legislation. Chairman Sensenbrenner has 
demonstrated his commitment time and time again to passing this measure 
quickly during this new session of Congress. Thanks to our House 
colleagues, we in the Senate now have an opportunity to pass not only 
an AMBER alert bill, but a truly comprehensive package of measures that 
will protect our children from vicious criminals, pornographers, sexual 
abusers, and kidnappers. These types of individuals who prey on our 
Nation's youth are nothing less than the scum of the earth who deserve 
every ounce of punishment which we as a nation can fairly and justly 
mete out.
  The problem of child abuse and child exploitation is simply mind-
boggling. The recent wave of child abductions across the Nation, 
including the kidnapping of Elizabeth Smart in my own State of Utah, 
has highlighted the need for legislation to enhance our ability to 
protect our Nation's children against predators of all types.
  I have a letter addressed to the Senate and the House of 
Representatives, signed by Ed and Lois Smart, Elizabeth's mother and 
father, as well as Elizabeth Smart, dated April 9, 2003. I ask 
unanimous consent that it be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                    April 9, 2003.
     U.S. Senate,
     U.S. House of Representatives,
     Washington, DC.

        An Open Letter To The United States Senate and House of 
                            Representatives:

       We wish to express our sincerest appreciation to all of you 
     who have played such a key role in moving forward legislation 
     that includes the National Amber Alert. We applaud those 
     members of the conference committee who exhibited the 
     foremost cooperation in working out a compromise that will 
     greatly benefit every child in America.
       Today, we are writing to encourage you to quickly pass this 
     legislation so that it can be signed into law. The Amber 
     Alert as well as other preventative measures will make an 
     immediate difference in safely rescuing those who are 
     abducted and in preventing crimes against children.
       We can't begin to express our joy and gratitude in having 
     Elizabeth back home. It is our hope and prayer that immediate 
     passage will save countless families from the trauma and 
     sorrow caused by the senseless acts of those who prey on 
     children.
           Sincerely,
       Edward Smart.
       Lois Smart.
       Elizabeth Smart.

  Mr. HATCH. Mr. President, I will take a moment to address some of the 
significant components of this measure. First, the PROTECT Act of 2003, 
which I and Senator Leahy introduced following the Supreme Court's 
decision in Ashcroft v. Free Speech Coalition, has been my top 
legislative priority since last year. Congress has long recognized that 
child pornography produces three distinct, disturbing, and lasting 
harms to our children. First, child pornography whets the appetites of 
pedophiles and prompts them to act out their perverse sexual fantasies 
on real children. Second, it is a tool used by pedophiles to break down 
the inhibitions of children. Third, child pornography creates an 
immeasurable and indelible harm on the children who are abused to 
manufacture it.
  It goes without saying that we have a compelling interest in 
protecting our children from harm. The PROTECT Act strikes a necessary 
balance between this goal and the first amendment. The PROTECT Act has 
been carefully drafted to avoid constitutional concerns. The end result 
of all of our hard work is a bill of which we can be proud, one that is 
tough on pedophiles and child pornographers in a measured and 
constitutional way.
  The legislation also addresses AMBER alert, America's Missing 
Broadcast Emergency Response. The bill will extend the AMBER alert 
system across our Nation. Our entire Nation recently rejoiced with the 
Smart family after Elizabeth was found alive and reunited with her 
loved ones. Her discovery, facilitated by everyday citizens who 
followed this case, demonstrates the importance of getting information 
about these disappearances out to the public quickly.
  When a child is abducted, time is of the essence. All too often, it 
is only a

[[Page 9346]]

matter of hours before a kidnapper commits an act of violence against 
the child. Alert systems, such as the AMBER alert system, galvanize 
entire communities to assist law enforcement in the timely search for 
and safe return of child victims.
  This legislation will enhance our ability to recover abducted 
children by establishing a coordinator within the Department of Justice 
to assist States in developing and coordinating alert plans nationwide. 
The act also provides for a matching grant program through the 
Department of Justice and the Department of Transportation for highway 
signs, education and training programs, and the equipment necessary to 
facilitate AMBER alert systems. I support the national AMBER Alert 
Network Act because it will improve our ability on a national level to 
combat crimes against our children.
  Also, I want to take a moment to highlight another very important 
measure. The legislation includes the Code Adam Act, which would 
require Federal buildings to establish procedures for locating a child 
that is missing in the building. The provision is named after the son 
of John Walsh, the host of America's Most Wanted and the John Walsh 
Show. As everybody knows, John Walsh's son, Adam, was kidnapped from a 
mall in Florida and murdered in 1981. Retail stores around the country, 
including Wal-Mart, have initiated Code Adam systems in memory of Adam, 
and they have successfully recovered many missing children. This would 
implement the same system for building alerts in all Federal buildings. 
It is a measure I am proud to support in memory of John Walsh's son, 
Adam, and in honor of John Walsh's commitment and vigilance to fighting 
for crime victims and our children throughout the country.
  On Tuesday, John Walsh attended the meeting of the conferees to 
discuss this legislation. Yesterday, John Walsh issued the following 
statement:

       This incredible bill may be one of the most important 
     pieces of child protection legislation passed in the last 20 
     years. I commend Senator Hatch's leadership on the Judiciary 
     Committee and Chairman Sensenbrenner's leadership on the 
     House Judiciary. Pushing this bipartisan legislation through 
     is very appropriate during ``National Crime Victims' Rights 
     Week.'' This bill, which is a loud voice for the smallest 
     victims--children--has sent a loud message to those who would 
     prey upon our most vulnerable segment of society.

  I also want to highlight other important measures contained in the 
conference report that will enhance existing laws, investigative tools, 
criminal penalties, and child crime resources in a variety of ways.
  As the chart shows--the print is small--in addition to the PROTECT 
Act, AMBER Act, and the Code Adam Act, the legislation would, No. 1, 
provide a judge with the discretion to extend the term for supervision 
of released sex offenders up to a maximum of life; No. 2, extend the 
statute of limitations for child abductions and sex crimes to the life 
of a child; No. 3, denies pretrial release for child rapists and child 
abductors; No. 4, require a mandatory sentence of life imprisonment for 
twice-convicted serious child sex offenders; No. 5, increase penalties 
for kidnapping of under 18-year-old victims by nonfamily members; No. 
6, add new wiretap predicates that relate to sexual exploitation crimes 
against children; No. 7, increase penalties and provide prosecutors 
with enhanced tools to prosecute those who lure children to porn Web 
sites using misleading domain names; No. 8, reauthorize and double the 
annual grant to the National Center for Missing and Exploited Children 
to $20 million each year through 2005; No. 9, authorize funding for the 
Sex Offender Apprehension Program to allow money to be used by local 
law enforcement to track sex offenders who violate terms of their 
release; No. 10, create a national Internet site for information 
regarding registered sex offenders; No. 11, establish a pilot program 
for national criminal history background checks and a feasibility study 
in order to provide a background check process for volunteers working 
for organizations, such as the Boys and Girls Clubs of America, 
National Mentoring Partnership, and the National Council of Youth 
Sports; No. 12, reauthorize grant programs to provide funding of child 
advocacy centers; No. 13, reforms sentencing for criminals convicted of 
crimes against children and sex crimes.
  All of that is done in this particular bill. It is a very important 
bill, as you can see.
  The bill also institutes sentencing reforms so that criminals 
convicted of crimes against children receive the stiff sentences they 
deserve. This provision, which was adopted at the conference, 
represents a significant compromise from the original House bill 
containing the so-called Feeney amendment which passed the House by a 
vote of 357 to 58. Indeed, the overall House bill passed the House by 
an overwhelming vote of 410 to 14.
  In response to concerns raised about the Feeney amendment, I worked 
with Chairman Sensenbrenner, Senator Graham, and my colleagues to 
develop a bipartisan compromise which was ultimately supported by not 
only all of the Republican conferees, but by Democratic conferees as 
well--Senator Biden, as well as Congressmen Frost, Matheson, and 
Hinojosa.
  The compromise proposal would:
  No. 1, limit, but not prevent, downward departures only to enumerated 
factors for crimes against children and sex offenses;
  No. 2, change the standard for review of sentencing matters for 
appellate courts to a de novo review, while factual determinations 
would continue to be subject to a ``clearly erroneous'' standard;
  No. 3, require courts to give specific and written reasons for any 
departure from the guidelines of the Sentencing Commission; and
  No. 4, require judges to report sentencing decisions to the 
Sentencing Commission.
  It is important to note that the compromise restricts downward 
departures in serious crimes against children and sex crimes and does 
not broadly apply to other crimes, but because the problem of downward 
departures is acute across the board, the compromise proposal would 
direct the Sentencing Commission to conduct a thorough study of these 
issues, develop concrete measures to prevent this abuse, and report 
these matters back to Congress.
  For those who want to oppose these needed sentencing reforms, I 
remind them that the Sentencing Reform Act of 1984 was designed ``to 
provide certainty and fairness in meeting the purposes of sentencing, 
avoiding unwarranted sentencing disparities among defendants with 
similar records who have been found guilty of similar conduct.''
  While the U.S. Sentencing Commission promulgated sentencing 
guidelines to meet this laudable goal, courts, unfortunately, have 
strayed further and further from this system of fair and consistent 
sentencing over the past decade.
  Let me refer to this chart. As the chart shows, during the period 
1991, in the left part of the chart, to the year 2001, the number of 
downward departures--in other words, soft-on-crime departures, 
excluding those requested by the Government for substantial assistance 
and immigration cases along the Southwest border--has steadily climbed.
  In 1991, the number of downward departures was 1,241 and rose by 2001 
to a staggering total of 4,098. This chart shows the rate of downward 
departures has increased over 100 percent during this period--in fact, 
almost four times--and nearly 50 percent over the last 5 years alone.
  This problem is perhaps most glaring in the area of sexual crimes and 
kidnapping crimes.
  This chart of downward departures from sentencing guidelines for sex 
crimes shows that during the last 5 years, trial courts granted 
downward departures below the mandated sentencing in 19.20 percent of 
sexual abuse cases, 21.36 percent of pornography and prostitution 
cases, and 12.8 percent of kidnapping and hostage-taking cases. Think 
about it: Downward departure in these types of cases that involve our 
children. This many departures happens to be very disturbing and 
astounding considering the magnitude of the

[[Page 9347]]

suffering by our Nation's youth at the hands of pedophiles, molesters, 
and pornographers.
  Let me give one example of the abuse this sentencing reform will 
correct. In one particular case, a defendant was charged--this is a 
convicted child pornographer--with possession of 1,300 separate images 
of child pornography, depicting young children in graphic and violent 
scenes of sexual exploitation that were sickening and horrible. For 
example, one of the images showed a young girl wearing a dog collar 
while engaging in sexual intercourse with an adult male. This same 
defendant was engaging in online sexual communications with a 15-year-
old girl.
  The sentencing guideline for this defendant mandated--these are the 
sentencing guidelines the distinguished Senator from Massachusetts, the 
distinguished Senator from Delaware, and a number of us, including 
myself, passed long ago--the sentencing guidelines for this defendant 
mandated a sentence in the range of 33 to 41 months. Yet the trial 
judge departed downward to a sentence of only 8 months, citing, No. 1, 
the defendant's height. He was just short of 6 feet tall, and he said 
that would make him vulnerable to abuse in prison. No. 2, he said the 
defendant was naive. And No. 3, the defendant's demeanor--he was meek 
and mild and compassionate.
  We all have common sense, but this is simply incredible and 
outrageous. Congress has to act, and it has to act now. The compromise 
sentencing reform provisions contained in the conference report are a 
reasonable and measured response to this problem.
  The compromise proposal would simply require judges to sentence these 
vicious defendants in accordance with the law and not seek new areas or 
new legal justifications for reducing sentences for these defendants 
without specific authorization from the U.S. Sentencing Commission.
  Contrary to the oft-repeated claims of its opponents, the compromise 
proposal is not a mandatory minimum. Judges handling these important 
criminal cases can still exercise discretion to depart downward, but 
only when the Sentencing Commission specifies the factors that warrant 
a downward departure.
  The other major reform in the compromise adopted in the conference 
report is consistent with prevailing law, requiring de novo review of a 
trial judge's application of facts to law. Indeed, this is the same 
standard that applies to appellate review of critical motions to 
suppress physical or testimonial evidence. There is no reason for 
appellate judges to give deference to the trial judge on such questions 
of law.
  Even after the compromise amendment, the trial judge's factual 
determinations will still be subject to great deference under a 
``clearly erroneous'' standard. If a discretionary downward departure 
is justifiable, it is difficult to understand why anyone would be 
opposed to the appellate courts reviewing them under the same standard 
that applies to other important areas of law.
  I wish to take a moment to remind everyone to focus on the problem we 
face: an epidemic of abuse of our children. According to the National 
Center for Missing and Exploited Children--these facts really are not 
only astounding, they are deplorable--in our country, 3.9 million of 
the Nation's 22.3 million children between the ages of 12 and 17 have 
been seriously physically assaulted, and 1 in 3 girls and 1 in 5 boys 
are sexually abused before the age of 18. That is unbelievable, but 
that is what is going on, and that is why this bill is so important. 
That is why we need to pass it today.
  Considered in this context, we can have an honest debate about the 
issues, but we have an epidemic that needs to be addressed and 
addressed now. We simply have no greater resource than our children. It 
has been said that the benevolence of a society can be judged on how 
well it treats its old people and how well it treats its young. Our 
children represent our Nation's future, and I commend all of my 
colleagues for their tireless efforts on behalf of children and 
families and urge my colleagues to pass this critical legislation. 
Quite frankly, our Nation's children deserve no less.
  I know there are some misunderstandings from the conference, but 
virtually everybody but a number of Democrats have signed off on this, 
including a number of Democrats have signed off on this conference 
report, knowing what it says, knowing what it means, knowing what it 
was represented to mean. I acknowledge some of my dearest friends on 
the other side feel otherwise, but I believe it was made quite clear 
during conference what this actually means.
  I urge my Democratic colleagues to stop any partisanship or partisan 
gamesmanship and support this needed legislation. I do not think we 
should let our children or our communities down. We need to pass this 
legislation without delay and send it to the President.
  The epidemic of downward departures in child pornography cases has 
created what I like to call the ``Me Too'' sentencing pitch from the 
defense. In a recent case in Kansas, the judge departed from the 
Sentencing Commission's guideline sentence of 27-33 months in prison, 
and imposed only probation. As part of the reason for the departure, 
the court stated that it found defense counsel's argument compelling--
that in 27.4 percent of cases involving possession of child 
pornography, sentencing courts have downwardly departed. In other 
words, the problem is so out of hand, that defense attorney's point to 
the downward departure statistics and say, ``Me too, Judge, Me Too.''
  That is where we are. That is what we are trying to fix. I have to 
say I have done my best to try to accommodate both sides. I do not know 
how to accommodate them any differently. Even as late as today, I have 
tried to see if there was any possibility, but there is not any. I 
think those who stayed for the full conference knew exactly what was 
involved, and it is a bipartisan bill. That is apparent from the size 
of the vote over in the House.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, all of us understand the enormous human 
tragedy that has been suffered by families in this country who have 
experienced the abduction of their children. We have had tragic 
situations in my own State of Massachusetts. All of us know the primary 
importance of taking every possible step in order to make our children 
safer. Secondly, if they are abducted, to rescue these children. And 
finally, to have an appropriate kind of a penalty for those who would 
be involved in such an extraordinary aberration of conduct and travesty 
of justice and cruel action. These reasons stimulated the Senate to 
pass the AMBER alert bill.
  We have passed it in the Senate twice already. First, we passed it 
once on September 10 of last year. I think many of us who supported it 
at that time were very hopeful we would have had speedy action by the 
House of Representatives and that they would have sent back to us. It 
did not seem to us it would take a great deal of time given the needs 
that are out there in the country. We could understand if the House 
might want to take a look at it for a few days but report back 
promptly. Nonetheless, we went through the session and there was no 
action by the House of Representatives. So, again, on January 21, 2003, 
it was sent over unanimously from the Senate of the United States, and 
no action later in January, no action in February, no action in March, 
and now, finally there is action in April. The House refused to act on 
these bills on both occasions. Instead, they sent over a conference 
bill loaded up with the provisions they knew would be strongly objected 
to in the Senate.
  We are enormously supportive of the AMBER bill, but we question and 
wonder why it should carry with it such extraneous kinds of material 
which this legislation in this conference report carries. In the final 
hours of the consideration of the AMBER bill in the House of 
Representatives, there was an amendment to the AMBER bill offered by 
Congressman Feeney. In a period of 20 minutes, it was accepted without

[[Page 9348]]

any hearings. It was a part of the conference. The Feeney amendment 
affected the whole issue of sentencing, not just for these kinds of 
heinous crimes that take place against children but also against the 
underlying concept of our criminal sentencing provisions, affecting 
every type of criminal sentence, whether we are talking about 
terrorists, murderers, burglars or white-collar crime.
  The amendment had nothing to do with the abduction of children, but 
would affect all of the other circumstances. It was never very clear 
whether that was intended or not. What was brought to my attention and 
concerned me was the observation that was made by the Chief Justice of 
the Supreme Court. He observed the Feeney amendment will do serious 
harm to the basic structure of the sentencing guidelines system and 
seriously impair the ability of courts to impose just and responsible 
sentences.
  We are all for the AMBER legislation. We are all for the appropriate 
kinds of penalties for those who are going to violate the law, but this 
legislation is much more. However the Feeney amendment would do serious 
harm to the basic structure of the sentencing guidelines system and 
will seriously impair the ability of courts to impose just and 
responsible sentences. This is not just an objection from the Senator 
of Massachusetts, or from the Senate Democrats, this is an objection 
expressed by the Chief Justice of the United States.
  I was personally quite amazed that the Chairman of our committee did 
not believe this kind of change in the criminal justice system was 
sufficiently important. I am amazed that he would not support the 
position of some of us who were conferees who suggested that we ought 
to have a day of hearings to call in experts, perhaps even the Chief 
Justice of the United States, or Congressman Feeney or others who might 
be in favor of the amendment. This would be an opportunity to 
understand what the implications were and whether or not it was going 
to undermine the criminal justice system, as the Chief Justice of the 
Supreme Court has suggested. But, no, that was turned down. That 
suggestion that we have a hearing, chaired by Senator Graham of South 
Carolina, the chairman of our Criminal Justice Subcommittee on the 
Judiciary Committee was turned down. The suggestion that we might hold 
a hearing with the understanding that we would expedite any of the 
recommendations to make sure we were going to target whatever actions 
we were going to take on the subject matter of the AMBER circumstance, 
make sure we got it right, that was rejected and turned down.
  Then a second suggestion was made to ask the Sentencing Commission to 
study this and report back in 180 days. Then, we would have an 
opportunity to look at what the Sentencing Commission had recommended. 
We could then either accept it or reject it or take whatever action in 
180 days. The House of Representatives has taken its time in sending 
this legislation over. We might be able to make a judgment about 
whether this should be done or considered in this particular way.
  Over the period of these past days, just prior to going to the 
conference, I was amazed at the kind of additional support I received 
for the Chief Justice's position. I am sure the chairman of the 
committee received it as well.
  The Judicial Conference of the United States said:

       The Judicial Conference strongly opposes these sentencing 
     provisions because they undermine the basic structure of the 
     Sentencing Commission and impair the ability of the courts to 
     impose just and responsible sentences. We must note our 
     concern and disappointment with the lack of careful review.
       Not 1 day of hearings; not 1 hour of consideration; 20 
     minutes of debate on the floor and the Senate Judiciary 
     Committee virtually accepted it.

  Then it continues along to those three chairs of the Sentencing 
Commission. These are individuals who have been accepted and approved 
by advice-and-consent votes in the Senate: Dick Murphy, Richard Conboy, 
William Wilkins. William Wilkins, certainly one of the important 
conservative jurists who has served in the Federal court system, joined 
in saying:

       The sentencing provisions are farfetched and effectively 
     rewrite significant portions of the Sentencing Reform Act of 
     1984. No hearings have been held on a number of significant 
     provisions of the current legislation urged our rejection of 
     it.

  The Conference on Civil Rights:

       The Feeney amendment would eviscerate the right to depart.

  American Bar Association:

       This provision would fundamentally alter the carefully 
     crafted and balanced position formed by the Reform Act 
     without the customary safeguards and legislative process by 
     effectively eliminating judicial departures. The Feeney 
     amendment strikes a blow at judicial independence and sends 
     an unmistakable message that Congress does not trust the 
     judgment of the judges it has confirmed to offices.

  Then we have the list of 618 professors of criminal law and 
procedure:

       Although adopted by the House with certainly no public 
     hearings or debate, the Feeney amendment would effect a 
     dramatic unwarranted change in Federal sentencing law.

  Eight former U.S. attorneys in the Southern and Eastern Districts of 
New York, one of the most important districts in the prosecution of 
crime, all, Republican--most Republican and a handful of Democrats' 
proposed legislation not only disregards the Sentencing Commission's 
unique role, it also ignores Congress's own admonition.
  Even Cato.
  Business Civil Liberties, an organization affiliated with the 
conservative Washington Legal Foundation, also said:

       It sets a dangerous precedent for further restrictions on 
     Federal judges.

  All of these groups. All within a matter of a few days.
  We raised this in our conference and said we believe we ought to have 
the time, either for the Judiciary Committee or the Sentencing 
Commission, to review it if there were these kinds of observations and 
criticisms.
  I say this to underscore why these sentencing guidelines are 
important. I was here in 1968 when the Brown Commission was set up on 
the growth of violence in our society, criminal violence. The 
Commission made a series of recommendations. One of them was that we 
ought to recodify the Criminal Code because we had so many different 
ways of interpreting intent--willfully, wantonly, knowingly, 
unwillingly, lasciviously--all different kinds of mental tests that 
could be distorted and misrepresented. And we did.
  For the first time in 200 years, we recodified it; we took seriously 
the recommendations. Unfortunately, the House of Representatives failed 
in their responsibilities.
  But one of the other very important recommendations was because of 
the fact that one of the important reasons this Commission said there 
had been the growth of crime was the enormous feeling among those 
inside the criminal justice system and outside of the sentencing 
provisions that were so wildly out of whack--the same crimes in 
different jurisdictions and there was no confidence, either by the 
victims or the defendants or any, in the justice system--that the 
criminal sentencing provisions were effective, that they worked, or 
were based upon justice.
  So we went about it. We passed sentencing reform three different 
times in the Senate of the United States before the House of 
Representatives. It was finally worked out with the Reagan Justice 
Department. Strom Thurmond was very much involved. It was a bipartisan 
effort. So we were going to try to have some kind of rationality in the 
assigning of the penalties for crimes in this country.
  It is not without its failings. We understand that. There should be 
strengthening and improvement. We understand that. But it has worked 
pretty well.
  In fact, a number of States are in the process of adopting very 
similar guidelines. A number of the States are moving in the direction 
which we had established. That is enormously important. I think that is 
one of the things that has been effective.
  In any event, when the time came for this discussion, I said: Why, if 
we can't at least have an examination, since

[[Page 9349]]

there is widespread application of these provisions, why don't we just 
take the provisions that apply to children, sex crimes, and say: OK, 
we'll let those particular provisions that happen to be particularly 
restrictive, we will let those apply to those kinds of conditions that 
are there for the crimes that are included in the AMBER legislation?
  I thought we had a discussion. I thought the chairman of our 
Judiciary Committee--who is not the chairman of the conference--the 
chairman of the committee agreed. I thought he agreed. Senator Hatch 
repeatedly stated that at Tuesday's conference meeting that his so-
called ``compromise'' was limited to sex crimes and children. It 
retained much of the underlying Feeney Amendment and dramatically 
limited departures in all cases.
  In his own works, Senator Hatch's remarks at conference were ``It's 
important to note . . . that the compromise is limited to those serious 
crimes against children and sex crimes and does not broadly apply to 
other crimes''--and he put in a compromise and said to the Senator from 
Massachusetts, on the question of having this apply to the children--
this makes sense and this is what this compromise will do. This is what 
this compromise will do. These are the words that our chairman of our 
Judiciary Committee used:

       It's important to note . . . that the compromise is limited 
     to those serious crimes against children and sex crimes, it 
     does not apply aptly to other crimes.

  Page 31--what do you conclude from that? That the amendment he puts 
in was just as he implied, applied to children. Furthermore:

       It is important to note that the compromise is limited to 
     these serious crimes against children--serious crimes against 
     children and sex crimes does not broadly apply to other 
     crimes. We're not changing the whole system, which I've tried 
     to do, at the urging of not of my friend from Massachusetts, 
     but judges and a number of other people.

  Page 37:

       Now, the compromise proposal would simply require judges to 
     sentence these vicious defendants, child criminals, I mean 
     defendants who are committing crimes against children, in 
     accordance with the law--[didn't have to sentence them in 
     accordance with the law]--and not seek to find new areas or 
     new legal justification for reducing the sentences for these 
     defendants without specific authorization for the United 
     States Sentencing Commission.

  Do Members of this body believe that when you had a chairman of the 
Judiciary Committee filing an amendment, which we had not seen, and 
then give us assurance that that was the scope of that amendment, and 
then to find out that that was not true and have it apply in a number 
of other cases--would the members of the Judiciary Committee of the 
Senate feel that they have been treated fairly? No. The answer is no.

       It is important to note that the compromise--

  Here it is again--

     is limited to these serious crimes against children and does 
     not broadly apply to other crimes, which is what the Feeney 
     Amendment did.
       Now, look, I have to admit I had my own qualms about the 
     totality of the Feeney amendment, and that's why I chatted 
     with the distinguished chairman of the House Judiciary 
     Committee, and that's why I chatted with a lot of others as 
     we, and experts in the field, and I believe we've made a 
     compromise here . . . .

  It just goes on.
  Then we received the assurances from the chairman of the Judiciary 
Committee, and--listen to this--Chief Justice Rehnquist is worried 
about the breadth and scope.
  He is not worried about this. Where did he get that information? 
Where did you get that information, Senator Hatch? That is not an 
accurate statement. I don't think any Federal judge should worry about 
which language. They know this language is to protect our children in 
our society. We are limiting it to that. I am trying to solve this 
problem.
  I could go on. The fact is, in just a cursory examination of that 
language, we saw that was not the case. In fact, the Hatch amendment 
went way beyond sex crimes and children. It retained much of the 
underlying Feeney amendment and dramatically limited departures in all 
cases and eliminated for all cases departures based on age and physical 
impairment, gambling dependence, aberrant behavior, family ties, 
military, and good works.
  This is what is still in there. It establishes de novo appellate 
review of all departures. That applies to every single sentence. It 
goes to the circuit court. That says to the circuit court judges: You 
will look not at the trial court; look at the facts and the sentences, 
but you look to de novo, overturning a unanimous Supreme Court.
  It applies to every case, overturning a Supreme Court decision.
  It prohibits in all cases downward departures on remands of new 
grounds. It also chilled the departures in all cases by imposing 
burdensome reporting requirements on judges who depart from the 
guidelines. And it directed the Sentencing Commission to amend the 
guidelines and policy statements ``to ensure that the incidence of 
downward departures is substantially reduced'' in all cases.
  In the departures, in all cases, by imposing burdensome reporting 
requirements--do you know what the requirements are? They have to tell 
someone in the Justice Department. Guess who. The Attorney General. 
Every time you depart from the guidelines, the Attorney General will be 
notified.
  Talk about a blacklist for judges. The Attorney General will know. Do 
not think that does not send a chill into every judge, to know if he is 
going to make that kind of judgment, decision, in accordance with the 
sentencing guidelines, that the Attorney General is going to know why. 
Obviously, the proponents of the Feeney amendment understood it--in 
order to chill that--to create a blacklist of judges. And everyone 
knows that list will be published. That will be made available to the 
committee. It will be made available in every community where the 
judges go.
  It still applies, not just to children's issues but to all cases--
does everyone understand that?--in all cases.
  Then it directs the Sentencing Commission to amend the guidelines to 
ensure that the incidents of downward departures are substantially 
reduced in all cases, saying, look, we do not like these downward 
departures, in spite of the fact that 80 percent of them were requested 
by the Government and in spite of the fact that anytime you have a 
downward departure, that is sufficient grounds to appeal. If there is a 
concern, they can appeal that. If it is outside the scope of the 
sentencing provision, it is remanded. That is the way the system works. 
That is what we included. If it will be excessive, in terms of 
downward, there is a remedy: Go to appeals. It has worked pretty well. 
If not, let's go back and take a look and have a hearing.
  But absolutely no--absolutely no.
  So then we had spotted those raised, and we had the continued 
assurances from the chairman of the Judiciary Committee that we did not 
understand it. We just looked at this quickly and did not have a real 
grasp of it. This was all done in a period of about 45 or 50 minutes. 
We did not really understand it.
  The way I have described it is the way it is. This is what happened 
later. At 1:30 on Wednesday morning, more than 8 hours after Chairman 
Sensenbrenner adjourned the conference, Senator Hatch's office 
distributed a new, revised version of the Hatch substitute to the 
Feeney amendment. At that hour, my staff was trying to figure out what 
exactly was in the old Hatch substitute. It appears, after having 
debated the Feeney amendment, the Hatch so-called compromise amendment, 
my secondary amendment after having voted on the items in the final 
conference report, the Republican conferees decided to change a 
substantial portion of that conference report and then file it as a 
technical amendment without reconvening the conference, to have the 
Members vote on the new language. This procedure was, to say the least, 
unorthodox.
  At 1:30 in the morning, the revisioners describe it as a ``technical 
change . . . made at the request of a democratic Senator.'' No mention 
of by whom the request was made. Unless the request was for only minor 
changing, it was not fulfilled.

[[Page 9350]]

  At 1:34, the revision did not limit the Hatch amendment to serious 
crimes against children. To the contrary, like the amendment before it 
and the Feeney amendment before, the 1:34 revision broadly limits 
judicial departures in non-child and non-sex cases in many ways.
  It overturns the Koon case by establishing the de novo standard for 
appellate review for all cases--still in there.
  It still directs the Sentencing Commission to amend the guidelines 
and policy statements ``to ensure that the incidence of downward 
departures are substantially reduced.''
  It still chills departures by imposing the burdensome reporting 
requirements.
  It is true that at 1:34 the revision improved the bill by limiting 
restrictions on enumerated departure grounds to child and sex cases 
only. And it strikes the early text limiting military service 
departures. But the very idea that the Feeney amendment and the first 
Hatch amendment limited military service departures in this time of war 
shows how poorly considered the entire legislation has been.
  The modest changes made in the 1:34 revision do not ameliorate the 
devastating impact the Hatch amendment will have on our system of 
criminal justice. They do not conform the amendment to the 
representations made by Senator Hatch at our conference meeting. They 
do not excuse the travesty of a process that has led to this provision 
being inserted into a conference that was meant to deal with the AMBER 
alert bill and other provisions involving the protection of children.
  In reality, the Hatch amendment had nothing to do with the protecting 
of children and everything to do with handcuffing judges, eliminating 
fairness in the Federal sentencing system. That is what the Chief 
Justice of the United States believes.
  Our belief is that if there are changes that are necessary--and there 
may very well be--we ought to have those changes made in an area of the 
criminal justice system. If we have to change them in order to deal 
with terrorism, let's do it. But to do this now, to represent the 
changes only applied to the children and not to the other parts of the 
provision, is not accurate and is a serious misrepresentation of what 
we are doing.
  I have been assured that there are provisions in this legislation 
that go far beyond even the conference itself. It is interesting, we 
established seven members of the Sentencing Commission, and we say not 
fewer than three judges will be members of the Sentencing Commission. 
That has changed, to be not more than three judges.
  The idea that we have seen the number of judges who have served on 
the Sentencing Commission, all of whom have been approved with the 
advice and consent of the Senate and have been approved--the idea in 
the early days of the Sentencing Commission was to bring more judges in 
to bring greater confidence and get their involvement in the drafting 
of the sentencing guidelines. That was the purpose. Now they complain 
about the guidelines and say no more than three judges; so it will 
never be more than three judges. There will always be more on the 
outside than judges in the drafting of the sentencing.
  That was all put in at conference. If someone can show where that was 
in the Senate bill or the House bill--it was not there. It has 
important implications in terms of the makeup and the guidance in terms 
of the sentencing. But we found that out just in reading through the 
process. No justification. No explanation.
  Finally, all Members can understand action here in the Senate at the 
times of enormous kinds of passion, when we see the circumstances of 
children who are abducted and what has happened to them--one cannot 
help but to understand that the feeling of the parents and Members is 
to just throw the book out and go to it. That would have been 
something, if the House of Representatives had done that when the facts 
were there last fall--then it would have been something that could have 
been done in January--but they did not. They waited all this time. And 
then, they have not only taken those actions in terms of enhanced 
penalties against the child abductors, all of which I was glad to 
support--I would have supported it, and would support it still, not the 
other provisions that have been included in it--but if he is truly 
committed to protecting the children and upholding the fairness, I 
would have hoped we could have at least restricted those provisions to 
the sentencing that applied in those circumstances, but they did not.
  That is why we are caught, all of us here, in the situation where we 
are sufficiently concerned about the dangers that are out there in 
terms of the abduction of children and conflicted with the kinds of 
violence we are doing to the Sentencing Commission.
  It is a lousy way to legislate, Mr. Chairman, and I deplore that we 
are in this circumstance. But we will just have to see what steps are 
available to us in the remaining time.
  Mr. President, I would like to address the question of a judge's 
authority to depart from the guidelines.
  While this legislation alters the grounds on which a judge may depart 
in certain child-related cases, it does not alter the basic legal 
authority of a district court to depart from the guidelines under 18 
U.S.C. 3553 in other cases. Judges retain ultimate authority to impose 
a just sentence within statutory limits, and today we reaffirm that 
departures are an important and necessary part of that authority.
  As one of the authors of the Sentencing Reform Act, I can say that 
Congress did not intend to eliminate judicial discretion. We recognized 
that the circumstances that may warrant departure from the guideline 
range cannot, by their very nature, be comprehensively listed or 
analyzed in advance. In interpreting the Act, both the Supreme Court 
and the Sentencing Commission have emphasized this point. This is not a 
partisan position. Judicial authority to exercise discretion when 
imposing a sentence was and is an integral part of the structure of the 
Federal sentencing guidelines and indeed of every guideline system in 
use today. In the eloquent words of Justice Kennedy, when he wrote for 
a unanimous Supreme Court to uphold the district court's authority to 
depart downward in Koon:

       The goal of the Sentencing Guidelines is, of course, to 
     reduce unjustified disparities and so reach toward the 
     evenhandedness and neutrality that are the distinguishing 
     marks of any principled system of justice. In this respect, 
     the Guidelines provide uniformity, predictability, and a 
     degree of detachment lacking in our earlier system. This, 
     too, must be remembered, however. It has been uniform and 
     constant in the federal judicial tradition for the sentencing 
     judge to consider every convicted person as an individual and 
     every case as a unique study in the human failings that 
     sometimes mitigate, sometimes magnify, the crime and the 
     punishment to ensue. We do not understand it to have been the 
     congressional purpose to withdraw all sentencing discretion 
     from the United States district judge.

  According to Koon v. United States, 518 U.S. 81, 113 (1996).
  In Koon, the Supreme Court held that a sentencing judge may depart 
based on a factor identified by the Sentencing Commission, or even 
based upon a factor discouraged by the Commission, as long as the 
discouraged factor nonetheless justifies departure because it is 
present in some unusual or exceptional way. Similarly, a sentencing 
judge may always depart when a factor, unmentioned in the guidelines, 
takes the case outside the heartland of cases covered by the 
guidelines.
  I do not agree that there is an epidemic of leniency in the Federal 
criminal justice system. I do not regard the current rate of non-
substantial assistance departures as excessive. There is no such thing 
as an excessive departure rate--the question is whether any particular 
departure is warranted or unwarranted. That is a question for appellate 
courts, not Congress. One of the reforms embodied in the Sentencing 
Reform Act was the appealability of sentences. The government was given 
the power to appeal downward departures under the act. Were downward 
departures ``excessive'' presumably the government would have brought 
more appeals than it has.

[[Page 9351]]

  The Sentencing Reform Act recognized that departures are a healthy 
and necessary component of a just guideline system. In 2001, when we 
exclude those districts with departure policies designed to address the 
high volume of immigration caseloads, the non-substantial assistance 
departure rate is merely 10.2 percent. This reflects the proper 
exercise of judicial discretion, by Article III judges, who have been 
appointed by presidents of the United States and confirmed by the 
Senate, in conformance with the mandate that Congress gave them in 18 
U.S.C. Sec. 3553(b).
  Indeed, the vast majority of downward departures granted by judges 
today are those sought by the government, most to reward substantial 
assistance in the prosecution of crime. And, while departures have 
increased somewhat of late, government initiated departures lead the 
rising departure rate.
  I am gratified that the concerns voiced by the Federal Judicial 
Conference, the American Bar Association, and others concerning the 
high rate of downward departures requested by prosecutors have been 
recognized in the version of the Feeney Amendment approved by the 
conference committee. The bill now requires that the Sentencing 
Commission:

       . . . review the grounds of downward departure that are 
     authorized by the sentencing guidelines, policy statements, 
     and official commentary of the Sentencing Commission; and 
     promulgate, pursuant to section 994 of title 28, United 
     States Code (A) appropriate amendments to the sentencing 
     guidelines, policy statements, and official commentary to 
     ensure that the incidence of downward departures are 
     substantially reduced.

  I welcome this call for a thorough and impartial review of all 
downward departures, whether requested by the prosecution or the 
defense. Only a review embracing all downward departures will provide 
the Commission the information necessary to fulfill the mandate of this 
legislation.
  A district court may depart from a guideline range whenever the 
unusual circumstances or combination of circumstances of a case take it 
outside of the ``heartland'' of cases covered by the relevant 
guideline. Other than in certain child-related cases, this legislation 
does not limit or lessen the myriad potential grounds for departure 
currently available to district courts in making sentencing decisions 
nor is it intended to discourage departure decisions when the unusual 
circumstances of a case justify a sentence outside the recommended 
range. It also is not intended to transfer authority over sentencing 
decisions from judges to prosecutors.
  In that light, I must express my deep concern for the provision of 
the legislation that requires the Commission to report to the Judiciary 
Committees of the Congress and even to the Attorney General 
confidential court records and even ``the identity of the sentencing 
judge.'' I do not believe that this provision serves any legitimate 
interests of the Congress. I do not believe that authorizing disclosure 
of this information to the executive branch is warranted. I have deep 
concerns that this provision lacks the respect owed by the Congress to 
a co-equal branch.
  I remain convinced that this legislation is flawed and results from a 
hasty and unreliable process that ill serves us. It is my view that the 
directive to the Commission ``to promulgate . .  amendments . . . to 
ensure that the incidence of downward departures are substantially 
reduced'' is inappropriate. It puts the cart before the horse and is 
based on faulty numbers of the incidence of departures that have been 
relied upon by some proponents of the legislation. The better course 
would be for the Commission to study and report on the question. 
Because the Feeney amendment was presented without discussion or debate 
and at the last possible moment, Congress was deprived of balanced and 
full information concerning the issue of whether departure decisions 
are made in inappropriate instances. Even without the opportunity to 
respond in detail to the amendment, the Commission did produce 
statistics and information that refute the reliability and credibility 
of the information used in promoting the notion that departures 
decisions are made too frequently or inappropriately. Indeed, a fact 
that was withheld by proponents of the amendment, close to 90 percent 
of departure decisions are made at the request of or with the support 
of the government and that number may be even higher.
  For these reasons, I hope and expect that this legislation will not 
unduly restrict departures or impede the appropriate development of 
guideline departure common law. And we need to review the entire system 
in light of these changes to make sure that we are letting judges carry 
out their responsibility to impose just and responsible sentences.
  I ask unanimous consent that the following letters in opposition to 
the proposal be included in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  Supreme Court of


                                            the United States,

                                                   Washington, DC.
     Hon. Patrick Leahy,
     U.S. Senator, Russell Senate Office Building, Washington, DC.
       Dear Senator Leahy: I am responding to your letter of March 
     31, 2003, that requested the views of the Judicial Conference 
     of the United States on a number of specific provisions of a 
     sentencing-related amendment to H.R. 1104. By now you will 
     have received Ralph Mecham's letter, dated April 3, which was 
     sent to other Judiciary Committee members as well, expressing 
     the concerns of the judiciary about the amendment. More 
     specifically, the Judicial Conference:
       1. Opposes legislation that would eliminate the courts' 
     authority to depart downward in appropriate situations unless 
     the grounds relied upon are specifically identified by the 
     Sentencing Commission as permissible for the departure.
       2. Consistent with the prior Judicial Conference position 
     on congressionally mandated guideline amendments, opposes 
     legislation that directly amends the sentencing guidelines, 
     and suggests that, in lieu of mandated amendments, Congress 
     should instruct the Sentencing Commission to study suggested 
     changes to particular guidelines and to report to Congress if 
     it determines not to make the recommended changes.
       3. Opposes legislation that would alter the standard of 
     review in 18 U.S.C. Sec. 3742(c) from ``due deference'' 
     regarding a sentencing judge's application of the guidelines 
     to the facts of a case to a ``de novo'' standard of review.
       4. Opposes any amendment to 28 U.S.C. Sec. 994(w) that 
     would impose specific record keeping and reporting 
     requirements on federal courts in all criminal cases or that 
     would require the Sentencing Commission to disclose 
     confidential court records to the Judiciary Committees upon 
     request.
       5. Urges Congress that, if it determines to pursue 
     legislation in this area notwithstanding the Judicial 
     Conference's opposition, it do so only after the Judicial 
     Conference, the Sentencing Commission, and the Senate have 
     had an opportunity to consider more carefully the facts about 
     downward departures and the implications of making such a 
     significant change to the sentencing guideline system.
       I believe these Conference positions respond to most of the 
     questions posed in your letter. Please note, however, that 
     the Conference did not specifically oppose the provisions 
     mentioned in your third and fourth questions. These 
     provisions would amend U.S.S.G. Sec. 3E1.1 and promulgate new 
     policy statement U.S.S.G Sec. 2K2.23. The Conference 
     considered these provisions in adopting its opposition to 
     direct congressional amendments of the sentencing guidelines. 
     The Conference did not take positions on the provisions noted 
     in your seventh and eighth questions. These would primarily 
     affect the Department of Justice.
       As stated in the April 3 letter, the Judicial Conference 
     believes that this legislation, if enacted, would do serious 
     harm to the basic structure of the sentencing guideline 
     system and would seriously impair the ability of courts to 
     impose just and responsible sentences. Before such 
     legislation is enacted there should, at least, be a thorough 
     and dispassionate inquiry into the consequences of such 
     action.
           Sincerely,
     William H. Rehnquist.
                                  ____

                                               Judicial Conference


                                         of the United States,

                                    Washington, DC, April 3, 2003.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, Dirksen 
         Senate Office Building, Washington, DC.
       Dear Mr. Chairman: This provides the views of the Judicial 
     Conference of the United States with regard to Section 109 
     (``Sentencing Reform'') of S. 151, the ``Child Abduction 
     Prevention Act,'' as passed by the House of Representatives 
     on March 27, 2003. The Judicial Conference strongly opposes 
     several of these sentencing provisions because they undermine 
     the basic structure of the sentencing system and impair the 
     ability

[[Page 9352]]

     of courts to impose just and responsible sentences.
       At the outset, we must note our concern and disappointment 
     with the lack of careful review and consideration that this 
     proposal has received. While it constitutes one of the most 
     fundamental changes to the basic structure of sentencing in 
     the federal criminal justice system in nearly two decades, 
     the review by Congress to date consists of a hearing at the 
     subcommittee level in the House of Representatives on only 
     part of Section 109 and limited debate on an amendment on the 
     House floor. The Senate has held no hearings on this 
     legislation at all. Neither the Judicial Conference nor the 
     Sentencing Commission has been given a fair opportunity to 
     consider and comment on this proposal. In our opinion, 
     provisions that would have a significant impact on the 
     administration of criminal justice should not be resolved 
     without careful study and deliberation. The risk of 
     unintended consequences should not be taken on such an 
     important matter.
       Section 109(a) of this bill would amend 18 U.S.C. 
     Sec. 3553(b) to restrict courts' authority to depart downward 
     from the sentencing guideline range to those situations 
     specifically identified by the Sentencing Commission as 
     grounds for downward departures. The Sentencing Reform Act of 
     1984 created a system of prescriptive sentencing, but 
     Congress wisely recognized that any system that provides for 
     sentencing based upon fixed sentencing factors should include 
     a means to impose a just and responsible sentence on the rare 
     defendant whose offense is not addressed by those sentencing 
     factors. The means chosen was to allow for either upward or 
     downward departures if the court finds ``an aggravating or 
     mitigating circumstance of a kind, or to a degree, not 
     adequately considered by the Sentencing Commission.'' This 
     system recognizes that a court should possess the authority 
     to consider unforseen circumstances it deems relevant to 
     sentencing determinations, and we urge the current system be 
     retained.
       Sections 109(b), (g) and (i) make specific changes to 
     existing sentencing guidelines to among other things, 
     restrict the bases for downward departures. The Judicial 
     Conference opposes direct congressional amendment of the 
     sentencing guidelines because such amendments undermine the 
     basic premise in establishment of the Commission--that an 
     independent body of experts appointed by the President and 
     confirmed by the Senate is best suited to develop and refine 
     sentencing guidelines. We recommend instead that the 
     Sentencing Commission be directed by Congress to study the 
     amendment of any particular guideline and either adjust the 
     guideline or report to Congress the basis for its contrary 
     decision.
       Section 109(d) would alter the standard of appellate court 
     review of departure decisions from ``due deference'' 
     regarding a sentencing judge's application of the guidelines 
     to a ``de novo'' standard of review. In Koon v. United 
     States, 518 U.S. 81 (1996), the Supreme Court interpreted the 
     ``due deference'' standard to require appellate courts to 
     review district court departure decisions for abuse of 
     discretion. The Judicial Conference opposes rescission of the 
     current standard, which recognizes that district judges are 
     better positioned to decide departures, and the substitution 
     of de novo review, which would not adequately guide courts in 
     subsequent departure cases that, by their very nature, are 
     not amenable to useful generalization.
       Section 109(h) would amend 28 U.S.C. Sec. 994(w) to require 
     the chief judge of each district to assure that certain 
     sentencing records, including the judgment, statement of 
     reasons plea agreement, indictment or information, and 
     presentence report, are forwarded to the Sentencing 
     Commission. Current law, by contrast, requires the sentencing 
     court or other officer to transmit to the Sentencing 
     Commission a ``written report of the sentence'' and other 
     information as determined by the Sentencing Commission, 
     recognizing that the Commission is best able to determine the 
     information it needs to fulfill its statutory 
     responsibilities. We oppose this additional burden upon the 
     courts.
       This section would further require the Commission, upon 
     request, to provide these newly specified documents to the 
     Senate and House Judiciary Committees. This provision raises 
     two serious concerns. First, presentence reports are retained 
     within the control of the courts and the Department of 
     Justice in order to protect the safety and privacy of 
     individuals identified in the course of criminal prosecutions 
     and sentencings. In the absence of strict accommodations to 
     protect this sensitive information, we believe this practice 
     should be retained. Second, we oppose the systematic 
     dissemination outside the court system of judge-identifying 
     information in criminal case files. The Sentencing Commission 
     compiles and releases annually comprehensive statistics on 
     all federal sentences. Among other things, this data provides 
     for each court the percentage of defendants who receive 
     substantial assistance departures and the percentage of 
     defendants who receive other downward departures. We urge 
     Congress to meet its responsibility to oversee the 
     functioning of the criminal justice system through use of 
     this and other information without subjecting individual 
     judges to the risk of unfair criticism in isolated cases 
     where the record may not fully reflect the events leading up 
     to and informing the judge's decision in a particular case.
       In the event that Congress determines to go forward with 
     this legislation, we urge that, at the least, the Judiciary 
     Committees await the results of ongoing studies into downward 
     departures being conducted by the Sentencing Commission and 
     the General Accounting Office. To underline this point, an 
     Associate Deputy Attorney General testified to a House 
     Judiciary subcommittee why the ``disturbing trend'' in 
     downward departures in non-immigration cases on grounds other 
     than substantial assistance to the government justified 
     ``long overdue reform'' in sentencing procedures. The 
     Department of Justice statement cited statistics to prove 
     this point; that is, these downward departures rose from 9.6 
     percent of cases in FY 1996 to 14.7 percent of cases in 2001. 
     The fact is that there were 5,825 more non-substantial 
     assistance downward departures in FY 2001 than in FY 1996. Of 
     the increase, 4,057 occurred in the five southwest ``border 
     court'' districts and 1,755 occurred in the other 89 United 
     States district courts. In other words, the ``border'' 
     districts accounted for almost 70 percent of the increase. 
     The ``disturbing trend'' is not a national trend, but one 
     more vivid measure of the crisis in the administration of 
     criminal justice on the border. S. 151 recognizes that high 
     downward departures in the border courts are a special 
     circumstance and cannot be eliminated. By no means do 
     ``border court'' problems and statistics support the 
     elimination of this type of downward departures in all other 
     district courts.
       It is also important to note that, popular conceptions 
     notwithstanding, the fact that a defendant is granted a 
     ``downward departures'' does not mean that the defendant was 
     not punished adequately for the crime. Eight-five percent of 
     defendants granted non-substantial assistance departures in 
     FY 2001 were sentenced to prison.
       Finally, we strongly recommend that, after the data on 
     downward departures is compiled and analyzed, hearings be 
     held so that the views of the various entities with interest 
     in federal criminal sentencing can be carefully considered 
     with regard to the ramifications of his proposal. Congress 
     should not alter the sensitive structure of the sentencing 
     system without reasonable certainty as to the consequences of 
     such legislation.
       We appreciate your consideration of the views of the 
     Judicial Conference on this significant legislation. If you 
     have any questions regarding these views, please do not 
     hesitate to contact me at 202/273-3000. If you prefer, you 
     may have your staff contact Michael W. Blommer of the Office 
     of Legislative Affairs at 202/502-1700.
           Sincerely,
                                            Leonidas Ralph Mecham,
     Secretary.
                                  ____



                                   U.S. Sentencing Commission,

                                    Washington, DC, April 2, 2003.
     Subject: S. 151/H.R. 1104, the ``Child Abduction Prevention 
         Act.''

     Hon. Orrin Hatch,
     Chairman, Senate Committee on the Judiciary, Hart Office 
         Building, Washington, DC.

     Hon. Patrick Leahy,
     Ranking Member, Senate Committee on the Judiciary, Dirksen 
         Office Building, Washington, DC.
       Dear Senators Hatch and Leahy: We, the voting members of 
     the United States Sentencing Commission, join in expressing 
     our concerns over the amendment entitled ``Sentencing 
     Reform'' recently attached to the Child Abduction Prevention 
     Act of 2003, H.R. 1104, 108th Cong. (2003) (hereinafter 
     ``H.R. 1104''). In the past, with an issue of such magnitude, 
     Congress has directed that the Commission conduct a review 
     and analysis which would be incorporated in a report back to 
     Congress. The Commission is uniquely qualified to serve 
     Congress by conducting such studies due to its ability to 
     analyze its vast database, obtain the views and comments of 
     the various segments of the federal criminal justice 
     community, review the academic literature, and report back to 
     Congress in a timely manner. Indeed, such a process is 
     contemplated by the original legislation which established 
     the Commission over 15 years ago. See 28 U.S.C. Sec. 994(o).
       It is the Commission's understanding that the impetus for 
     this proposed amendment to H.R. 1104 was congressional 
     concern over the increasing rate of departures from guideline 
     sentences for reasons other than substantial assistance. We 
     share this concern. In fact, the Commission is undertaking an 
     expansive review and analysis of all non-substantial 
     assistance departures. That work has already yielded 
     important preliminary data.
       Based on this preliminary data, it appears that there are a 
     number of factors that need to be examined and understood 
     before drawing conclusions on the non-substantial assistance 
     departure rate. One such factor is the impact on the non-
     substantial assistance departure rate resulting from policies 
     implemented in a number of districts in an effort to deal 
     with high volume immigration caseloads. For example, in 2001, 
     the overall non-substantial assistance departure rate was 
     18.3 percent. If those districts with departure

[[Page 9353]]

     policies crafted to address these high volume immigration 
     caseloads are filtered out, the non-substantial assistance 
     departure rate is reduced to 10.2 percent.
       In addition to the impact of the problems unique to 
     districts with high volume immigration caseloads, other 
     factors deserve analysis:
       (1) the impact, if any, of departures for reasons other 
     than substantial assistance that are the subject of plea 
     agreements and the extent of judicial oversight of such plea 
     agreements;
       (2) the extent to which courts depart for reasons 
     identified by the Sentencing Commission and specified in the 
     guidelines as compared to factors unmentioned in the 
     guidelines;
       (3) the extent, if at all, of disparity in departures 
     within circuits and districts and whether such disparities 
     may be unwarranted;
       (4) the advisability of creating different grounds for 
     upward and downward departures;
       (5) the extent of appeals of departures; and
       (6) whether there are particular offense types that reflect 
     unwarranted rates of departure.
       When Congress created the Sentencing Commission as part of 
     the Sentencing Reform Act of 1984, it did so with the idea 
     that the Sentencing Commission would establish policies that 
     would provide certainty and fairness in sentencing and would 
     avoid unwarranted sentencing disparities among defendants. 
     See 28 U.S.C. Sec. 991(b)(1). Congress also recognized, 
     however, that guideline sentences would not fit all cases and 
     instructed the Commission to maintain sufficient flexibility 
     in the drafting of guidelines to permit individualized 
     sentences when warranted by mitigating or aggravating factors 
     not otherwise taken into account. See 28 U.S.C. 
     Sec. 991(b)(1)(B). Based on this congressional policy, the 
     Commission developed the concept of permitting courts to 
     depart either upwards or downwards in unusual or atypical 
     cases that fell outside the ``heartland'' of a particular 
     guideline. The Commission adopted the departure policy not 
     only to carry out congressional intent but also in 
     recognition of the limits of adopting a perfect guideline 
     system that would address all human conduct that might be 
     relevant to a sentencing decision. Such a policy also was 
     important in order to give feedback to the Commission as to 
     whether a particular guideline should be reexamined because 
     of an unusually high upward or downward departure rate. These 
     departures have developed over time and have been adjusted 
     throughout the history of the guidelines with the benefit of 
     input from Congress, the federal criminal justice community, 
     and considerable sentencing data.
       We would note that there are numerous non-substantial 
     assistance departures, both upward and downward, that appear 
     in other than Chapter Five of the Guidelines Manual. The 
     proposed amendment to H.R. 1104 deletes many of these 
     departure provisions. For example, Chapter Four provides for 
     a departure if the court finds that a defendant's criminal 
     history category significantly either under- or over-
     represents the seriousness of a defendant's criminal history. 
     See USSG Sec. 4A1.3. Similarly, USSG Sec. 2B1.1 in Chapter 
     Two provides for a departure either up or down if the court 
     determines that the offense level, which is primarily 
     determined by the amount of the loss, either substantially 
     under- or over-states the seriousness of the offense. Were 
     the proposed amendment to be adopted, it would bar a court 
     from downwardly departing in an appropriate case in each of 
     the above examples.
       The amendments being proposed in this legislation change 
     not only departure guideline policy, but also alter the 
     traditional way in which guideline revisions are implemented. 
     The Commission would respectfully suggest that in order for 
     the Commission to fulfill its statutory purposes as well as 
     be of assistance to Congress in addressing its concern with 
     respect to increased departure rates--a concern which the 
     Commission shares--Congress might instead direct the 
     Commission to review departures, recommend changes where 
     appropriate, and then report back to Congress within 180 
     days. Such an approach would be in accordance with the 
     procedure set forth by Congress when it established the 
     Commission as well as with historical precedent. See 28 
     U.S.C. Sec. 994(o).
       Thank you for your consideration of our concerns.
           Sincerely,
     Diana E. Murphy,
       Chair.
     Ruben Castillo,
       Vice Chair.
     John R. Steer,
       Vice Chair.
     William K. Sessions, III,
       Vice Chair.
     Michael O'Neill,
       Commissioner.

  The PRESIDING OFFICER (Mr. Smith). The Senator from Utah.
  Mr. HATCH. Mr. President, I don't know anybody on the Senate floor 
who can roar better than my ``lion'' friend from Massachusetts. He is a 
great Senator. And he certainly feels very deeply on this issue. 
Apparently I have irritated him, and I feel sorry about that, but he is 
totally wrong in what he says. I can see why he might feel that way.
  Now, let me just say this, that I believe the letters that he was 
referring to, with regard to the courts of this country complaining 
about this, were before the compromise we enacted in this particular 
conference report. I got a lot of complaints, too. That is why I tried 
to make the change and worked it out with Chairman Sensenbrenner and 
others in the House who were not very happy to make the change.
  My friend called and said: Can you do something in this area? I said 
I would try, which I did. And we came up 
with the Hatch-Graham-Sensenbrenner 
amendment. I apologize for my voice, but I have semi-laryngitis. But we 
came up with the Hatch-Graham-Sensenbrenner amendment, which I believed 
moved this in the right direction and I thought would please my friend 
from Massachusetts, but it did not.
  Now, it needs to be pointed out that this is a bipartisan conference 
report. On the Senate side, we voted for this report 5 to 2, meaning it 
was bipartisan. On the House side, they voted in larger numbers for 
this report.
  I have to mention that neither the distinguished Senator from 
Massachusetts nor the distinguished Senator from Vermont signed the 
conference report, so they did not agree with it. And I understand that 
they are upset about the language in the report. I cannot help that.
  But we are talking about only 2 percent of the cases that are 
affected by this departure language--only 2 percent of all the cases. I 
thought I did a pretty good job in getting it done.
  I have to mention one other thing: the distinguished Senator from 
Massachusetts talking about a blacklist for judges, because he claims 
that these reports have to be sent to the Attorney General.
  Well, remember, sometimes Attorneys General are Republican and 
sometimes they are Democrat. I think most Attorneys General really try 
to do a good job. I know the current one is trying to do his best job 
against crime in this society. The current Attorney General approved 
and was for the original Feeney language--which we changed--and so were 
many Members of the House. They were not happy with this change.
  Let me just make some points here that are important. It is not 
surprising that the American Civil Liberties Union, the Federal Public 
Defenders, the American Bar Association, and the Judicial Conference 
have opposed the Feeney amendment.
  One seriously wonders what would have been heard from the ABA, the 
ACLU, the Leadership Conference on Civil Rights, and others if upward 
departures--in other words, making it tougher on crime--had grown at 
the absurd and dizzying rates that downward departures have.
  Can anyone seriously believe that they would have been asking for 
more time to study this issue if upward departures had gone out of 
control, like these downward departures, that are skyrocketing?
  So everybody in our country understands, we have judges on the 
bench--not many, but enough--who, in these child molestation, child 
degradation, and child pornography cases--these children's criminal 
cases--who are continually reducing the sentences recommended by the 
Sentencing Commission for these criminals who are hurting our children.
  Look at this chart. Since 1991, when there were 1,241 downward 
departures--or lesser sentences for these types of people--we are now 
up to 4,098 in 2001. And I am sure it was much higher for 2002 and that 
for 2003 it will be much higher.
  Can anyone seriously believe that these liberal groups would be 
asking for more time to study this issue, as is being asked for here? I 
suspect there would be a loud, steady drumbeat for swift legislative 
action by Congress to stop such an outrage--not more time for the 
Sentencing Commission to study the issue--that is, if the upward 
departures, in other words, the tougher on crime departures, were 
followed by the courts. Well, that isn't the case.

[[Page 9354]]

These are downward departures, making it easier on these pedophiles, 
sex criminals, child rapists, child pornographers.
  I further suspect that these groups would not have waited as long and 
as patiently as we have in watching downward departures increase 
steadily year after year, making it easy on criminals who do these 
types of things to our children.
  Additionally, I am not surprised the Judicial Conference is opposed 
to this amendment, if it is.
  It is important to note, however, the compromise is limited to these 
serious crimes against children and sex crimes. But because the problem 
of downward departures is acute across the board, the compromise 
proposal would direct the Sentencing Commission to timely conduct a 
thorough study of these issues, develop concrete measures to prevent 
and limit this abuse--this abuse of downward departures, making it easy 
on child molesters--and report these matters back to Congress.
  In fact, to place this matter in historical context, in debate on the 
Sentencing Reform Act, the distinguished Senator from Massachusetts 
observed, with respect to the Judicial Conference and sentencing 
disparity, the following:

       With all due respect to the Judicial Conference, the judges 
     themselves have not been willing to face this issue and to 
     make recommendations and to try and remedy this situation.

  He acknowledges that some judges are out of control on these issues. 
And I think this chart shows they are out of control in children's 
cases, and it is time to stop it. That is what this bill does.
  Along these lines, consider the following disparity, demonstrating 
the increasing undermining of the sentencing guidelines by some of 
these judges. The average downward departure rate for nonsubstantial 
assistance cases in the Fourth Circuit is 5.2 percent, while in the 
Tenth Circuit it is 23.3 percent. The average downward departure rates 
are making for easier sentences for these sex criminals. It is this 
type of sentencing disparity that risks turning our criminal justice 
system of sentencing into--to borrow yet another phrase from Senator 
Kennedy on this issue--``a system of roulette.''
  I urge support for this conference bill. It squarely increases 
punishment for child-related crimes and ensures that those who commit 
these crimes are incarcerated accordingly. And it says the game is over 
for judges: You will have some departure guidelines from the Sentencing 
Commission, but you are not going to go beyond those, and you are not 
going to go on doing what is happening in our society today on 
children's crimes, no matter how softhearted you are. That is what we 
are trying to do here. We are tired of it. I am tired of having 
children abused. This bill will go a long way toward stopping that kind 
of abuse.
  Let me talk about departure rates and the amounts for child-related 
crimes. The conference report addresses the glaring penalty gaps that 
exist in the sentencing guidelines. The bill represents a compromise 
from various points of view. I did my best to try to get a compromise 
that I hoped my colleagues on the other side would be happy with.
  They are not, some of them. But I have to say that the distinguished 
Senator from Delaware was. He voted with us on this conference report, 
as he should have. I believe others on the committee should have also. 
For instance, there was one view that believed all downward departures 
should be banned, all of them. That was a view by some. The Feeney 
amendment, approved in the House before conference, moderated that view 
by merely limiting departures. I cosponsored an amendment in the 
conference with Chairman Sensenbrenner and Senator Graham that we have 
been talking about that went even further by limiting departures 
related to crimes victimizing children. This bill puts a stop to the 
very troubling practice of certain trial courts which depart from the 
sentencing guidelines in crimes involving children and sex crimes.
  The following very troubling statistics related to child crimes 
demonstrate why this is necessary. According to the Sentencing 
Commission's 2001 Sourcebook of Federal Sentencing Statistics, trial 
courts reduce the sentence of those convicted of sexual abuse of 
children from the guidelines over 16 percent of the time. Think of it. 
Why do we have these sentencing rules to begin with if they are not 
going to be followed, especially in these children's cases?
  On average, child courts reduce the sentences of those convicted of 
sexual abuse by an astonishing 63 percent from the guideline range. I 
would think my colleagues would want to put a stop to that kind of 
inappropriate decisionmaking by some judges. For those convicted of 
pornography and/or prostitution-related offenses, trial courts departed 
from the recommended guidelines over 18 percent of the time, reducing 
these defendants' sentences by a staggering 66 percent. Think about it. 
We are going to let that continue just because some of these groups 
don't like it or want to be more compassionate towards these criminals? 
This many departures and this amount of sentencing reductions are 
astounding given the trauma inflicted on victims of these particular 
types of offenses, and require us in Congress to step in and ensure the 
sentences in these areas remain uniform and consistent with national 
expectations.
  Let me add an overall perspective to this compromise. The compromise 
agreed to in conference will affect only crimes against children and 
sex crimes; that is, sexual abuse, pornography, prostitution, and 
kidnapping/hostage taking. These types of cases represent only 2 
percent of the Federal criminal caseload. This is only 2 percent of the 
cases that would have been affected by the original Feeney amendment--
they all would have been affected by the original Feeney amendment--and 
only 2 percent of the cases that would have been affected by the 
version that passed the House by an overwhelming 357 to 58 vote. And we 
have complaints about this?
  Hopefully in the future the Sentencing Commission will more closely 
monitor these types of disparities and will step in to fix these 
problems in a timely manner. However, when they do not, it is incumbent 
upon the Congress to do so. That is precisely what this bill does. We 
say in this bill: We are sick of this, judges. You are not going to do 
this anymore except within the guidelines set by the Sentencing 
Commission. There will be downward departures, but they will meet the 
guidelines and not just be off-of-the-top departures like the 190 pound 
man, five feet 11, almost six feet tall, who had committed a child 
crime and got reduced 400 percent or more.
  It is absurd to suggest the Sentencing Commission should be given 
time to study this issue. The Sentencing Commission has been aware that 
Congress was greatly concerned about this problem since the year 2000, 
even before then. Indeed, these very issues were squarely raised with 
the Sentencing Commission during the Senate hearing in October 2000. 
Both Senators Thurmond and Sessions directed many questions at the 
commissioners and others about their concerns that trial judges 
systematically undermine the sentencing guidelines by creating new 
reasons to reduce these sentences.
  Indeed, Senator Sessions expressed his concerns about the troubling 
trend of departures based on novel and creative reasons directly to the 
chair of the Sentencing Commission.
  Senators Thurmond and Sessions were assured the Sentencing Commission 
intended to address this issue by including it in a larger report due 
November 2002, addressing how well the guidelines were accomplishing 
the statutory purposes of sentencing. It is now 6 months beyond the due 
date, and no such report has been produced. In fact, the Sentencing 
Commission announced just this past March it has completed portions of 
the report on cocaine sentencing and surveys related to Federal judges.
  However, as to the departure issues raised at the Senate hearing, the 
Sentencing Commission continues to study the issue, 2 years, 3 years 
later. It is apparent this issue, while an obvious

[[Page 9355]]

priority to the Congress, is simply not a priority to the Sentencing 
Commission. And we have done something about it in this conference 
report that has bipartisan support. After having decided we can no 
longer be held hostage to the schedule set to study this issue by the 
Sentencing Commission, only to watch it unilaterally change, action is 
now even more necessary.
  It has now been over 2 years since Congress highlighted this problem 
in an oversight hearing. Further delay would effectively abdicate our 
responsibilities as legislators and politically accountable members of 
our society, something the Sentencing Commission and the ACLU and the 
ABA and other groups are not.
  With regard to the Hatch-Sensenbrenner-Graham compromise amendment, 
this amendment limits, but does not prevent, downward departures only 
to enumerated factors for crimes against children in sex offenses 
including, one, kidnapping; two, kidnapping involving a minor victim; 
two, sex trafficking of children; three, sexual abuse crimes; four, 
sexual exploitation and other abuse of children; five, transportation 
for illegal sexual activity and related crimes; and, six, obscenity. 
Changes in the standard for review of sentencing matters for all cases 
in Federal courts to a de novo review while factual determinations 
would continue to be subjected to ``a clearly erroneous'' standard.
  We require the courts to give specific and written reasons for any 
departure from the guidelines. That is a logical thing to do. We 
require the judges to report sentencing decisions to the Sentencing 
Commission. They don't like that because that means more work. I have 
to confess, I sympathize somewhat with these judges because they are 
being paid less than a number of law review graduates in their first 
year in private practice. The fact they don't want to increase their 
workload, I don't blame them for that. But it seems to me in this case, 
it is certainly justified.
  Contrary to the oft repeated claims of the opponents, the compromise 
proposal is not a mandatory minimum. Judges handling these important 
criminal cases can sometimes exercise discretion to depart downward, 
but only when the Sentencing Commission specifies the factors that 
warrant a downward departure, only when they have the right to do so as 
listed by the Sentencing Commission. That seems to me just a gimmick. 
Yet we have had all this fuss and bother over this.
  Requiring de novo review of a trial judge's application of the facts 
to the law is totally reasonable. This is the same standard that 
applies to appellate review of critical motions to suppress physical or 
testimonial evidence. There is no reason for appellate judges to give 
deference to the trial judge in such questions of law.
  Even after my compromise amendment, the trial judge's factual 
determinations would still be subject to great deference under a 
``clearly erroneous'' standard. If a discretionary downward departure 
is justifiable, it is difficult to understand why anyone would be 
opposed to the appellate court's reviewing them under the same standard 
that applies to other important areas of law.
  I hope my colleagues are not obstructing this bill, because they are 
upset they didn't get their way in the conference--when, in fact, they 
were defeated 5 to 2 on these issues. To suggest the conference report 
suffers from a procedural flaw, I think, is going 
way too far. They argue, incredibly, 
that the Hatch-Sensenbrenner-Graham amendment to the Feeney amendment 
to the House bill was improperly modified in conference. That is simply 
ridiculous and we all know it. What occurred was straightforward.
  In response to Democratic concerns raised about the drafting of the 
Hatch-Sensenbrenner-Graham amendment to the conference report, we made 
a number of technical changes to comport with Democratic Senator 
Biden's understanding of the amendment, as well as concerns raised by a 
Congressman during the conference, as to the meaning of one particular 
provision. In good faith, my staff addressed these technical drafting 
issues and made certain revisions to comport with these Democratic 
suggestions.
  Senator Biden was right. I agreed with these changes. Senator Biden 
agreed with these changes as well. He voted for the conference report. 
Keep in mind these changes had the effect of cutting back on the 
restrictions contained in the Feeney amendment as it applies to 
sentencing decisions by judges to ensure that the restrictions apply 
only in a limited category of cases. In the end, Democratic members to 
the conference report--Senator Biden and Representatives Frost, 
Hinojosa, and Matheson--all supported the conference report.
  For some Democratic members to now complain about the process is 
simply unfair, and I question those positions. I would like to refer to 
the transcript my colleague was referring to because he believes I 
represented one thing when in fact I meant another.
  Let me start with line 759:

       Chairman Hatch. The proposed amendment would, and I hope my 
     colleague from Massachusetts will listen carefully to this--
     Ted, if I could get you to listen to this.
       Senator Kennedy. Yes.
       Chairman Hatch. Because, hopefully, this will help some of 
     your concerns.
       The proposed amendment would limit, but not prevent, 
     downward departures only to enumerated factors for crimes 
     against children and sex offenses, including: one, kidnapping 
     at Section 1201; two, sex trafficking of children, Section 
     1591; three, sexual abuse crimes, Chapter 109(a); four, 
     sexual exploitation and other abuse of children, Chapter 110; 
     and five, transportation for illegal sexual activity and 
     related crimes. That's Chapter 117, and also Chapter 71, 
     dealing with obscenity, I've been informed.
       It will change the standard for review of sentencing 
     matters for appellate courts to a de novo review, while 
     factual determinations would continue to be subject to the 
     ``clearly erroneous'' standard.
       It would require courts to give specific and written 
     reasons for any departure from the guidelines.
       It will require judges to report sentencing decisions to 
     the Sentencing Commission.
       The Sentencing Reform Act of 1984 was designed, as Congress 
     wrote in the text of that bill, ``to provide certainty and 
     fairness in meeting the purposes of sentencing, avoiding 
     unwarranted sentencing disparities among defendants with 
     similar records who have been found guilty of similar 
     criminal conduct.''
       Now, while the United States Sentencing Commission 
     promulgated sentencing guidelines to meet this laudable goal, 
     courts have strayed further and further from this system of 
     fair and consistent sentencing over the past decade.
       The rate of discretionary downward departures, excluding 
     downward departures for defendants' cooperation, has 
     increased virtually every year since 1991.

  But now Chairman Sensenbrenner--and I don't know whether the Senator 
from Massachusetts was there at the time; maybe he was not there. 
Chairman Sensenbrenner made it very clear. He said:

       Now there are several other issues that I think have got to 
     be addressed. First of all, with respect to the standards of 
     appellate review, that applies to all cases and it is a de 
     novo review.

  That is what we understood.

       This is in direct response to the Supreme Court's decision 
     in the case of Koon v. United States. Now, you may recall 
     this involved a conviction for a civil rights violation of 
     one of the police officers accused of beating up Rodney King, 
     which we all saw on TV.

  The point is, I think everybody else there recognized what the Hatch-
Sensenbrenner-Graham amendment was meant to be. I feel badly that my 
colleague feels like he was misled, because I don't think I misled him. 
I think the language I just read shows I didn't. I acknowledge and I 
express sorrow that he feels the way he does. I feel badly he feels the 
way he does because I would never deliberately mislead a colleague 
under any circumstances. I might make a mistake or forget something I 
might have said earlier, or something like that, but I would never 
deliberately mislead a colleague. I certainly didn't in this case. I 
don't think anybody there understood it the way it is being seen 
through the eyes of some on the other side.
  I think to blow up this conference report over this is not only a 
mistake, it is a failure to recognize the tremendously irritating and 
damaging downward departure situation going on in the country today--
letting these criminals off with regard to children's crimes.

[[Page 9356]]

  I would add that the Reno Justice Department argued in the Koon case 
for a de novo standard for appellate review. This was the right 
argument to make.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. HATCH. Let me finish first. It was a position supported by the 
Congressional Black Caucus. I have a copy of that letter. Let me read 
it:

       As members of the Congressional Black Caucus, we are 
     writing to you because of our concern about the sentencing of 
     Officer Laurence Powell and Sergeant Stacey Koon by Judge 
     John Davies in the Rodney King civil rights case.
       We are troubled that the sentence for the crime was reduced 
     to 30 months upon the court's consideration of mitigating 
     facts. Such a reduction for mitigating factors may be 
     appropriate in other circumstances. However, we feel that the 
     defendant's special status as police officers, with special 
     duties owed to the public, should have militated against such 
     a significant reduction.
       As you well know, the maximum possible penalty was ten 
     years and fines of up to $250,000. Your federal prosecutors 
     were asking for seven to nine years. Our federal sentencing 
     guidelines recommended minimum sentences in a range of four 
     to seven years in prison.
       Instead, Judge John Davies made broad use of subjective 
     factors. He stated that he read only letters addressed to him 
     from the friends and families of Officer Powell and Sergeant 
     Koon. He argued that much of the violence visited on Rodney 
     King was justified by King's own actions. However, these 
     officers were convicted on charges of violating Rodney King's 
     civil rights. We believe these mitigating factors did not 
     justify so large a reduction given the defendants' special 
     responsibilities as police officers.
       In addition, Judge Davies did not afford proper weight to 
     the racist comments made over police radio by those convicted 
     on the night of the beating in discounting race as a 
     motivation for the beating. He similarly failed to take into 
     account the remarkable lack of remorse shown by Officer 
     Powell and Sergeant Koon since their conviction.
       People of good will all over this country and of all races 
     were heartened when Officer Powell and Sergeant Koon were 
     convicted by a jury of their peers, a verdict made possible 
     by the Justice Department's resolve to file civil rights 
     charges and by the phenomenal performance of federal 
     prosecutors. With these severely reduced sentences, however, 
     we are sending a mixed message. Are police officers going to 
     be held responsible for excessive use of force or not?
       We think what has been lost, in all this, is that police 
     officers have an enhanced responsibility to uphold the law.
       Notwithstanding Judge Davies' authority to modify the 
     sentencing guidelines, most experts agreed that the minimum 
     four to seven years sentence should have been followed in 
     this case.
       We realize that the trial judge is afforded sufficient 
     latitude in sentencing, but we urge the Department of Justice 
     to appeal these sentences. We need to reexamine these 
     sentences so that justice can finally be done in this 
     difficult, painful case. Only then can we begin to put this 
     behind us.

  It is signed by a large number of good Members of Congress.
  What we have proposed is that there should be de novo review. We set 
a standard that is not an easy standard to overcome. We have shown that 
we have an outrageous situation in this country where a number of 
judges have been giving extra downward departures far in excess of what 
anybody in their right mind would think they should do.
  This is happening in criminal cases where children are victims, and 
we are trying to stop that because we think there has to be 
responsibility here. We believe that in these child molestation cases, 
pornography cases, prostitution cases, child rape cases, and kidnaping 
cases the sentencing guidelines ought to be followed.
  Nothing says these judges cannot follow the downward departure 
guidelines if they so choose in their discretion as the trial judges, 
but they can no longer conjure up reasons outside the guidelines to 
reduce criminals' sentences.
  Basically, that is what the conference report says. I would think 
everyone in this body would vote for this conference report. I think it 
does it right and does what we said it would do in the conference, and 
it does what a bipartisan majority in the House and the Senate said it 
should do. Frankly, I believe that is right.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. HATCH. Yes.
  Mr. DURBIN. From the outset, the underlying legislation, the Amber 
alert legislation, the virtual pornography legislation passed through 
the Senate unanimously twice. There is no controversy concerning the 
underlying legislation; the controversy that has arisen came up because 
of an amendment offered by Congressman Feeney of Florida which found 
its way into the House version of the bill and then became a subject 
matter in the conference.
  I ask the Senator from Utah this: There appears to be a legitimate 
difference of opinion, but a very important difference of opinion, 
about the chart that he has brought to the Chamber. I received, and I 
believe he also received, a letter from the president of the American 
Bar Association yesterday. The American Bar Association president wrote 
to us talking about the so-called downward departures where a decision 
is made by a judge to impose a sentence below the recommended minimum. 
He said:

       In fiscal year 2001--

  The last year shown on the Senator's chart--

     of 19,416 downward departures awarded Federal defendants, 
     approximately 15,318 came on Government motion.

  Put another way, in 2001, 7 percent of downward departures in the 
United States were requested by the prosecutor, by the Government.
  I know the Senator from Utah sees it differently, but I would like to 
ask him in good faith--this is a good-faith question--many of us are 
concerned about sentencing guidelines, whether they are too strong or 
too weak and whether we should reassess them. I think that was the 
reason the Senator from Massachusetts offered that approach in the 
conference. Would the Senator from Utah, in an effort to try to bring 
together what he has asked for, bipartisan support, to give us his 
promise that he would look into a hearing relative to the sentencing 
guidelines so that we can finally bring to rest these questions of fact 
behind the downward departures and whether we need to look anew at some 
of these sentencing guidelines.
  Many of us think that hearing and conversation is long overdue. If 
the chairman of the Senate Judiciary Committee would agree to such a 
hearing, that might move us closer to the adoption of this conference 
report.
  Mr. HATCH. I personally believe we can do that. We did have a hearing 
in 2000. The hearing was extensive and led to this legislation. By the 
way, the number on the chart excluded departure requests made by the 
prosecutors under Section 5K1.1 of the Guidelines, when a defendant 
provides ``substantial assistance'' to the government. We counted 4,098 
downward departures excluding the so-called ``5K1.1 motions'' made by 
the government. The number of downward departures has risen from 1,241 
in 1991. Any Senator should see that this increase is the reason for 
our concern.
  I do not disagree with the distinguished Senator. I think it would be 
good to find out what the Senator wants to know, and that is, if I 
understand him correctly, he is asking for a hearing on downward 
departures.
  Mr. DURBIN. If the Senator will yield further.
  Mr. HATCH. Yes.
  Mr. DURBIN. I hope that we can have a hearing that might go beyond 
that specific question and to the broader question about sentencing 
guidelines today.
  Mr. HATCH. I would certainly ask the Subcommittee on Crime to do 
that.
  Mr. DURBIN. I say to the Senator from Utah, there have been many 
times that I have voted for stiff penalties, as he has, for crimes, but 
I can also tell the Senator from Utah that I have visited, for example, 
the Federal women's prison in Illinois, and I have seen some situations 
there that I think are awful. They are miscarriages of justice for 
these women to be sentenced to 5, 10, 15, 20 years because of an angry 
boyfriend snitching on them and really assessing liability against 
them.
  Mr. HATCH. Let me interrupt the Senator for one second. I agree with 
the Senator. I have seen the girlfriend courier go to prison for 10 
years when she did not even know what was in the package, or at least 
claimed she did not, while the boyfriend, the drug dealer, pleaded 
State's evidence and gets off. Frankly, I do not like that either.

[[Page 9357]]

  I think we should hold hearings on this, and I will be happy to 
recommend it to the Crime Subcommittee or if it should be elevated to 
the full committee, we can perhaps do that. I appreciate the 
distinguished Senator's willingness to try and help us resolve this 
today because this bill needs to pass. I do not see how anybody can 
refute what I have been saying here. I do not see how anyone would not 
want to get tougher with sentencing with regard to these sexual crimes, 
especially when they have gone way outside the downward departure 
limits the Sentencing Commission gives them. We do not stop trial 
judges from granting downward departures, but they should be done in 
compliance with the purposes of the sentencing guidelines.
  Mr. DURBIN. If I may respond to the chairman of the committee, I do 
not think the Senator would have any argument from any Member of the 
Senate, nor would we be here this moment, if he just confined the 
changes in conference to crimes involving children, sexual molestation. 
I think he will find unanimous approval of that. The fact we have gone 
in to de novo review to these departures applies to all crimes. That is 
why I am asking we take a look at the broad expanse of the sentencing 
guidelines.
  Mr. HATCH. I am not willing to redo this bill because the conference 
is over. A vast majority has supported it in the House--a huge 
majority--and a bipartisan majority on the conference. But I am 
certainly willing to look at it. If we need to modify what we have done 
here today, I will certainly look at that.
  I feel badly the distinguished Senator from Massachusetts feels he 
was misled, but I do not see how he was misled. I can see there was an 
ambiguity if one did not look at the whole record. He may not have been 
there when we decided to use Chairman Sensenbrenner's language, which 
was clear and specific. I thought mine was clear, but Chairman 
Sensenbrenner's language was more clear than mine. I think everybody 
there understood.
  The distinguished Senator from Massachusetts and the distinguished 
Senator from Vermont, the ranking member, the Democrat leader on the 
committee, refused to sign the conference report over perhaps this 
misunderstanding, but it is a misunderstanding, not a desire by me to 
do something that is improper.
  I thank the distinguished Senator for his comments here today. Those 
are good points he made, and we will see what we can do.
  Let me make a couple other comments before I finish. Let me provide 
some additional examples of sentencing departure abuse and why we want 
to change this and why this bill makes a very good step in the right 
direction.
  In one case, a defendant who was convicted of possessing child porn 
images, over 280 images, more than 10 of which were clearly identified 
as prepubescent children, was sentenced to serve 13 months in prison 
and 14 months in home detention, even though the defendant's lawful 
guidelines sentencing range was 27 to 33 months in prison. Think about 
that.
  At sentencing, the defendant threw in the kitchen sink and moved for 
a departure on multiple grounds. He argued that his status as a former 
prison guard rendered him as particularly susceptible to abuse in 
prison. He argued that he needed rehabilitation and treatment. I have 
no doubt. He argued his age and his wife's age, his extraordinary 
family responsibilities, and his military and work histories justified 
a departure. He argued he was entitled to a ``super'' acceptance of 
responsibility and argued his conduct was aberrant. Although the 
Government opposed all grounds of downward departure, the court imposed 
an illegal split sentence and allowed the defendant to spend 14 months 
of his 27-month sentence in the home.
  Without explaining how many guideline levels it was departing, the 
court credited the defendant's claim that he was the only one who could 
take care of his wife, who had degenerative arthritis and had back 
surgery but nonetheless continued to work as a night janitor--his wife, 
that is. The court also credited the defendant's claim that, based on 
his service in the military and his civilian career in law enforcement, 
his criminal acts were aberrant. Remarkably, these winning arguments 
enabled the defendant to spend over half of his 27-month sentence in 
the home.
  Now let me state why we need this reporting requirement to the 
Attorney General that the distinguished Senator from Massachusetts has 
inappropriately characterized. It is no secret that the Attorney 
General is in charge of every aspect of prosecuting cases in the 
Federal courts. Therefore, he has a direct interest in the disposition 
of criminal cases. Now let me give you a specific example as to why we 
need this reporting requirement.
  There is a Federal judge who routinely violates the Sentencing 
Commission guidelines because he believes the Sentencing Commission 
erroneously calculated the sentencing guidelines. He does not depart 
much, just a little reduction in a sentence here and a little reduction 
there. But the fact is, he routinely does it. Now the Attorney General 
may not have the resources to try to appeal each and every time this 
judge violates the sentencing guidelines. However, if an Attorney 
General is aware of someone routinely abusing this provision, this 
reporting requirement will allow him to monitor this and take action 
when appropriate. That is why we have the requirement in there.
  Now let me give you another illustration, some more examples of what 
is going on here and what we are trying to correct with this bill.
  A child pornographer was sentenced this year in Montana. Prior to 
sentencing, the court raised on its own motion that the defendant 
suffered from diminished capacity. The court ruled that this young man 
had extraordinary family responsibilities and that he suffered from a 
diminished mental capacity. The judgment notes, in part, United States 
Sentencing Guidelines section 5(k)(2)(13), diminished capacity: 
Defendant was extremely addicted to child pornography and the testimony 
of efforts established that defendant had a significantly impaired 
ability to control his behavior that he knew to be wrong; that the 
extent to which the reduced mental capacity contributed significantly 
and substantially to the commission of the offense. The Court departed 
downward 8 offense levels from offense level 18 to offense level 10. 
This reduced the guideline range from 27 to 33 months to just 6 to 12 
months.
  The trial court placed Clark on probation for 5 years.
  I want to emphasize again a disturbing fact here about child 
pornographers. A Bureau of Prisons study shows that 76 percent of child 
pornographers and those who had been convicted of traveling in 
interstate commerce to commit sex acts with minors admitted to 
undetected sex crimes with an average of 30.5 child sex victims. Think 
about that. These child sexual predators, if you averaged them, 
admitted to undetected sex crimes with an average of 30.5 child sex 
victims. Can anyone really say that tougher penalties and sentencing 
reforms are not needed when it comes to these horrible crimes?
  Does anyone believe that judges should be allowed to grant downward 
departures based on reasons that are not contemplated within the 
Guidelines themselves?
  Now we have supporting letters for this conference report from the 
Department of Justice, the National Sheriffs' Association, the Law 
Enforcement Alliance of America, Major County Sheriffs' Association, 
Fraternal Order of Police, and the National Association of Assistant 
U.S. Attorneys.
  One of the criticisms that has been raised about the conference 
agreement is that it limits the membership of Sentencing Commission to 
no more than three Federal judges. Currently, the law requires that the 
Sentencing Commission be comprised of at least three Federal judges. 
The hearings before the House and Senate Judiciary Committees showed 
that trial judges have downwardly departed from the sentencing 
guidelines to a level beyond what was originally intended. There may be 
an appearance of conflict of interest when judges, desiring to preserve

[[Page 9358]]

judicial discretion, serve on the Sentencing Commission whose mission 
it is to ensure uniformity in sentencing, which necessarily means less 
judicial discretion.
  Currently, judges outnumber other voting members of the Sentencing 
Commission. Because so, there is a potential for at least an appearance 
of a conflict of interest.
  Now, I do not argue that there is a conflict or that they are acting 
improperly. I am proud of those who have served. But there is a 
different attitude in the courts, as Senator Kennedy has suggested. He 
has all kinds of letters from judges who do not like this. It means 
more work to them.
  This change will, hopefully, restore the appearance of balance in the 
Sentencing Commission and eliminate any conflict between the 
commissioners' desire to retain judicial discretion and uniformity in 
sentencing.
  Now, the National Center for Missing and Exploited Children, the 
NCMEC, expressed its thanks to the House of Representatives and Senate 
conferees on agreeing to the language included in the conference report 
of the Prosecutorial Remedies and Other Tools to end the Exploitation 
of Children Today Act 2003. This was released April 9. NCMEC also 
expressed its hope that both Houses of Congress would move swiftly to 
approve the report and enact these important provisions into law. 
Children throughout the United States will be safer because these key 
leaders of the House and Senate were able to come together and reach 
consensus on so many vital issues--Robbie Callaway, chairman of the 
National Center for Missing and Exploited Children.
  I ask unanimous consent that the comments in this press release, 
along with a letter from Robbie Callaway, who is with the Boys and 
Girls Clubs of America, along with the National Sheriffs' Association, 
along with the Law Enforcement Alliance of America, and Major County 
Sheriffs' Association, the Federal Law Enforcement Officers 
Association, the U.S. Department of Justice, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                    April 9, 2003.

 National Center for Missing & Exploited Children Commends Senate and 
                            House Conferees

       Alexandria, VA.--The National Center for Missing & 
     Exploited Children (NCMEC) expressed its thanks to the U.S. 
     House of Representatives and U.S. Senate conferees on 
     agreeing to the language included in the conference report of 
     the Prosecutorial Remedies and Other Tools to End the 
     Exploitation of Children Today Act of 2003. NCMEC also 
     expressed its hope that both houses of Congress would move 
     swiftly to approve the report and enact these important 
     provisions into law.
       ``Children throughout the United States will be safer 
     because these key leaders of the House and Senate were able 
     to come together and reach consensus on so many vital 
     issues,'' said Robbie Callaway, Chairman of the National 
     Center for Missing & Exploited Children.
       ``NCMEC is particularly pleased that the Conferees 
     finalized language for a true national implementation of the 
     AMBER Alert,'' said Ernie Allen, President and Chief 
     Executive Officer of NCMEC. Allen added, ``this legislation 
     ensures that AMBER Plans become a resource for every state 
     and every community, and that they are implemented in a 
     consistent, meaningful manner.'' The conferees provided 
     funding for notification systems along highways for alerts, 
     as well as funding grants so that states may implement new 
     technologies to improve AMBER Alert communications. Such 
     monies will benefit not just abducted children but every 
     member of the community when an emergency develops, whether 
     weather-related, terrorism, or any other.
       NCMEC also applauded important changes in attacking the 
     insidious, expanding problem of child pornography. NCMEC also 
     thanked Congressional leaders for allowing the U.S. Secret 
     Service to provide forensic and investigative support to 
     NCMEC to assist in efforts to find missing children.
       Finally, NCMEC commended Congress for taking a tough, 
     serious look at the problem of sex offenders against children 
     and how they are handled by the criminal justice system. 
     Important provisions like changes in the term of supervision 
     for released sex offenders, eliminating the statute of 
     limitations for child abductions and sex crimes, mandating 
     minimum prison sentences for those who kidnap children, 
     punishing those who participate in child sex tourism, and 
     other important changes will strengthen society's ability to 
     cope with these serious crimes and keep children safe.
       NCMEC, a private, 501(c)(3) nonprofit organization, works 
     in cooperation with the U.S. Department of Justice's Office 
     of Juvenile Justice and Delinquency Prevention. NCMEC was 
     established in 1984 as a public-private partnership to help 
     find missing children and combat child sexual exploitation. 
     It has assisted local law-enforcement agencies on more than 
     87,000 missing child cases, helping to reunite more than 
     71,000 children with their families. Today, the organization 
     reports a 94-percent recovery rate. For more information 
     about NCMEC, call 1-800-THE-LOST, or visit 
     www.missingkids.com.
                                  ____

                                                    April 9, 2003.
     U.S. Senate, House of Representatives,
     Washington, DC.
       An Open Letter to the U.S. Senate and House of 
     Representatives.
       We wish to express our sincerest appreciation to all of you 
     who have played such a key role in moving forward legislation 
     that includes the National Amber Alert. We applaud those 
     members of the conference committee who exhibited the 
     foremost cooperation in working out a compromise that will 
     greatly benefit every child in America.
       Today, we are writing to encourage you to quickly pass this 
     legislation so that it can be signed into law. The Amber 
     Alert as well as other preventative measures will make an 
     immediate difference in safely rescuing those who are 
     abducted and in preventing crimes against children.
       We can't begin to express our joy and gratitude in having 
     Elizabeth back home. It is our hope and prayer that immediate 
     passage will save countless families from the trauma and 
     sorrow caused by the senseless acts of those who prey on 
     children.
           Sincerely,
                                                     Edward Smart,
                                                       Lois Smart,
     Elizabeth Smart.
                                  ____



                                Boys & Girls Clubs of America,

                                    Rockville, MD, April 10, 2003.
     The Hon. Orrin Hatch,
     Chairman Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Chairman Hatch: I am writing to express the gratitude 
     of Boys & Girls Clubs of America to you and the other Senate 
     and House Conferees for the conference report on the PROTECT 
     Act. We are hopeful that final passage will come quickly so 
     that critically important provisions such as the AMBER alert 
     system are enacted.
       Along with the AMBER system, we are particularly pleased 
     with the bill's efforts to take on the problem of child 
     pornography, the reauthorization of the National Center for 
     Missing and Exploited Children, and national criminal 
     background screening for youth serving organizations. We are 
     confident that these provisions will make America's children 
     safer, and there is nothing more important than that.
       We were pleased to work with your committee as well as the 
     House Judiciary Committee, and know you will continue to call 
     upon us if we can be helpful in this regard.
           Sincerely,
                                                  Robbie Callaway,
     Senior Vice President.
                                  ____



                               National Sheriffs' Association,

                                    Alexandria, VA, April 4, 2003.
     Hon. Orrin Hatch,
     Chairman, Committee on the Judiciary, Washington, DC.
       Dear Mr. Chairman: I write today to discuss the importance 
     of H.R. 1104, the Child Abduction Prevention Act and I am 
     asking for your support of the legislation and for your 
     support of the Fenney Amendment. Passage of this legislation 
     will protect our children against predators.
       The House version of the bill has several provisions that 
     protect children. Sheriffs especially support the AMBER Alert 
     provision. AMBER is a highly successful tool for law 
     enforcement and its adoption nationally will enhance our 
     ability to recover children who have been kidnapped. It also 
     provides citizens with a clear means of providing information 
     to law enforcement about these cases.
       However, there are additional sections in the House bill 
     that are equally important to sheriffs. Specifically, NSA 
     supports the Fenney Amendment, which limits the practice of 
     downward departures from federal sentencing guidelines. The 
     amendment would put strict limitations on departures by 
     allowing sentences outside the guidelines range only upon 
     grounds specifically enumerated in the guidelines as proper 
     for departure. This eliminates ad hoc departures based on 
     vague grounds, such as ``general mitigating circumstances.'' 
     The amendment also reforms the existing grounds of departure 
     set forth in the current guidelines by eliminating those that 
     have been most frequently abused.
       Sheriffs also support provisions like ``Lifetime 
     Monitoring'' of sex offenders and the ``Two Strikes and 
     You're Out'' for repeat child molesters. These provisions are 
     needed to protect our kids from sexual predators. Child 
     molesters are four times more likely than other violent 
     criminals to recommit

[[Page 9359]]

     their crime. A typical molester will abuse between 30 and 60 
     children before they are arrested, as many as 380 children 
     during their lifetime. The Two Strikes and You're Out 
     provision will save thousands of kids from going through this 
     torture. Each repeat molester represents hundreds of victims 
     with shattered lives. We can break the chain of violence with 
     simple, straightforward proposals like Two Strikes and You're 
     Out and Lifetime Monitoring.
       The National Sheriffs' Association welcomes passage of this 
     legislation. We look forward to working with you to assure 
     its swift enactment.
           Sincerely,
                                               William T. Ferrell,
     President.
                                  ____

                                      The Law Enforcement Alliance


                                                   of America,

                                  Falls Church, VA, April 3, 2003.
     Senator Bill Frist,
     Majority Leader, U.S. Senate,
     Washington, DC.
       Dear Majority Leader Frist: On behalf of the more than 
     75,000 Members and supporters of the Law Enforcement Alliance 
     of America (LEAA), I write to request your prompt attention 
     and support for conference and passage of H.R. 1104, ``Child 
     Abduction Prevention Act'' and S. 151, the ``Protect'' act.
       The House recently passed S. 151 with the text of H.R. 
     1104. The provisions in this legislation are vital 
     protections that address clear and present dangers in 
     America's laws to keep our children safe. Judges will be 
     given the power to enforce supervision of convicted sex 
     offenders for as long as is necessary and child rapists and 
     abductors will be barred from pre-trial release. It would 
     fund important grants to local law enforcement for tracking 
     down wanted sex offenders and provide for mandatory 20 year 
     sentences for strangers that kidnap kids.
       The legislation would help fund a national AMBER alert 
     system, put a two strikes rule for child molesters and double 
     the funding for the National Center for Missing and Exploited 
     Children.
       LEAA is sure you'll agree that this legislation gives our 
     judges, prosecutors and cops tough tools to fight back at 
     some of America's most horrible criminals. LEAA respectfully 
     asks that you do everything in your power to speed the 
     process for passage of this legislation.
           Sincerely,
                                                   James J. Fotis,
     Executive Director.
                                  ____



                           Major County Sheriffs' Association,

                                       Pontiac, MI, April 4, 2003.
     Hon. Orrin Hatch,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatch: On behalf of the Major County Sheriffs' 
     Association (MCSA), thank you for your legislative efforts to 
     protect our children from sexual crime and abduction and to 
     toughen penalties against those who commit these horrific 
     acts.
       Collectively, the MCSA membership represents over 100 
     million people throughout the United States. As elected 
     Sheriffs and law enforcement officials, we take seriously our 
     responsibility of protecting and serving our citizens, 
     especially our children. In that regard, we encourage your 
     efforts to move forward on legislation which safeguards our 
     children from the hands of those who inflict irreversible 
     harm and pain through crime and sexual abuse, specifically 
     House Bill 1104 and Senate Bill 151.
       In addition, the MCSA also supports the language set forth 
     in the Feeney Amendment as passed in House Bill 1104, 
     sponsored by Congressman James Sensenbrenner, which limits 
     downward departures from federal sentencing guidelines. When 
     the perpetrator makes the decision to commit the crime, they 
     must accept the consequences of their actions which should 
     include swift, unwavering penalties. We hope the results of 
     the conference committee scheduled to meet next week will 
     include the Feeney Amendment.
       Thank you for your attention and consideration to this 
     important issue. We look forward to working with you on this 
     legislation and any other measure that protects and provides 
     for the safety of our children. Please feel free to call upon 
     me for additional information or comment.
           Sincerely,
                                              Michael J. Bouchard,
     Oakland County Sheriff, Legislative Chair.
                                  ____

                                           Federal Law Enforcement


                                         Officers Association,

                                    Lewisberry, PA, April 7, 2003.

        Fleoa Supports H.R. 1104--Child Abduction Prevention Act

       Dear Members of Congress: On behalf of the 19,000 men and 
     women of the Federal Law Enforcement Officers Association 
     (FLEOA), we ask that you support H.R. 1104 and pass this 
     important piece of legislation to protect the children of our 
     nation.
       The ``Child Abduction Prevention Act'' will enhance Federal 
     penalties for convictions related to kidnapping, sexual abuse 
     and murder of children. It will also create a national amber 
     alert communications network regarding abducted children to 
     aid in their recovery. The ``Amber Alert System'' is an 
     important tool to assist law enforcement in obtaining leads 
     from the public to assist in a quick recovery of abducted 
     children.
       We must protect the children of our nation, for they are 
     our future. The ``Elizabeth Smart Case'' has demonstrated to 
     all of us, the need for this important piece of legislation. 
     As Federal law enforcement officers, we ask that you give us 
     the necessary tools contained in this legislation to assist 
     us in investigating these crimes against our children.
       If there are any questions, I can be reached at 717-938-
     2300.
           Sincerely,
                                                       Art Gordon,
     National Executive Vice President.
                                  ____

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                    Washington, DC, April 4, 2003.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: We write to urge that the House-Senate 
     Conference Committee quickly reach agreement on the differing 
     versions of S. 151 and promptly send to the President a 
     strong child protection bill that will comprehensively 
     strengthen the Government's ability to prevent, investigate, 
     prosecute, and punish violent crimes committed against 
     children.
       The House-passed version of S. 151 includes language that 
     would codify the Administration's ongoing efforts to support 
     AMBER Alert programs by providing for national coordination 
     of state and local AMBER Alert programs and by establishing 
     Federal grant programs for States to support AMBER Alert 
     communication systems and plans. The Senate previously passed 
     very similar legislation, S. 121, by a unanimous vote. The 
     Department strongly supports these AMBER Alert provisions, 
     which should be included in the final version of S. 151.
       Both the House and Senate versions of S. 151 include 
     provisions designed to revise and strengthen the nation's 
     child pornography laws in light of Ashcroft v. Free Speech 
     Coalition, 122 S. Ct. 1389 (2002). The House version's child 
     pornography provisions are modeled on an Administration 
     proposal that overwhelmingly passed the House last year as 
     H.R. 4623. The Senate's version is likewise a very strong 
     measure, which also has received the Administration's full 
     support. On this score, the two bills overlap very 
     significantly in approach, if not always in wording. We are 
     confident that the relatively modest differences between the 
     two versions of these provisions can be readily resolved, and 
     we would be pleased to offer technical suggestions in that 
     regard. Swift enactment of these important child pornography 
     provisions would be an important step in protecting children 
     from abuse by ensuring effective child pornography 
     prosecutions.
       The House version of S. 151 also includes a number of 
     important measures designed to enhance the Government's 
     ability to investigate, prosecute, and punish violent crimes 
     against children. These measures include: Extending the 
     length of supervised-release terms for offenders and 
     establishment of a rebuttable presumption in favor of 
     pretrial detention; Enhancing law enforcement tools for 
     identifying and apprehending offenders, by including child 
     exploitation offenses as wiretap predicates and by 
     eliminating the statute of limitations for certain offenses; 
     Increasing penalties to more accurately reflect the extreme 
     seriousness of these offenses, especially repeat offenses; 
     Enhancing the Government's ability to punish offenders who 
     travel abroad to prey on children; and Providing the States 
     with additional tools and assistance to pursue these common 
     goals.
       The Department has previously testified in strong support 
     of these provisions, and urges the Conference to include them 
     in the final bill.
       We also wish to express our strong support for Congressman 
     Feeney's amendment to the House version of S. 151. The Feeney 
     amendment added section 109 to the bill, which is designed to 
     address a number of deficiencies in federal sentencing 
     policy--deficiencies that have proven particularly serious 
     with respect to child victim offenses.
       The amendment would address the longstanding--and still 
     growing--problem of ``downward departures'' from the Federal 
     Sentencing Guidelines--i.e., sentences that are significantly 
     more lenient than those mandated by the Guidelines. The 
     consistency, predictability, and toughness that Congress 
     sought to achieve in the Sentencing Reform Act (which 
     established the Guidelines System) is being undermined by 
     steadily increasing downward departures:
       The rate of downward departures on grounds other than 
     substantial assistance to the government (i.e., cooperation 
     in investigating other criminals) has climbed steadily every 
     year for the last several years. The rate of such departures 
     in non-immigration cases has climbed from 9.6 percent in FY 
     1996 to 14.7 percent in FY 2001--an increase of over 50 
     percent in just 5 years.
       Using the measure recently suggested by the ABA as a 
     benchmark--i.e., excluding downward departures based on 
     substantial assistance and excluding those from Southwest 
     border districts (which use departures to process large 
     numbers of immigration

[[Page 9360]]

     cases)--the rate of downward departures nationwide has more 
     than doubled over the ten years from FY 1991 to FY 2001, 
     going from 5.5 percent to 13.2 percent.
       The ratio of such downward departures to upward departures 
     has climbed from 11:1 to a staggering 33:1 in just the last 
     five years.
       Far from being ``highly infrequent''--as required by the 
     Guidelines Manual--departures based on grounds not 
     specifically mentioned in the Guidelines amounted last year 
     to over 20 percent of all downward departures.
       The rates of such sentencing leniency vary widely from 
     district to district: the average downward departure rate in 
     the Fourth Circuit is 4.2 percent; in the Tenth Circuit, it 
     is 23.3 percent.
       The rates of downward departures in cases involving certain 
     offenses is nothing short of scandalous. For years, downward 
     departures in child pornography possession cases have ranged 
     between 20 percent and 29 percent nationwide. (In FY 2001, it 
     was 25.1 percent.) Often, these departures are based on much-
     abused grounds, such as ``aberrant behavior'' and ``family 
     ties.'' And some of the grounds of departure employed in such 
     cases have been as creative as they are outrageous: for 
     example, a 5'11'', 190-lb. child pornography defendant--who 
     has accessed over 1,300 pornography pictures and begun an 
     Internet correspondence with a 15-year-old girl in another 
     State--was granted a 50 percent downward departure in part on 
     the ground that he would be ``unusually susceptible to abuse 
     in prison.'' United States v. Parish, 308 F.3d 1025 (9th Cir. 
     2002) (rejecting Government's appeal and affirming the 
     sentence).
       The Feeney amendment would enact several reforms to ensure 
     that the Guidelines are more faithfully and consistently 
     enforced:
       The bill would make it easier for the Government to appeal 
     illegal downward departures by requiring appellate courts to 
     undertake a de novo review of departure decisions. There is 
     nothing unusual at all about applying a de novo standard of 
     review to a mixed question of law and fact such as the 
     decision to depart. Indeed, in most other contexts, appellate 
     courts apply a de novo standard of review to mixed questions 
     of law and fact, such as suppression issues (probable cause, 
     voluntariness of a statement, etc.). It makes no sense to 
     have a de novo standard of review only for mixed questions 
     that generally favor the defendant.
       The bill would require the Sentencing Commission to provide 
     effective guidance concerning downward departures by 
     prohibiting such departures on grounds that the Sentencing 
     Commission has not affirmatively specified as permissible. 
     Under the amendment, numerous authorized grounds of downward 
     departure are preserved, and the Commission retains very 
     broad discretion to add new factors to the list of authorized 
     grounds of downward departure (with the exception of a few 
     much-abused grounds of downward departure, such as ``aberrant 
     behavior,'' that are eliminated by the amendment). Departures 
     based on grounds not specified by the Commission were always 
     supposed to be ``highly infrequent,'' and the amendment 
     simply requires the Commission to do its job of affirmatively 
     regulating the availability of departures. Moreover, the 
     existence of such unfettered departure authority has made 
     Government appeals of improper sentences more difficult. See, 
     e.g., United States v. Blazevich, 38 Fed. Appx. 359 (9th Cir. 
     2002) (rejecting Government's appeal of downward departure in 
     child pornography case, because there is ``essentially no 
     limit on the number of potential factors that may warrant 
     departure in child pornography case, because there is 
     ``essentially no limit on the number of potential factors 
     that may warrant departure,'' with the exception of those few 
     factors that the Sentencing Commission has proscribed).
       The bill would strengthen existing requirements for judges 
     to explain the basis for their departures, thereby 
     facilitating appellate review.
       The bill would also limit a defendant to one bite at the 
     apple by generally precluding a second downward departure 
     after a successful Government appeal. There are too many 
     cases in which, on remand, the district court simply re-
     imposes the same illegal sentence on a different theory, 
     thereby necessitating a second government appeal. See, e.g., 
     United States v. Winters, 174 F.3d 478 (5th Cir. 1999) 
     (reversing second imposition of the same illegal sentence in 
     civil rights prosecution against corrections officer); United 
     States v. O'Brien, 18 F.3d 301 (5th Cir. 1994) (reversing 
     district court's imposition, after Government successfully 
     appealed prior downward departure, of an even more lenient 
     sentence in drug case).
       The Feeney Amendment would also enact a number of 
     additional measures to strengthen the penalties applicable to 
     those who prey upon our nation's children:
       Under current Sentencing guidelines, a defendant is 
     required to receive an enhanced penalty for engaging in 
     multiple acts of prohibited sexual contact with minors, but 
     the enhancement does not apply if the defendant repeatedly 
     abused the same victim. This irrational and unjust disparity 
     would be explicitly eliminated by the amendment.
       The amendment would require that child pornography 
     sentences be enhanced based on the number of such images 
     possessed by the defendant. The current Sentencing Guidelines 
     fail adequately to account for the volume of the material, 
     with the result that an offender who sent one image of child 
     pornography over the Internet receives the same treatment 
     under the Guidelines as an offender who set up a website 
     containing thousands of images. The amendment would instead 
     require that sentences be sharply enhanced for offenses 
     involving large numbers of images.
       The problem of ignoring the Guidelines in favor of ad hoc 
     leniency is well known and has already been the subject of 
     much study. In October 2000, a Senate Judiciary Subcommittee, 
     under the leadership of Senator Thurmond--one of the original 
     architects of the Sentencing Reform Act--held a lengthy 
     hearing on the problem and received extensive evidence 
     examining downward departure rates from many different 
     angles. The data are already out there, the problem is clear, 
     and further inaction would be a travesty. Indeed, the Feeney 
     Amendment was adopted only after the House Judiciary 
     Committee held two hearings over the last year to review a 
     variety of possible solutions to the growing leniency 
     problem, including mandatory minimums, a total ban of 
     downward departures in certain classes of cases (a position 
     previously endorsed by the Department on several occasions), 
     and a de novo review standard for departure appeals (which 
     had been specifically included in H.R. 1161, as introduced). 
     Based on the extensive record already before the Congress, 
     the Feeney Amendment emerged as a compromise position that 
     preserves district judges' ability to depart, but requires 
     that this departure authority be subject to more consistent 
     and careful review and control by the Sentencing Commission 
     and appellate courts.
       The Department strongly urges the conferees to retain these 
     much-needed provisions of the Feeney Amendment in the final 
     version of S. 151.
       Thank you for your attention to this important matter. If 
     we may be of further assistance in this or any other matter, 
     we trust that you will not hesitate to call upon us. The 
     Office of Management and Budget has advised that there is no 
     objection from the standpoint of the Administration's program 
     to the presentation of this report.
           Sincerely,
                                                   Jamie E. Brown,
                                Acting Assistant Attorney General.

  Mr. HATCH. I notice the distinguished Senator from Vermont is in the 
Chamber. I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I am somewhat perplexed that we are in this 
situation. Let me explain why. This is not a question of whether people 
are for or against those who abuse children. We are all against that, 
Republicans and Democrats. It is one of those many areas that would 
unite all of us. Those of us who are parents or grandparents always 
feel that way. I think of some of the child molesters I prosecuted 
before I was in the Senate. Invariably, I sought the stiffest sentences 
possible, and got them, including life sentences. So I do not think any 
of us has to demonstrate that we are against child molesters. I think 
the American people know that, of course, we are all against them. That 
is the way I was when I prosecuted them and the way I am in the 
legislation I have helped to write.
  For example, the AMBER alert bill that is before us: When I was 
chairman of the Senate Judiciary Committee last year, I put that 
through in record time. We had a hearing. We had a vote in committee. 
We brought it up for a roll call vote on the floor in about a week. It 
was a record. We sent it over to the other body. Of course, they sat on 
it and never passed it.
  This year, I joined with Senator Hutchison of Texas, Senator 
Feinstein of California, and Senator Hatch of Utah. The four of us put 
through AMBER alert again, brought it up, had a rollcall vote on the 
Senate floor. Every single Senator who was here that day voted for it. 
We sent it over to the other body, where it languished.
  This conference report also includes the PROTECT Act, to provide 
prosecutors with important tools to fight child pornography. That is a 
Hatch-Leahy act. Twice I came to the floor of the

[[Page 9361]]

Senate and joined Senator Hatch in urging passage of this measure that 
we crafted together. I do not need to suggest whether I am for that or 
not. I helped write it.
  We have housing for abused children in this legislation. Again, I 
helped write that bill. I am the lead sponsor. Obviously, I am for 
that.
  We had the so-called Reid shoe bomber fix to the criminal law. I am 
the lead sponsor of that.
  The National Center for Missing and Exploited Children authorization, 
I am a lead sponsor of that.
  The victims' shield, the cyber-tipline, these are things I have 
sponsored and supported. I have no problem with any one of them.
  But what happens, and I hate to think this is why the other body has 
refused to take up our AMBER alert bill twice now, we suddenly have a 
bill that comes back--actually, as my friend Senator Kennedy pointed 
out during our only conference meeting in this matter, subject to a 
point of order with new and controversial provisions added to a once 
non-controversial and bipartisan bill.
  It would have been so much better if the other body had simply taken 
the bill I got out of the committee last year and we passed in the 
Senate, and having failed to do so, it would have been so helpful had 
they taken the bill--of Senator Hatch and myself and Senator Kay Bailey 
Hutchison and Senator Feinstein--and passed it here, this year, and 
gone with that. The House leaders chose not to pass it. They delayed 
its passage and tried to use it as a sweetener to add on a number of 
controversial items.
  I wonder what would have happened had they simply taken the bill and 
passed it last year. The President made clear he would sign it after we 
passed it by such an overwhelming majority. The other body decided not 
to.
  I wonder what would have happened had they picked it up and passed it 
this year after we passed it through the Senate. The President would 
have signed it. Maybe we would already have a nationwide AMBER alert 
system today. One wonders how many children might have been saved by 
such a nationwide AMBER alert plan if the other body had been willing 
to pass that bill last year or earlier this year when we passed it.
  So many, Republicans and Democrats alike, came together on parts of 
this bill with the idea of protecting children. I worry when efforts to 
protect our children are used as pawns by those who play politics by 
attaching legislation of a more controversial nature. Of course, the 
AMBER alert legislation is in there. I was a main sponsor of that last 
year and this year. Of course, I am happy about that and I will speak 
further on that later.
  I cannot imagine a worse nightmare than a family having an abducted 
child. I remember sitting around the clock with families when I was a 
prosecutor as we were trying to find their children. I also remember 
some cases where we found a child and the child was dead. I remember as 
a young prosecutor, trying to keep my composure in the trials when I 
prosecuted the people who did that and seeking the maximum sentence. 
One, especially, I still have nightmares about to this day, a case in 
Chittenden County. I remember it as though it were yesterday even 
though it was many years ago.
  So that is why I worry when we find ourselves in a situation where 
all of this time-consuming discussion on more controversial matters 
could have been avoided. We have so much in this legislation, that 
Republicans and Democrats alike have joined in, so much that our staffs 
have worked on so hard over the last 2 years. So many things of these 
measures are helpful and broadly supported by police, Governors, and 
those who have to deal with abused and neglected children.
  The unfortunate situation is--whether it is overreaching, whether 
someone was looking for an opportunity, I do not know--that members of 
the other body insisted once again on adding controversial measures 
that have already slowed down this important legislation.
  These are bills that came out of the House Judiciary Committee and 
the Senate Judiciary Committee. We, of all people, should be willing to 
set the standards and make sure we follow the rules. We, of all people, 
should not add things in controversial provisions that do not belong 
here. That is what has been done.
  I can think of things I would have liked to have had included in the 
conference report--and not controversial matters at that--but 
unfortunately, even non-controversial requests by the minority were not 
afforded the same consideration as highly controversial proposals by 
the majority.
  I tried to add the Hometown Heroes Survivors Benefit Act of 2003. 
This legislation would improve the Department of Justice Public Safety 
Officers Program by allowing families of public safety officers who 
suffer fatal heart attacks or strokes to qualify for Federal survivor 
benefits. I have been at the funerals of officers who died of a heart 
attack after putting their lives on the line to protect their 
community.
  Each year hundreds of public safety officers nationwide lose their 
lives and thousands more are subjected to great physical risks. The 
benefits can never be the substitute for the loss of a loved one. 
Families of fallen heroes depend upon us for helping out when their 
family members make the ultimate sacrifice.
  I tried to include the Hometown Heroes bill to fix this loophole and 
assure the survivors of public safety officers who die of heart attacks 
or strokes, who die within 24 hours of being on the job, are eligible 
to receive financial assistance. We passed this bill in the House last 
year. Representative Etheridge, in the other body, and I introduced 
identical versions of this legislation. The House passed it, but an 
anonymous Republican hold in the Senate stopped those benefits for the 
families of fallen police and firefighters.
  During the conference, I offered this bill as an amendment, hoping to 
see it become law. Unfortunately, the majority blocked it.
  My colleagues across the aisle overlook the fact that public safety 
is dangerous, exhausting, and stressful work. A first responder's 
chance of suffering a heart attack or stroke greatly increases when he 
or she puts on heavy equipment and rushes into a burning building to 
fight a fire or save lives. To not be able to participate in the PSOP 
program--I wish my friends on the other side of the aisle allowed 
families, survivors of those who died in the line of duty that way, to 
be able to at least have the benefits that go to other officers. I 
think it is unfortunate.
  I have heard from police officers, I have heard from firefighters. 
They ask, how can this possibly happen? Is this a partisan issue? I 
say, I hope it is not. If there is one thing that should unite 
Republicans and Democrats, it is support for the families of those who 
die in the line of duty. We could have done that. Unfortunately, 
Republicans in the House and Republicans in the Senate voted it down. I 
hope they will reconsider that decision. I would welcome them back to 
the fold. But also, the families of firefighters and police officers, 
the first responders, would welcome them back. They face grave 
disappointment today. They cannot understand why this was not done. 
They would like to see it back. I call on the Republican leadership to 
instruct the Members to let this go through.
  I am glad the conference report did include a provision I introduced 
in the last Congress to clarify an airplane as a vehicle for the 
purpose of terrorism and other violent acts. I tried to include this 
bill in the omnibus appropriations measure, but the Department of 
Justice blocked it. Then, to my surprise, the same provision appeared 
in the leaked copy of the Department's new antiterrorism package.
  This bill is meant to address a discrete problem that surfaced in the 
prosecution of Richard Reid, a man who tried to blow up an 
international flight from Paris to Miami. In that case, the court 
dismissed a charge against Reid over the question whether the airplane 
he attempted to destroy was a mass transportation vehicle. This makes 
it very clear that it is. I am glad this clarification was included at 
my request.

[[Page 9362]]

  There are many things in this conference report that I either helped 
write or cosponsored that we can all support. The Leahy-Kennedy 
legislation establishes a transitional housing grant program within the 
Department of Justice to provide to victims of domestic violence, 
stalking, and sexual assault, the necessary means to escape the cycle 
of violence. That is in here. Today, more than 50 percent of homeless 
individuals are women and children fleeing domestic violence. This will 
help real women and children, including many in my home State. I 
commend my colleagues who, after some initial opposition, joined with 
Senator Kennedy and me on this legislation.
  I am glad the Protecting Our Children Comes First Act is in this 
conference report. It is a bipartisan bill I introduced both in this 
Congress and the last, joined by my friend from Utah as well as Senator 
DeWine of Ohio and Senators Biden, Shelby, Lincoln, and Harry Reid. Our 
bill reauthorizes the National Center for Missing and Exploited 
Children. It needs to be reauthorized. That is in here.
  We proposed reauthorization through the year 2007, but at least it 
has been agreed to through the year 2005. We agreed to double the 
grants. We also authorized the U.S. Secret Service to provide forensic 
and investigative assistance to the National Center; and we 
strengthened the Center's Cyber Tipline to provide online users an 
effective means of reporting Internet-related child sexual exploitation 
in the distribution of child pornography, online enticement of children 
for sexual acts, child prostitution, and child pornography.
  Of course, the Hatch-Leahy PROTECT Act is the centerpiece of this 
bill. And after all the hard work that Senator Hatch and I completed to 
craft this bill, introduce it twice, and usher it through the Senate by 
two unanimous votes, I do not have to tell any one how pleased I am 
that the House adopted most of our provisions. The key provision from 
the House bill that is retained is the so-called ``virtual porn'' 
provision, which I predict will be the subject of much constitutional 
scrutiny. We will see how the House provision fares before the Supreme 
Court, I am sure.
  So there are a number of things that are good in this bill. That is 
why I am frustrated we have this situation. It is because of 
overreaching, because of putting controversial measures in that have 
received little or no consideration in either body and have delayed 
enactment of the better parts of this bill, that we do not yet have a 
law passed.
  I say this really out of sadness. No. 1, we did not have to be here 
today. The Senate passed both the Amber bill and the PROTECT Act twice, 
once this year and once in the last Congress, and sent clean bills to 
the House both times.
  When these bills came out of committee last year, when I was 
chairman, the Senate passed them by unanimous votes on the Senate 
floor. They passed. We sent them to the other body and they let the 
bills sit there. When Senator Hatch took over as chairman of the 
committee this year, we passed them out again. Both Senator Hatch and 
I, as well as Senators Feinstein and Hutchison, were the main sponsors 
of the Amber bill. Senator Hatch and I were the main sponsors of the 
PROTECT Act. The Senate passed them out again. Again, they sat over in 
the other body for months without action.
  Now we find out why. It appears that the Republican majority in the 
House was looking for legislation with that kind of universal support 
and popularity on which to attach controversial measures that might not 
have support in the Senate.
  That is unfair. That is unfair to children. That is unfair to those 
who may be abducted. That is unfair to those of us who spent years 
trying to protect children. It is unfair to those, myself and others in 
this body, who were once prosecutors and prosecuted child molesters and 
abductors. It is unfair to them and to others.
  I will put more material in the Record. I will go back to this. But I 
urge my friends on the other side of the aisle to find a way out of 
this increasing partisanship because it has delayed passage of this 
important legislation, which has so much in it to protect children.
  I see my colleagues on the floor. I see the Senator from Alabama who 
I assume--he is nodding yes--I assume he is looking for the floor, so I 
will yield the floor.
  The PRESIDING OFFICER (Mr. Cornyn). The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I just will share a few thoughts I think 
are very important with regard to this legislation.
  We seem to have strong or at least grudging support from everybody on 
the underlying portions of the bill. At least that is what we are told 
repeatedly. But there is a suggestion that the Feeney amendment is such 
a horrible thing that the entire PROTECT bill should not go forward.
  I will just say a couple of things about that. The Feeney amendment 
was designed to deal with a growing problem of Federal judges downward-
departing from the mandates of the sentencing guidelines and thereby 
giving lighter sentences than should be given to criminals. It is a 
growing problem.
  Senator Hatch had the chart there. Downward departures went from 
1,200 in 1991 to over 4,000 in 2001. There have been some erosions of 
the clarity of the law about that. In effect, we are at a point of some 
danger that the integrity of the guidelines would be undermined.
  So I felt from the beginning we ought to give, in this body, serious 
consideration to the Feeney amendment and review it and see what we 
could do about it. That is my general view of that.
  I served as a Federal prosecutor for almost 15 years. I was a Federal 
United States Attorney when the sentencing guidelines were passed. I 
applied them. I carried around the sentencing guideline manual. I could 
look through and find the upward departures and downward departures and 
all the statistics and how to figure out how many prior convictions 
should be considered in the defendant's criminal history. You would 
figure out the nature of the criminal act, did it involve violence, did 
the defendant carry a gun, did it involve a particularly vulnerable 
victim like a woman or a child. You would do all those things. A lot of 
experienced people in criminal justice came together and put the 
Sentencing Guidelines together over a decade ago. It was a remarkably 
good achievement.
  Most experts who knew about it said basically they were compiling and 
putting into law what most Federal judges, mainstream Federal judges in 
America were doing, anyway. But it compromised those who were 
especially harsh and those who were especially light. Frankly, when you 
give a lifetime appointment to a Federal judge and he or she decides 
they don't want to enforce child pornography laws or child abuse laws 
and they don't think those are particularly significant crimes that 
ought to be in Federal court and they depart downward, and you are in a 
position where the law is unclear, they can depart with impunity. If 
the judge is elected, at least you can vote him out of office sometime, 
but you can't do that for an unelected, lifetime-appointed judge.
  For the most part, I think judges follow the guidelines scrupulously. 
But these statistics on this chart, which shows an almost fourfold 
increase over a decade in downward departures, are troubling.
  I served on the Senate Crime Subcommittee. We had hearings in the 
year 2000 to confront this problem. In fact, we even asked the 
Sentencing Commission to give us some information on it, but they still 
have not given us that information.
  So the Feeney amendment comes along. It was offered in the House of 
Representatives and it applied to all crimes. They put that amendment 
on to the AMBER Alert legislation that was going through the House of 
Representatives, and made it an appropriate part of the PROTECT Act 
that we would conference about, that we would confer about.
  I thought it was a matter that ought to be given serious thought. I 
had not overtly committed to the Feeney

[[Page 9363]]

amendment, but as someone who worked with the sentencing guidelines, I 
felt that the intent of it was good.
  So there was a big controversy. My colleagues on the other side said: 
Well, we are not going to pass this bill that will protect children. We 
believe in protecting children, but you can't have the Feeney amendment 
on it. It is irrelevant to children. It does other things in the 
criminal justice system, and we are not prepared to vote for that. We 
are not troubled, in effect, by Federal judges who are downward 
departing in record numbers. So we don't want that on the PROTECT Act.
  We got a call from a Federal judge who said: It is restricting my 
freedom to do what I want to do, and we don't think it is a good idea. 
Take the Feeney amendment off.
  Well, Chairman Hatch, who has been in this body a long time, and has 
been chairman of our committee off and on for a number of years, and 
Chairman Sensenbrenner in the House, they knew there was a complaint 
about it. They knew people were unhappy about the Feeney amendment. So 
they got together and they decided: What could we do about it? And they 
decided to offer a suggestion and a provision, an amendment that would 
solve the problem. And I, frankly, am amazed it is having any 
difficulties getting passed in Congress.
  What my colleagues on the other side said was: OK, since this is a 
child protect bill, we will not put in this limitation on downward 
departures--this legislation that really only tightens up the freedom 
of judges to abuse the guidelines. We will not do that for all these 
other cases, but since this is a child act, and we have historical and 
anecdotal records of child abuse cases where judges have improperly 
downward departed, we will just apply the Feeney amendment to those 
cases involving minor victims and sex offenders.
  Certainly that was very consistent with the intent of the act. It 
dealt with the situation of some judges not taking these cases 
seriously. And we had a history of it. The legislation dealt with the 
problem of repeat offenders because some people seem to think if a 
person is caught in a child sexual abuse case, and they come in and 
say, ``Oh, judge, I'm sorry, I won't do it again,'' that you can rely 
on that.
  People in churches have heard people say that, and they have believed 
them. But I have been a prosecutor. I have seen the numbers. I have 
seen the prosecutions. Most of them have not offended just once or 
twice, but they have done it several times over a period of years. They 
come back to it again and again and again. I wish that were not so. I 
wish it were not so. But you cannot rely on the words of a pedophile, 
that they are not going to offend again, because history and science 
and criminal justice statistics show that they go back to these 
horrible acts again and again, ruining the lives of another child, 
another child, and another child. It is a big deal in America. It is 
not a little deal.
  So the Feeney amendment was really constrained. It did not apply to 
all criminal justice cases; it applies to sex cases and those involving 
child and sexual abuse.
  I would say, as a Federal prosecutor, and knowing the kind of cases 
that are prosecuted in Federal court--bank fraud, bank robbery, all 
kinds of white-collar crimes, gun cases, drug cases, international 
smuggling cases, and all those--I am confident--this may shock some 
people--I am confident that less than 2 percent--probably less than 1 
percent--of the Federal cases prosecuted in Federal court deal with 
child sexual abuse. Most of them--many of them--are tried in State 
courts, and the ones that are prosecuted in Federal court are fairly 
limited in number.
  So what Senator Hatch, Senator Graham of South Carolina, and Chairman 
Sensenbrenner offered was a tremendous move in the direction of the 
opponents who were concerned about the downward departure rule 
contained in the Feeney amendment. And they focused it simply on this 
very small but very important number of cases dealing with the abuse, 
sexual assault, kidnaping and rape of our citizens in America.
  I think that was a very generous amendment. And I would have thought 
that would have settled the matter completely. I remain baffled that we 
would see this kind of opposition, the kind of opposition that would 
suggest they are willing to kill this important legislation that, if 
passed, this very day could save the lives of children, could save 
other children from being abused by a pedophile, if we pass it. And if 
we don't pass it, if we delay it, the victimization of our children 
could continue for a long time.
  And some say: Well, this Feeney amendment is so extreme and so 
controversial. I suggest not, Mr. Chairman. Looking at the vote in the 
House of Representatives, when the full Feeney amendment came up, 
tightening up the ability of judges to downward depart on all the cases 
in the criminal justice system--the 98 percent plus the 2 percent--the 
vote was 357 for and 58 against, 1 voting present.
  Now, that is an overwhelming vote. And then, when the conference 
report came back, after the Hatch-Sensenbrenner modification was put 
in, dramatically reducing the number of cases impacted by the Feeney 
amendment to 2 percent or so, or less--probably 1 percent or less--
involving sexual abuse cases, it passed 400 to 25. So it comes out of 
the House 400 to 25--overwhelming support from Democrats and 
Republicans. You have more than 25 liberals, you have liberals and 
conservatives, Republicans and Democrats voting for this bill in the 
House of Representatives, overwhelmingly. Yet here we are having this 
legislation, as critical as it is, being held up over this small 
amendment, after Chairman Hatch had worked so hard to settle the issue 
and to accommodate my colleagues on the other side of the aisle.
  So I think it is important that we understand that. It is important 
that we pass this bill now. There is no need for it to continue. Who 
knows? This very day--as a matter of fact I know this just because of 
the statistics that are out there some child has been sexually abused. 
Maybe there is a child being kidnaped right now. This legislation could 
help save that child, and other lives.
  And I noticed Senator Durbin suggested--and I see Senator Kennedy and 
Senator Leahy in the Chamber--well, maybe we could talk about having a 
hearing on the sentencing guidelines and minimum mandatory sentences. I 
am not opposed to that, but I will just say this: I really care about 
sentencing guidelines. I think there should be integrity in the 
enforcement of those guidelines.
  Federal judges should not get in the habit of eroding the clear 
injunctions of those acts. And the way they are doing it today, 
sometimes they are not writing opinions and explaining why they are 
doing it, leaving it very difficult to determine what has actually 
occurred, and making it difficult to appeal. So I think we ought to 
have integrity in sentencing. But we, as a Congress, I say to my 
colleagues on the floor, passed the guidelines. We set up the mandatory 
minimums. We created the Sentencing Commission, and we directed them, 
in large part, on how to carry out sentencing.
  The Congress has taken over sentencing; that is true. And after these 
many years of experience with the guidelines, I do not have any doubt 
that we could improve it, and that we ought to make some improvement. 
In fact, I would say to my colleagues here, who think some of the 
sentencing guidelines are too tough--and that is what you hear a lot--
that Senator Hatch and I are the only two Members of this Senate, that 
I know of, who have taken any action to fix it.
  We offered the Hatch-Sessions bill last year and are reoffering it 
this year, that would deal with what I believe to be an unfair 
circumstance: The crack cocaine/powder cocaine sentencing disparity. I 
don't believe the extent of the disparity is justified. If you want to 
complain about something, let's talk about that. Not child pornography, 
child sexual abuse, not sexual cases. I don't see a problem in the 
guidelines with those cases. If anything, those sentences need to be 
toughened up.

[[Page 9364]]

  I do agree, as a person who regularly and consistently prosecuted 
cases, that we can improve the sentencing disparity on crack and powder 
cocaine. For every child sex case, there are probably 10 crack and 
powder cocaine cases going through Federal court. Let's talk about 
that. I would be willing to talk about that.
  I also think we should pass the Hatch-Sessions bill first. That 
legislation takes a major step forward in creating some fairness in the 
system and deals with the courier case, the girlfriend case. It deals 
with the sentencing disparity between at some points as much as 100 to 
1 between crack and powder cocaine. It narrows that, substantially 
eliminating the unfairness there. Let's do it that way. Let's not stop 
this bill. This bill needs to go forward.
  I understand the concerns about sentencing guidelines in general. How 
should we fix it? We should fix it by maintaining integrity in the 
sentencing process, not by standing idly by if judges are violating 
that process.
  No. 2, if we carry out our responsibilities, we will look at the act 
as we pass. We will look at the sentences being imposed in the 
courtrooms of America and if we were wrong in any of those sentences, 
we should change them. The one area I am confident we could do better 
in is the crack and powder cocaine issue. I am prepared to act on that. 
I have offered legislation that would act on that. It would reduce the 
crack cocaine sentences significantly. A lot of people don't want to 
appear to be soft on crime. They don't want to appear to reduce any 
sentences. But I have been there. I have seen defendant after defendant 
go off to jail. Several years in a row my office had some of the 
highest average sentences in America for drug cases. I didn't apologize 
for that one bit. But if the sentences are not what we need if some, 
like powder, are not tough enough and need to be increased, and some 
like crack need to be reduced we should eliminate some of the 
criticisms about justice in American by being more consistent in how we 
sentence. That would create more public confidence in the system, and 
we ought to do that. I am prepared to take the lead on that. In fact, 
Senator Hatch and I have led on that. We have stepped to the plate and 
proposed to make progress.
  I suggest that the PROTECT Act needs to move forward. Chairman Hatch 
and Chairman Sensenbrenner have done the responsible thing. They have 
examined the complaints about the Feeney amendment. They have reduced 
those complaints to an extraordinary degree. They kept this legislation 
focused on sexual abuse cases, as it should be. We ought to support it.
  One thing we know is that sexual offenders and predators are repeat 
offenders. A 1998 study of sexual recidivism factors for child 
molesters showed that 43 percent of offenders sexually reoffended 
within a 4-year follow-up period. Almost half of the people arrested as 
child molesters reoffended in a sexual abuse case within 4 years. I 
would suggest some of those reoffended and were not caught. There is no 
doubt in my mind that within 4 years, if this number is accurate, we 
could say with certainty that over half of those offenders in 4 years 
reoffended. That is a serious social problem.
  One thing we put in this bill is important. We put in a provision 
that would allow lifetime supervision after release from custody or 
after probation, if that occurs, if the judge feels the defendant poses 
a danger to society. That is the right thing to do. I am so glad that 
is in this bill. Senator Hatch and I offered language to that effect. 
We suggested it last year.
  The theory behind it is simply this: science and history tell us that 
child molesters are repeat offenders. Pedophiles reoffend. Do we want 
to keep them in jail forever? They ought to be kept in jail a long 
time--no doubt about that in my mind. Should they be kept in jail 
forever? Very few are kept in jail forever, whether they should be or 
not. Large numbers of them are released. Under the normal Federal 
sentencing guidelines, post conviction supervision is 1 to 5 years. So 
after that 5 years is over, these sexual offenders are not even being 
supervised by Federal probation officers.
  It is a rational and logical and just step to give a Federal judge 
the ability to impose post-release supervision for as long as he or she 
deems appropriate. That is a good step in the right direction.
  According to the Bureau of Justice statistics, released rapists were 
10.5 times as likely as nonrapists to be rearrested for rape, and those 
who had served time for sexual assault were 7.5 times more likely as 
those convicted of any other crime to be rearrested for a new sexual 
assault. Do you see what that is saying? Those are stunning numbers, 
when you think about it. They tell us that released rapists are 10 
times more likely to rape someone else in the future; that tells us 
that when you apprehend a rapist, it needs to be taken seriously. We 
need to understand that a person who has committed rape in the past has 
a much, much greater potential for raping another innocent human being 
in the future or for molesting another child in the future. That is why 
Federal supervision can be helpful there.
  Good Federal probation officers work hard. They stay on top of 
offenders. Perhaps they can identify circumstances when offenders may 
be getting in trouble or acting in an unhealthy way, to make sure that 
the jobs sexual offenders take do not place them in contact with 
children. Perhaps probation officers can otherwise monitor offenders' 
activities to substantially reduce the likelihood that they would 
reoffend.
  I thank Senator Hatch for his leadership. We thought we had an 
agreement with Senators Leahy and Kennedy and others to move this bill 
forward. Unfortunately, we are not moving forward at this moment. I 
hope we can break the logjam so that this important legislation will go 
forward to final passage.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Mr. President, I will only speak for about 3 or 4 
minutes, I tell the Senator from Massachusetts. I appreciate the 
recognition.
  I want to speak on the AMBER alert portion of this legislation 
because we have been working on it for several months. We passed AMBER 
alert legislation last year. Senator Feinstein and I cosponsored the 
legislation. Senator Hatch and Senator Leahy were very supportive. We 
passed AMBER alert again this year and hoped very much that we could 
get a clean bill that would be signed quickly by the President.
  However, I know provisions were added that are very good provisions. 
I am very pleased that we have finally gotten a bill that the House has 
passed and would be able hopefully to pass this legislation and send it 
to the President.
  Because the AMBER alert is proven to save lives, Senator Feinstein 
and I have been working very hard to get it passed through the Senate. 
Ed Smart, a constituent of the distinguished Senator from Utah, told us 
how important AMBER alerts were in helping to find his daughter 
Elizabeth. Even though she is one of the few abducted children who was 
found after a long period, it was the publicity that made the 
difference because a person who saw the picture of the suspect in the 
paper then saw the suspect on the street, and the police were able to 
walk up to the suspect and Elizabeth Smart was right there with him. So 
it does make a difference that we have this kind of publicity.
  To date, sixty abducted children have been recovered with the 
assistance of AMBER alert. In fact, the statistics show that 75 percent 
of recovered children are recovered within the first 3 hours. You can 
only do this with the large electronic road signs and with media 
helping you to get the word out that this is a child in peril. That is 
why the AMBER alerts do work, and the quick recovery is the best chance 
we have for a recovery at all.
  There are Federal grants authorized in this legislation that will 
help educate States about AMBER alerts and assist States so they won't 
be overused. The legislation will provide for a person who will be in 
the Justice Department--the AMBER coordinator--so

[[Page 9365]]

that a law enforcement officer who believes a suspect may be going to 
another State can make one call to the Justice Department and not worry 
again about the recovery effort continuing. The Justice Department can 
put the word out to the other contiguous States and really make a 
difference.
  The AMBER alert bill has had a lot of supporters: The National Center 
for Missing and Exploited Children, the National Association of 
Broadcasters, and the Fraternal Order of Police have all been 
instrumental in passing this legislation. I had hoped we could pass it 
earlier. I had hoped we would have passed it last year to get other 
States up to speed, so they would have good, solid AMBER alert systems 
that would coordinate with the Justice Department. But it is April of 
2003 now and it is time to pass this legislation.
  Senator Feinstein and I have worked very hard to do this. We thank 
Senator Hatch and we thank those who helped us with the original 
legislation. I know there are differences in some of the add-ons. 
Believe me, we would have liked to have had a clean bill. But we don't 
get exactly what we want in the legislative process. There are a lot of 
other people with different views and they have to be accommodated.
  So I am very pleased we have the bill before us. I intend to support 
it, and I hope we can pass it and send it to the President.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, I listened to the Senator from Texas in 
terms of her strong support. I know she has been involved in the AMBER 
legislation, as others have, such as my friend and colleague from 
Vermont. We all remember the work done by the committee itself last 
year when we initially sent this over to the House of Representatives. 
We waited a long time. It didn't come back. We sent it back over in 
January. It didn't come back. Now we have this part come back, of which 
we are all in support.
  I must say there are procedures that probably would have to be 
streamlined, but the provisions that apply to those who are going to be 
involved in the abduction and kidnaping of children and the various sex 
crimes outlined and considered in the legislation, that is not any 
point of dispute. We are in strong support.
  The fact is, there are other factors included in this legislation on 
which there haven't been hearings and which basically undermine the 
criminal justice system, as pointed out by the Chief Justice of the 
United States. It is not just the Senator from Massachusetts, it is the 
Chief Justice of the U.S. and he has not been known as a coddler of 
criminals or lenient on defendants. That is not the reputation of the 
Chief Justice of the United States, Mr. Rehnquist. Yet he has serious 
reservations about the provisions of this legislation which we have 
addressed earlier today and which were addressed in the conference.
  So I want to make some additional remarks at this time to once again 
let my colleagues know what is really involved in the legislation.
  As I mentioned earlier, when we came out of conference, it was said 
by the chairman of the committee that rather than have the Sentencing 
Commission do a review and report back in 180 days about the sentencing 
requirements under this legislation, then we could either enhance or 
adjust, or rather than even having hearings by the Criminal Justice 
Subcommittee of the Judiciary Committee, then we could move ahead and 
consider those on the floor of the Senate. We accepted, after the 6 or 
7 minutes of debate and discussion on the floor of the House of 
Representatives, and without any hearings whatsoever in the Senate or 
in the Judiciary Committee, provisions that have broad application to 
all of the sentencing guidelines. We have heard explanations that they 
really don't, but they do.
  I will review them very quickly here this afternoon once again. There 
are three major ways in which this conference report goes beyond the 
issues of crimes against children.
  First, the bill changes the standard of appellate review in all 
cases, not just cases in which children are victims. This overturns a 
unanimous Supreme Court decision and radically changes the Federal 
sentencing system.
  Do we understand that? This legislation overturns a unanimous Supreme 
Court decision, without a single day, hour, or minute of hearings. That 
is one reason the Chief Justice, the Judicial Conference of Judges, the 
American Bar Association, all have expressed their opposition to these 
provisions.
  Second, the bill imposes new reporting requirements when judges 
depart in any case, not just children cases, and this is a blatant 
attempt to intimidate the judiciary. It says to judges you will be 
called on the carpet if you depart downward. Your name will be given to 
the Attorney General and he will report you to Congress. If that isn't 
a blacklisting for Federal judges, I don't know what is, Mr. President. 
If these judges are not competent to serve on the Federal judiciary, 
they should not have been recommended--in these cases, Republican 
Presidents--or approved by a Republican Senate. But these are the ones 
who are basically applying these guidelines at the present time.
  Third, the bill directs the Sentencing Commission to limit downward 
departures in all cases, not just child cases. This proposal is based 
on the erroneous view that there is excessive leniency in the Federal 
sentencing system. The Federal prison population has quadrupled in the 
last 20 years. The length of sentences is up dramatically in 20 years.
  Those are three major departures from the assurances that were given 
by the chairman of the Judiciary Committee in that conference. His 
amendment, which is included in the conference, would only apply to the 
issues that were before us dealing with children and children's crimes. 
These are three examples of where they will affect all of the 
sentencing, and that has not been refuted this afternoon.
  I want to take a moment of time to consider a response to many of the 
claims that have been made here about the problems in the Federal 
criminal system--claims, quite frankly, that are not supported by any 
record in the Senate, I might add. This is the analysis of eight highly 
respected former U.S. attorneys, most of whom are Republicans. They 
wrote to the Judiciary Committee:

       We write, as former United States Attorneys in the Southern 
     and Eastern Districts of New York, to express our concern 
     about Section 109 of S. 151/H.R. 1104, the Child Abduction 
     Prevention Act. This proposed legislation--which contains 
     some of the most far-reaching revisions of the federal 
     sentencing process in many years--was passed by the House of 
     Representatives on March 27, 2003. Our concern regarding this 
     legislation is based not only on the questionable 
     justification for many of its provisions, but also on the 
     fact that it has already been adopted by one house of 
     Congress without any meaningful input from the judiciary, the 
     Sentencing Commission, members of the bar or other interested 
     experts and members of the criminal justice community.

  It continues:

       . . . The proposed legislation not only disregards the 
     Sentencing Commission's unique role in the federal sentencing 
     process, but also ignores Congress' own admonition that the 
     views of interested parties in the federal criminal justice 
     system be carefully considered before changes to the 
     Guidelines are enacted.
       The proposed legislation raises serious questions on its 
     merits as well. To start, the justification for such sweeping 
     changes is unclear. Although the number of downward 
     departures not based on cooperation has increased in the last 
     several years, 70 percent of that increase is attributable to 
     departures in a small number of ``border'' districts that 
     handle an extraordinary number of immigration cases which 
     place unique demands on the criminal justice system. The 
     localized nature of this increase does not justify a 
     nationwide restriction on the availability of downward 
     departures in all cases.
       The sparse legislative history of this proposal similarly 
     reflects that it is an unnecessarily broad response to a 
     particularized concern. The amendment's author has stated 
     that the legislation is prompted by the fact that a 
     ``disturbing trend has occurred, especially in child 
     pornography cases'' and that departures have become a 
     ``common occurrence.'' If downward departures have become 
     commonplace in one particular type of case, then careful 
     scrutiny of the reasons for this

[[Page 9366]]

     phenomenon, and of the appropriateness of the Guideline level 
     for that type of case, may well be warranted. It does not, 
     however, justify a wholesale restriction of downward 
     departures for all cases within the criminal justice system.
       The legislation also contemplates unwarranted limitations 
     on the exercise of sentencing discretion by the federal 
     judiciary. A United States District Judge has the unique and 
     difficult responsibility of imposing criminal punishment on a 
     defendant based on an individualized assessment of the facts 
     and circumstances of a particular case. Indeed, Congress has 
     explicitly recognized that the Sentencing Guidelines are 
     intended not only to avoid unwarranted disparity in 
     sentencing but also to maintain ``sufficient flexibility to 
     permit individualized sentences when warranted by mitigating 
     or aggravating factors not taken into account in the 
     establishment of general sentencing practices.'' 28 U.S.C. 
     Sec. 991(b)(1)(B). . . . 
       In fiscal year 2001, putting aside the ``border'' districts 
     and departures based on cooperation (which require the 
     government's consent), district judges departed downward only 
     10.2 percent of the time. Moreover, 85 percent of all 
     defendants who received non-cooperation downward departures 
     that year nevertheless were sentenced to prison. What these 
     statistics reveal is a relatively limited exercise of 
     sentencing discretion of the sort contemplated by Congress 
     when it authorized the promulgation of the Guidelines.
       The legislation also would overrule the Supreme Court's 
     decision in Koon v. United States, 518 U.S. 81 (1996). This, 
     too, is of serious concern. In Koon, all nine Justices of the 
     Supreme Court recognized that an appellate court should 
     review a decision to depart from the Guidelines with ``due 
     deference'' to the district court's decision, and that such a 
     decision should be overruled only if the district court 
     abuses its discretion.

  That is what the Supreme Court said, but that is not what is in the 
Hatch amendment.
  Continuing to quote the letter:

       The decision correctly recognized that district judges are 
     uniquely qualified to decide whether a departure from the 
     Guidelines is justified by the particular circumstances of a 
     given case or the background of a particular defendant. The 
     legislation's substitution of a de novo standard of review 
     would allow appellate courts to second-guess sentencing 
     decisions without any meaningful guidance as to when those 
     decisions should or should not be upheld. Moreover, given the 
     fact that the government currently has the ability to appeal 
     unauthorized or excessive downward departures and is 
     successful in such appeals about 80 percent of the time--

  Understand that, 80 percent of the time when the Government appeals 
these cases, they are successful.

       A change in the appellate standard of review appears 
     unnecessary to enable the appellate courts to overturn 
     unwarranted departures.
       These and other concerns have prompted objections to the 
     proposed legislation from representatives of a wide variety 
     of interested parties to this issue. This includes the 
     Secretary of the Judicial Conference of the United States, 
     all five current voting members of the United States 
     Sentencing Commission, all three Chairpersons of the 
     Commission since its creation, the President of the American 
     Bar Association, and numerous other bar organizations. As 
     former members of the Department of Justice, we respectfully 
     urge you to allow careful consideration of their views, and 
     those of other interested parties, in a public forum before 
     deciding upon the wisdom of any of the sentencing reforms 
     contained in this proposed legislation.

  Imagine that, they are requesting us to give some consideration and 
have a hearing on it. According to the chairman of the Judiciary 
Committee, there is no chance for that. We are just going to be faced 
with this situation.
  The entire premise of the Feeney amendment is that departure from the 
guidelines is a problem that needs to be stamped out. That reflects the 
fundamental misunderstanding of the guideline system. We never intended 
the Sentencing Reform Act of 1984 to eliminate judicial discretion. We 
struck a balance between sentencing uniformity and individualized 
sentencing. We recognized that guidelines cannot possibly describe 
every single case. We need uniform rules, but then we need flexibility 
in individual cases.
  There is no epidemic of leniency in the Federal criminal justice 
system. The Federal prison population has quadrupled in the last 20 
years. It is now larger than any State system.
  The departure rate is not excessive. In the committee report 
accompanying the 1984 act, we anticipated a departure rate of around 20 
percent. That is what the estimates were at the time we accepted the 
Federal guidelines. In fact, the rate at which judges today depart over 
the objection of the Government is slightly more than 10 percent. So we 
are well within the acceptable rates.
  If there is any problem at all, it is with Government departures. The 
American Bar Association reports that 79 percent of the downward 
departures in the United States were requested by the Government. 
Unlike judicial departures, which are subject to appellate review, 
departures sought by prosecutors are essentially unreviewable. Maybe we 
need to look at the procedures adopted by the Department of Justice in 
this area.
  Why do judges depart? According to the Sentencing Commission, the 
second most frequent reason for departure is ``pursuant to a plea 
agreement.'' That accounts for 17.6 percent of downward departures 
other than substantial assistance. Only a small fraction of departures 
are based on the offender traits the Senator from Utah complains 
about--family ties, 3.8 percent; rehabilitation, 1.7 percent; mental 
conditions, 1.1 percent.
  It is only a small number of defendants that benefit from judicial 
leniency. In all the talk about leniency, we forget who these judges 
are. Many were appointed by Republican Presidents. All were confirmed 
by the Senate. Many are former prosecutors or other government 
officials. These are not people predisposed to sympathy for criminals. 
They are toughminded, responsible pillars of their communities trying 
their best to impose just sentences within the constraints of the law. 
Almost 80 percent of the time, the prosecutor agrees that leniency is 
warranted. Sometimes the Government does not agree, and that is what an 
appellate review is for.
  Moreover, the Government wins 78.1 percent of all sentencing appeals. 
So that mechanism is functioning very well to ensure tough sentences.
  In this proposal, judges will now have less discretion, and so the 
prosecutor--listen to this, Mr. President--and so the prosecutor will 
dictate the sentence in more and more cases. This is a dangerous 
development. Judicial discretion in sentencing is an accountability 
measure. It is an important way to check the excesses of the 
prosecutor. Our system of government is founded on that type of checks 
and balances. But by weakening the judiciary and depriving judges of 
the tools they need to do justice in individual cases, the proposal 
undermines accountability and diminishes justice.
  This is not the end of the fight. It took us 10 years, 75 hearings, 
and extensive consultation with top judges, prosecutors, defense 
attorneys, and other experts to achieve the right balance between 
ensuring fairness and consistency in the criminal justice system and 
preserving judges' judicial sentencing discretion.
  It is not right for us to destroy that balance through an ill-
considered measure that has not received any hearings or any debate in 
the Senate.
  It is not right to transform the entire Federal guideline system into 
a system of mandatory minimum sentences. Just yesterday, Justice 
Kennedy vigorously criticized the existing mandatory minimums as unfair 
and inconsistent with fundamental principles of justice.
  Of course, Chief Justice Rehnquist, as I mentioned, not known to be 
particularly sympathetic to criminal defendants, has described this 
provision as doing serious harm to the basic structure of the 
sentencing guidelines system and impairing the ability of courts to 
impose just and responsible sentences.
  That is what the Chief Justice has stated about these provisions in 
this legislation that we are about to consider, as well as Justice 
Kennedy, also nominated by a Republican President and not known to be a 
coddler of criminals or lenient in terms of sentencing.
  It is a slap in the face of Federal judges, who have to apply the 
guidelines system on a daily basis, to include these provisions in the 
conference report. It is wrong for my Republican colleagues to 
misrepresent the nature of this provision, to suggest that it is 
limited to serious crimes against children, when they know more serious 
provisions will apply to all of the offenses. It is wrong to hold 
protections for children hostage in order to

[[Page 9367]]

ram through this sweeping, ill-advised provision without a single hour 
or day of hearings or debate.
  I will continue to pursue this issue and do everything I can to 
protect the reforms we have achieved on a strong bipartisan basis in 
the Sentencing Reform Act of 1984.
  I ask unanimous consent that the conference report be defeated, that 
the Senate concur in the House amendment with an amendment which is the 
text of the conference report with a new title IV.
  The PRESIDING OFFICER. Is there objection?
  Mr. HATCH. Mr. President, reserving the right to object, if this 
change were allowed, as the Senator's unanimous consent request asks, 
it would effectively kill this bill, and he knows it. If Senators on 
the other side of the aisle want to vote against this conference 
report, they can do so.
  The point is that we are prepared to vote on this bill today and to 
get this to the President for signature before the impending recess so 
that there will not be any more children subjected to what Elizabeth 
Smart was subjected to, or at least we can have a better set of tools 
to solve these problems. Therefore, we cannot agree to this request.
  I ask unanimous consent that the consent be modified so that there 
now be 30 additional minutes of debate on the conference report, to be 
equally divided in the usual form, and that following that time, the 
Senate proceed to a vote on adoption of the conference report, with no 
further intervening action or debate.
  Mrs. FEINSTEIN. Reserving the right to object, if I may.
  The PRESIDING OFFICER. The unanimous consent request before the 
Senate is the request from the Senator from Massachusetts. The Senator 
from Utah has suggested a modification of that request.
  Mr. KENNEDY. Under the rules, the Senator can either object or accede 
to that request. I retain my right to the floor, Mr. President.
  The PRESIDING OFFICER. Is the Senator from Massachusetts calling for 
regular order?
  Mr. KENNEDY. Regular order.
  Mr. HATCH. Then I object.
  The PRESIDING OFFICER. Does the Senator from Utah object?
  Mr. HATCH. I object to the request of the Senator.
  The PRESIDING OFFICER. Objection is heard.
  Mr. KENNEDY. I have not lost the floor.
  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.
  With respect to Koon v. the United States, I think it is a mistake to 
let appellate courts change the standard of

[[Page 9368]]

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

[[Page 9369]]

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 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

[[Page 9370]]

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 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

[[Page 9371]]

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 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

[[Page 9372]]

     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 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

[[Page 9373]]

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 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 of ``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

[[Page 9374]]

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 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.

[[Page 9375]]

  Section 609 of the conference report adds a definition of ``vehicle'' 
to 18 U.S.C. 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, 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 U.S.C. 
3553(a)(2) (incapacitation, deterrence, etc.) or is authorized under 18 
U.S.C. 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

[[Page 9376]]

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 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

[[Page 9377]]

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 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

[[Page 9378]]

challenge. For one thing, its fail-
ure to define the term ``misleading'' 
may unduly chill constitutionally-pro-
tected 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 U.S.C. 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 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 officers 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 at-
tack 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.

[[Page 9379]]

  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 increases the support for the National Center for Missing and 
Exploited Children; gives the U.S. 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 House's 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. 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 is 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

[[Page 9380]]

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 our 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- 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

[[Page 9381]]

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 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

[[Page 9382]]

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 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

[[Page 9383]]

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 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.

[[Page 9384]]

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 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

[[Page 9385]]

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 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;

[[Page 9386]]

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 bring 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 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 offenses 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

[[Page 9387]]

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 who 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 Sessions'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
     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.

                          ____________________