[House Report 104-548]
[From the U.S. Government Publishing Office]



104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     104-548
_______________________________________________________________________


 
  CRIMES AGAINST CHILDREN AND ELDERLY PERSONS INCREASED PUNISHMENT ACT

                                _______


  May 1, 1996.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

_______________________________________________________________________


   Mr. McCollum, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2974]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 2974) to amend the Violent Crime Control and Law 
Enforcement Act of 1994 to provide enhanced penalties for 
crimes against elderly and child victims, having considered the 
same, report favorably thereon with an amendment and recommend 
that the bill as amended do pass.

    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Crimes Against Children and Elderly 
Persons Increased punishment Act''.

SEC. 2. ENHANCED PENALTIES FOR VULNERABLE VICTIMS.

    Section 240002 of the Violent Crime Control and Law Enforcement Act 
of 1994 is amended to read as follows:

``SEC. 240002. ENHANCED PENALTIES FOR VULNERABLE VICTIMS.

    ``(a) In General.--The United States Sentencing Commission shall 
amend the Federal sentencing guidelines to provide a sentencing 
enhancement of not less than 5 levels above the offense level otherwise 
provided for a crime of violence, if the crime of violence is against a 
child, elderly person, or other vulnerable person.
    ``(b) Definitions.--As used in this section--
          ``(1) the term `crime of violence' has the meaning given that 
        term in section 16 of title 18, United States Code;
          ``(2) the term `child' means a person who is 14 years of age, 
        or younger;
          ``(3) the term `elderly person' means a person who is 65 
        years of age or older; and
          ``(4) the term `vulnerable person' means a person whom the 
        defendant knew or should have known was unusually vulnerable 
        due to age, physical or mental condition, or otherwise 
        particularly susceptible to the criminal conduct.''

                          Purpose and Summary

    This bill, The Crimes Against Children and Elderly 
Increased Punishment Act, introduced by Mr. Chrysler of 
Michigan, would increase the length of the sentence for violent 
crimes against children 14 years of age, or younger, seniors 65 
years, or older, and vulnerable persons. It would do so by 
directing the U.S. Sentencing Commission to provide a 
sentencing enhancement of not less than five levels above the 
offense level otherwise provided for a crime of violence 
against such victims.

                Background and Need for the Legislation

    From 1985 to 1991 there was a 90 percent increase in 
personal crimes committed against senior citizens, from 627,318 
to 1,146,929. While the overall homicide rate for children 
decreased from 1985 to 1993, there was a 47 percent increase in 
the homicide rate of children. In 1992, one out of every six 
rape victims was a female under the age of twelve. H.R. 2974 
was introduced to provide additional deterrence and punishment 
for those who victimize the most vulnerable in society.
    The impetus for this legislation also arises from the U.S. 
Sentencing Commission's failure to take action in response to a 
directive in the Violent Crime Control and Law Enforcement Act 
of 1994. Title XXIV, Section 240002 of the Act directed the 
Commission to ``ensure that the applicable guideline range for 
a defendant convicted of a crime of violence against an elderly 
victim is sufficiently stringent to deter such a crime, to 
protect the public from additional crimes of such a defendant, 
and to adequately reflect the heinous nature of such an 
offense.'' The Commission determined to make no amendment to 
the guidelines in response to this directive. This bill seeks 
to ensure that the guideline penalty accomplishes the goal 
Congress established in its 1994 directive.
    While the bill applies on to federal crimes, another 
purpose of this legislation is to establish a model for state 
criminal justice systems. Only a uniform approach which 
communicates society's intolerance for these heinous crimes 
will provide sufficient deterrence.

                                Hearings

    The Committee's Subcommittee on Crime held a hearing on 
H.R. 2974 on March 7, 1996. Testimony was received from two 
witnesses, Representative Dick Chrysler, of Michigan, and Mr. 
Kevin V. Di Gregory, Deputy Assistant Attorney General, 
Criminal Division, representing the U.S. Department of Justice, 
with additional material submitted by Maureen Kanka of the 
Megan Nicole Kanka Foundation and Ernest E. Allen, President 
and CEO for the National Center for Missing and Exploited 
Children.

                        Committee Consideration

    On March 21, 1996, the Subcommittee on Crime met in open 
session and ordered reported the bill H.R. 2974, as amended, by 
a vote of 8 to 1, quorum being present. On April 24, 1996, the 
Committee met in open session and ordered reported the bill 
H.R. 2974 with amendments by voice vote, a quorum being 
present.

                         Vote of the Committee

    There were no recorded votes.
    1. An amendment by Ms. Lofgren to change the definition of 
a child from ``a person who is 11 years of age, or younger,'' 
to ``a person who is 14 years of age, or younger.'' The Lofgren 
amendment was agreed to by voice vote.
    2. An amendment by Ms. Lofgren to include vulnerable 
persons to the victims covered under the provisions of the 
bill. The Lofgren amendment was agreed to by voice vote.

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

                        Committee Cost Estimate

    In compliance with clause 7(a) of rule XIII of the Rules of 
the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 2974, the following cost estimate.
    The Committee estimates that the costs associated with the 
increased sentences under H.R. 2974 are $5.1 million at the 
conclusion of the fifth year after the enactment of the bill, 
and $22 million after thirty years. These figures are based on 
U.S. Sentencing Commission estimates for prison construction 
and operating costs associated with the expected number of 
cases receiving increased sentences.

                     Inflationary Impact Statement

    Pursuant to clause 2(l)(4) of rule XI of the Rules of the 
House of Representatives, the Committee estimates that H.R. 
2974 will have no significant inflationary impact on prices and 
costs in the national economy.

                      Section-by-Section Analysis

                         Section 1. Short title

    This section states that the short title of the bill is the 
``Crimes Against Children and Elderly Persons Increased 
Punishment Act.''

          Section 2. Enhanced Penalties For Vulnerable Victims

    This section amends Section 240002 of the Violent Crime 
Control and Law Enforcement Act of 1994 to provide for 
increased sentences for violent crimes against children 14 
years of age or younger, seniors 65 years or older, and 
vulnerable persons. The increased sentences would be 
accomplished by directing the Sentencing Commission to provide 
a sentencing enhancement of not less than 5 levels above the 
offense level otherwise provided for a crime of violence 
against a child, elderly person, or other vulnerable person.
    The term ``crime of violence'' has the meaning given in 
Section 16 of Title 18 of the United States Code. Section 16 
defines a crime of violence as ``an offense that has as an 
element the use, attempted use, or threatened use of physical 
force against the person or property of another, or any other 
offense that is a felony and that, by its nature, involves a 
substantial risk that physical force against the person or 
property of another may be used in the course of committing the 
offense.''
    The term ``child'' is defined as ``a person who is 14 years 
of age, or younger.''
    The term ``elderly person'' is defined as ``a person who is 
65 years of age or older.''
    The term ``vulnerable person'' is defined as ``a person 
whom the defendant knew or should have known was unusually 
vulnerable due to age, physical or mental condition, or 
otherwise particularly susceptible to the criminal conduct.''

                              Agency Views

    The Committee received a letter from the U.S. Department of 
Justice providing Administration views on H.R. 2974, the 
``Crimes Against Children and Elderly Persons Increased 
Punishment Act'', and other bills. This letter addressed the 
pertinent issues presented in H.R. 2974 as follows:

 H.R. 2974--Crimes Against Children and Elderly Persons Punishment and 
                             Prevention Act

    H.R. 2974 would direct the Sentencing Commission to 
increase by five levels (or generally more than fifty percent) 
the sentence for certain crimes of violence committed against 
victims 65 years of age or older or 11 years of age or younger. 
The impetus for the legislation evidently stems from the fact 
that the Sentencing Commission took virtually no action in 
response to the enactment by Congress of section 240002 of the 
Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA). 
That provision had directed the Commission to ``ensure that the 
applicable guideline range for a defendant convicted of a crime 
of violence against an elderly victim is sufficiently stringent 
to deter such a crime, to protect the public from additional 
crimes of such a defendant, and to adequately reflect the 
heinous nature of such an offense.'' The Commission determined 
to make no amendment of the guidelines pursuant to this 
provision,\1\ evidently concluding that the guidelines already 
provided an adequate adjustment for crimes against elderly 
victims, through section 3A1.1 of the guidelines, dating from 
1990, which directs a court to increase the sentence by two 
levels if ``the defendant knew or should have known that a 
victim of the offense was unusually vulnerable due to age, 
physical or mental condition, or that a victim was otherwise 
particularly susceptible to the criminal conduct.''
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    \1\ The Commission amended its commentary to suggest that an upward 
departure from the guidelines might be warranted if the offense were 
the second such crime by the defendant against a vulnerable victim, but 
departures are wholly discretionary
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    Victims of crime who are particularly vulnerable due to 
advanced age or youth deserve special protection under the law. 
In light of the current guidelines covering all vulnerable 
victims, we have several suggestions to improve this proposal.
    First, we share the Commission's belief, reflected in the 
scope of section 3A1.1, that all vulnerable victims should 
receive comparable protection. A person who assaults a disabled 
thirty year old victim should not be treated more leniently 
than one who assaults a physically robust elderly victim.
    Second, the list of violent crimes as defined in H.R. 2974 
is incomplete. It covers only ten enumerated violent offenses 
for which there is federal jurisdiction based largely on their 
commission in the special maritime and territorial jurisdiction 
of the Untied States, and omits far more frequently prosecuted 
violent offenses such as bank and postal robbery (18 U.S.C. 
2113, 2114).\2\ We see no reason why the generic definition of 
``crime of violence'' in 18 U.S.C. Sec. 16 should not be 
applicable here.
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    \2\ We recognize that section 24002 of the VCCLEA, which the draft 
bill would amend, was similarly drafted.
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    Third, we believe that requiring some knowledge of the 
victim's vulnerable status, as does the current guideline, is 
preferable to requiring a penalty increase triggered solely by 
the fact of the victim's age or vulnerability.
    Finally, we believe that mandating that the Commission 
increase its guidelines by a specific level may be unnecessary. 
We would prefer that the bill mandate the Commission provide an 
appropriate further increase in section 3A1.1, but confer more 
discretion on the Commission as to the precise degree of 
penalty enhancement to be imposed.
    We look forward to the opportunity to work with the 
Subcommittee to provide greater protection to all vulnerable 
victims, including those specifically enumerated in H.R. 2974.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

SECTION 240002 OF THE VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 
                                  1994

[SEC. 240002. CRIMES AGAINST THE ELDERLY.

    [(a) In General.--Pursuant to its authority under the 
Sentencing Reform Act of 1984 and section 21 of the Sentencing 
Act of 1987 (including its authority to amend the sentencing 
guidelines and policy statements) and its authority to make 
such amendments on an emergency basis, the United States 
Sentencing Commission shall ensure that the applicable 
guideline range for a defendant convicted of a crime of 
violence against an elderly victim is sufficiently stringent to 
deter such a crime, to protect the public from additional 
crimes of such a defendant, and to adequately reflect the 
heinous nature of such an offense.
    [(b) Criteria.--In carrying out subsection (a), the United 
States Sentencing Commission shall ensure that--
          [(1) the guidelines provide for increasingly severe 
        punishment for a defendant commensurate with the degree 
        of physical harm caused to the elderly victim;
          [(2) the guidelines take appropriate account of the 
        vulnerability of the victim; and
          [(3) the guidelines provide enhanced punishment for a 
        defendant convicted of a crime of violence against an 
        elderly victim who has previously been convicted of a 
        crime of violence against an elderly victim, regardless 
        of whether the conviction occurred in Federal or State 
        court.
    [(c) Definitions.--In this section--
          [``crime of violence'' means an offense under section 
        113, 114, 1111, 1112, 1113, 1117, 2241, 2242, or 2244 
        of title 18, United States Code.
          [``elderly victim'' means a victim who is 65 years of 
        age or older at the time of an offense.]

SEC. 240002. ENHANCED PENALTIES FOR VULNERABLE VICTIMS.

    (a) In General.--The United States Sentencing Commission 
shall amend the Federal sentencing guidelines to provide a 
sentencing enhancement of not less than 5 levels above the 
offense level otherwise provided for a crime of violence, if 
the crime of violence is against a child, elderly person, or 
other vulnerable person.
    (b) Definitions.--As used in this section--
          (1) the term ``crime of violence'' has the meaning 
        given that term in section 16 of title 18, United 
        States Code;
          (2) the term ``child'' means a person who is 14 years 
        of age, or younger;
          (3) the term ``elderly person'' means a person who is 
        65 years of age or older; and
          (4) the term ``vulnerable person'' means a person 
        whom the defendant knew or should have known was 
        unusually vulnerable due to age, physical or mental 
        condition, or otherwise particularly susceptible to the 
        criminal conduct.
                            DISSENTING VIEWS

    HR 2974, the Crimes Against Children and Elderly Persons 
Punishment and Prevention Act directs the United States 
Sentencing Commission (``Sentencing Commission'') to enhance 
Sentencing Guidelines penalties for crimes committed against 
vulnerable victims, such as children, the elderly and the 
disabled. Without commenting on the underlying substance of the 
legislation, we oppose any legislation which directs the 
Sentencing Commission to amend its Guidelines to reflect the 
politics of the Congress.
    The Sentencing Commission was established in 1984, with 
strong bipartisan support, as an independent, permanent agency 
in the judicial branch of government. Among its mandates was 
the development of guidelines for federal criminal offenses 
that would bring greater certainty, honesty, and uniformity to 
federal sentencing. One objective of establishing the 
Sentencing Commission was to remove politics from these 
decisions. Maintaining the independence of the Sentencing 
Commission, therefore, is of paramount importance to the 
fulfillment of this mandate.
    Several prior pieces of legislation have already passed the 
104th Congress (over our objection) which undermined the 
independence of the Sentencing Commission and the mandate given 
to it. We cannot support any additional legislation--even 
legislation which may have substantive value--which undermines 
it further.
                                   Melvin L. Watt.
                                   Bobby Scott.