[House Report 107-306]
[From the U.S. Government Publishing Office]



107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    107-306

======================================================================



 
                    ANTI-HOAX TERRORISM ACT OF 2001

                                _______
                                

 November 29, 2001.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

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

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 3209]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 3209) to amend title 18, United States Code, with 
respect to false communications about certain criminal 
violations, and for other purposes, having considered the same, 
reports favorably thereon with an amendment and recommends that 
the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     1
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     3
Committee Consideration..........................................     3
Vote of the Committee............................................     3
Committee Oversight Findings.....................................     3
Performance Goals and Objectives.................................     4
New Budget Authority and Tax Expenditures........................     4
Congressional Budget Office Cost Estimate........................     4
Constitutional Authority Statement...............................     5
Section-by-Section Analysis and Discussion.......................     5
Changes in Existing Law Made by the Bill, as Reported............     6
Markup Transcript................................................     7
Additional Views.................................................    23

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Anti-Hoax Terrorism Act of 2001''.

SEC. 2. HOAXES AND RECOVERY COSTS.

    (a) Prohibition on Hoaxes.--Chapter 47 of title 18, United States 
Code, is amended by inserting after section 1036 the following:

``Sec. 1037. False information and hoaxes

    ``(a) Criminal Violation.--Whoever engages in any conduct, with 
intent to convey false or misleading information, under circumstances 
where such information may reasonably be believed and where such 
information concerns an activity which would constitute a violation of 
section 175, 229, 831, or 2332a, shall be fined under this title or 
imprisoned not more than 5 years, or both.
    ``(b) Civil Action.--Whoever engages in any conduct, with intent to 
convey false or misleading information, under circumstances where such 
information concerns an activity which would constitute a violation of 
section 175, 229, 831, or 2332a, is liable in a civil action to any 
party incurring expenses incident to any emergency or investigative 
response to that conduct, for those expenses.
    ``(c) Reimbursement.--The court, in imposing a sentence on a 
defendant who has been convicted of an offense under subsection (a), 
shall order the defendant to reimburse any party incurring expenses 
incident to any emergency or investigative response to that conduct, 
for those expenses. A person ordered to make reimbursement under this 
subsection shall be jointly and severally liable for such expenses with 
each other person, if any, who is ordered to make reimbursement under 
this subsection for the same expenses. An order of reimbursement under 
this subsection shall, for the purposes of enforcement, be treated as a 
civil judgment.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
chapter 47 of title 18, United States Code, is amended by adding after 
the item for section 1036 the following:

``1037. False information and hoaxes.''.

                          Purpose and Summary

    H.R. 3209, the ``Anti-Hoax Terrorism Act of 2001'' creates 
criminal and civil penalties for whoever engages in any 
conduct, with intent to convey false or misleading information, 
under circumstances where such information may reasonably be 
believed and where such information concerns an activity which 
would constitute a violation of title 18 U.S.C. Sec. 175 
(relating to biological weapons attacks), Sec. 229 (relating to 
chemical weapons attacks), Sec. 831 (nuclear attacks) or 
Sec. 2232a (weapons of mass destruction attacks). This bill 
will help protect the public and our nation's security by 
deterring and punishing those who perpetrate such hoaxes.

                Background and Need for the Legislation

    Since the September 11, 2001 attacks and the ongoing 
anthrax attacks against United States citizens on United States 
soil, the nation has been engaged in a war at home and abroad. 
At home, emergency responders, law enforcement and 
investigation officials have been working overtime to prevent 
terrorist acts and investigate suspicious events and actual 
terrorist acts. The efforts on the home front have 
understandably drained Federal, state and local resources.
    Because of these tragic attacks, the public is alarmed and 
appropriately reporting suspicious activity. Our nation is on 
high alert and our law enforcement cannot afford to be 
distracted. Sadly, while law enforcement and emergency 
responders work tirelessly to prevent, respond, and investigate 
real cases of terrorism, some have played upon the public's 
apprehension with hoaxes.
    H.R. 3209, ``the Anti-Hoax Terrorism Act of 2001,'' 
addresses this growing phenomena of hoaxes that have further 
terrorized the American public into falsely thinking biological 
attacks have occurred. A hoax of terrorism is terrorism. Such a 
hoax is designed to instill fear into the public or its target. 
While such hoaxes may not be designed to influence public 
policy or governments, they are a serious threat to the 
public's safety on many levels. First, such a hoax distracts 
law enforcement from the actual threats or actual emergencies 
and, in effect, assists terrorists. Second, these hoaxes often 
cause buildings and businesses to be evacuated and closed. If a 
hoax causes a hospital to be evacuated, for instance, people 
could die.
    The Department of Justice and the Federal Bureau of 
Investigation testified on November 7th, before the 
Subcommittee on Crime, and made it clear that these types of 
hoaxes threaten the health and safety of the American public 
and the national security of the nation.
    Under current law, it is a felony to perpetrate a hoax such 
as falsely claiming there is a bomb on an airplane. It is also 
a felony to communicate in interstate commerce threatening 
personal injury to another. A gap exist, however, in the 
current law as it does not address a hoax related to 
biological, chemical, or nuclear dangers where there is no 
specific threat.
    That gap needs to be closed. This legislation makes it a 
felony to perpetrate a hoax related to biological, chemical, 
nuclear, and weapons of mass destruction attacks.

                                Hearings

    On November 7, 2001, the Subcommittee on Crime, held one 
hearing on H.R. 3209, the ``Anti- Hoax Terrorism Act of 2001.'' 
Testimony was received from two witnesses. Invited witnesses 
included: Mr. James F. Jarboe, Section Chief, Counterterrorism 
Division, Domestic Terrorism, Federal Bureau of Investigation, 
and Mr. James Reynolds, Chief, Terrorism and Violent Crime 
Section, Criminal Division, U.S. Department of Justice.

                        Committee Consideration

    On November 14, 2001, the Subcommittee on Crime met in open 
session and ordered favorably reported the bill, H.R. 3209, as 
amended, by a voice vote, a quorum being present. On November 
15, 2001, the Committee met in open session and ordered 
favorably reported the bill H.R. 3209, with an amendment by 
voice vote, a quorum being present.

                         Vote of the Committee

    No recorded votes were held on H.R. 3209.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII 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.

                    Performance Goals and Objectives

    The bill is intended to impose civil and criminal penalties 
to deter and punish a person or persons for perpetrating a hoax 
that others could reasonable believe under the circumstance is 
or may be a biological, chemical, nuclear or weapons of mass 
destruction attack. Such hoaxes diminish Federal law 
enforcement resources and divert Federal investigators 
attention away from actual threats or cases of terrorism. This 
legislation is intended to prevent such a drain and aberration 
of Federal resources that threaten the citizens and the 
national security of the United States.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures. This bill does provide new 
budgetary authority.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 2975, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, November 21, 2001.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3209, the Anti-
Hoax Terrorism Act of 2001.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 3209--Anti-Hoax Terrorism Act of 2001.
    CBO estimates that implementing H.R. 3209 would not result 
in any significant cost to the Federal Government. Because 
enactment of H.R. 3209 could affect direct spending and 
receipts, pay-as-you-go procedures would apply to the bill. 
However, CBO estimates that any impact on direct spending and 
receipts would not be significant. H.R. 3209 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would impose no costs on 
State, local, or tribal governments.
    H.R. 3209 would establish a new Federal crime for the 
perpetration of hoaxes involving the threat of biological 
agents or other weapons of mass destruction. Offenders would be 
subject to imprisonment and criminal and civil fines.
    Under the provisions of H.R. 3209, the government would be 
able to pursue cases involving hoaxes that it otherwise would 
not be able to prosecute. Because there are similar 
prohibitions on hoaxes in current law, however, CBO expects 
that the bill's provisions would probably affect a small number 
of additional cases. Thus, any increase in costs for law 
enforcement, court proceedings, or prison operations would not 
be significant. Any such costs would be subject to the 
availability of appropriated funds.
    Because those prosecuted and convicted under H.R. 3209 
could be subject to fines, the Federal Government might collect 
additional fines if the legislation is enacted. Collections of 
civil fines are recorded in the budget as governmental receipts 
(revenues). Criminal fines are deposited as receipts in the 
Crime Victims Fund and later spent. CBO expects that any 
additional receipts and direct spending would be negligible 
because of the small number of cases involved.
    The CBO staff contact for this estimate is Mark Grabowicz, 
who can be reached at 226-2860. This estimate was approved by 
Robert A. Sunshine, Assistant Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8, of the Constitution.

               Section-by-Section Analysis and Discussion

Sec. 1. Short Title.
    This Act may be cited as the ``Anti-Hoax Terrorism Act of 
2001.''
Sec. 2. Hoaxes and Recovery Costs.
    Section 2(a) of the bill adds new section 1037 to title 18. 
This new code section provides for criminal and civil 
penalties.
    New section 1037(a) of title 18 provides that whoever 
engages in any conduct, with intent to convey false or 
misleading information, under circumstances where such 
information may reasonably be believed and where such 
information concerns an activity which would constitute a 
violation of Sec. 175 (biological attack), Sec. 229 (chemical 
attack), Sec. 831 (nuclear attack), or Sec. 2332a (weapons of 
mass destruction attack), shall be fined up to $250,000 or 
imprisoned not more than 5 years or both.
    This new provision is consistent with current provisions in 
the criminal code that treat hoaxes related to certain crimes 
as felonies. For example, 18 U.S.C. Sec. 1365(c)(1) provides 
``whoever knowingly communicates false information that a 
consumer product has been tainted . . . shall be fined under 
this title or imprisoned not more than 5 years or both.''
    Similar to existing hoax provisions, the language of 
Sec. 1037(a) includes a mens rea (intent) requirement. The 
language requires that the perpetrator have ``the intent'' to 
convey false or misleading information. The Committee believes 
that this mens rea requirement will protect innocent 
individuals who have acted inadvertently. As an additional 
protection against prosecuting innocent or inadvertent 
behavior, the legislative language requires that the 
information be reasonably believable and concern activities 
that would constitute a violation of criminal law relating to 
biological, chemical, nuclear or weapons of mass destruction.
    Some have argued that the legislative language should 
include the phrase ``malicious intent'' or similar language 
using the word malicious. The Committee rejected this 
suggestion and believes the inclusion of the term ``malicious'' 
or any derivative would render the legislation useless. The 
term ``malicious'' means that a person has the intent to harm 
another.
    By its very nature, a hoax is not intended to physically 
harm or injure a person. If the person had the intent to harm, 
they would, use real weapons, such as anthrax instead of 
powdered sugar. By using powdered sugar instead of anthrax, the 
person engaging in the hoax can argue that it was a joke and no 
harm could come to anyone. Furthermore, it is the view of the 
Committee that the issue is whether the victims reasonably 
believed they were or could be harmed, not whether the 
criminal, while intending to convey false or misleading 
information about a biological, nuclear, or chemical attack 
also intended to physically harm people. Accordingly, the 
Committee believes adding the word malicious or a derivation of 
the word would gut the bill.
    Section 1037(b) provides that whoever engages in such a 
hoax, may be liable in a civil action to any party incurring 
expenses incident to the emergency and investigative response.
    Section 1037(c) requires any person convicted of a 
violation of subsection (a) to reimburse any party for expenses 
incurred in responding to the hoax. A person ordered to 
reimburse under this section would be jointly and severally 
liable for such expenses with any other person ordered to 
reimburse under this section for the same expenses. This 
section was amended to clarify that the reimbursement is a 
civil judgement.
    Section 2(b) of the bill is a clerical amendment.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) 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 (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

CHAPTER 47 OF TITLE 18, UNITED STATES CODE

           *       *       *       *       *       *       *


                 CHAPTER 47--FRAUD AND FALSE STATEMENTS

Sec.
1001.  Statements or entries generally.
     * * * * * * *
1037.  False information and hoaxes.
     * * * * * * *

Sec. 1037. False information and hoaxes

    (a) Criminal Violation.--Whoever engages in any conduct, 
with intent to convey false or misleading information, under 
circumstances where such information may reasonably be believed 
and where such information concerns an activity which would 
constitute a violation of section 175, 229, 831, or 2332a, 
shall be fined under this title or imprisoned not more than 5 
years, or both.
    (b) Civil Action.--Whoever engages in any conduct, with 
intent to convey false or misleading information, under 
circumstances where such information concerns an activity which 
would constitute a violation of section 175, 229, 831, or 
2332a, is liable in a civil action to any party incurring 
expenses incident to any emergency or investigative response to 
that conduct, for those expenses.
    (c) Reimbursement.--The court, in imposing a sentence on a 
defendant who has been convicted of an offense under subsection 
(a), shall order the defendant to reimburse any party incurring 
expenses incident to any emergency or investigative response to 
that conduct, for those expenses. A person ordered to make 
reimbursement under this subsection shall be jointly and 
severally liable for such expenses with each other person, if 
any, who is ordered to make reimbursement under this subsection 
for the same expenses. An order of reimbursement under this 
subsection shall, for the purposes of enforcement, be treated 
as a civil judgment.

                           Markup Transcript



                            BUSINESS MEETING

                      THURSDAY, NOVEMBER 15, 2001

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:10 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. (Chairman of the Committee) presiding.
    Chairman Sensenbrenner. The Committee will be in order.
    The next item on the agenda is H.R. 3209, the Anti-Hoax 
Terrorism Act of 2001. The Chair recognizes the gentleman from 
Texas, Mr. Smith, the Chairman of the Subcommittee on Crime.
    [The bill, H.R. 3209, follows:]
      
      

  


      
      

  


      
      
      
      
      
      
      

  


    Mr. Smith. Mr. Chairman, the Subcommittee on Crime reports 
favorably the bill H.R. 3209 with a single amendment in the 
nature of a substitute and moves its favorable recommendation 
to the full House.
    Chairman Sensenbrenner. Without objection, the bill will be 
considered as read and the Subcommittee amendment in the nature 
of a substitute, which the Members have before them, will be 
considered as the original text for purposes of amendment and 
will be considered as read and open for amendment at any point.
    [The amendment follows:]
      
      

  


      
      

  


    Chairman Sensenbrenner. The Chair recognizes the gentleman 
from Texas to strike the last word.
    Mr. Smith. Thank you, Mr. Chairman. I do move to strike the 
last word.
    Mr. Chairman, H.R. 3209, the Anti-Hoax Terrorism Act of 
2001, addresses the hoaxes that have terrorized the American 
people into believing biological attacks have occurred.
    However, hoaxes related to anthrax, for example, don't 
always contain specific threats and are, therefore, not covered 
by current law.
    If someone places white powder on a computer with a note 
saying, ``This is anthrax,'' or sends harmless white powder 
through the mail, such conduct may cause panic but violates no 
Federal law.
    The Department of Justice and Federal Bureau of 
Investigation testified last week before the Subcommittee on 
Crime and made it clear that these types of hoaxes threaten 
public safety and health and the national security of our 
country.
    Such hoaxes also drain law enforcement and other resources 
away from actual emergencies and terrorist threats.
    If a hoax causes a hospital to be evacuated, people could 
die. If a hoax causes a business to close, people could lose 
their jobs. And if a hoax preoccupies law enforcement 
officials, the public could be denied protection from other 
crimes.
    This legislation creates criminal and civil penalties for 
whoever engages in conduct with the intent to convey false or 
misleading information that may reasonably be believed to 
constitute a biological, chemical, or nuclear attack.
    This bill makes it a felony to carry out such a hoax. 
Additionally, whoever engages in this crime will be subject to 
a criminal fine of up to $250,000 in civil penalties and will 
have to reimburse the victims of this crime for expenses 
incident to any emergency or investigative response.
    Mr. Chairman, America is engaged in a war on terrorism. 
Those who prey on fear should be held responsible for their 
actions.
    This bill will help protect the public and our Nation's 
security by deterring and punishing those who perpetrate such 
hoaxes. So I urge my colleagues to support this much-needed 
legislation and yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    And I am pleased to join the gentleman from Texas, the 
Chairman of the Subcommittee, in joining as an original 
cosponsor of the bill, because it addresses a real and serious 
problem.
    In this climate of heightened alert and attention, 
necessitated by the events of September 11th, local emergency 
and first response operations are constantly overstrained. In a 
recent meeting with a group of officials representing such 
operations, I was told that enormous resources are already 
being expended to investigate suspected anthrax and other bio 
and chemical scares.
    Officials in the City of Norfolk, a city of about 275,000 
residents, estimated that it had spent over $70,000 in tracking 
down scares, all of which fortunately proved to be false 
alarms.
    There are legitimate inquiries which are triaged between 
law enforcement, medical, and other appropriate personnel 
before committing investigatory resources, but with the limited 
resources available in most localities to conduct such 
investigations, even when they are based on legitimate reasons 
for concerns, the last thing we need to do is waste such 
valuable time and resources on pranks or hoaxes.
    It is my understanding that there are holes in our current 
ability at the Federal level to prosecute terroristic hoaxes. I 
don't know what the situation is on State laws, but we should 
certainly have the ability to go after such cases on the 
Federal level, and that's what the bill does.
    There is one provision in the bill which I have a concern 
with, and that is the lack of discretion on the judge in 
setting the amount of the fine. I had an amendment that 
provided for such discretion. The amendment did not pass. 
However, the Chairman and I agreed on an amendment, which will 
be offered, which makes it clear that the reimbursement orders 
will be civil judgments in nature and, therefore, the defendant 
will not be subject to jail time for nonpayment.
    Thank you, Mr. Chairman. I look forward to consideration of 
the legislation.
    Chairman Sensenbrenner. Without objection, the opening 
statements of all Members will be inserted into the record at 
this point.
    [The statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
                 in Congress From the State of Michigan
    While I am an original cosponsor of this legislation and support 
the efforts the Subcommittee Chair and Ranking Member have made to 
narrow and clarify it since then, I do believe the bill should be 
narrowed in several respects.
    It is unfortunate that some people have decided to take advantage 
of people's fears during this national crisis to perpetrate hoaxes 
regarding anthrax or other biological, chemical, or nuclear materials. 
It goes without saying that people who engage in such senseless 
behavior should be punished. While the bill before us accomplishes that 
goal, I believe it goes too far.
    The climate we now live in has encouraged people to transmit 
warnings of every potential attack they hear about, and they should not 
be criminally penalized for their fears. Similarly, teenagers who have 
not learned better and engage in simple pranks should not be targeted 
by this legislation. That is why I hope the bill can be narrowed 
further so that only those who maliciously engage in such hoaxes are 
punishable.
    Moreover, the bill requires convicted defendants to reimburse the 
government for any costs associated with investigations into the hoax. 
Cases should be decided on their individual merits; as such, I believe 
the judiciary should have the discretion to determine if and when a 
defendant should have to pay costs.
    Thank you, Mr. Chairman.

    [The statement of Ms. Jackson Lee follows:]
       Prepared Statement of the Honorable Sheila Jackson Lee, a 
           Representative in Congress From the State of Texas
    I would like to thank Chairman Sensenbrenner and Ranking Member 
Conyers for convening this markup on H.R. 3209, the ``Anti-Hoax 
Terrorism Act of 2001.''
    In light of the exponentially increasing amounts of bioterrorism 
threats that have occurred since September 11, a Federal anti-hoax 
provision is needed now more than ever. We must provide the resources 
and expertise that States and localities may not posses in order to 
respond to these hoaxes.
    H.R. 3209 would make it a Federal crime for anyone who 
intentionally imparts false information and hoaxes. The defendant shall 
be fined or imprisoned not more than five years, or both.
    Mr. Chairman, the purpose of this bill should not be to prosecute 
innocent mistakes or someone making a report concerning a suspected 
substance, but rather it would apply to deliberate and malicious hoaxes 
reported by individuals who know they are spreading false information. 
This legislation should ensure that a person who executes a hoax 
intends that the hoax result in severe consequences such as a response 
from emergency personnel.
    The purpose of most common pranks is to embarrass, humiliate, 
frighten, or exploit without malicious intent. It is not intended to 
threaten mass destruction or elicit an emergency response. For example, 
in Anne Arundel County, MD, two juveniles were arrested after they 
placed powder in an envelope and did not even mail it, but the envelope 
was found by someone else and reported, causing an unintended emergency 
response. The Chairman of the Subcommittee on Crime, Mr. Smith, has 
reiterated that juveniles would not be prosecuted as adults under this 
bill. However, a local prosecutor in Chicago recently placed an 
envelope containing sugar on a colleague's desk. He was 
administratively punished by being forced to resign from his job. The 
current language still does not protect those who carry out practical 
jokes.
    I offer an amendment today that would allow the prosecution of 
persons who execute hoaxes with the malicious intent to deceive the 
victim. By requiring the defendant to have acted ``maliciously,'' 
juvenile pranks or the innocent spreading of rumors will not be 
federalized.
    The language in my amendment would give prosecutors a means to 
distinguish between a person who is actually threatening to use anthrax 
on a victim on one hand, and a person who never intends to use it, but 
truly wants the victim or police to think they have done so. The latter 
is what we are trying to prevent.
    Mr. Chairman, this legislation should punish hoaxes intending to 
cause a grave ands serious consequence. Malicious acts deserve Federal 
felony prosecution; innocent bad judgment and juvenile bad behavior do 
not. Let us work together towards that end.
    Thank you.

    Are there any amendments?
    Ms. Jackson Lee. Mr. Chairman?
    Mr. Smith. Mr. Scott has one, I know.
    Ms. Jackson Lee. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will----
    Ms. Jackson Lee. For H.R. 3209.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 3209, offered by Ms. Jackson 
Lee of Texas. On page 1, line 12, insert ``the malicious'' 
after ``with'' and before ``intent.''
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentlewoman from Texas is 
recognized for 5 minutes.
    Ms. Jackson Lee. Mr. Chairman, we turned a new page in 
history on September 11th, and I am well-aware of many of the 
important measures that this particular Committee has to 
address. And we have done so with an effort to be bipartisan.
    This legislation is one that draws a great deal of support 
on the basis that these are serious times. And so I do not 
diminish that level of seriousness.
    But we also know that this is a country that is used to 
freedom of expression, freedom of movement, and, as well, 
freedom of engagement. I want to make sure that as we prosecute 
those who would do harm through hoaxes that we have a clear 
definition, and so my amendment seeks to add the words 
``maliciously'' and ``knowingly'' so that we can avoid the wide 
fishnet to those jokesters who have no mean intent.
    This language has been supported by the Senate. It gives 
prosecutors the means to distinguish between a person who is 
actually threatening to use anthrax or some other substance or 
some other act on a victim on one hand, and a person who never 
intends to use it but truly wants the victim or police to think 
they have done so.
    It avoids federalizing of juvenile pranks. And I know there 
was a comment made that the bill does not indicate that it will 
be trying juveniles as adults, but it does not preclude such.
    And I don't believe these hoaxes that are unintended is 
going to deserve lengthy Federal prison.
    And if I can correct an earlier statement, this language 
adds the word ``maliciously'' since ``knowingly'' is already in 
the bill.
    Malicious acts deserve Federal felony prosecution. But 
innocent bad judgment and bad jokes do not.
    I would hope that we would give this legislation the 
strength that it deserves by adding this language and, as well, 
providing the clarity that I think criminal prosecutions need. 
This does not take away from the legislation's strength, 
because those people who are intent on doing evil will be 
captured by this legislation with this amendment. And I would 
hope that this would occur.
    I do want to respond to the suggestion or the thought that 
in giving prosecutors discretion, we know that they will make 
the right judgment. And I respect prosecutors; I have served on 
a municipal court bench.
    But in the course and the rapidness of the day's work, I 
don't think we can put justice and balance on the issue of 
hope. And I think prosecutors clearly appreciate distinctive 
standards by which they can make judgments in order to move 
forward on prosecution or to the grand jury.
    That's all we're asking to do, is to realize that the 
jokesters of which we Americans have grown up with--the Will 
Rogers of the world--that we do not capture them--the late-
night pranksters on late-night shows--that we really deal with 
those who are malicious.
    And I would ask my colleagues to accept this amendment on 
the anti-hoax legislation.
    Chairman Sensenbrenner. The gentleman from Texas.
    Mr. Smith. Mr. Chairman, I oppose this amendment.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Smith. Mr. Chairman, the phrase ``malicious'' has 
common law roots. In the criminal law in the English 
dictionary, malicious means intending to harm another person. 
But in this case, adding what appears to be a simple phrase 
actually would weaken the bill. Adding the term ``malicious,'' 
in fact, would render the legislation useless.
    The term ``malicious'' means that a person has the intent 
to harm another. By its very nature, a hoax is not intended to 
harm or injure another person.
    If the person had the intent to harm, they would use real 
biological weapons, for example, such as anthrax, instead of 
powdered sugar. By using powdered sugar instead of anthrax, the 
person who engages in the hoax can argue that it was a joke and 
that they did not intend to harm anyone.
    The issue is not whether the criminal intended to 
physically harm the victims of the hoax, but whether the 
victims reasonably believed they might be harmed.
    Furthermore, Mr. Chairman, the model penal code contends 
that there are only four separate recognizable states of mind: 
purposeful, knowing, reckless, and negligent. Malicious is not 
one of those four states of mind.
    So I would urge my colleagues to oppose this amendment.
    Chairman Sensenbrenner. The question is on the adoption of 
the----
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, the adoption of the amendment 
would mean that bad jokes would not be criminalized. I think 
that's a good idea, and I would support the amendment.
    We should not indict and arrest, try, and try to send to 
jail people who have bad judgment and make bad jokes.
    I would hope we would adopt the amendment. I yield back.
    Chairman Sensenbrenner. The question is on the adoption of 
the amendment by the gentlewoman from Texas, Ms. Jackson Lee.
    Those in favor will say aye.
    Opposed, no.
    The noes appear to have it. The noes have it, and the 
amendment is not agreed to.
    Are there further amendments?
    Mr. Scott. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 3209, offered by Mr. Scott. 
Page 2, line 15, after the first period, insert ``an order of 
reimbursement under this subsection shall, for the purposes of 
enforcement, be treated as a civil judgment.''
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, the amendment is self-explanatory.
    Some of the judgment--some of the reimbursement orders that 
could be ordered could be much more than could ever reasonably 
be paid. The judgments will be joint and severable--the 
defendants will be jointly and severably liable. And if it is 
enforced as a civil judgment, you get just about everything the 
person has. You would not be able to throw them in jail, for 
example, for not going to work, as you could under a criminal 
fine.
    And I would hope that we would adopt the amendment.
    Chairman Sensenbrenner. The gentleman from Texas, Mr. 
Smith.
    Mr. Smith. Mr. Chairman, the gentleman from Virginia, Mr. 
Scott, brought this concern out, both during the hearing and 
during yesterday's markup in the Subcommittee, and I agree that 
he makes a good point. There was never any intent in this 
legislation to put someone in jail for failure to pay this 
reimbursement.
    And so I would like to urge my colleagues to support this 
amendment.
    Chairman Sensenbrenner. The question is on the amendment of 
the gentleman from Virginia, Mr. Scott.
    Those in favor will signify by saying aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the 
amendment is agreed to.
    Are there further amendments?
    Mr. Barr. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Georgia, Mr. 
Barr.
    Mr. Barr. I would like to ask unanimous consent to engage 
in a brief colloquy with the Chairman of the Subcommittee.
    Chairman Sensenbrenner. The gentleman moved to strike the 
last word, and he's recognized for 5 minutes.
    Mr. Barr. Thank you.
    As the distinguished Chairman of the Subcommittee knows, 
based on both comments during our hearing and at yesterday's 
Subcommittee markup on this, I have expressed some concerns 
similar to those expressed by a couple of other learned Members 
of this Committee to try and ensure that what we are not doing 
here is federalizing with the full weight of the Federal 
criminal law apparatus bad jokes and juvenile behavior, while 
certainly recognizing also that, particularly in the climate 
engendered by recent terrorist activities, there is a very 
legitimate concern for the people of this country and for the 
Federal Government to stop serious hoaxes and to punish those, 
particularly when they result in very serious action and 
reaction on the part of government, emergency, and police, and 
national security personnel.
    I would just like to have the distinguished Chairman of the 
Subcommittee explain in a little more detail his bill as 
proposed today, as has been redrafted, to ensure that we have 
legislative history indicating that it is not intended to reach 
simply a bad joke.
    And I would yield to the Chairman.
    Mr. Smith. I thank the gentleman for yielding.
    And I would like to reassure the gentleman from Georgia, as 
well as the gentlewoman from Texas, Ms. Jackson Lee, that it is 
certainly not the intent of this legislation to punish anyone 
who engages in a prank that lasts 5 minutes, for example.
    The intent of the legislation is, in fact, to punish 
someone who, for example, engages in a hoax that perhaps shuts 
down a hospital and causes loss of life. A prank such as the 
gentleman described would not rise to the level of leaving the 
false impression that it would violate four sections of the 
criminal code.
    So I would like to reassure the gentleman, I am happy to 
state for the record that that kind of short-term prank that 
would be over with in a couple of minutes and not create the 
harm or the injury or the danger that is anticipated with a 
real hoax would not be prosecuted.
    The intent of the legislation, again, is only to punish 
those who engage in hoaxes that create a real threat and a 
serious and reasonable belief that a biological, chemical, or 
nuclear attack has occurred.
    Mr. Barr. I thank the gentleman.
    Mr. Delahunt. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Massachusetts.
    Mr. Delahunt. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Delahunt. I'll be brief, Mr. Chairman. And I respect 
the concerns that have been articulated by my friend from 
Georgia and gentlelady from Texas.
    But I just want to make two observations, because I think 
it's important that we understand, particularly as it relates 
to juveniles, that in those cases, if juveniles are charged 
with an offense under this particular proposal, they will be 
tried in the Federal courts as juveniles. And clearly, all of 
the protections afforded juveniles will pertain to them, given 
the distinctions made between juveniles and adults in our 
criminal jurisprudence.
    There is, I suggest, no need to make any exception because 
it already exists.
    And additionally, I would daresay that any prosecutor 
hopefully would exercise appropriate prosecutorial discretion 
when it came to the appropriate charge and appropriate 
recommendation in cases involving hoaxes. Clearly, there are 
differences in degree in terms of the harm that is inflicted.
    At some point in time, we have to rely on individuals in 
our system of justice to exercise balanced and fair and 
appropriate judgment.
    I think this is a very good piece of legislation. I think 
it makes sense. It's long overdue. And I hope that it passes.
    Chairman Sensenbrenner. Are there further amendments?
    Ms. Jackson Lee. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from Texas, Ms. 
Jackson Lee.
    Ms. Jackson Lee. I would like to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Jackson Lee. I thank the Chairman very much.
    I think this discussion is a very productive discussion, 
and I do thank Mr. Barr for his comments and colloquy with Mr. 
Smith, and the effort at the clarification that this is 
legislation, of which broadly I support, that intends to 
capture those who would do evil and would do wrong in that they 
wish to have a negative impact to create terror, to frighten 
people.
    But I do want to add a note of caution and a caveat.
    For all of my good friends who are here who are former 
prosecutors, I have the greatest respect for them and certainly 
have had the experience of presiding as they have made 
presentations in a local court scenario.
    But let me be very clear that all cannot rest on our hope 
and good wishes for all prosecutors throughout the Nation.
    Now, I will look at this bill more closely and determine 
whether or not the representations that have been made are 
accurate.
    But in Houston, Texas, right now we have Vanessa Leggett, a 
young woman who has been held for more than 3 months, a 
journalist that U.S. prosecutors refuse to give even bail 
because they allege that she is interfering with a criminal 
prosecution, which is absolutely not accurate, in that she has 
cooperated and she has journalistic privileges. She is not the 
criminal; she has spoken in the context of writing a book.
    That's poor judgment. And I think you can find poor 
judgment examples across the Nation.
    Additionally, those of us who have dealt with racial 
profiling know there is a lot of poor judgment that goes on in 
the prosecutorial, in the criminal justice system. And, 
therefore, I think this Judiciary Committee, Republicans and 
Democrats alike, because there may be poor judgment on those 
who have avocations or advocate positions that I may disagree 
with, there may be those who are in the groups that I may have 
a difference of opinion, but they have a right to have access 
to a fair system.
    I think when we write legislation, we should err on the 
side of being the fairest that we possibly can be and not yet 
suggest that the good judgment of prosecutors will be the rule 
of the day. We have had good judgment, and we've had judgment 
that has not been so good.
    So I will be studying this legislation. But I frankly 
believe that the language was not language that would undermine 
the bill. I think it would help strengthen the bill. And, 
again, I think the merits of the bill are certainly warranting 
of this Committee's support.
    And I thank the Chairman for yielding.
    Chairman Sensenbrenner. Are there further amendments?
    Hearing none, the question occurs on the amendment in the 
nature of a substitute as amended.
    Those in favor will say aye.
    Opposed, no.
    The aye has it. [Laughter.]
    And the amendment in the nature of a substitute is agreed 
to.
    The Chair notes the presence of a reporting quorum. The 
question now occurs on the motion to report the bill H.R. 3209 
favorably as amended by the amendment in the nature of a 
substitute as amended.
    Those in favor will say aye.
    Opposed, no.
    The ayes have it, and the motion to report favorably is 
adopted.
    Without objection, the Chairman is authorized to move to go 
to conference pursuant to House rules. Without objection, the 
staff is directed to make any technical and conforming changes. 
And all Members will be given 2 days as provided by the rules 
in which to submit additional dissenting, supplemental, or 
minority views.
    [Intervening business.]
    The Chair thanks the Members for their indulgence and 
support. This concludes the business on the notice, and the 
Committee is adjourned.
    [Whereupon, at 11:06 a.m., the Committee was adjourned.]
                            Additional Views

    We support the effort to punish people who perpetrate 
hoaxes involving biological, chemical, or nuclear materials or 
other weapons of mass destruction; in this time of national 
crisis, it is outrageous for any individual to take advantage 
of our collective anxiety about terrorist acts.\1\ Clearly, we 
must act to provide law enforcement with the tools it needs to 
address this problem.\2\ For that reason, we support H.R. 3209, 
the ``Anti-Hoax Terrorism Act of 2001,'' which creates a 
Federal criminal penalty and a civil cause of action to convey 
intentionally any false information about a threat involving 
biological, chemical, or nuclear weapons or weapons of mass 
destruction. We are submitting these additional views, however, 
because we believe H.R. 3209 is unintentionally drafted too 
broadly and because it imposes mandatory restitution in 
criminal cases. We hope these matters can be addressed as we 
move to the floor or resolve differences with the Senate.
---------------------------------------------------------------------------
    \1\ There has been a recent rash of anthrax hoaxes, where one or 
more persons have decided to intimidate others by sending powder 
through the mail purporting to be anthrax, but later determined to be 
harmless. A large portion of recipients of such letters have been 
abortion clinics and pro-choice groups; in fact, over 280 clinics have 
been threatened since the initial outbreak. Dennis B. Roddy, Anthrax 
Threats Target 2 Abortion Providers Here, Others in East, Pittsburgh 
Post-Gazette, Nov. 9, 2001, at A11. In a recent incident, a perpetrator 
used Federal Express to send powder and a threatening note to a pro-
choice group and went so far as to forge the billing numbers and return 
addresses of the groups themselves. Id.
    \2\ While Federal authorities do have some tools available against 
such offenders, see 18 U.S.C. Sec. 876 (penalties for mailing 
threatening communications), we have heard the call of clinics and 
other targets that additional legislation is needed to fill gaps. See, 
e.g., Planned Parenthood Voices Support for Anti-Terrorism Bill, Press 
Release (Nov. 15, 2001) (``We are pleased to see Congress is 
considering stiffer penalties for people who commit such acts.'').
---------------------------------------------------------------------------
    The bill, as currently drafted, would make it a Federal 
crime to engage in ``any conduct'' (1) ``with the intent to 
convey false or misleading information under circumstances 
where such information may reasonably be believed,'' and (2) 
where the information concerns an activity which would violate 
Federal law with respect to chemical weapons, biological 
weapons, nuclear materials, or weapons of mass destruction. 
This offense would be punishable by a fine, imprisonment of up 
to five years, or both. In addition, the bill makes the 
individual who conveys such information subject to a civil 
action for emergency or investigative responses incurred as a 
result of responding to the false information. Finally, the 
bill requires the court to order a person convicted of this 
Federal crime to pay restitution. The person would be jointly 
and severally liable for restitution, and the restitution would 
be treated as a civil, rather than a criminal, fine. The 
following is a description of the concerns we would hope could 
be addressed before the bill is signed into law.

                             I. OVERBREADTH

    Whenever we create new criminal penalties, we must do so in 
a measured and reasonable manner. That is why Rep. Sheila 
Jackson Lee (D-TX) offered an amendment at the Committee's 
markup to require the government to prove that the hoax was 
perpetrated with ``malicious'' intent.\3\
---------------------------------------------------------------------------
    \3\ Requiring the government to prove the conduct was intended 
maliciously would have provided a parallel with the mens rea 
requirement of similar legislation introduced in the Senate by Sen. 
Patrick Leahy (D-VT), Chairman of the Senate Committee on the 
Judiciary. See S. 1666, the ``Anti-Terrorist Hoax and False Report Act 
of 2001,'' 107th Cong., 1st Sess. Sec. 2 (2001). Unfortunately, the 
Jackson Lee amendment was defeated by voice vote.
---------------------------------------------------------------------------
    We believe that the bill as written could go too far 
because it does not require that the offenses be committed with 
such intent. First, the legislation could result in Federal 
prosecutions of individuals who simply disseminate erroneous 
information about potential acts of terrorism. For example, a 
chain e-mail recently was circulated that purported to contain 
credible information that terrorist acts involving anthrax 
would occur in shopping malls on October 31, 2001. Such acts 
did not occur. Under a strict reading of this bill, an 
individual who forwarded that e-mail knowing it to be false, 
but could reasonably be believed, would be subject to Federal 
prosecution.
    Also subject to Federal prosecution would be incidents that 
amount to nothing more than mere jokes. It has been reported 
that there is almost a national ``epidemic'' of people who are 
sending or giving powder to friends or coworkers to give a 
temporary scare about anthrax but not intending ill will.\4\ 
Furthermore, it should come as no surprise that there are 
teenagers out there who have not learned better and engage in 
simple pranks just to scare friends.\5\ While we believe that 
this demonstrates poor taste and bad judgement, we do not 
believe it should be subject to Federal prosecution.
---------------------------------------------------------------------------
    \4\ Susan Levine, Disseminating Dread; Pranksters, Disgruntled 
Americans Perpetrate Hoaxes, Wash. Post, Oct. 26, 2001, at A1.
    \5\ Id.
---------------------------------------------------------------------------
    The Majority's response essentially has been to concede 
that this reading of the bill is correct but we should simply 
trust that Federal prosecutors will exercise their discretion 
and avoid prosecuting such cases. While it is true that most 
prosecutors will refrain from prosecuting incidences involving 
misguided pranks or bad jokes, we already are seeing that, in 
the current atmosphere, there are prosecutors who will bring 
such cases.\6\ Congress should preclude such overzealous 
prosecutions through more narrowly-tailored language in this 
bill.
---------------------------------------------------------------------------
    \6\ Id.
---------------------------------------------------------------------------
    Third, despite the gaps we acknowledge exist in current 
Federal law, there are some remedies available to law 
enforcement against serious offenses. For instance, some state 
authorities already have begun criminal investigation and 
prosecutions against persons whose hoaxes were so egregious 
that they crossed the line.\7\ In addition, numerous employers 
have fired employees who engaged in such acts.\8\ These 
examples show that the congressional response to the hoax 
epidemic does not need to address each and every scare; 
instead, it can and should be narrowly tailored to the most 
egregious cases.
---------------------------------------------------------------------------
    \7\ In one case, a firefighter in Lycoming County, Pennsylvania, 
told his colleagues that powder had spilled from an envelope he had 
opened at home; a few weeks later, he was in court facing the felony 
criminal charge of creating a disturbance. Martin Kasindorf & Toni 
Locy, Anthrax Hoaxes Persist Despite Arrests, USA Today, Nov. 6, 2001, 
at 1A. In addition, state prosecutors have filed felony disorderly 
conduct charges against a Cook County, Illinois prosecutor who put on a 
colleague's desk an envelope filled with sugar and bearing the return 
address of a defendant in that colleague's case. Richard Roeper, 
Anthrax-Joke Epidemic is Real National Illness, Chicago Sun-Times, Nov. 
5, 2001, at 11. Finally, Kentucky State Police are conducting a 
criminal investigation of Bourbon County Sheriff John Ransdell, who 
``slipped envelopes containing crushed aspirin onto courthouse 
employees' desks,'' purportedly to test employee preparedness. Laura 
Yuen, Sheriff Target of Criminal Inquiry over Aspirin He Put in 
Envelopes, Lexington Herald Leader, Nov. 1, 2001, at A1.
    \8\ Roeper, supra; Valerie Schremp, Fired Worker at GM Plant is 
Charged in Prank Involving the Anthrax Scare, St. Louis Post-Dispatch, 
Oct. 24, 2001, at A4.
---------------------------------------------------------------------------
    Unfortunately, the Majority opposed the amendment on the 
grounds that it would render the legislation meaningless. The 
rationale was that ``malicious'' means ``intending to cause 
harm'' and that perpetrators could argue it is clear they did 
not intend to cause harm because they did not send real 
anthrax. This argument is flawed, however, because the term 
``malicious'' does not mean ``intent to cause harm;'' instead, 
it has been defined as ``characterized by, or involving, 
malice; having, or done with, wicked, evil or mischievous 
intentions or motives; wrongful and done intentionally without 
just cause or excuse or as a result of ill will.'' \9\ As such, 
the amendment would have clarified that the legislation would 
apply only to persons who are conveying ill will, not simply 
those joking in bad taste.
---------------------------------------------------------------------------
    \9\ Black's Law Dictionary 958 (6th ed. 1990).
---------------------------------------------------------------------------
    Another problem with the existing intent standard is that 
it does not require the defendant to know that the information 
conveyed was false or misleading. As it is written, the bill 
could lead to the prosecution of a person who intended to 
convey information but did not intend for it to be ``false or 
misleading.'' For that reason, we hope the bill can be 
clarified to state that the person must know the information is 
false or misleading.

                       II. MANDATORY RESTITUTION

    We also are concerned that because the bill imposes 
mandatory restitution for criminal violations and, therefore, 
eliminates judicial discretion in making sentencing decisions 
and discriminates against those with lower incomes. More 
specifically, H.R. 3209 requires judges to order those 
convicted of a criminal hoax offense to reimburse any party--
likely to be the government--for any expenses incurred due to 
the hoax.\10\
---------------------------------------------------------------------------
    \10\ H.R. 3209 Sec. 2(a) (``[t]he court, in imposing a sentence on 
a defendant who has been convicted of a [criminal hoax offense], shall 
order the defendant to reimburse any party incurring expenses incident 
to any emergency or investigative response to that conduct, for those 
expenses. A person ordered to make reimbursement under this subsection 
shall be jointly and severally liable for such expenses with each other 
person, if any, who is ordered to make reimbursement under this 
subsection for the same expenses.'') (emphasis added). The provision 
was tempered by an amendment offered by Rep. Bobby Scott (D-VA) 
ensuring that reimbursement orders would be civil, not criminal, 
judgments, so that those unable to pay would not go to jail.
---------------------------------------------------------------------------
    The first problem with this provision is that, as with 
mandatory minimum penalties, it removes judges from the 
sentencing process and thereby strips their discretion. Under 
current law, whether a defendant should be required to make 
restitution generally is left to the discretion of the 
sentencing judge.\11\ In fact, leaving judges the discretion to 
make sentencing decision has been a prized characteristic of 
our judicial system and prior congressional actions to strip 
that away have been criticized.\12\ Unfortunately, this 
provision prohibits judges from making case-by-case 
determinations about whether an individual should be required 
to reimburse the government or any other party, thus subjecting 
all defendants to a one-size-fits-all punishment scheme.
---------------------------------------------------------------------------
    \11\ See, e.g., 18 U.S.C. Sec. 3663.
    \12\ See, e.g., Lucy Quinlivan, Judge Quits Case over Sentencing; 
Federal Mandate Cited in Drug Case, Saint Paul Pioneer Press, Jan. 20, 
2001, at 1B (Federal judge removes himself from case rather than 
complying with U.S. Court of Appeals order to impose harsher sentence 
in line with Federal Sentencing Guidelines); Michael R. Bromwich, Put a 
Stop to Savage Sentencing, Wash. Post., Nov. 22, 1999, at A23 (op-ed); 
Linda Greenhouse, Guidelines on Sentencing Are Flawed, Justice Says, 
N.Y. Times, Nov. 21, 1998, at A12 (Supreme Court Justice Stephen G. 
Breyer criticizing the Federal Sentencing Guidelines and ``calling for 
Federal judges to regain some of their traditional discretion to make 
the punishment fit the crime.''); Benjamin Weiser, Judge Has His Own 
Take on Sentencing Formulas, N.Y. Times, Sept. 14, 1997, at 1-39 
(Federal judge sometimes imposes lighter or harsher sentences than the 
Federal guidelines call for depending on the circumstances of each 
case).
---------------------------------------------------------------------------
    Moreover, mandatory restitution discriminates on the basis 
of economic status, in that those with lower incomes would be 
less likely to be able to comply with reimbursement orders.\13\ 
As a result, defendant with lower incomes would be more likely 
to fall irreversibly into the justice system, from the initial 
criminal conviction to a reimbursement order and then possibly 
to a contempt of court citation for not providing 
reimbursement.\14\
---------------------------------------------------------------------------
    \13\ See, e.g., Letter from Ira Glasser & Laura Murphy Lee, ACLU, 
to the Honorable Henry Hyde, Chairman, House Comm. on the Judiciary 
(Jan. 27, 1995).
    \14\ Pursuant to an amendment adopted at the Committee markup and 
offered by Reps. Bobby Scott (D-VA) and Lamar Smith (D-TX), the 
reimbursement order would be treated as a civil, not criminal, 
judgment.

                                   John Conyers, Jr.
                                   Robert C. Scott.
                                   Sheila Jackson Lee.
                                   Maxine Waters.

                                  
