House Report 109-218 - CHILDREN'S SAFETY ACT OF 2005

[House Report 109-218]
[From the U.S. Government Publishing Office]

109th Congress
1st Session HOUSE OF REPRESENTATIVES Rept. 109-218
Part 1
_______________________________________________________________________

CHILDREN'S SAFETY ACT OF 2005

__________

R E P O R T

of the

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

to accompany

H.R. 3132

together with

DISSENTING VIEWS

September 9, 2005.--Ordered to be printed

For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001

109th Congress Rept. 109-218
HOUSE OF REPRESENTATIVES
1st Session Part 1

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

CHILDREN'S SAFETY ACT OF 2005

_______

September 9, 2005.--Ordered to be printed

_______

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

R E P O R T

together with

DISSENTING VIEWS

[To accompany H.R. 3132]

The Committee on the Judiciary, to whom was referred the bill
(H.R. 3132) to make improvements to the national sex offender
registration program, 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.............................................. 20
Background and Need for the Legislation.......................... 22
Hearings......................................................... 40
Committee Consideration.......................................... 41
Vote of the Committee............................................ 41
Committee Oversight Findings..................................... 44
New Budget Authority and Tax Expenditures........................ 44
Performance Goals and Objectives................................. 44
Constitutional Authority Statement............................... 44
Section-by-Section Analysis and Discussion....................... 45
Changes in Existing Law Made by the Bill, as Reported............ 55
Committee Jurisdiction Letters................................... 95
Markup Transcript................................................ 98
Dissenting Views................................................. 249

The Amendment

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the ``Children's Safety
Act of 2005''.
(b) Table of Contents.--

Sec. 1. Short title; table of contents.

TITLE I--SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

Sec. 101. Short title.
Sec. 102. Declaration of purpose.

Subtitle A--Jacob Wetterling Sex Offender Registration and Notification
Program

Sec. 111. Relevant definitions, including Amie Zyla expansion of sex
offender definition and expanded inclusion of child predators.
Sec. 112. Registry requirements for jurisdictions.
Sec. 113. Registry requirements for sex offenders.
Sec. 114. Information required in registration.
Sec. 115. Duration of registration requirement.
Sec. 116. In person verification.
Sec. 117. Duty to notify sex offenders of registration requirements and
to register.
Sec. 118. Jessica Lunsford Address Verification Program.
Sec. 119. National Sex Offender Registry.
Sec. 120. Dru Sjodin National Sex Offender Public Website.
Sec. 121. Public access to sex offender information through the
Internet.
Sec. 122. Megan Nicole Kanka and Alexandra Nicole Zapp Community
Notification Program.
Sec. 123. Actions to be taken when sex offender fails to comply.
Sec. 124. Immunity for good faith conduct.
Sec. 125. Development and availability of registry management software.
Sec. 126. Federal duty when State programs not minimally sufficient.
Sec. 127. Period for implementation by jurisdictions.
Sec. 128. Failure to comply.
Sec. 129. Sex Offender Management Assistance (SOMA) Program.
Sec. 130. Demonstration project for use of electronic monitoring
devices.
Sec. 131. Bonus payments to States that implement electronic
monitoring.
Sec. 132. National Center for Missing and Exploited Children access to
Interstate Identification Index.
Sec. 133. Limited immunity for National Center for Missing and
Exploited Children with respect to CyberTipline.

Subtitle B--Criminal law enforcement of registration requirements

Sec. 151. Amendments to title 18, United States Code, relating to sex
offender registration.
Sec. 152. Investigation by United States Marshals of sex offender
violations of registration requirements.
Sec. 153. Sex offender apprehension grants.
Sec. 154. Use of any controlled substance to facilitate sex offense.
Sec. 155. Repeal of predecessor sex offender program.

TITLE II--DNA FINGERPRINTING

Sec. 201. Short title.
Sec. 202. Expanding use of DNA to identify and prosecute sex offenders.
Sec. 203. Stopping Violent Predators Against Children.
Sec. 204. Model code on investigating missing persons and deaths.

TITLE III--PREVENTION AND DETERRENCE OF CRIMES AGAINST CHILDREN ACT OF
2005

Sec. 301. Short title.
Sec. 302. Assured punishment for violent crimes against children.
Sec. 303. Ensuring fair and expeditious Federal collateral review of
convictions for killing a child.

TITLE IV--PROTECTION AGAINST SEXUAL EXPLOITATION OF CHILDREN ACT OF
2005

Sec. 401. Short title.
Sec. 402. Increased penalties for sexual offenses against children.

TITLE V--FOSTER CHILD PROTECTION AND CHILD SEXUAL PREDATOR DETERRENCE

Sec. 501. Short title.
Sec. 502. Requirement to complete background checks before approval of
any foster or adoptive placement and to check national crime
information databases and state child abuse registries; suspension and
subsequent elimination of opt-Out.
Sec. 503. Access to Federal crime information databases by child
welfare agencies for certain purposes.
Sec. 504. Penalties for coercion and enticement by sex offenders.
Sec. 505. Penalties for conduct relating to child prostitution.
Sec. 506. Penalties for sexual abuse.
Sec. 507. Sex offender submission to search as condition of release.
Sec. 508. Kidnapping penalties and jurisdiction.
Sec. 509. Marital communication and adverse spousal privilege.
Sec. 510. Abuse and neglect of Indian children.
Sec. 511. Civil commitment.
Sec. 512. Mandatory penalties for sex-trafficking of children.
Sec. 513. Sexual abuse of wards.

TITLE I--SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

SEC. 101. SHORT TITLE.

This title may be cited as the ``Sex Offender Registration and
Notification Act''.

SEC. 102. DECLARATION OF PURPOSE.

In response to the vicious attacks by violent sexual predators
against the victims listed below, Congress in this Act establishes a
comprehensive national system for the registration of sex offenders:
(1) Jacob Wetterling, who was 11 years old, was abducted in
1989 in Minnesota, and remains missing.
(2) Megan Nicole Kanka, who was 7 years old, was abducted,
sexually assaulted and murdered in 1994, in New Jersey.
(3) Pam Lychner, who was 31 years old, was attacked by a
career offender in Houston, Texas.
(4) Jetseta Gage, who was 10 years old, was kidnapped,
sexually assaulted, and murdered in 2005 in Cedar Rapids, Iowa.
(5) Dru Sjodin, who was 22 years old, was sexually assaulted
and murdered in 2003, in North Dakota.
(6) Jessica Lunsford, who was 9 years, was abducted, sexually
assaulted, buried alive, and murdered in 2005, in Homosassa,
Florida.
(7) Sarah Lunde, who was 13 years old, was strangled and
murdered in 2005, in Ruskin, Florida.
(8) Amie Zyla, who was 8 years old, was sexually assaulted in
1996 by a juvenile offender in Waukesha, Wisconsin, and has
become an advocate for child victims and protection of children
from juvenile sex offenders.
(9) Christy Ann Fornoff, who was 13 years old, was abducted,
sexually assaulted and murdered in 1984, in Tempe, Arizona.
(10) Alexandra Nicole Zapp, who was 30 years old, was
brutally attacked and murdered in a public restroom by a repeat
sex offender in 2002, in Bridgewater, Massachusetts.

Subtitle A--Jacob Wetterling Sex Offender Registration and Notification
Program

SEC. 111. RELEVANT DEFINITIONS, INCLUDING AMIE ZYLA EXPANSION OF SEX
OFFENDER DEFINITION AND EXPANDED INCLUSION OF CHILD
PREDATORS.

In this title the following definitions apply:
(1) Sex offender registry.--The term ``sex offender
registry'' means a registry of sex offenders, and a
notification program, maintained by a jurisdiction.
(2) Jurisdiction.--The term jurisdiction means any of the
following:
(A) A State.
(B) The District of Columbia.
(C) The Commonwealth of Puerto Rico.
(D) Guam.
(E) American Somoa.
(F) Northern Mariana Islands.
(G) The United States Virgin Islands.
(H) A federally recognized Indian tribe.
(3) Amie zyla expansion of sex offender definition.--The term
``sex offender'' means an individual who, either before or
after the enactment of this Act, was convicted of, or
adjudicated a juvenile delinquent for, an offense (other than
an offense involving sexual conduct where the victim was at
least 13 years old and the offender was not more than 4 years
older than the victim and the sexual conduct was consensual, or
an offense consisting of consensual sexual conduct with an
adult) whether Federal, State, local, tribal, foreign (other
than an offense based on conduct that would not be a crime if
the conduct took place in the United States), military,
juvenile or other, that is--
(A) a specified offense against a minor;
(B) a serious sex offense; or
(C) a misdemeanor sex offense against a minor.
(4) Expansion of definition of offense to include all child
predators.--The term ``specified offense against a minor''
means an offense against a minor that involves any of the
following:
(A) Kidnapping (unless committed by a parent).
(B) False imprisonment (unless committed by a
parent).
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution.
(F) Possession, production, or distribution of child
pornography.
(G) Criminal sexual conduct towards a minor.
(H) Any conduct that by its nature is a sexual
offense against a minor.
(I) Any other offense designated by the Attorney
General for inclusion in this definition.
(J) Any attempt or conspiracy to commit an offense
described in this paragraph.
(5) Sex offense.--The term ``sex offense'' means a criminal
offense that has an element involving sexual act or sexual
contact with another, or an attempt or conspiracy to commit
such an offense.
(6) Serious sex offense.--The term ``serious sex offense''
means--
(A) a sex offense punishable under the law of a
jurisdiction by imprisonment for more than one year;
(B) any Federal offense under chapter 109A, 110, 117,
or section 1591 of title 18, United States Code;
(C) an offense in a category specified by the
Secretary of Defense under section 115(a)(8)(C) of
title I of Public Law 105-119 (10 U.S.C. 951 note);
(D) any other offense designated by the Attorney
General for inclusion in this definition.
(7) Misdemeanor sex offense against a minor.-- The term
``misdemeanor sex offense against a minor'' means a sex offense
against a minor punishable by imprisonment for not more than
one year.
(8) Student.--The term ``student'' means an individual who
enrolls or attends an educational institution, including
(whether public or private) a secondary school, trade or
professional school, and institution of higher education.
(9) Employee.--The term ``employee'' includes an individual
who is self-employed or works for any other entity, whether
compensated or not.
(10) Resides.--The term ``resides'' means, with respect to an
individual, the location of the individual's home or other
place where the individual lives.
(11) Minor.--The term ``minor'' means an individual who has
not attained the age of 18 years.

SEC. 112. REGISTRY REQUIREMENTS FOR JURISDICTIONS.

Each jurisdiction shall maintain a jurisdiction-wide sex offender
registry conforming to the requirements of this title. The Attorney
General shall issue and interpret guidelines to implement the
requirements and purposes of this title.

SEC. 113. REGISTRY REQUIREMENTS FOR SEX OFFENDERS.

(a) In General.--A sex offender must register, and keep the
registration current, in each jurisdiction where the offender resides,
where the offender is an employee, and where the offender is a student.
(b) Initial Registration.--The sex offender shall initially
register--
(1) before completing a sentence of imprisonment with respect
to the offense giving rise to the registration requirement; or
(2) not later than 5 days after being sentenced for that
offense, if the sex offender is not sentenced to a term of
imprisonment.
(c) Keeping the Registration Current.--A sex offender must inform
each jurisdiction involved, not later than 5 days after each change of
residence, employment, or student status.
(d) Retroactive Duty to Register.--The Attorney General shall
prescribe a method for the registration of sex offenders convicted
before the enactment of this Act.
(e) State Penalty for Failure to Comply.--Each jurisdiction shall
provide a criminal penalty, that includes a maximum term of
imprisonment that is greater than one year, for the failure of a sex
offender to comply with the requirements of this title.

SEC. 114. INFORMATION REQUIRED IN REGISTRATION.

(a) Provided by the Offender.--The sex offender must provide the
following information to the appropriate official for inclusion in the
sex offender registry:
(1) The name of the sex offender (including any alias used by
the individual).
(2) The Social Security number of the sex offender.
(3) The address and location of the residence at which the
sex offender resides or will reside.
(4) The place where the sex offender is employed or will be
employed.
(5) The place where the sex offender is a student or will be
a student.
(6) The license plate number of any vehicle owned or operated
by the sex offender.
(7) A photograph of the sex offender.
(8) A set of fingerprints and palm prints of the sex
offender, if the appropriate official determines that the
jurisdiction does not already have available an accurate set.
(9) A DNA sample of the sex offender, if the appropriate
official determines that the jurisdiction does not already have
available an appropriate DNA sample.
(10) Any other information required by the Attorney General.
(b) Provided by the Jurisdiction.--The jurisdiction in which the sex
offender registers shall include the following information in the
registry for that sex offender:
(1) A statement of the facts of the offense giving rise to
the requirement to register under this title.
(2) The criminal history of the sex offender.
(3) Any other information required by the Attorney General.

SEC. 115. DURATION OF REGISTRATION REQUIREMENT.

A sex offender shall keep the registration current--
(1) for the life of the sex offender, if the offense is a
specified offense against a minor, a serious sex offense, or a
second misdemeanor sex offense against a minor; and
(2) for a period of 20 years, in any other case.

SEC. 116. IN PERSON VERIFICATION.

A sex offender shall appear in person and verify the information in
each registry in which that offender is required to be registered not
less frequently than once every six months.

SEC. 117. DUTY TO NOTIFY SEX OFFENDERS OF REGISTRATION REQUIREMENTS AND
TO REGISTER.

An appropriate official shall, shortly before release from custody of
the sex offender, or, if the sex offender is not in custody,
immediately after the sentencing of the sex offender, for the offense
giving rise to the duty to register--
(1) inform the sex offender of the duty to register and
explain that duty;
(2) require the sex offender to read and sign a form stating
that the duty to register has been explained and that the sex
offender understands the registration requirement; and
(3) ensure that the sex offender is registered.

SEC. 118. JESSICA LUNSFORD ADDRESS VERIFICATION PROGRAM.

(a) Establishment.--There is established the Jessica Lunsford Address
Verification Program (hereinafter in this section referred to as the
``Program'').
(b) Verification.--In the Program, an appropriate official shall
verify the residence of each registered sex offender not less than
monthly or, in the case of a sex offender required to register because
of a misdemeanor sex offense against a minor, not less than quarterly.
(c) Use of Mailed Form Authorized.--Such verification may be achieved
by mailing a nonforwardable verification form to the last known address
of the sex offender. The date of the mailing may be selected at random.
The sex offender must return the form, including a notarized signature,
within a set period of time. A failure to return the form as required
may be a failure to register for the purposes of this title.

SEC. 119. NATIONAL SEX OFFENDER REGISTRY.

The Attorney General shall maintain a national database at the
Federal Bureau of Investigation for each sex offender and other person
required to register in a jurisdiction's sex offender registry. The
database shall be known as the National Sex Offender Registry.

SEC. 120. DRU SJODIN NATIONAL SEX OFFENDER PUBLIC WEBSITE.

(a) Establishment.--There is established the Dru Sjodin National Sex
Offender Public Website (hereinafter referred to as the ``Website'').
(b) Information to Be Provided.--The Attorney General shall maintain
the Website as a site on the Internet which allows the public to obtain
relevant information for each sex offender by a single query in a form
established by the Attorney General.
(c) Electronic Forwarding.--The Attorney General shall ensure
(through the National Sex Offender Registry or otherwise) that updated
information about a sex offender is immediately transmitted by
electronic forwarding to all relevant jurisdictions, unless the
Attroney General determines that each jurisdiction has so modified its
sex offender registry and notification program that there is no longer
a need for the Attorney General to do.

SEC. 121. PUBLIC ACCESS TO SEX OFFENDER INFORMATION THROUGH THE
INTERNET.

Each jurisdiction shall make available on the Internet all
information about each sex offender in the registry, except for the
offender's Social Security number, the identity of any victim, and any
other information exempted from disclosure by the Attorney General. The
jurisdiction shall provide this information in a manner that is readily
accessible to the public.

SEC. 122. MEGAN NICOLE KANKA AND ALEXANDRA NICOLE ZAPP COMMUNITY
NOTIFICATION PROGRAM.

(a) Establishment of Program.--There is established the Megan Nicole
Kanka and Alexandra Nicole Zapp Community Program (hereinafter in this
section referred to as the ``Program'').
(b) Notification.--In the Program, as soon as possible, and in any
case not later than 5 days after a sex offender registers or updates a
registration, an appropriate official in the jurisdiction shall provide
the information in the registry (other than information exempted from
disclosure by the Attorney General) about that offender to the
following:
(1) The Attorney General, who shall include that information
in the National Sex Offender Registry.
(2) Appropriate law enforcement agencies (including probation
agencies, if appropriate), and each school and public housing
agency, in each area in which the individual resides, is
employed, or is a student.
(3) Each jurisdiction from or to which a change of residence,
work, or student status occurs.
(4) Any agency responsible for conducting employment-related
background checks under section 3 of the National Child
Protection Act of 1993 (42 U.S.C. 5119a).
(5) Social service entities responsible for protecting minors
in the child welfare system.
(6) Volunteer organizations in which contact with minors or
other vulnerable individuals might occur.

SEC. 123. ACTIONS TO BE TAKEN WHEN SEX OFFENDER FAILS TO COMPLY.

An appropriate official shall notify the Attorney General and
appropriate State and local law enforcement agencies of any failure by
a sex offender to comply with the requirements of a registry. The
appropriate official, the Attorney General, and each such State and
local law enforcment agency shall take any appropriate action to ensure
compliance.

SEC. 124. IMMUNITY FOR GOOD FAITH CONDUCT.

Law enforcement agencies, employees of law enforcement agencies and
independent contractors acting at the direction of such agencies, and
officials of jurisdictions and other political subdivisions shall not
be civilly or criminally liable for good faith conduct under this
title.

SEC. 125. DEVELOPMENT AND AVAILABILITY OF REGISTRY MANAGEMENT SOFTWARE.

The Attorney General shall develop and support software for use to
establish, maintain, publish, and share sex offender registries.

SEC. 126. FEDERAL DUTY WHEN STATE PROGRAMS NOT MINIMALLY SUFFICIENT.

If the Attorney General determines that a jurisdiction does not have
a minimally sufficient sex offender registration program, the
Department of Justice shall, to the extent practicable, carry out the
duties imposed on that jurisdiction by this title.

SEC. 127. PERIOD FOR IMPLEMENTATION BY JURISDICTIONS.

Each jurisdiction shall implement this title not later than 2 years
after the date of the enactment of this Act. However, the Attorney
General may authorize a one-year extension of the deadline.

SEC. 128. FAILURE TO COMPLY.

(a) In General.--For any fiscal year after the end of the period for
implementation, a jurisdiction that fails to implement this title shall
not receive 10 percent of the funds that would otherwise be allocated
for that fiscal year to the jurisdiction under each of the following
programs:
(1) Byrne.--Subpart 1 of part E of title I of the Omnibus
Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et
seq.), whether characterized as the Edward Byrne Memorial State
and Local Law Enforcement Assistance Programs, the Edward Byrne
Memorial Justice Assistance Grant Program, or otherwise.
(2) LLEBG.--The Local Government Law Enforcement Block Grants
program.
(b) Reallocation.--Amounts not allocated under a program referred to
in paragraph (1) to a jurisdiction for failure to fully implement this
title shall be reallocated under that program to jurisdictions that
have not failed to implement this title.

SEC. 129. SEX OFFENDER MANAGEMENT ASSISTANCE (SOMA) PROGRAM.

(a) In General.--The Attorney General shall establish and implement a
Sex Offender Management Assistance program (in this title referred to
as the ``SOMA program'') under which the Attorney General may award a
grant to a jurisdiction to offset the costs of implementing this title.
(b) Application.--The chief executive of a jurisdiction shall, on an
annual basis, submit to the Attorney General an application in such
form and containing such information as the Attorney General may
require.
(c) Bonus Payments for Prompt Compliance.--A jurisdiction that, as
determined by the Attorney General, has implemented this title not
later than two years after the date of the enactment of this Act is
eligible for a bonus payment. Such payment shall be made under the SOMA
program for the first fiscal year beginning after that determination.
The amount of the payment shall be--
(1) 10 percent of the total received by the jurisdiction
under the SOMA program for the preceding fiscal year, if
implementation is not later than one year after the date of
enactment of this Act; and
(2) 5 percent of such total, if not later than two years
after that date.
(d) Authorization of Appropriations.--In addition to any amounts
otherwise authorized to be appropriated, there are authorized to be
appropriated such sums as may be necessary to the Attorney General, to
be available only for the SOMA program, for fiscal years 2006 through
2008.

SEC. 130. DEMONSTRATION PROJECT FOR USE OF ELECTRONIC MONITORING
DEVICES.

(a) Project Required.--The Attorney General shall carry out a
demonstration project under which the Attorney General makes grants to
jurisdictions to demonstrate the extent to which electronic monitoring
devices can be used effectively in a sex offender management program.
(b) Use of Funds.--The jurisdiction may use grant amounts under this
section directly, or through arrangements with public or private
entities, to carry out programs under which the whereabouts of sex
offenders are monitored by electronic monitoring devices.
(c) Participants.--Not more than 10 jurisdictions may participate in
the demonstration project at any one time.
(d) Factors.--In selecting jurisdictions to participate in the
demonstration project, the Attorney General shall consider the
following factors:
(1) The total number of sex offenders in the jurisdiction.
(2) The percentage of those sex offenders who fail to comply
with registration requirements.
(3) The threat to public safety posed by those sex offenders
who fail to comply with registration requirements.
(4) Any other factor the Attorney General considers
appropriate.
(e) Duration.--The Attorney General shall carry out the demonstration
project for fiscal years 2007, 2008, and 2009.
(f) Reports.--The Attorney General shall submit to Congress an annual
report on the demonstration project. Each such report shall describe
the activities carried out by each participant, assess the
effectiveness of those activities, and contain any other information or
recommendations that the Attorney General considers appropriate.
(g) Authorization of Appropriations.--There are authorized to be
appropriated to carry out this section such sums as may be necessary.

SEC. 131. BONUS PAYMENTS TO STATES THAT IMPLEMENT ELECTRONIC
MONITORING.

(a) In General.--A State that, within 3 years after the date of the
enactment of this Act, has in effect laws and policies described in
subsection (b) shall be eligible for a bonus payment described in
subsection (c), to be paid by the Attorney General from any amounts
available to the Attorney General for such purpose.
(b) Electronic Monitoring Laws and Policies.--
(1) In general.--Laws and policies referred to in subsection
(a) are laws and policies that ensure that electronic
monitoring is required of a person if that person is released
after being convicted of a State sex offense in which an
individual who has not attained the age of 18 years is the
victim.
(2) Monitoring required.--The monitoring required under
paragraph (1) is a system that actively monitors and identifies
the person's location and timely reports or records the
person's presence near or within a crime scene or in a
prohibited area or the person's departure from specified
geographic limitations.
(3) Duration.--The electronic monitoring required by
paragraph (1) shall be required of the person--
(A) for the life of the person, if--
(i) an individual who has not attained the
age of 12 years is the victim; or
(ii) the person has a prior sex conviction
(as defined in section 3559(e) of title 18,
United States Code); and
(B) for the period during which the person is on
probation, parole, or supervised release for the
offense, in any other case.
(4) State required to monitor all sex offenders residing in
state.--In addition, laws and policies referred to in
subsection (a) also includee laws and policies that ensure that
the State frequently monitors each person residing in the State
for whom electronic monitoring is required, whether such
monitoring is required under this section or under section
3563(a)(9) of title 18, United States Code.
(c) Bonus Payments.--The bonus payment referred to in subsection (a)
is a payment equal to 10 percent of the funds that would otherwise be
allocated for that fiscal year to the jurisdiction under each of the
following programs:
(1) Byrne.--Subpart 1 of part E of title I of the Omnibus
Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et
seq.), whether characterized as the Edward Byrne Memorial State
and Local Law Enforcement Assistance Programs, the Edward Byrne
Memorial Justice Assistance Grant Program, or otherwise.
(2) LLEBG.--The Local Government Law Enforcement Block Grants
program.
(d) Definition.--In this section, the term ``State sex offense''
means any criminal offense in a range of offenses specified by State
law which is comparable to or which exceeds the range of offenses
encompassed by the following:
(1) A specified offense against a minor.
(2) A serious sex offense.

SEC. 132. NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN ACCESS TO
INTERSTATE IDENTIFICATION INDEX.

(a) In General.--Notwithstanding any other provision of law, the
Attorney General shall ensure that the National Center for Missing and
Exploited Children has access to the Interstate Identification Index,
to be used by the Center only within the scope of its duties and
responsibilities under Federal law. The access provided under this
section shall be authorized only to personnel of the Center that have
met all the requirements for access, including training, certification,
and background screening.
(b) Immunity.--Personnel of the Center shall not be civilly or
criminally liable for any use or misuse of information in the
Interstate Identification Index if in good faith.

SEC. 133. LIMITED IMMUNITY FOR NATIONAL CENTER FOR MISSING AND
EXPLOITED CHILDREN WITH RESPECT TO CYBERTIPLINE.

Section 227 of the Victims of Child Abuse Act of 1990 (42 U.S.C.
13032) is amended by adding at the end the following new subsection:
``(g) Limitation on Liability.--
``(1) In general.--Except as provided in paragraphs (2) and
(3), the National Center for Missing and Exploited Children,
including any of its directors, officers, employees, or agents,
is not liable in any civil or criminal action for damages
directly related to the performance of its CyberTipline
responsibilities and functions as defined by this section.
``(2) Intentional, reckless, or other misconduct.--Paragraph
(1) does not apply in an action in which a party proves that
the National Center for Missing and Exploited Children, or its
officer, employee, or agent as the case may be, engaged in
intentional misconduct or acted, or failed to act, with actual
malice, with reckless disregard to a substantial risk of
causing injury without legal justification, or for a purpose
unrelated to the performance of responsibilities or functions
under this section.
``(3) Ordinary business activities.--Paragraph (1) does not
apply to an act or omission related to an ordinary business
activity, such as an activity involving general administration
or operations, the use of motor vehicles, or personnel
management.''.

Subtitle B--Criminal Law Enforcement of Registration Requirements

SEC. 151. AMENDMENTS TO TITLE 18, UNITED STATES CODE, RELATING TO SEX
OFFENDER REGISTRATION.

(a) Criminal Penalties for Nonregistration.--Part I of title 18,
United States Code, is amended by inserting after chapter 109A the
following:

``CHAPTER 109B--SEX OFFENDER AND CRIMES AGAINST CHILDREN REGISTRY

``Sec.
``2250. Failure to register.

``Sec. 2250. Failure to register

``Whoever receives a notice from an official that such person is
required to register under the Sex Offender Registration and
Notification Act and--
``(1) is a sex offender as defined for the purposes of that
Act by reason of a conviction under Federal law; or
``(2) thereafter travels in interstate or foreign commerce,
or enters or leaves Indian country;
and knowingly fails to register as required shall be fined under this
title and imprisoned not less than 5 years nor more than 20 years.''.
(b) Clerical Amendment.--The table of chapters for part I of title
18, United States Code, is amended by inserting after the item relating
to chapter 109A the following new item:

``109B. Sex offender and crimes against children registry... 2250''.
(c) False Statement Offense.--Section 1001(a) of title 18, United
States Code, is amended by adding at the end the following: ``If the
matter relates to an offense under chapter 109A, 109B, 110, or 117,
then the term of imprisonment imposed under this section shall be not
less than 5 years nor more than 20 years.''
(d) Probation.--Paragraph (8) of section 3563(a) of title 18, United
States Code, is amended to read as follows:
``(8) for a person required to register under the Sex
Offender Registration and Notification Act, that the person
comply with the requirements of that Act; and''.
(e) Supervised Release.--Section 3583 of title 18, United States
Code, is amended--
(1) in subsection (d), in the sentence beginning with ``The
court shall order, as an explicit condition of supervised
release for a person described in section 4042(c)(4)'', by
striking ``described in section 4042(c)(4)'' and all that
follows through the end of the sentence and inserting
``required to register under the Sex Offender Registration and
Notification Act that the person comply with the requirements
of that Act.''
(2) in subsection (k)--
(A) by striking ``2244(a)(1), 2244(a)(2)'' and
inserting ``2243, 2244, 2245, 2250'';
(B) by inserting ``not less than 5,'' after ``any
term of years''; and
(C) by adding at the end the following: ``If a
defendant required to register under the Sex Offender
Registration and Notification Act violates the
requirements of that Act or commits any criminal
offense for which imprisonment for a term longer than
one year can be imposed, the court shall revoke the
term of supervised release and require the defendant to
serve a term of imprisonment under subsection (e)(3)
without regard to the exception contained therein. Such
term shall be not less than 5 years, and if the offense
was an offense under chapter 109A, 109B, 110, or 117,
not less than 10 years.'' .
(f) Duties of Bureau of Prisons.--Paragraph (3) of section 4042(c) of
title 18, United States Code, is amended to read as follows:
``(3) The Director of the Bureau of Prisons shall inform a person who
is released from prison and required to register under the Sex Offender
Registration and Notification Act of the requirements of that Act as
they apply to that person and the same information shall be provided to
a person sentenced to probation by the probation officer responsible
for supervision of that person.''.
(g) Conforming Amendment of Cross Reference.--Paragraph (1) of
section 4042(c) of title 18, United States Code, is amended by striking
``(4)'' and inserting ``(3)''.
(h) Conforming Repeal of Deadwood.--Paragraph (4) of section 4042(c)
of title 18, United States Code, is repealed.

SEC. 152. INVESTIGATION BY UNITED STATES MARSHALS OF SEX OFFENDER
VIOLATIONS OF REGISTRATION REQUIREMENTS.

(a) In General.--The Attorney General shall use the authority
provided in section 566(e)(1)(B) of title 28, United States Code, to
assist States and other jurisdictions in locating and apprehending sex
offenders who violate sex offender registration requirements.
(b) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary for fiscal years 2006
through 2008 to implement this section.

SEC. 153. SEX OFFENDER APPREHENSION GRANTS.

Title I of the Omnibus Crime Control and Safe Streets Act of 1968 is
amended by adding at the end the following new part:

``PART JJ--SEX OFFENDER APPREHENSION GRANTS

``SEC. 3011. AUTHORITY TO MAKE SEX OFFENDER APPREHENSION GRANTS.

``(a) In General.--From amounts made available to carry out this
part, the Attorney General may make grants to States, units of local
government, Indian tribal governments, other public and private
entities, and multi-jurisdictional or regional consortia thereof for
activities specified in subsection (b).
``(b) Covered Activities.--An activity referred to in subsection (a)
is any program, project, or other activity to assist a State in
enforcing sex offender registration requirements.

``SEC. 3012. AUTHORIZATION OF APPROPRIATIONS.

``There are authorized to be appropriated such sums as may be
necessary for fiscal years 2006 through 2008 to carry out this part.''.

SEC. 154. USE OF ANY CONTROLLED SUBSTANCE TO FACILITATE SEX OFFENSE.

(a) Increased Punishment.--Chapter 109A of title 18, United States
Code, is amended by adding at the end the following:

``Sec. 2249. Use of any controlled substance to facilitate sex offense

``(a) Whoever, knowingly uses a controlled substance to substantially
impair the ability of a person to appraise or control conduct, in order
to commit a sex offense, other than an offense where such use is an
element of the offense, shall, in addition to the punishment provided
for the sex offense, be imprisoned for any term of years not less than
10, or for life.
``(b) As used in this section, the term `sex offense' means an
offense under this chapter other than an offense under this section.''.
(b) Amendment to Table.--The table of sections at the beginning of
chapter 109A of title 18, United States Code, is amended by adding at
the end the following new item:

``2249. Use of any controlled substance to facilitate sex offense.''.

SEC. 155. REPEAL OF PREDECESSOR SEX OFFENDER PROGRAM.

Sections 170101 (42 U.S.C. 14071) and 170102 (42 U.S.C. 14072) of the
Violent Crime Control and Law Enforcement Act of 1994, and section 8 of
the Pam Lychner Sexual Offender Tracking and Identification Act of 1996
(42 U.S.C. 14073), are repealed.

TITLE II--DNA FINGERPRINTING

SEC. 201. SHORT TITLE.

This title may be cited as the ``DNA Fingerprinting Act of 2005''.

SEC. 202. EXPANDING USE OF DNA TO IDENTIFY AND PROSECUTE SEX OFFENDERS.

(a) Expansion of National DNA Index System.--Section 210304 of the
DNA Identification Act of 1994 (42 U.S.C. 14132) is amended--
(1) in subsection (a)(1)(C), by striking ``, provided'' and
all that follows through ``System''; and
(2) by striking subsections (d) and (e).
(b) DNA Sample Collection From Persons Arrested or Detained Under
Federal Authority.--
(1) In general.--Section 3 of the DNA Analysis Backlog
Elimination Act of 2000 (42 U.S.C. 14135a) is amended
(A) in subsection (a)--
(i) in paragraph (1), by striking ``The
Director'' and inserting the following:
``(A) The Attorney General may, as provided by the
Attorney General by regulation, collect DNA samples
from individuals who are arrested, detained, or
convicted under the authority of the United States. The
Attorney General may delegate this function within the
Department of Justice as provided in section 510 of
title 28, United States Code, and may also authorize
and direct any other agency of the United States that
arrests or detains individuals or supervises
individuals facing charges to carry out any function
and exercise any power of the Attorney General under
this section.
``(B) The Director''; and
(ii) in paragraphs (3) and (4), by striking
``Director of the Bureau of Prisons'' each
place it appears and inserting ``Attorney
General, the Director of the Bureau of
Prisons,''; and
(B) in subsection (b), by striking ``Director of the
Bureau of Prisons'' and inserting ``Attorney General,
the Director of the Bureau of Prisons,''.
(2) Conforming amendment.--Subsections (b) and (c)(1)(A) of
section 3142 of title 18, United States Code, are each amended
by inserting ``and subject to the condition that the person
cooperate in the collection of a DNA sample from the person if
the collection of such a sample is authorized pursuant to
section 3 of the DNA Analysis Backlog Elimination Act of 2000
(42 U.S.C. 14135a)'' after ``period of release''.
(c) Tolling of Statute of Limitations in Sexual Abuse Cases.--Section
3297 of title 18, United States Code, is amended by striking ``except
for a felony offense under chapter 109A,''.

SEC. 203. STOPPING VIOLENT PREDATORS AGAINST CHILDREN.

In carrying out Acts of Congress relating to DNA databases, the
Attorney General shall give appropriate consideration to the need for
the collection and testing of DNA to stop violent predators against
children.

SEC. 204. MODEL CODE ON INVESTIGATING MISSING PERSONS AND DEATHS.

(a) Model Code Required.--Not later than 60 days after the date of
the enactment of this Act, the Attorney General shall publish a model
code setting forth procedures to be followed by law enforcement
officers when investigating a missing person or a death. The procedures
shall include the use of DNA analysis to help locate missing persons
and to help identify human remains.
(b) Sense of Congress.--It is the sense of Congress that each State
should, not later than 1 year after the date on which the Attorney
General publishes the model code, enact laws implementing the model
code.
(c) GAO Study.--Not later than 2 years after the date on which the
Attorney General publishes the model code, the Comptroller General
shall submit to Congress a report on the extent to which States have
implemented the model code. The report shall, for each State--
(1) describe the extent to which the State has implemented
the model code; and
(2) to the extent the State has not implemented the model
code, describe the reasons why the State has not done so.

TITLE III--PREVENTION AND DETERRENCE OF CRIMES AGAINST CHILDREN ACT OF
2005

SEC. 301. SHORT TITLE.

This title may be cited as the ``Prevention and Deterrence of Crimes
Against Children Act of 2005''.

SEC. 302. ASSURED PUNISHMENT FOR VIOLENT CRIMES AGAINST CHILDREN.

(a) Special Sentencing Rule.--Subsection (d) of section 3559 of title
18, United States Code, is amended to read as follows:
``(d) Mandatory Minimum Terms of Imprisonment for Violent Crimes
Against Children.--A person who is convicted of a felony crime of
violence against the person of an individual who has not attained the
age of 18 years shall, unless a greater mandatory minimum sentence of
imprisonment is otherwise provided by law and regardless of any maximum
term of imprisonment otherwise provided for the offense--
``(1) if the crime of violence results in the death of a
person who has not attained the age of 18 years, be sentenced
to death or life in prison;
``(2) if the crime of violence is kidnapping, aggravated
sexual abuse, sexual abuse, or maiming, or results in serious
bodily injury (as defined in section 2119(2)) be imprisoned for
life or any term of years not less than 30;
``(3) if the crime of violence results in bodily injury (as
defined in section 1365) or is an offense under paragraphs (1),
(2), or (5) of section 2244(a), be imprisoned for life or for
any term of years not less than 20;
``(4) if a dangerous weapon was used during and in relation
to the crime of violence, be imprisoned for life or for any
term of years not less than 15; and
``(5) in any other case, be imprisoned for life or for any
term of years not less than 10.''.

SEC. 303. ENSURING FAIR AND EXPEDITIOUS FEDERAL COLLATERAL REVIEW OF
CONVICTIONS FOR KILLING A CHILD.

(a) Limits on Cases.--Section 2254 of title 28, United States Code,
is amended by adding at the end the following:
``(j)(1) A court, justice, or judge shall not have jurisdiction to
consider any claim relating to the judgment or sentence in an
application described under paragraph (2), unless the applicant shows
that the claim qualifies for consideration on the grounds described in
subsection (e)(2). Any such application that is presented to a court,
justice, or judge other than a district court shall be transferred to
the appropriate district court for consideration or dismissal in
conformity with this subsection, except that a court of appeals panel
must authorize any second or successive application in conformity with
section 2244 before any consideration by the district court.
``(2) This subsection applies to an application for a writ of habeas
corpus on behalf of a person in custody pursuant to the judgment of a
State court for a crime that involved the killing of a individual who
has not attained the age of 18 years.
``(3) For an application described in paragraph (2), the following
requirements shall apply in the district court:
``(A) Any motion by either party for an evidentiary hearing
shall be filed and served not later than 90 days after the
State files its answer or, if no timely answer is filed, the
date on which such answer is due.
``(B) Any motion for an evidentiary hearing shall be granted
or denied not later than 30 days after the date on which the
party opposing such motion files a pleading in opposition to
such motion or, if no timely pleading in opposition is filed,
the date on which such pleading in opposition is due.
``(C) Any evidentiary hearing shall be--
``(i) convened not less than 60 days after the order
granting such hearing; and
``(ii) completed not more than 150 days after the
order granting such hearing.
``(D) A district court shall enter a final order, granting or
denying the application for a writ of habeas corpus, not later
than 15 months after the date on which the State files its
answer or, if no timely answer is filed, the date on which such
answer is due, or not later than 60 days after the case is
submitted for decision, whichever is earlier.
``(E) If the district court fails to comply with the
requirements of this paragraph, the State may petition the
court of appeals for a writ of mandamus to enforce the
requirements. The court of appeals shall grant or deny the
petition for a writ of mandamus not later than 30 days after
such petition is filed with the court.
``(4) For an application described in paragraph (2), the following
requirements shall apply in the court of appeals:
``(A) A timely filed notice of appeal from an order issuing a
writ of habeas corpus shall operate as a stay of that order
pending final disposition of the appeal.
``(B) The court of appeals shall decide the appeal from an
order granting or denying a writ of habeas corpus--
``(i) not later than 120 days after the date on which
the brief of the appellee is filed or, if no timely
brief is filed, the date on which such brief is due; or
``(ii) if a cross-appeal is filed, not later than 120
days after the date on which the appellant files a
brief in response to the issues presented by the cross-
appeal or, if no timely brief is filed, the date on
which such brief is due.
``(C)(i) Following a decision by a panel of the court of
appeals under subparagraph (B), a petition for panel rehearing
is not allowed, but rehearing by the court of appeals en banc
may be requested. The court of appeals shall decide whether to
grant a petition for rehearing en banc not later than 30 days
after the date on which the petition is filed, unless a
response is required, in which case the court shall decide
whether to grant the petition not later than 30 days after the
date on which the response is filed or, if no timely response
is filed, the date on which the response is due.
``(ii) If rehearing en banc is granted, the court of appeals
shall make a final determination of the appeal not later than
120 days after the date on which the order granting rehearing
en banc is entered.
``(D) If the court of appeals fails to comply with the
requirements of this paragraph, the State may petition the
Supreme Court or a justice thereof for a writ of mandamus to
enforce the requirements.
``(5)(A) The time limitations under paragraphs (3) and (4) shall
apply to an initial application described in paragraph (2), any second
or successive application described in paragraph (2), and any
redetermination of an application described in paragraph (2) or related
appeal following a remand by the court of appeals or the Supreme Court
for further proceedings.
``(B) In proceedings following remand in the district court, time
limits running from the time the State files its answer under paragraph
(3) shall run from the date the remand is ordered if further briefing
is not required in the district court. If there is further briefing
following remand in the district court, such time limits shall run from
the date on which a responsive brief is filed or, if no timely
responsive brief is filed, the date on which such brief is due.
``(C) In proceedings following remand in the court of appeals, the
time limit specified in paragraph (4)(B) shall run from the date the
remand is ordered if further briefing is not required in the court of
appeals. If there is further briefing in the court of appeals, the time
limit specified in paragraph (4)(B) shall run from the date on which a
responsive brief is filed or, if no timely responsive brief is filed,
from the date on which such brief is due.
``(6) The failure of a court to meet or comply with a time limitation
under this subsection shall not be a ground for granting relief from a
judgment of conviction or sentence, nor shall the time limitations
under this subsection be construed to entitle a capital applicant to a
stay of execution, to which the applicant would otherwise not be
entitled, for the purpose of litigating any application or appeal.''.
(b) Victims' Rights in Habeas Cases.--Section 3771(b) of title 18,
United States Code, is amended by adding at the end the following:
``The rights established for crime victims by this section shall also
be extended in a Federal habeas corpus proceeding arising out of a
State conviction to victims of the State offense at issue.''.
(c) Application to Pending Cases.--
(1) In general.--The amendment made by this section apply to
cases pending on the date of the enactment of this Act as well
as to cases commenced on and after that date.
(2) Special rule for time limits.--In a case pending on the
date of the enactment of this Act, if the amendment made by
subsection (a) provides that a time limit runs from an event or
time that has occurred before that date, the time limit shall
instead run from that date.

TITLE IV--PROTECTION AGAINST SEXUAL EXPLOITATION OF CHILDREN ACT OF
2005

SEC. 401. SHORT TITLE.

This title may be cited as the ``Protection Against Sexual
Exploitation of Children Act of 2005''.

SEC. 402. INCREASED PENALTIES FOR SEXUAL OFFENSES AGAINST CHILDREN.

(a) Sexual Abuse and Contact.--
(1) Aggravated sexual abuse of children.--Section 2241(c) of
title 18, United States Code, is amended by striking ``,
imprisoned for any term of years or life, or both.'' and
inserting ``and imprisoned for not less than 30 years or for
life.''.
(2) Abusive sexual contact with children.--Section 2244 of
chapter 109A of title 18, United States Code, is amended--
(A) in subsection (a)--
(i) in paragraph (1), by inserting
``subsection (a) or (b) of'' before ``section
2241'';
(ii) by striking ``or'' at the end of
paragraph (3);
(iii) by striking the period at the end of
paragraph (4) and inserting ``; or''; and
(iv) by inserting after paragraph (4) the
following:
``(5) subsection (c) of section 2241 of this title had the
sexual contact been a sexual act, shall be fined under this
title and imprisoned for not less than 10 years and not more
than 25 years.''; and
(B) in subsection (c), by inserting ``(other than
subsection (a)(5))'' after ``violates this section''.
(3) Sexual abuse of children resulting in death.--Section
2245 of title 18, United States Code, is amended--
(A) by inserting ``, chapter 110, chapter 117, or
section 1591'' after ``this chapter'';
(B) by striking ``A person'' and inserting ``(a) In
General.--A person''; and
(C) by adding at the end the following:
``(b) Offenses Involving Young Children.--A person who, in the course
of an offense under this chapter, chapter 110, chapter 117, or section
1591 engages in conduct that results in the death of a person who has
not attained the age of 12 years, shall be punished by death or
imprisoned for not less than 30 years or for life.''.
(4) Death penalty aggravating factor.--Section 3592(c)(1) of
title 18, United States Code, is amended by inserting ``section
2245 (sexual abuse resulting in death),'' after ``(wrecking
trains),''.
(b) Sexual Exploitation and Other Abuse of Children.--
(1) Sexual exploitation of children.--Section 2251(e) of
title 18, United States Code, is amended--
(A) by striking ``15 years nor more than 30 years''
and inserting ``25 years or for life'';
(B) by inserting ``section 1591,'' after ``this
chapter,'' the first place it appears;
(C) by striking ``the sexual exploitation of
children'' the first place it appears and inserting
``aggravated sexual abuse, sexual abuse, abusive sexual
contact involving a minor or ward, or sex trafficking
of children, or the production, possession, receipt,
mailing, sale, distribution, shipment, or
transportation of child pornography'';
(D) by striking ``not less than 25 years nor more
than 50 years, but if such person has 2 or more prior
convictions under this chapter, chapter 71, chapter
109A, or chapter 117, or under section 920 of title 10
(article 120 of the Uniform Code of Military Justice),
or under the laws of any State relating to the sexual
exploitation of children, such person shall be fined
under this title and imprisoned not less than 35 years
nor more than life.'' and inserting ``life.''; and
(E) by striking ``any term of years or for life'' and
inserting ``not less than 30 years or for life''.
(2) Activities relating to material involving the sexual
exploitation of children.--Section 2252(b) of title 18, United
States Code, is amended--
(A) in paragraph (1)--
(i) by striking ``paragraphs (1)'' and
inserting ``paragraph (1)'';
(ii) by inserting ``section 1591,'' after
``this chapter,'';
(iii) by inserting ``, or sex trafficking of
children'' after ``pornography'';
(iv) by striking ``5 years and not more than
20 years'' and inserting ``25 years or for
life''; and
(v) by striking ``not less than 15 years nor
more than 40 years.'' and inserting ``life.'';
and
(B) in paragraph (2)--
(i) by striking ``or imprisoned not more than
10 years'' and inserting ``and imprisoned for
not less than 10 nor more than 30 years'';
(ii) by striking ``, or both''; and
(iii) by striking ``10 years nor more than 20
years.'' and inserting ``30 years or for
life.''.
(3) Activities relating to material constituting or
containing child pornography.--Section 2252A(b) of title 18,
United States Code, is amended--
(A) in paragraph (1)--
(i) by inserting ``section 1591,'' after
``this chapter,'';
(ii) by inserting ``, or sex trafficking of
children'' after ``pornography'';
(iii) by striking ``5 years and not more than
20 years'' and inserting ``25 years or for
life''; and
(iv) by striking ``not less than 15 years nor
more than 40 years'' and inserting ``life'';
and
(B) in paragraph (2)--
(i) by striking ``or imprisoned not more than
10 years, or both'' and inserting ``and
imprisoned for not less than 10 nor more than
30 years''; and
(ii) by striking ``10 years nor more than 20
years'' and inserting ``30 years or for life''.
(4) Using misleading domain names to direct children to
harmful material on the internet.--Section 2252B(b) of title
18, United States Code, is amended by striking ``or imprisoned
not more than 4 years, or both'' and inserting `` and
imprisoned not less than 10 nor more than 30 years''.
(5) Production of sexually explicit depictions of children.--
Section 2260(c) of title 18, United States Code, is amended by
striking paragraphs (1) and (2) and inserting the following:
``(1) shall be fined under this title and imprisoned for any
term or years not less than 25 or for life; and
``(2) if the person has a prior conviction under this
chapter, section 1591, chapter 71, chapter 109A, or chapter
117, or under section 920 of title 10 (article 120 of the
Uniform Code of Military Justice), shall be fined under this
title and imprisoned for life.''.
(c) Mandatory Life Imprisonment for Certain Repeated Sex Offenses
Against Children.--Section 3559(e)(2)(A) of title 18, United States
Code, is amended--
(1) by striking ``or 2423(a)'' and inserting ``2423(a)''; and
(2) by inserting ``, 2423(b) (relating to travel with intent
to engage in illicit sexual conduct), 2423(c) (relating to
illicit sexual conduct in foreign places), or 2425 (relating to
use of interstate facilities to transmit information about a
minor)'' after ``minors)''.

TITLE V--FOSTER CHILD PROTECTION AND CHILD SEXUAL PREDATOR DETERRENCE

SEC. 501. SHORT TITLE.

This title may be cited as the ``Foster Child Protection and Child
Sexual Predator Sentencing Act of 2005''.

SEC. 502. REQUIREMENT TO COMPLETE BACKGROUND CHECKS BEFORE APPROVAL OF
ANY FOSTER OR ADOPTIVE PLACEMENT AND TO CHECK
NATIONAL CRIME INFORMATION DATABASES AND STATE
CHILD ABUSE REGISTRIES; SUSPENSION AND SUBSEQUENT
ELIMINATION OF OPT-OUT.

(a) Requirement to Complete Background Checks Before Approval of Any
Foster or Adoptive Placement and to Check National Crime Information
Databases and State Child Abuse Registries; Suspension of Opt-out.--
(1) Requirement to check national crime information databases
and state child abuse registries.--Section 471(a)(20) of the
Social Security Act (42 U.S.C. 671(a)(20)) is amended--
(A) in subparagraph (A)--
(i) in the matter preceding clause (i)--
(I) by inserting ``, including checks
of national crime information databases
(as defined in section 534(e)(3)(A) of
title 28, United States Code),'' after
``criminal records checks''; and
(II) by striking ``on whose behalf
foster care maintenance payments or
adoption assistance payments are to be
made'' and inserting ``regardless of
whether foster care maintenance
payments or adoption assistance
payments are to be made on behalf of
the child''; and
(ii) in each of clauses (i) and (ii), by
inserting ``involving a child on whose behalf
such payments are to be so made'' after ``in
any case''; and
(B) by adding at the end the following:
``(C) provides that the State shall--
``(i) check any child abuse and neglect registry
maintained by the State for information on any
prospective foster or adoptive parent and on any other
adult living in the home of such a prospective parent,
and request any other State in which any such
prospective parent or other adult has resided in the
preceding 5 years, to enable the State to check any
child abuse and neglect registry maintained by such
other State for such information, before the
prospective foster or adoptive parent may be finally
approved for placement of a child, regardless of
whether foster care maintenance payments or adoption
assistance payments are to be made on behalf of the
child under the State plan under this part;
``(ii) comply with any request described in clause
(i) that is received from another State; and
``(iii) have in place safeguards to prevent the
unauthorized disclosure of information in any child
abuse and neglect registry maintained by the State, and
to prevent any such information obtained pursuant to
this subparagraph from being used for a purpose other
than the conducting of background checks in foster or
adoptive placement cases;''.
(2) Suspension of opt-out.--Section 471(a)(20)(B) of such Act
(42 U.S.C. 671(a)(20)(B)) is amended--
(A) by inserting ``, on or before September 30,
2005,'' after ``plan if''; and
(B) by inserting ``, on or before such date,'' after
``or if''.
(b) Elimination of Opt-Out.--Section 471(a)(20) of such Act (42
U.S.C. 671(a)(20)), as amended by subsection (a) of this section, is
amended--
(1) in subparagraph (A), in the matter preceding clause (i),
by striking ``unless an election provided for in subparagraph
(B) is made with respect to the State,''; and
(2) by striking subparagraph (B) and redesignating
subparagraph (C) as subparagraph (B).
(c) Effective Date.--
(1) In general.--The amendments made by subsection (a) shall
take effect on October 1, 2005, and shall apply with respect to
payments under part E of title IV of the Social Security Act
for calendar quarters beginning on or after such date, without
regard to whether regulations to implement the amendments are
promulgated by such date.
(2) Elimination of opt-out.--The amendments made by
subsection (b) shall take effect on October 1, 2007, and shall
apply with respect to payments under part E of title IV of the
Social Security Act for calendar quarters beginning on or after
such date, without regard to whether regulations to implement
the amendments are promulgated by such date.
(3) Delay permitted if state legislation required.--If the
Secretary of Health and Human Services determines that State
legislation (other than legislation appropriating funds) is
required in order for a State plan under section 471 of the
Social Security Act to meet the additional requirements imposed
by the amendments made by a subsection of this section, the
plan shall not be regarded as failing to meet any of the
additional requirements before the first day of the first
calendar quarter beginning after the first regular session of
the State legislature that begins after the otherwise
applicable effective date of the amendments. If the State has a
2-year legislative session, each year of the session is deemed
to be a separate regular session of the State legislature.

SEC. 503. ACCESS TO FEDERAL CRIME INFORMATION DATABASES BY CHILD
WELFARE AGENCIES FOR CERTAIN PURPOSES.

(a) In General.--The Attorney General shall, upon request of the
chief executive of a State, ensure that appropriate officers of child
welfare agencies have the authority for ``read only'' online access to
the databases of the national crime information databases (as defined
in section 534 of title 28, United States Code) to carry out criminal
history records checks, subject to subsection (b).
(b) Limitation.--An officer may use the authority under subsection
(a) only in furtherance of the purposes of the agency and only on an
individual relevant to casework of the agency.
(c) Protection of Information.--An individual having information
derived as a result of a check under subsection (a) may release that
information only to appropriate officers of child welfare agencies or
another person authorized by law to receive that information.
(d) Criminal Penalties.--An individual who knowingly exceeds the
authority in subsection (a), or knowingly releases information in
violation of subsection (c), shall be imprisoned not more than 10 years
or fined under title 18, United States Code, or both.
(e) Child Welfare Agency Defined.--In this section, the term ``child
welfare agency'' means--
(1) the State or local agency responsible for administering
the plan under part B or part E of title IV of the Social
Security Act; and
(2) any other public agency, or any other private agency
under contract with the State or local agency responsible for
administering the plan under part B or part E of title IV of
the Social Security Act, that is responsible for the placement
of foster or adoptive children.

SEC. 504. PENALTIES FOR COERCION AND ENTICEMENT BY SEX OFFENDERS.

Section 2422(a) of title 18, United States Code, is amended by
striking ``or imprisoned not more than 20 years, or both'' and
inserting ``and imprisoned not less than 10 years nor more than 30
years''.

SEC. 505. PENALTIES FOR CONDUCT RELATING TO CHILD PROSTITUTION.

Section 2423 of title 18, United States Code, is amended--
(1) in subsection (a), by striking ``5 years and not more
than 30 years'' and inserting ``30 years or for life'';
(2) in subsection (b), by striking ``or imprisoned not more
than 30 years, or both'' and inserting ``and imprisoned for not
less than 10 years and not more than 30 years'';
(3) in subsection (c), by striking ``or imprisoned not more
than 30 years, or both'' and inserting ``and imprisoned for not
less than 10 years and not more than 30 years''; and
(4) in subsection (d), by striking ``imprisoned not more than
30 years, or both'' and inserting ``and imprisoned for not less
than 10 nor more than 30 years''.

SEC. 506. PENALTIES FOR SEXUAL ABUSE.

(a) Aggravated Sexual Abuse.--Section 2241 of title 18, United States
Code, is amended--
(1) in subsection (a), by striking ``, imprisoned for any
term of years or life, or both'' and inserting ``and imprisoned
for any term of years not less than 30 or for life''; and
(2) in subsection (b), by striking ``, imprisoned for any
term of years or life, or both'' and inserting ``and imprisoned
for any term of years not less than 25 or for life''.
(b) Sexual Abuse.--Section 2242 of title 18, United States Code, is
amended by striking ``, imprisoned not more than 20 years, or both''
and inserting ``and imprisoned not less than 15 years nor more than 40
years''.
(c) Abusive Sexual Contact.--Section 2244(a) of title 18, United
States Code, is amended--
(1) in paragraph (2), by striking ``, imprisoned not more
than three years, or both'' and inserting ``and imprisoned not
less than 5 years nor more than 30 years'';
(2) in paragraph (3), by striking ``, imprisoned not more
than two years, or both'' and inserting ``and imprisoned not
less than 4 years nor more than 20 years''; and
(3) in paragraph (4), by striking ``, imprisoned not more
than six months, or both'' and inserting ``and imprisoned not
less than 2 years nor more than 10 years''.

SEC. 507. SEX OFFENDER SUBMISSION TO SEARCH AS CONDITION OF RELEASE.

(a) Conditions of Probation.--Section 3563(a) of title 18, United
States Code, is amended----
(1) in paragraph (9), by striking the period and inserting
``; and''; and
(2) by inserting after paragraph (9) the following:
``(10) for a person who is a felon or required to register
under the Sex Offender Registration and Notification Act, that
the person submit his person, and any property, house,
residence, vehicle, papers, computer, other electronic
communication or data storage devices or media, and effects to
search at any time, with or without a warrant, by any law
enforcement or probation officer with reasonable suspicion
concerning a violation of a condition of probation or unlawful
conduct by the person, and by any probation officer in the
lawful discharge of the officer's supervision functions.''.
(b) Supervised Release.--Section 3583(d) of title 18, United States
Code, is amended by adding at the end the following: ``The court may
order, as an explicit condition of supervised release for a person who
is a felon or required to register under the Sex Offender Registration
and Notification Act, that the person submit his person, and any
property, house, residence, vehicle, papers, computer, other electronic
communications or data storage devices or media, and effects to search
at any time, with or without a warrant, by any law enforcement or
probation officer with reasonable suspicion concerning a violation of a
condition of supervised release or unlawful conduct by the person, and
by any probation officer in the lawful discharge of the officer's
supervision functions.''

SEC. 508. KIDNAPPING PENALTIES AND JURISDICTION.

Section 1201 of title 18, United States Code, is amended--
(1) in subsection (a)(1), by striking ``if the person was
alive when the transportation began'' and inserting ``, or the
offender travels in interstate or foreign commerce or uses the
mail or any means, facility, or instrumentality of interstate
or foreign commerce in committing or in furtherance of the
commission of the offense''; and
(2) in subsection (b), by striking ``to interstate'' and
inserting ``in interstate''.

SEC. 509. MARITAL COMMUNICATION AND ADVERSE SPOUSAL PRIVILEGE.

(a) In General.--Chapter 119 of title 28, United States Code, is
amended by inserting after section 1826 the following:

``Sec. 1826A. Marital communications and adverse spousal privilege

``The confidential marital communication privilege and the adverse
spousal privilege shall be inapplicable in any Federal proceeding in
which a spouse is charged with a crime against--
``(1) a child of either spouse; or
``(2) a child under the custody or control of either
spouse.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 119 of title 28, United States Code, is amended by inserting
after the item relating to section 1826 the following:

``1826A. Marital communications and adverse spousal privilege.''.

SEC. 510. ABUSE AND NEGLECT OF INDIAN CHILDREN.

Section 1153(a) of title 18, United States Code, is amended by
inserting ``felony child abuse or neglect,'' after ``years,''.

SEC. 511. CIVIL COMMITMENT.

Chapter 313 of title 18, United States Code, is amended--
(1) in the chapter analysis--
(A) in the item relating to section 4241, by
inserting ``or to undergo postrelease proceedings''
after ``trial''; and
(B) by inserting at the end the following:

``4248. Civil commitment of a sexually dangerous person.'';
(2) in section 4241--
(A) in the heading, by inserting ``^or to
undergo postrelease proceedings''
after ``^trial'';
(B) in the first sentence of subsection (a), by
inserting ``or at any time after the commencement of
probation or supervised release and prior to the
completion of the sentence,'' after ``defendant,'';
(C) in subsection (d)--
(i) by striking ``trial to proceed'' each
place it appears and inserting ``proceedings to
go forward''; and
(ii) by striking ``section 4246'' and
inserting ``sections 4246 and 4248''; and
(D) in subsection (e)--
(i) by inserting ``or other proceedings''
after ``trial''; and
(ii) by striking ``chapter 207'' and
inserting ``chapters 207 and 227'';
(3) in section 4247--
(A) by striking ``, or 4246'' each place it appears
and inserting ``, 4246, or 4248'';
(B) in subsections (g) and (i), by striking ``4243 or
4246'' each place it appears and inserting ``4243,
4246, or 4248'';
(C) in subsection (a)--
(i) by amending subparagraph (1)(C) to read
as follows:
``(C) drug, alcohol, and sex offender treatment
programs, and other treatment programs that will assist
the individual in overcoming a psychological or
physical dependence or any condition that makes the
individual dangerous to others; and'';
(ii) in paragraph (2), by striking ``and'' at
the end;
(iii) in paragraph (3), by striking the
period at the end and inserting a semicolon;
and
(iv) by inserting at the end the following:
``(4) `bodily injury' includes sexual abuse;
``(5) `sexually dangerous person' means a person who has
engaged or attempted to engage in sexually violent conduct or
child molestation and who is sexually dangerous to others; and
``(6) `sexually dangerous to others' means that a person
suffers from a serious mental illness, abnormality, or disorder
as a result of which he would have serious difficulty in
refraining from sexually violent conduct or child molestation
if released.'';
(D) in subsection (b), by striking ``4245 or 4246''
and inserting ``4245, 4246, or 4248''; and
(E) in subsection (c)(4)--
(i) by redesignating subparagraphs (D) and
(E) as subparagraphs (E) and (F) respectively;
and
(ii) by inserting after subparagraph (C) the
following:
``(D) if the examination is ordered under section
4248, whether the person is a sexually dangerous
person;''; and
(4) by inserting at the end the following:

``Sec. 4248. Civil commitment of a sexually dangerous person

``(a) Institution of Proceedings.--In relation to a person who is in
the custody of the Bureau of Prisons, or who has been committed to the
custody of the Attorney General pursuant to section 4241(d), or against
whom all criminal charges have been dismissed solely for reasons
relating to the mental condition of the person, the Attorney General or
any individual authorized by the Attorney General or the Director of
the Bureau of Prisons may certify that the person is a sexually
dangerous person, and transmit the certificate to the clerk of the
court for the district in which the person is confined. The clerk shall
send a copy of the certificate to the person, and to the attorney for
the Government, and, if the person was committed pursuant to section
4241(d), to the clerk of the court that ordered the commitment. The
court shall order a hearing to determine whether the person is a
sexually dangerous person. A certificate filed under this subsection
shall stay the release of the person pending completion of procedures
contained in this section.
``(b) Psychiatric or Psychological Examination and Report.--Prior to
the date of the hearing, the court may order that a psychiatric or
psychological examination of the defendant be conducted, and that a
psychiatric or psychological report be filed with the court, pursuant
to the provisions of section 4247(b) and (c).
``(c) Hearing.--The hearing shall be conducted pursuant to the
provisions of section 4247(d).
``(d) Determination and Disposition.--If, after the hearing, the
court finds by clear and convincing evidence that the person is a
sexually dangerous person, the court shall commit the person to the
custody of the Attorney General. The Attorney General shall release the
person to the appropriate official of the State in which the person is
domiciled or was tried if such State will assume responsibility for his
custody, care, and treatment. The Attorney General shall make all
reasonable efforts to cause such a State to assume such responsibility.
If, notwithstanding such efforts, neither such State will assume such
responsibility, the Attorney General shall place the person for
treatment in a suitable facility, until--
``(1) such a State will assume such responsibility; or
``(2) the person's condition is such that he is no longer
sexually dangerous to others, or will not be sexually dangerous
to others if released under a prescribed regimen of medical,
psychiatric, or psychological care or treatment;
whichever is earlier. The Attorney General shall make all reasonable
efforts to have a State to assume such responsibility for the person's
custody, care, and treatment.
``(e) Discharge.--When the Director of the facility in which a person
is placed pursuant to subsection (d) determines that the person's
condition is such that he is no longer sexually dangerous to others, or
will not be sexually dangerous to others if released under a prescribed
regimen of medical, psychiatric, or psychological care or treatment, he
shall promptly file a certificate to that effect with the clerk of the
court that ordered the commitment. The clerk shall send a copy of the
certificate to the person's counsel and to the attorney for the
Government. The court shall order the discharge of the person or, on
motion of the attorney for the Government or on its own motion, shall
hold a hearing, conducted pursuant to the provisions of section
4247(d), to determine whether he should be released. If, after the
hearing, the court finds by a preponderance of the evidence that the
person's condition is such that--
``(1) he will not be sexually dangerous to others if released
unconditionally, the court shall order that he be immediately
discharged; or
``(2) he will not be sexually dangerous to others if released
under a prescribed regimen of medical, psychiatric, or
psychological care or treatment, the court shall--
``(A) order that he be conditionally discharged under
a prescribed regimen of medical, psychiatric, or
psychological care or treatment that has been prepared
for him, that has been certified to the court as
appropriate by the Director of the facility in which he
is committed, and that has been found by the court to
be appropriate; and
``(B) order, as an explicit condition of release,
that he comply with the prescribed regimen of medical,
psychiatric, or psychological care or treatment.
The court at any time may, after a hearing employing the same
criteria, modify or eliminate the regimen of medical,
psychiatric, or psychological care or treatment.
``(f) Revocation of Conditional Discharge.--The director of a
facility responsible for administering a regimen imposed on a person
conditionally discharged under subsection (e) shall notify the Attorney
General and the court having jurisdiction over the person of any
failure of the person to comply with the regimen. Upon such notice, or
upon other probable cause to believe that the person has failed to
comply with the prescribed regimen of medical, psychiatric, or
psychological care or treatment, the person may be arrested, and, upon
arrest, shall be taken without unnecessary delay before the court
having jurisdiction over him. The court shall, after a hearing,
determine whether the person should be remanded to a suitable facility
on the ground that he is sexually dangerous to others in light of his
failure to comply with the prescribed regimen of medical, psychiatric,
or psychological care or treatment.
``(g) Release to State of Certain Other Persons.--If the director of
the facility in which a person is hospitalized or placed pursuant to
this chapter certifies to the Attorney General that a person, against
him all charges have been dismissed for reasons not related to the
mental condition of the person, is a sexually dangerous person, the
Attorney General shall release the person to the appropriate official
of the State in which the person is domiciled or was tried for the
purpose of institution of State proceedings for civil commitment. If
neither such State will assume such responsibility, the Attorney
General shall release the person upon receipt of notice from the State
that it will not assume such responsibility, but not later than 10 days
after certification by the director of the facility.''.

SEC. 512. MANDATORY PENALTIES FOR SEX-TRAFFICKING OF CHILDREN.

Section 1591(b) of title 18, United States Code, is amended--
(1) in paragraph (1)--
(A) by striking ``or imprisonment'' and inserting
``and imprisonment'';
(B) by inserting ``not less than 20'' after ``any
term of years''; and
(C) by striking ``, or both''; and
(2) in paragraph (2)--
(A) by striking ``or imprisonment for not'' and
inserting ``and imprisonment for not less than 10 years
nor''; and
(B) by striking ``, or both''.

SEC. 513. SEXUAL ABUSE OF WARDS.

Chapter 109A of title 18, United States Code, is amended--
(1) in section 2243(b), by striking ``one year'' and
inserting ``five years'';
(2) in section 2244(b), by striking ``six months'' and
inserting ``two years''; and
(3) by inserting after ``Federal prison,'' each place it
appears, other than the second sentence of section 2241(c), the
following: ``or being in the custody of the Attorney General or
the Bureau of Prisons or confined in any institution or
facility by direction of the Attorney General or the Bureau of
Prisons,''.

Purpose and Summary

H.R. 3132, the ``Children's Safety Act of 2005,'' is a
comprehensive bill to address the growing epidemic of sexual
violence against children. Recently, public attention has been
focused on several tragic attacks in which young children have
been murdered, kidnapped, and sexually assaulted by sexual
offenders and career criminals, including: (1) the abduction,
rape and killing of 9-year-old Jessica Lunsford who was buried
alive in Florida; (2) the slaying of 13-year-old Sarah Lunde in
Florida; (3) the murder of Jetseta Marie Gage by a sex offender
in Iowa; and (4) the kidnapping of Ashta and Dylan Grohne, and
murder of Dylan and their family members in Idaho.
These tragic events have underscored the continuing
epidemic of violence against children, and the need to
reexamine existing laws intended to protect children--i.e., the
``Jacob Wetterling Crimes Against Children and Sexually Violent
Offender Registration Act,'' ``Megan's Law,'' and the ``Pam
Lyncher Sex Offender Trafficking and Identification Act.''
During the 109th Congress, several bills were introduced by
Members of Congress to address loopholes and deficiencies in
existing laws.\1\
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\1\H.R. 764, The Child Abuse and Neglect Database Act; H.R. 95, The
Dru Sjodin National Sex Offender Public Database Act of 2005; H.R.
1355, The Child Predator Act of 2005; H.R. 1505, The Jessica Lunsford
Act; H.R. 2423, The Sex Offender Registration and Notification Act;
H.R. 244, The Save Our Children: Stop the Violent Predators Against
Children DNA Act of 2005; H.R. 2796, The DNA Fingerprinting Act of
2005; and H.R. 2797, The Amie Zyla Act of 2005.
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The ``Children's Safety Act of 2005,'' incorporates these
proposals into a comprehensive child safety bill. Title I of
the legislation, the Sex Offender Registration and Notification
Act: (1) expands the coverage of registration and notification
requirements to a larger number of sex offenders; (2) increases
the duration of registration requirements for sex offenders;
(3) requires States to provide Internet availability of sex
offender information; (4) ensures timely registration by sex
offenders and verification of information provided by sex
offenders; (5) requires sex offenders to register in-person and
on a regular basis, and to provide detailed personal
information whenever they move to a new area to live, attend
school or work; (6) requires a State to notify the Attorney
General, law enforcement agencies, schools, housing agencies,
and development, background check agencies, social service
agencies and volunteer organizations in the area where a sex
offender may live, work or attend school; (7) authorizes
demonstration programs for new electronic monitoring programs
(e.g. anklets and Global Positioning Satellite (GPS) monitoring
which will require examination of multi-jurisdictional
monitoring procedures); (8) creates a new National Sex Offender
Registry; (9) creates a new Federal crime punishable by a 5-
year mandatory minimum when a sex offender fails to register;
and (10) authorizes the U.S. Marshals to apprehend sex
offenders who fail to register and increases grants to States
to apprehend sex offenders who are in violation of the
registration requirements.
Title II of H.R. 3132, the DNA Fingerprinting Act of 2005,
revises DNA laws to include arrestee DNA profiles, strikes the
expungement provisions for removal of DNA profiles from
existing databases, and strikes the exclusion of sexual abuse
offenses from the statute of limitations tolling provisions for
John Doe indictments.
Title III of H.R. 3132, the Prevention and Deterrence of
Crimes Against Children Act of 2005, adopts new mandatory
minimum penalties for violent crimes committed against
children. Criminal penalties range from: a death sentence or
life imprisonment when a child is murdered; a mandatory minimum
of 30 years imprisonment to life when the crime of violence
against the child is a kidnapping, maiming, or aggravated
sexual abuse, or where the crime results in serious bodily
injury (Sec. 1365); a mandatory minimum of 20 years when the
crime of violence results in bodily injury to the child (as
defined in Sec. 1365); a mandatory minimum of 15 years to life
imprisonment when the defendant uses a dangerous weapon; and a
mandatory minimum of 10 years imprisonment or up to life in any
other case (e.g. attempt or conspiracy to commit any crime of
violence against a child). Title III also imposes time limits
and substantive limits on Federal courts' review of habeas
corpus petitions challenging a State-court conviction for
killing a child.
Title IV of the legislation, the Protection Against Sexual
Exploitation of Children Act of 2005, modifies the criminal
penalties for several existing sexual offenses against children
by raising existing mandatory penalties for: engaging in a
sexual act with a child; committing abusive sexual contact;
sexual exploitation of children; trafficking in child
pornography, and using misleading domain names.
Title V of H.R. 3132, the Foster Child Protection Act of
2005: (1) adopts requirements for States to complete background
checks using national criminal history databases before
approving a foster or adoptive parent placement; (2) authorizes
child welfare agencies to obtain read-only access to national
criminal history databases; (3) requires sex offenders to
submit to searches as a condition of supervised release or
probation, modifies kidnapping and sex trafficking statutes,
and establishes procedures for civil commitment of Federal sex
offenders who are dangerous to others because of serious mental
illness, abnormality or disorder; and (4) adopts increased
penalties for sexual abuse and sex trafficking involving
children.

Background and Need for the Legislation

The sexual victimization of children is overwhelming in
magnitude and largely unrecognized and underreported.
Statistics show that 1 in 5 girls and 1 in 10 boys are sexually
exploited before they reach adulthood, yet less than 35 percent
of these assaults are reported to authorities. This problem is
exacerbated by the number of children who are solicited
online--according to the Department of Justice, 1 in 5 children
(10 to 17 years old) receive unwanted sexual solicitations
online.\2\
---------------------------------------------------------------------------
\2\U.S. Department of Justice Office of Justice Programs--Office of
Juvenile Justice and Delinquency Prevention Fact Sheet, Highlights of
the Youth Internet Safety Survey (March 2004), available at http://
www.ncjrs.gov/pdffiles1/ojjdp/fs200104.pdf.
---------------------------------------------------------------------------
The Department of Justice statistics underscore the
staggering toll that violence takes on our youth.\3\ Data from
12 States during the period of 1991 to 1996 show that 67
percent of all victims of sexual assault were juveniles (under
the age of 18), and 34 percent were under the age of 12. One of
every seven victims of sexual assault was under the age of
6.\4\
---------------------------------------------------------------------------
\3\DOJ national crime surveys do not account for victims under the
age of 12, but even for 12 to 18 year olds, the figures are alarming.
\4\In a June 1997 report, the Justice Department found that sexual
offenses are more likely than other types of criminal conduct to elude
the criminal justice system. Offenders report vastly more victim-
involved incidents than those for which they were convicted. Child
abusers have been known to re-offend as late as 20 years following
release into the community. U.S. Department of Justice Office of
Justice Programs--National Institute of Justice Research Report, Child
Sexual Molestation: Research Issues (June 1997), available at
http://www.ncjrs.org/pdffiles/163390.pdf..
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SEX OFFENDERS AND RECIDIVISM

Sex offenders have recidivism rates that often exceed those
of other criminals. In a 2001 Report, the Center for Sex
Offender Management reached the following staggering
conclusions as to recidivism by sex offenders:\5\
---------------------------------------------------------------------------
\5\U.S. Department of Justice A Project of the Office of Justice
Programs--Center for Sex Offender Management, Recidivism of Sex
Offenders (May 2001), available at
http://www.csom.org/pubs/recidsexof.html.

LSexual offense recidivism rates are
underreported. Researchers compared official records of
a sample of sex offenders with ``unofficial'' sources
of data. They found that the number of subsequent sex
offenses revealed through unofficial sources was 2.4
times higher than the number that was recorded in
---------------------------------------------------------------------------
official reports.

LResearch using information generated through
polygraph examinations on a sample of imprisoned sex
offenders with fewer than two known victims (on
average), found that these offenders actually had an
average of 110 victims and 318 offenses.

LAnother polygraph study found a sample of
imprisoned sex offenders to have extensive criminal
histories, committing sex crimes for an average of 16
years before being apprehended and convicted.

In a 2003 report, the Justice Department found that
released child molesters were more likely to be rearrested for
child molesting than non-child molesters.\6\ Released sex
offenders were four times more likely to be rearrested for a
sex crime than released non-sex offenders. The median age of
the victims of imprisoned sexual assaulters was less than 13
years old; the median age of rape victims was about 22 years.
On average, child molesters were released after serving about 3
years of their 7-year sentence (43 percent of their sentence).
Justice Department data also shows that in 15 States in 1994,
5.3 percent of 9,691 sex offenders who were released from
prison were arrested for a new sex crime within 3 years of
release--in real terms that means approximately 480 sex
offenders committed new sex crimes.
---------------------------------------------------------------------------
\6\U.S. Department of Justice Office of Justice Programs--Bureau of
Justice Statistics, Recidivism of Sex Offenders Released from Prison in
1994 (November 2003), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/rsorp94.pdf.
---------------------------------------------------------------------------
One of the most prevalent manifestations of the growing
problem of child exploitation and sexual abuse crimes is the
escalating presence of child pornography. There has been an
explosive growth in the trade of child pornography due to the
ease and speed of distribution, and the relative anonymity
afforded by the Internet. The distribution of child pornography
has progressed beyond exchanges between individuals and now
includes commercial ventures. Furthermore, once on the
Internet, the images are easily transmitted from offender to
offender. The ease of electronic transmission of these images
may reinforce the sexual predators of child offenders or
motivate those who have contemplated assaulting a child to do
so.\7\
---------------------------------------------------------------------------
\7\While recidivism by sex offenders is a significant problem, the
treatment of sex offenders is problematic. Several studies have
evaluated the outcomes of offenders receiving sex offender treatment,
compared to a group of offenders not receiving treatment. The results
of these studies are mixed. For example, Barbaree and Marshall (1988)
found a substantial difference in the recidivism rates of extra-
familial child molesters who participated in a community based
cognitive-behavioral treatment program, compared to a group of similar
offenders who did not receive treatment. Those who participated in
treatment had a recidivism rate of 18 percent over a 4-year follow-up
period, compared to a 43 percent recidivism rate for the
nonparticipating group of offenders. However, no positive effect of
treatment was found in several other quasi-experiments involving an
institutional behavioral program (Rice, Quinsey, and Harris, 1991) or a
milieu therapy approach in an institutional setting (Hanson, Steffy,
and Gauthier, 1993).
---------------------------------------------------------------------------

SEX OFFENDER AND NOTIFICATION PROGRAM

Recent events have underscored gaps and problems with
existing Federal and State laws, as well as implementation of
sex offender registration and notification programs. There is a
wide disparity among State registration requirements and
notification obligations for sex offenders. This lack of
uniformity has been exploited by child sexual offenders with
tragic consequences. Given the transient nature of sex
offenders and the inability of the States to track these
offenders, it is conservatively estimated that approximately 20
percent of 400,000 sex offenders are ``lost'' under State sex
offender registry programs. In addition, there is a disparity
among State programs as to the existence of Internet
availability of relevant sex offender information, as well as
the type of information included on such websites. Recently,
the Justice Department announced that it has begun implementing
a public, national sex offender database connecting State
sexual offender registries into one national website, starting
with the linking of 22 State Internet websites for search
purposes.\8\
---------------------------------------------------------------------------
\8\U.S. Department of Justice Office of Justice Programs Press
Release, July 20, 2005, Department of Justice Activates National Sex
Offender Public Registry Website, available at
http://www.ojp.usdoj.gov/pressreleases/BJA05028.htm.
---------------------------------------------------------------------------
Given the lack of basic uniformity and effective operation
among the various States in administering sex registry
programs, there is a need to re-evaluate basic requirements for
such registries, particularly the need to ensure sex offender
compliance with registration requirements when a sex offender
changes residence, employment or student status. As noted
above, 20 percent of sexual offenders are ``lost,'' and there
is a strong public interest in finding them and having them
register with current information to mitigate the risks of
additional crimes against children. The Federal Government's
recent announcement of the creation of a National Sex Offender
Public Registry, the State's role in providing accurate data
will be even more critical. In order to ensure their utility,
Internet websites maintained by States need to include basic
information about an offender, such as the offender's name,
address, specific offense(s) committed, vehicle used, place of
employment or school, current picture, and other relevant
information. Current limitations in existing law further
require an increase in apprehension resources to bring sexual
offenders into compliance by authorizing the United States
Marshals Service to participate in locating sex offenders who
are not in compliance with registry requirements.
Compounding the problem of ``lost'' sex offenders, States
tend to take a passive role in disseminating sex offender
information, relying instead on law enforcement to disseminate
such information to interested entities such as schools and
community groups. H.R. 3132 requires the Federal Government and
the States to take a more active role in disseminating sex
offender information to notify other States, entities,
organizations and local communities of the status and location
of convicted sexual offenders.

DEFINITIONS AND APPLICATION TO
EXPANDED CATEGORY OF SEX OFFENDERS

H.R. 3132 includes a new and broader definition of sex
offenders--two classes--those who commit serious felonies and
those that commit misdemeanors involving a minor. This broader
definition provides a clearer distinction for imposing sex
offender registration and notification requirements. Existing
legal definitions of a ``sexually violent predator'' are
unworkable, too narrow, and depend on determinations of
``mental abnormality or personality disorder,'' which may vary
from State-to-State based on generalized concepts. H.R. 3132
draws the line on a simple principal--if the offender was
subject to imprisonment for more than one year for a sex crime,
then he should be treated differently than a misdemeanor sex
offense against a minor where the offender was subject to a
penalty of less than one year.\9\
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\9\It is important to note that misdemeanor offenses against adults
are not included, and that consensual sex offenses are, for the most
part, excluded, except where such conduct involves younger children who
are unable, as a matter of law, to consent.
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H.R. 3132 also expands the coverage of the registration and
notification requirements to include foreign sex crimes (so
long as activity would have constituted a crime if committed in
the United States), tribal, military, and Federal. There is no
reason that a criminal sex offender--no matter what law--should
be exempted from any State registration and notification
requirements.

EXPANDING COVERAGE TO INCLUDE JUVENILES

H.R. 3132 expands the coverage of sex offenders to include
juvenile sex offenders. Juvenile sex offenders commit a
significant number of sexual abuse crimes. According to recent
FBI crime data, approximately 34 percent of forcible rape
arrests were of juveniles; and 42 percent of all other sexual
offenses were committed by juveniles.
Several States, including Wisconsin, have modified their
sex offender registration and notification programs to include
juvenile sex offenders. All too often, juvenile sex offenders
have exploited current limitations that permit them to escape
notification requirements to commit sexual offenses. While the
Committee recognizes that States typically protect the identity
of a juvenile who commits criminal acts, in the case of sexual
offenses, the balance needs to change; no longer should the
rights of the juvenile offender outweigh the rights of the
community and victims to be free from additional sexual crimes.
For victims, whether the offenders is an adult or a juvenile
has no bearing on the impact of that sexual offense on the life
of the victim. H.R. 3132 strikes the balance in favor of
protecting victims, rather than protecting the identity of
juvenile sex offenders.

EXPANDED NOTIFICATION REQUIREMENTS

As noted above, H.R. 3132 expands the notification
requirements to implement a more proactive approach to the
dissemination of sex offender information. Some may argue that
requiring notification to so many entities could tend to
``vilify'' or ``ostracize'' sex offenders once they reach a
community. For that reason, H.R. 3132 includes a new
requirement that the community have access to information
relating to the specific facts underlying the sex offender's
criminal case--so that law enforcement, the community, parents,
and other interested persons can assess the risk themselves,
and take the appropriate steps they believe are necessary to
protect their families or themselves from sex offenders.
The National Center for Missing and Exploited Children has
reported that one of the primary deficiencies in the current
program is reliance on ``passive'' notification rather than
proactive steps to notify members of the community. Under the
current system, law enforcement is notified subsequently and
required to notify the community and take active steps to
verify the sex offender's compliance. Such steps are not
typical, and law enforcement has been practically unable to
take any proactive steps. H.R. 3132 includes additional
notification requirements consistent with those recommended by
the National Center for Missing and Exploited Children--broad
and active notification of the community including law
enforcement, volunteer organizations, child welfare agencies,
public housing agencies, and ensuring wide public availability
of such information on both State and Federal websites in order
to maximize the availability of sexual offender information to
the public.

ENSURING COMPLIANCE AND CRIMINAL ENFORCEMENT

The most significant enforcement issue in the sex offender
program is that over 100,000 sex offenders, or nearly one-fifth
in the Nation are ``missing,'' meaning that they have not
complied with sex offender registration requirements. This
typically occurs when the sex offender moves from one State to
another. When a sex offender fails to register in a State in
which he or she resides, there is no effective system by which
the States can notify each other about the change in a sex
offenders status. H.R. 3132 will address this problem in
several ways.
First, H.R. 3132 requires sex offenders to keep addresses,
employment and student status, and do so within 5 days of any
change. Second, failure would subject a sex offender to a
felony criminal penalty. Third, the proposed law would require
a sex offender to verify his information by an in-person
appearance every 6 months, and States would be required to
conduct address verification programs, including the Jessica
Lunsford Verification Program, as frequently as every month for
felony sex offenders and every quarter for misdemeanor sex
offenders. Fourth, if the sex offender either moves to a new
State, works in a new State, or attends school in a new State,
the new State is required to notify the other State that the
sex offender is doing so in that State.
To ensure compliance, States are required to inform the sex
offender of his or her obligations, and obtain a signed form
indicating that he or she understands legal requirements and
will comply with them. Sex offenders who fail to comply will
face felony criminal prosecution. More importantly, in order to
address the problem of sex offenders, sex offenders will now
face Federal prosecution with a mandatory minimum penalty of 5
years in prison if they cross a State line and fail to comply
with the sex offender registration and notification
requirements contained in the legislation. To assist in the
apprehension of those that do not comply with sex offender
registration requirements, the bill includes provisions
authorizing the United States Marshals to help locate and
apprehend non-complying sex offenders and provides grants to
States to assist in any apprehension programs. The combination
of incentives for the sex offender to comply, enhanced criminal
penalties, and additional law enforcement resources to focus on
this problem will reduce the overwhelming number of non-
complying or ``lost'' sex offenders in our communities.

STATE COMPLIANCE AND FUNDING

The changes required by this legislation are significant at
both the Federal and the State level. H.R. 3132 requires the
States to comply in 2 years, and the Attorney General may
extend this deadline for an additional year. To assist the
States in funding obligations contained in the legislation,
H.R. 3132 creates new incentive grants for States that comply
before the two-year deadline. The existing program is funded
from a variety of sources, including Violence Agaisnt Women Act
(``VAWA''), National Criminal History Improvement Programs,
Byrne grants, and other funding sources. The proposal
reauthorizes the Sex Offender Management Assistance (SOMA)
program as the primary vehicle for funding the program.

ELECTRONIC TRACKING DEVICES

Several States, including Florida, are using electronic
tracking devices--ankle bracelets or Global Positioning Service
(GPS) devices--to track sex offenders in their communities.
There are a number of technical and logistical issues relating
to those technologies, including compatibility and
interoperability among States. Given the technical issues that
need to be resolved, H.R. 3132 authorizes up to 10
demonstration programs to identify the effectiveness of such
technologies and to examine how to utilize these technologies
most effectively to ensure coordination among the States.

FEDERAL PROSECUTION OF SEX OFFENSES AND CHILD PORNOGRAPHY

Child pornography offenses, as well as other child
exploitation offenses involving enticement of minors to engage
in illegal sexual activity, travel to engage in illegal sexual
activity with a minor, or transportation of a minor to engage
in illegal sexual activity often implicate interstate or
foreign commerce. Accordingly, these offenses are often
prosecuted under Federal law. On the other hand, sexual abuse
of children is typically prosecuted under State law. When a
child is sexually abused on Federal land such as a military
base or Indian territory, the offense may be prosecuted under
Federal law. Accordingly, Federal laws prohibiting sexual abuse
have an important role in combating these devastating crimes,
even though most sexual abuse cases are prosecuted under State
statutes.
Crimes against children such as child exploitation and
sexual abuse are a growing problem. For example, according to
the Executive Office for United States Attorneys, in Fiscal
Year 1997, 352 cases were filed by the Department of Justice
charging child pornography crimes (18 U.S.C. Sec. Sec. 2251-
2260), and 299 convictions were obtained. In Fiscal Year 2004,
child pornography charges were filed against approximately
1,486 defendants, and approximately 1,066 convictions on such
charges were obtained.
Nationwide, according to a Department of Health and Human
Services' 2003 report on child maltreatment, an estimated
906,000 children were victims of child abuse or neglect.\10\
Approximately 20 percent of these victims were physically
abused, and approximately 10 percent were sexually abused.
Moreover, according to that report, Pacific Islander children
and American Indian or Alaska Native children are among those
experiencing the highest rates of victimization. As the special
maritime and territorial jurisdiction of the United States may
cover many of these children, a Federal legislative response to
violence against children and child sexual abuse is clearly
neccessary.
---------------------------------------------------------------------------
\10\U.S. Department of Health and Human Services Administration for
Children and Families--Administration on Children, Youth and Families
Children's Bureau Child Maltreatment 2003, available at http://
www.acf.hhs.gov/programs/cb/publications/cm03/cm2003.pdf.
---------------------------------------------------------------------------
The Federal sentences imposed for sexual abuse and
exploitation of children appear to be unduly lenient. More
frequently, judges are exercising their discretion to impose
sentences that depart from the carefully considered ranges
developed by the U.S. Sentencing Commission. In the process, we
risk losing a sentencing system that requires serious sentences
for serious offenders and helps prevent disparate sentences for
equally serious crimes.
The sentencing data for the last year shows that for sexual
abuse crimes, the mean sentence length was only 73 months and
the median was 41 months. For pornography and prostitution, the
mean sentence was 63 months and the median was 33 months.
Judges continued to hand out a number of downward departures
for offenders who commit criminal sexual abuse (U.S. Sentencing
Guidelines Manual Sec. 2A3.1) where approximately 15 percent
(15 of 97 sentences) of offenders received Government-sponsored
downward departures (non-substantial assistance) and 13 percent
(13 of 97 sentences) of the offenders received non-Government-
sponsored downward departures; for criminal sexual abuse (U.S.
Sentencing Guidelines Manual Sec. 2A3.2), 4.5 percent (6 of
133) offenders received Government-sponsored downward
departures (non-substantial assistance), and approximately 11
percent (15 of 133) of the offenders received non-Government
sponsored downward departures.
For child exploitation crimes, sentencing data shows a
similar pattern. For trafficking in material involving the
sexual exploitation of a minor (U.S. Sentencing Guidelines
Manual Sec. Sec. 2G2.2 and 2G2.4) approximately 17 percent (94
of 536 of the sentences) of the offenders received non-
Government sponsored downward departures. (Less than one
percent of the offenders received Government-sponsored downward
departures).\11\
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\11\The 2003 sentencing data shows that a total of 355 sexual abuse
cases were filed, and approximately 45 percent (166) involved white
defendants, approximately 38 percent (136) involved Native American
defendants, 7 percent (25) involved Hispanic defendants, and 6 percent
(23) involved Black defendants. The 2003 sentencing data shows that a
total 734 cases for promoting a commercial sex act, sexually exploiting
a minor, trafficking in or possession of material involving sexual
exploitation of a minor, and importing, mailing or transporting obscene
matter--629 of the cases or 88 percent involved white defendants, 49
involved Hispanic defendants, 26 involved Asian of Pacific Islanders,
23 involved Black defendants, and 5 involved Native Americans.
---------------------------------------------------------------------------
To ensure that a proper minimum sentence is imposed on sex
offenders,\12\ H.R. 3132 includes a section modifying the
existing statute, section 3559(d), of title 18, governing the
sentencing of defendants for crimes committed against children,
and adopts new penalties for felony crimes of violence (18
U.S.C. Sec. 16) crimes committed against children. Criminal
penalties range from a death sentence or life imprisonment when
a child is killed; a mandatory minimum of 30 years imprisonment
to life where the crime of violence is a kidnapping, maiming,
aggravated sexual abuse, sexual abuse or where the crime
results in serious bodily injury (18 U.S.C. 2119(2)); a
mandatory minimum of 20 years where the crime of violence
results in bodily injury to the child (as defined in 1365); a
mandatory minimum of 15 years to life imprisonment where the
defendant uses a dangerous weapon; and a mandatory minimum of
10 years imprisonment or up to life in any other case (e.g.
attempt or conspiracy to commit any crime of violence against a
child). Section 402 of H.R. 3132 increases penalties for
several existing sexual offenses against children.\13\
---------------------------------------------------------------------------
\12\Mandatory Sentencing Schemes Mandatory sentencing schemes--
truth-in-sentencing, determinate sentencing practices, ``three-strikes
and you're out,'' have resulted in dramatic reductions in crime since
the 1970's. Steven D. Levitt, Understanding Why Crime Fell in the
1990's: Four Factors That Explain the Decline and Seven That Do Not, 18
J.Econ. Perspectives 163 (2004); Joanna M. Shepherd, Police,
Prosecutors, Criminals and Determinate Sentencing: The Truth about
Truth-in-Sentencing Laws, 45 J.L. & Econ. 509 (2002). Other studies
confirm the obvious point--incarcerating an offender prevents him from
repeating his crimes while he is in prison. Peter W. Greenwood et al.,
Three Strikes and You're Out: Estimated Benefits and Costs of
California's New Mandatory-Sentencing Law, in Three Strikes and You're
Out: Vengeance as Public Policy (David Schichor & Dale K. Sechrest eds.
1996). Joanna M. Shepherd, Fear of First Strike: The Full Deterrent
Effect of California's Two- and Three-Strikes Legislation, 31 J. Legal
Stud. 159 (2002). John J. Donahue III & Peter Siegelman, Allocating
Resources Among Prisons and Social Programs in the Battle Against
Crime, 27 J. Legal STUD. 1, 12-14 (1998); James Q. Qilson, Prisons in a
Free Society, 117 Pub. Interest 37, 38 (Fall 1994); Thomas Marvell &
Carlisle Moody, Prison Population Growth and Crime Reduction, 10 J.
Quantitative Criminal. 109 (1994).
\13\Contrary to claims made by opponents of mandatory-minimum
sentencing schemes, such laws have typically been passed by large bi-
partisan majorities. For example, in the 107th Congress, the House
Judiciary Committee passed HR 5422 the ``Child Abduction Prevention Act
of 2002'' containing mandatory minimum provisions for child abductions.
Only four members of the Committee expressed concern with the mandatory
minimum provisions as reflected in the Dissenting Views. [Report 107-
723]. On the Floor of the House, 178 Democrats voted for the bill with
its mandatory minimum provisions, including 11 Democrat Members of the
Judiciary Committee [See, rollcall 446, Oct.8, 2002.] Only 23 Members
voted against the bill. The mandatory minimums were included in the
PROTECT Act which passed the Senate 98-0 and the House 400-25 (April
10, 2003).
---------------------------------------------------------------------------
Likewise, the mandatory minimum provisions of H.R. 10,
passed last Congress with overwhelming bipartisan support to
assure appropriate penalties for serious offenses--possession
and threats of atomic, chemical and biological weapons and
anti-aircraft missiles. Sections 2403-2406 providing for tough
mandatory minimums (30 years and Life imprisonment) was passed
as a floor amendment to H.R. 10 by a vote of 385-30 with 164
Democrats voting in favor. Every Democrat Member of the House
Judiciary voted for the amendment except for Reps. Watt and
Scott. Every House conferee, including every Democrat conferee
(Reps. Harman, Menendez, Skelton) voted in favor of the
mandatory minimums.

CIVIL COMMITMENT

H. R. 3132 authorizes civil commitment of certain Federal
sex offenders who are dangerous to others because of serious
mental illness, abnormality or disorder. Such procedures would
apply, for example, in circumstances in which a pedophile who
was sentenced to imprisonment for child molestation offenses
and States his intention to resume such conduct upon his
release from jail. Under the civil commitment provisions in
existing law, the sex offender must be hospitalized while
incarcerated and the director of the facility must certify that
the offender is suffering from a ``mental disease or defect''
creating a substantial risk of harm to others. Such a standard
is narrow and does not include sex offenders with mental
disorders who are clearly dangerous but who do not fall within
the narrowly applied definition of metal illness. The first
condition--prior hospitalization--is an unjustified impediment
to seeking civil commitment. The civil commitment provision
contained in this legislation combines commitment standards
substantively similar to those approved by the Supreme Court in
Kansas v. Hendricks, 521 U.S. 346 (1997), and Kansas v. Crane,
122 S.Ct 867 (2002).

DNA FINGERPRINTING

In light of the critical role played by DNA evidence in
solving sex crimes, and recent examples of successes in solving
such crimes through the collection of DNA information from
persons arrested for various crimes, the legislation expands
the use of DNA. More specifically, the proposed language amends
the DNA Identification Act to eliminate the restrictions on the
DNA profiles that can be included in the National DNA Index
(NDIS). Specifically, it strikes limiting language in Section
14132(a)(1)(C) which excludes unindicted arrestee and
elimination DNA profiles from NDIS; strikes the expungement
provisions of Section 14132(d); and strikes the ``keyboard
search'' provisions of Section 14132(e), which serve no purpose
once the unjustified restrictions on including DNA profiles in
NDIS are eliminated. This section also would authorize the
Attorney General to collect DNA samples from Federal arrestees
and detainees. Finally, this section strikes the exclusion of
chapter 109A (``sexual abuse '') offenses from the statute of
limitations tolling provision for cases involving DNA
identification under 18 U.S.C. Sec. 3297.
The importance of collecting DNA from arrested persons or
voluntary samples has been highlighted by recent cases in which
crimes were solved using such data:

In April 2005, a man suspected of setting fires to 46
houses and apartments in the Washington area was
apprehended through DNA analysis of items found at
several crime scenes and eventually identified through
comparison to a voluntary sample given by the offender
to law enforcement several weeks before to a different
law enforcement agency. Just recently, in Albany New
York, police solved a series of murder and rape charges
in three separate incidents where they had DNA evidence
linking the three incidents but no suspect to identify.
It was not until several years later, after the suspect
was convicted of a robbery offense, that his DNA data
was placed in the database--which eventually revealed a
match. If the data had been put in the database at the
time of the suspect's arrest on the robbery charge,
rather than awaiting the conviction, the three separate
murders and rapes would have been solved that much
earlier.

It is also important to note that privacy concerns
associated with the use of DNA data are far less significant
than other types of evidence; in practice, the taking of a swab
of saliva is no different than a photograph, a fingerprint or
other identifying information. Once entered, such data cannot
be used for discrimination purposes since the only identifiable
information from a DNA sample to the naked eye is the sex of
the person.

HABEAS REVISIONS FOR CHILD KILLERS

Currently Federal habeas corpus cases involving State death
penalty prosecutions require 10, 15, or even 20 years to
complete. These delays burden the courts and deny justice to
defendants with meritorious claims. They also are deeply unfair
to victims of serious, violent crimes and their families. A
parent whose child has been murdered, or someone who has been
the victim of a violent assault, cannot be expected to ``move
on'' without knowing how the case against the attacker has been
resolved. Endless litigation, and the uncertainty that it
brings, is unnecessarily cruel to these victims and their
families.
As President Clinton noted of the 1996 habeas corpus
reforms, ``it should not take eight or nine years and three
trips to the Supreme Court to finalize whether a person in fact
was properly convicted or not.''\14\ Unfortunately, the facts,
particularly with respect to murders of children, show that
habeas review of child killers continues to move at a snail's
pace, where petitions sometimes sit at the Federal court for
anywhere between 7 and 15 years before being resolved.
---------------------------------------------------------------------------
\14\Purdum, Tom S. ``Terror in Oklahoma: The President; Clinton
Warns Partisan Bickering Could Stall Effort to Combat Terrorism.'' New
York Times 29 Apr. 1995, late ed.: A11
---------------------------------------------------------------------------
Time limits are necessary given the Federal courts
inability or unwillingness to decide habeas cases in a timely
manner. In Morales v. Woodford, 336 F.3d 1136 (9th Cir. 2003),
for example, the Ninth Circuit took 3 years to decide the case
after briefing was completed, and after issuing its decision,
the court took another 16 months to reject a petition for a
rehearing. Similarly, in Williams v. Woodford, 306 F.3d 665
(9th Cir. 2002), the court waited 25 months to decide the
case--and then waited another 27 months to reject a petition
for rehearing for a total delay of almost four and a half years
after appellate briefing had been completed. This is too long
for either defendants or victims to have to wait for justice.
Ms. Carol Fornoff testified before the Committee on the
circumstances of the murder of her daughter Christy Ann in
1984, and the extraordinary delays caused by Federal habeas
review of the killer's conviction. In 1985, the man responsible
for the sexual assault and murder of Christy Ann was convicted,
based on overwhelming evidence of his guilt. The conviction was
upheld in a lengthy opinion by the Arizona Supreme Court. The
killer raised many more challenges, but his last State appeals
were finally rejected in 1992.
In 1992 the killer filed another challenge to his
conviction in the United States District Court. That challenge
remained in that court for another seven years. Finally, in
November 1999, the district court dismissed the case. A few
years later, the Federal Court of Appeals for the Ninth Circuit
sent the case back to the district court for more hearings.
Today, the case remains before that same Federal district
court. It has now been over 21 years since Christy was
murdered. By this fall, the case will have been in the Federal
courts for longer than Christy was ever alive.
Ms. Fornoff eloquently described the pain caused by the
continuing delays in Federal habeas review of her daughter's
murder case in testimony received by the Subcommittee on Crime,
Terrorism, and Homeland Security.

I cannot describe to you how painful our experience
with the court system has been. I cannot believe that
just one court took over 7 years to decide our case.
Some might ask why we can't just move on, and forget
about the killer's appeals. But it doesn't work that
way. She was our daughter, our beautiful little girl,
and he took her away. We want to know if he was
properly convicted. We want to know, will his
conviction be thrown out? Will there be another trial?
I cannot imagine testifying at a trial again. And would
they even be able to convict this man again? It has
been 21 years. How many witnesses are still here, is
all of the evidence even still available? Could this
man 1 day be released? Could I run into him on the
street, a free man--the man who assaulted and killed
our little daughter? The courts have turned this case
into an open wound for our family--a wound that has not
been allowed to heal for 21 years.

I understand that people are concerned about innocent
people being behind bars, but that is not what my
daughter's killer is suing about. Right now, the issue
that is being litigated in the Federal courts is
whether the trial court made a mistake by allowing the
jury to hear that he told a prison counselor that he
``didn't mean to kill the little Fornoff girl.'' He
claims that the counselor was like his doctor, and that
the statement is private, even though he said it in
front of other prisoners. Earlier this year, a Federal
court held a hearing on whether the killer had a right
to prevent the jury from hearing about this statement.
But the statement is irrelevant. Whether or not he said
it, the evidence of his guilt--the hairs, the fibers,
the bodily fluids--is overwhelming. The issue that the
killer is suing about was already resolved before by
the Arizona Supreme Court--over 17 years ago. Yet here
we are, 21 years after my daughter died, arguing about
the same legal technicalities.

I urge you, Mr. Chairman, to do what you can to fix
this system. My family and I have forgiven our
daughter's murderer. But we cannot forgive a justice
system that would treat us this way.

Unfortunately, stories like Ms. Fornoff's are quite common.
A second case recently in the news underscores the improper
role of Federal habeas review of State court convictions. In
June 1983, a defendant murdered three members of the Ryen
family and Christopher Hughes in Chino Hills, California. The
killer in that case was an escaped convict from a nearby
prison. He has since admitted that he spent two days hiding in
a vacant house next to the home of the Ryen family. After
several unsuccessful telephone calls to friends asking them to
give him a ride, the killer took a hatchet and buck knife from
the vacant house and set out to find a vehicle. The California
Supreme Court describes the rest of what occurred (53 Cal.3d
771, 794-95):

On Saturday, June 4, 1983, the Ryens and Chris Hughes
attended a barbecue in Los Serranos, a few miles from
the Ryen home in Chino. Chris had received permission
to spend the night with the Ryens. Between 9 and 9:30
p.m., they left to drive to the Ryen home. Except for
Josh [the Ryen's 8-year-old son], they were never seen
alive again.
The next morning, June 5, Chris's mother, Mary
Hughes, became concerned when he did not come home. A
number of telephone calls to the Ryen residence
received only busy signals. [Mary's husband] William
went to the Ryen home to investigate.
William observed the Ryen truck at the home, but not
the family station wagon. Although the Ryens normally
did not lock the house when they were home, it was
locked on this occasion. William walked around the
house trying to look inside. When he reached the
sliding glass doors leading to the master bedroom, he
could see inside. William saw the bodies of his son and
Doug and Peggy Ryen on the bedroom floor. Josh was
lying between Peggy and Chris. Only Josh appeared
alive.
William frantically tried to open the sliding door;
in his emotional state, he pushed against the fixed
portion of the doors, not the sliding door. He rushed
to the kitchen door, kicked it in, and entered. As he
approached the master bedroom, he found Jessica on the
floor, also apparently dead. In the bedroom, William
touched the body of his son. It was cold and stiff.
William asked Josh who had done it. Josh appeared
stunned; he tried to talk but could only make
unintelligible sounds.
William tried to use a telephone in the house but it
did not work. He drove to a neighbor's house seeking
help. The police arrived shortly. Doug, Peggy, Chris,
and Jessica were dead, the first three in the master
bedroom, Jessica in the hallway leading to that
bedroom. Josh was alive but in shock, suffering from an
obvious neck wound. He was flown by helicopter to Loma
Linda University Hospital.
The victims died from numerous chopping and stabbing
injuries. Doug Ryen had at least 37 separate wounds,
Peggy 32, Jessica 46, and Chris 25. The chopping wounds
were inflicted by a sharp, heavy object such as a
hatchet or axe, the stabbing wounds by a weapon such as
a knife.

The escaped prisoner who committed this crime was caught
two months later. He admitted that he stayed in the house next
door, but denied any involvement in the murders. According to
the California Supreme Court, however, the evidence of
defendant's guilt was ``overwhelming.'' Not only had the
defendant stayed at the vacant house right next door at the
time of the murders; the hatchet used in the murders was taken
from the vacant house; shoe prints in the Ryen house matched
those in the vacant house and were from a type of shoe issued
to prisoners; bloody items, including a prison-issue button,
were found in the vacant house; prison-issue tobacco was found
in the Ryen station wagon, which was recovered in Long Beach;
and the defendant's blood type and hair matched that found in
the Ryen house. The defendant was convicted of the murders and
sentenced to death in 1985, and the California Supreme Court
upheld the defendant's conviction and sentence in 1991.
The defendant's Federal habeas proceedings began shortly
thereafter, and they continue to this day--22 years after the
murders. In 2000, the defendant asked the courts for DNA
testing of a blood spot in the Ryen house, a t-shirt near the
crime scene, and the tobacco found in the car. Despite the
overwhelming evidence of his guilt, the courts allowed more
testing. All three tests found that the blood and saliva
matched the defendant, to a degree of certainty of one in 320
billion. Blood on the t-shirt matched both the defendant and
one of the victims.
One might have thought that this would end the case, but in
February 2004, the en banc Ninth Circuit sua sponte authorized
defendant to file a second habeas petition to pursue theories
that police had planted this DNA evidence. Since the evidence
had been in court custody since 1983, the Ninth Circuit's
theory not only required police to plan and execute a vast
conspiracy to plant the evidence--it also required them to
foresee the future invention of the DNA technology that would
make that evidence useful in future habeas proceedings.
The record before the Committee is replete with other
examples of unreasonable delays in resolving Federal habeas
petitions. In California, over 100 of the inmates on
California's death row have been there for over two decades.
For example, the case of Robin Samsoe, a 12-year-old, was
kidnapped on the beach in Huntington Beach, California, and
murdered in June 1979. A friend who had been with her on the
beach described a strange man who had taken pictures of her.
Police produced a composite sketch of this man, who was soon
recognized by his parole officer. He had a history of
kidnapping and sexually assaulting young girls--he had raped
and nearly killed an 8-year-old girl, for which he served just
two years in prison. He was awaiting trial for raping another
girl at the time that Robin disappeared. He had taken that girl
to the mountains outside Los Angeles--which is also where
Robin's body was found. He attacked a third girl near the same
spot on the beach where Robin was last seen. When police
tracked this man down, the television news began broadcasting
his composite sketch. A friend of Robin's family recognized him
as the man who was with Robin on the beach. And in a locker
that he rented, police officers found an earring that Robin had
borrowed from her mother. Robin's mother recognized the earring
as hers because of changes that she had made to it with a nail
clipper.
Despite all this evidence, in June 2003--exactly 24 years
after Robin was murdered--the Federal Court of Appeals for the
Ninth Circuit granted this man a new trial. This protracted
delay imposed a terrible burden on Robin's mother. According to
one newspaper story, she described her reaction to the decision
as ``like somebody had slapped me hard in the face.'' At the
same time that he was granted a new trial in Robin's killing,
DNA evidence linked him to a rape and murder that he committed
in 1977, and police have said that they will prosecute him for
that case--after his new trial in Robin's case. Nevertheless,
the impact on the family of the way that this case has been
handled in the courts has been horrific. One of the news
stories notes that Robin's family has even lost their home
because they have spent so much time away from work at the
trials and hearings in the case. Today, Robin's family is
preparing for another trial of the man who killed their 12-
year-old daughter. If Robin had lived, she would be 37 years
old today.
Or consider the case of Benjamin Brenneman, who was
murdered in 1981 and was 12 years old. Benjamin was a newspaper
carrier, and also was kidnapped, sexually assaulted, and killed
while delivering newspapers at an apartment complex. Benjamin's
killer tied him up in a way that strangled him when he moved.
Police began by questioning a man in the building who was a
prior sex offender. They found Benjamin's special orthopedic
sandals in the suspect's apartment. When they interviewed him,
he admitted that he kidnapped Benjamin, but claimed that ``he
was alive when I left him.'' Police found Benjamin's body in a
nearby rural area the next day.\15\
---------------------------------------------------------------------------
\15\More information about the case is available in the court
opinion for the State appeal, People v. Thompson, 785 P.2d 857.
---------------------------------------------------------------------------
Benjamin's killer was convicted and sentenced to death.
After the State courts finished their review of the case, the
killer filed a habeas corpus petition in the Federal District
Court in 1990. Today, 15 years later, the case is still before
that same court. To put the matter in perspective, so far, and
with no end in sight, the litigation before that one district
court has outlived Benjamin by 3 years.
In another case Michelle and Melissa Davis, ages 7 and 2,
were killed in 1982. An ex-boyfriend of the sister of Kathy
Davis took revenge on the sister for severing their
relationship by killing Kathy's husband and her two young
daughters, Michelle and Melissa. The killer confessed to the
crime. The State courts finished their review of the case in
1991. (People v. Deere, 808 P.2d 1181.)
The next year, the defendant went to the Federal District
Court. He remained there for the rest of the decade, until
2001. When he lost there, he appealed, and in 2003, the Federal
Court of Appeals for the Ninth Circuit sent the case back to
the district court for another hearing. Today, 14 years after
State appeals were completed, and 23 years after Michelle and
Melissa were taken from their mother, the case remains before
the same district court.
Vanessa Iberri and her friend Kelly, also 12 years old,
were both shot in the head while walking through a campground
in 1981. Kelly survived, but Vanessa did not. The killer did
not dispute that he shot the two girls. (The case is described
in People v. Edwards, 819 P.2d 436.) The State courts finished
their review of the case in 1991--a full decade after the
crimes were comitted. The killer then went to Federal court in
1993. The Federal District Court finally held an evidentiary
hearing in December 2004, and dismissed the case in March of
this year. Twelve years after the case entered the Federal
courts, and 24 years after the murders occurred, the appeal to
the Federal Court of Appeals is just beginning.
Michelle Melander was 5 months old, and her brother
Michael, then 5 years old, were kidnapped in Parker, Arizona,
in July 1981. The killer dropped off Michael along the road.
Michelle's body was discovered six days later at a garbage dump
several miles down the same road. She had been severely beaten
and sexually mutilated. The State court opinion describes the
many injuries that this helpless baby suffered. The man who
committed this horrific crime later attempted to kidnap and
rape a 10-year-old girl.
State courts finished their review of his case in 1991.
(People v. Pensinger, 805 P.2d 899.) The case then went to
Federal District Court in 1992. The defendant raised claims
that he had never argued in State court, so the Federal court
sent the case back to State court. Five years later, the case
returned to Federal court. Today, the case remains before the
same Federal District Court where the Federal appeals began in
1992. Baby Michelle would be 24 years old now if she had lived,
and there is no end in sight for her killer's appeals.
The habeas corpus reforms enacted with the Antiterrorism
and Effective Death Penalty Act of 1996 were supposed to
prevent delays in Federal collateral review. As the Justice
Department noted in testimony before the House Crime
Subcommittee in July 2003, there are ``significant gaps [in the
habeas corpus statutes] *_*_* which can result in highly
protracted litigation, and some of the reforms that Congress
did adopt in 1996 have been substantially undermined in
judicial application.''\16\
---------------------------------------------------------------------------
\16\Advancing Justice Through Forensic DNA Technology: Hearing
Before the Subcomm. on Crime, Terrorism and Homeland Security of the
House. Comm. on the Judiciary, 108th Cong. 22-23 (2003) (prepared
statement of Sarah V. Hart, Director, National Institute of Justice,
Department of Justice).
---------------------------------------------------------------------------

SECTION 303

Section 303 of H.R. 3132 would effectively restrict the
jurisdiction of Federal courts to entertain a first petition
for Federal habeas corpus review, in cases involving the murder
of a child, to the same grounds that now govern their ability
to consider second or successive petitions for Federal habeas
corpus review filed by any State prisoner. Thus, in State cases
involving the murder of a child, Federal habeas courts would no
longer be able to review any exhausted Federal constitutional
claim; rather, Federal courts would only have jurisdiction to
consider habeas claims based on: (1) new rules of
constitutional law that have been made retroactively applicable
by the Supreme Court; or (2) newly discovered evidence that
clearly and convincingly establishes that, but for the
existence of a constitutional error, no reasonable fact finder
would have found the petitioner guilty of the underlying
offense.
Section 303 also imposes time limits and substantive limits
on Federal courts' review of habeas corpus petitions
challenging a State-court conviction for killing a child. In
the district court, parties will be required to move for an
evidentiary hearing within 90 days of the completion of
briefing, the court must act on the motion within 30 days, and
the hearing must begin 60 days later and last no longer than 3
months. All district court review must be completed within 15
months of the completion of briefing. In the court of appeals,
the court must complete review within 120 days of the
completion of briefing. In most cases, these limits will ensure
that Federal review of a defendant's appeal is completed within
less than two years. This section also makes these deadlines
practical and enforceable by limiting Federal review to those
claims presenting meaningful evidence that the defendant did
not commit the crime--defendants would be barred from re-
litigating claims unrelated to guilt or innocence. Defendants
will continue to be permitted to litigate all their claims in
State court on direct review and State-habeas review, and in
petitions for certiorari in the U.S. Supreme Court.
Some critics contend that Congress lacks the authority to
narrow the set of issues that Federal courts may review on
collateral review of State convictions--and that any such
narrowing would ``suspend'' the writ of habeas corpus.
First, it bears emphasis that the legislation in no way
limits the State courts' review of State criminal convictions,
nor does it affect the U.S. Supreme Court's review of either a
defendant's direct appeals or State-habeas petitions. The
provision only restricts the Federal habeas review that begins
in the lower Federal courts after all State appeals and U.S.
Supreme Court certiorari reviews are completed. Congress has
clear authority to limit such review.
When the 1996 limits on Federal habeas were enacted, some
criminal defendants argued that those restrictions constituted
an unconstitutional ``suspension'' of Federal habeas. The
Federal courts rejected this argument at the time, ruling that
Congress has the power both to expand and to limit Federal
habeas review of State convictions. In Felker v. Turpin, 116
S.Ct. 2333 (1996), the U.S. Supreme Court noted the utter lack
of basis for the view that Congress is required to grant lower
Federal courts unrestricted power over State convictions:

The first Congress made the writ of habeas corpus
available only to prisoners confined under the
authority of the United States, not under State
authority. *_*_*_* It was not until 1867 that Congress
made the writ generally available in ``all cases where
any person may be restrained of his or her liberty in
violation of [federal law].'' And it was not until well
into this century that this Court interpreted that
provision to allow a final judgment of conviction to be
collaterally attacked on habeas.

The Supreme Court concluded: ``We have long recognized that
the power to award the writ by any of the courts of the United
States, must be given by written law, and we have likewise
recognized that judgments about the proper scope of the writ
are normally for Congress to make.''
The U.S. Court of Appeals for the Seventh Circuit
elaborated on this point in Lindh v. Murphy, 96 F.3d 856 (rev'd
on other grounds, 521 U.S. 320), explaining the nature of the
constitutional habeas right:

The writ known in 1789 was the pre-trial contest to the
executive's power to hold a person captive, the device
that prevents arbitrary detention without trial. The
power thus enshrined did not include the ability to
reexamine judgments rendered by courts possessing
jurisdiction. Under the original practice, ``a judgment
of conviction rendered by a court of general criminal
jurisdiction was conclusive proof that confinement was
legal *_*_* [and] prevented issuance of a writ.'' The
founding-era historical evidence suggests a prevailing
view that State courts were adequate fora for
protecting Federal rights. Based on this assumption,
there was (and is) no constitutionally enshrined right
to mount a collateral attack on a State court's
judgment in the inferior Article III courts and, a
fortiori, no mandate that State court judgments
embracing questionable (or even erroneous)
interpretations of the Federal Constitution be reviewed
by the inferior Article III courts. (Citations
omitted.)

The Seventh Circuit concluded: ``Any suggestion that the
[Constitution] forbids every contraction of the [federal
habeas] power bestowed by Congress in 1885, and expanded by the
1948 and 1966 amendments, is untenable.''
The scope of Federal review of State convictions clearly is
a matter for legislative determination--it is not dictated by
constitutional mandates. It is for Congress to decide how much
review, and under what conditions and limits, is appropriate.
Under section 303 of the legislation, habeas claims may
continue to go forward if they meet the ``actual innocence''
test in 28 U.S.C. Sec. 2254(e)(2). Section 2254(e)(2) does not
simply require that the evidence could show actual innocence.
Rather, it requires that the evidence of innocence be clear and
convincing, and it requires that petitioner show that he could
not previously have discovered the evidence through due
diligence.
The Justice Department proposed using the actual innocence
test contained in title 18 U.S.C. Sec. 2254(e)(2) (or the
related provision in Sec. 2244(b)(2)) as the standard for
allowing unexhausted or defaulted claims to go forward in its
July 17, 2003 testimony before the House Crime Subcommittee.
State prosecutors also have stressed the importance of using
this standard--rather than a simple claim of actual innocence--
as a gateway for allowing procedurally improper claims to
proceed. The purpose of habeas review is not simply to litigate
the trial to reweigh the same evidence that the jury already
considered. However, if the standard for an exception to
procedural rules were just a claim of innocence, any defendant
who went to trial could simply present the same evidence that
he presented to (and that was rejected by) the jury. Moreover,
in every criminal trial, the defense counsel will choose not to
use some of the exculpatory evidence that is available to him.
Such evidence may be cumulative--it merely reproves a fact
whose existence already is strongly proved by other evidence.
Alternatively, the evidence may be insubstantial--it does not
show much. A system of procedure simply could not function if
all of such evidence could be used as a basis for further
litigation and further hearings. There must be a gatekeeper in
place for narrowing the range of evidence to that which is
truly worth a second look. Evidence that previously was not
available to the defense meets this standard.
Existing sections 2254(e)(2) and 2244(b)(2) of title 18,
are proven and flexible. These two code sections were enacted
as part of the 1996 reforms--they have been in use for nearly a
decade. ``Discoverable through due diligence'' is a flexible
standard that gives courts discretion to decide whether the
defendant really could have presented his evidence earlier (and
thus it likely is merely cumulative or is not probative), or
whether it is evidence that the defendant surely would have
presented if he had access to it (and thus it is important).
Opponents of this standard cannot cite a single case where
18 U.S.C. Sec. Sec. 2254(e)(2) or 2244(b)(2) have prevented a
court from considering a compelling claim of actual innocence.
If these standards are so overly restrictive, surely opponents
would be able to cite at least one case where these sections
barred a claim that we could all agree should have been allowed
to go forward.
The reason for requiring that habeas evidence be able to
show ``clear and convincing'' proof of innocence (rather than
just preponderance) is simple: it is the jury which heard all
of the witnesses testify and that heard all of the evidence
when it was still fresh. If the jury comes to a conclusion
about the facts after reviewing all of the evidence at trial,
that conclusion is entitled to deference. The jury's findings
should be set aside only if a contrary finding is clear enough
that it outweighs the superior access to the evidence enjoyed
by the jury.

DEATH PENALTY PROVISIONS IN THE CHILDREN'S SAFETY ACT

Sections 302 and 402 of H.R. 3132 expand application of the
death penalty to any killing of a minor or sexual abuse of a
minor resulting in the death of the minor. The need for a swift
and effective death penalty is significant in the case of
violent offenders who murder children.
Several scientifically valid statistical studies--those
that examine a period of years, and control for national
trends--consistently show that capital punishment is a
substantial deterrent and saves lives--recent estimates show
that each execution deters 18 murders. H. Naci Mocan, R. Kaj
Gittings, Removals from Death Row, Executions, and Homicide,
University of Colorado at Denver, Dep't of Economics, at 21
(available on the Internet at:
http://econ.cudenver.edu/gittings/KajPaperJune.pdf). Hashem
Dezhbaksh, Paul H. Rubin, Joanna Mehlhop Shepherd, Does Capital
Punishment Have A Deterrent Effect? New Evidence from Post-
moratorium Panel Data, Emory University (January 2002), at 27
(study available on the Internet at: http://
userwww.service.emory.edu/cozden/Dezhbakhsh--01--01--
paper.pdf); Layson, Homicide and Deterrence: A Reexamination of
the United States Time-Series Evidence, 52 S. Econ. J. 68, 75,
80 (1984); Layson, United States Time-Series Homicide
Regressions with Adaptive Expectations, 62 Bull. N.Y. Acad.
Med. 589 (1986).
With respect to the Federal death penalty, opponents
continue to argue, contrary to the evidence, that imposition of
the death penalty has been racially-biased and had a
disproportionate impact on minority populations. To the
contrary, the evidence demonstrates that the Federal death
penalty, with its rigorous review procedures, is imposed at a
higher rate against white defendants than minority defendants.
The Justice Department has concluded, after two
comprehensive studies--one conducted in 2000 (Attorney General
Janet Reno) and another in 2001, that at no stage of the [death
penalty] review process were decisions to recommend or approve
the seeking of a capital sentence made at higher rates for
black or hispanic defendants than for white defendants.\17\ For
example, as noted in the September 12, 2000 Justice Department
study, in the cases considered by the Attorney General, the
Attorney General approved seeking the death penalty for 38
percent of white defendants, 25 percent of black defendants,
and 20 percent of hispanic defendants.
---------------------------------------------------------------------------
\17\U.S. Department of Justice, 12 Sept. 2000--Survey of the
Federal Death Penalty System (1988-2000), available at http://
www.usdoj.gov/dag/pubdoc/dp--survey--toc.pdf. U.S. Department of
Justice, 6 June 2001-The Federal Death Penalty System: Supplementary
Data, Analysis and Revised Protocols for Capitol Case Review, available
at http://www.usdoj.gov/dag/pubdoc/dp--survey--toc.pdf.
---------------------------------------------------------------------------
At every stage of the Federal penalty review process (i.e.,
U.S. Attorney recommendation, Capital Case Review Committee,
Attorney General decision), the recommendation and decision to
seek the death penalty was less likely at each stage of the
process for black and hispanic defendants than for white
defendants. In other words, United States Attorneys recommended
the death penalty in smaller proportions of the submitted cases
involving black or hispanic defendants than in those involving
white defendants; the Attorney General's capital case review
committee likewise recommended the death penalty in smaller
proportions of the submitted cases involving black or hispanic
defendants than in those involving white defendants; and the
Attorney General made a decision to seek the death penalty in
smaller proportions of the submitted cases involving black or
hispanic defendants than in those involving white defendants.
(2000 Report at p. 7)
More specifically, in the cases considered by the Attorney
General, the Attorney General decided to seek the death penalty
for 38 percent of the white defendants, 25 percent of the black
defendants, and 20 percent of the hispanic defendants. (Sept.
12 report at 7.) The finding that the death penalty was sought
at lower rates for black and hispanic defendants than for white
defendants held true both in ``intraracial'' cases, involving
defendants and victims of the same race and ethnicity, and in
``interracial'' cases, involving defendants and victims of
different races or ethnicities. (Sept. 12 report at 25-26.)
The 2001 Report reached similar findings--there was no
evidence of favoritism towards White defendants in comparison
with minority defendants. Rather, potential capital cases
involving black or hispanic defendants were less likely to
result in capital charges and submission of the case to the
review procedure. Specifically, capital charges were brought
and the case was submitted for review for 81 percent of the
white defendants; the corresponding figures for black
defendants and hispanic defendants were 79 percent and 56
percent respectively.
Likewise, considering the process as a whole, potential
capital cases involving black or hispanic defendants were less
likely to result in decisions to seek the death penalty.
Specifically, the Attorney General ultimately decided to seek
the death penalty for 27 percent of the white defendants (44
out of 166), 17 percent of the black defendants (71 out of
408), and 9 percent of the hispanic defendants (32 out of 350).
Despite these facts, critics continue to maintain that
these rates are disproportionate to the percentages of minority
populations. Such a claim ignores one simple truth--crime and
victimization are not evenly distributed across the general
population, and there is no reason to expect that the racial
and ethnic proportions in potential capital cases will be the
same as the racial and ethnic proportions in the general
population.

Hearings

The Committee's Subcommittee on Crime, Terrorism, and
Homeland Security held a series of three hearings on child
crime issues related to H.R. 3132, on June 7 and 9, 2005. The
first hearing focused on H.R. 2138, the ``Prevention and
Deterrence of Violence Against Children's Act,'' and H.R. 2188,
the ``Protection Against Sexual Exploitation of Children Act.''
Testimony was received from four witnesses, representing the
United States Department of Justice, the Attorney General from
the State of Florida, Ms. Carol Fornoff, the mother of Christy
Ann Fornoff, who was murdered in 1984, and a representative
from the Federal Public Defender in Montana.
The second hearing, on June 9, 2005, focused on legislative
proposals relating to child safety. Testimony was received
from: the Honorable Mark Foley, from the 16th Congressional
District of the State of Florida; the Honorable Ted Poe, from
the 2nd Congressional District of the State of Texas; the
Honorable Ginny Brown-Waite, from the 5th Congressional
District of the State of Florida; and the Honorable Earl
Pomeroy, who serves At Large in the State of North Dakota.
The third hearing, on June 9, 2005, focused on protecting
children from sexual predators and violent criminals. Testimony
was received from a representative from the United States
Department of Justice, Ernie Allen, President of the National
Center for Missing and Exploited Children; Amie Zyla, a child
victim of sexual assault by a convicted sex offender; and Dr.
Fred Berlin, Associate Professor in the Department of
Psychiatry at the Johns Hopkins University School of Medicine.

Committee Consideration

On July 27, 2005, the Committee met in open session and
ordered favorably reported the bill H.R. 3132 with an amendment
by a recorded vote of 22 yeas to 4 nays, a quorum being
present.

Vote of the Committee

In compliance with clause 3(b) of Rule XIII of the Rules of
the House of Representatives, the following rollcall votes
occurred during the Committee's consideration of H.R. 3132.
1. The Committee voted 16 yeas to 17 nays not to adopt an
amendment offered by Rep. Scott which would have deleted the 5-
year mandatory minimum penalty for failing to register in
Section 105 of H.R. 3132.

ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 16 17
----------------------------------------------------------------------------------------------------------------

2. The Committee voted 12 yeas to 18 nays not to adopt an
amendment offered by Rep. Scott which would have struck section
303, relating to habeas reform, in H.R. 3132.

ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 12 18
----------------------------------------------------------------------------------------------------------------

3. The Committee voted 9 yeas to 17 nays not to adopt an
amendment offered by Rep. Nadler to amend sections 922(d) and
(g) of title 18 United States Code to include as a prohibited
person anyone convicted of a sex offense against a minor.

ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney......................................................
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Meehan...................................................... X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 9 17
----------------------------------------------------------------------------------------------------------------

4. The Committee voted 22 yeas to 4 nays to report
favorably H.R. 3132, as amended.

ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................
Mr. Flake.......................................................
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters......................................................
Mr. Meehan...................................................... X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 22 4
----------------------------------------------------------------------------------------------------------------

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.

New Budget Authority and Tax Expenditures

Clause 3(c)(2) of Rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.

Performance Goals and Objectives

The Committee states that pursuant to clause 3(c)(4) of
Rule XIII of the Rules of the House of Representatives, H.R.
3132, is intended to improve the national sex offender
registration program and protect children from sexual abuse and
exploitation and other violent crimes.

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

The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short Title; Table of Contents
This section designates the short title as the ``Children's
Safety Act of 2005,'' and lists a table of contents for the
five titles in the Act.

TITLE I--SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

Sec. 101. Short Title
This section names the short title for title I as the ``Sex
Offender Registration Act.''
Sec. 102. Declaration of Purpose
This section states the purpose of title I is for Congress
to create a comprehensive national system for the registration
of sex offenders in order to protect children, and is in
response to brutal sexual attacks against children and adults
by convicted sexual offenders: (1) Jacob Wetterling; (2) Megan
Nicole Kanka; (3) Pam Lyncher; (4) Jetseta Gaga; (5) Dru
Sjodin; (6) Jessica Lunsford; (7) Sarah Lunde; (8) Amie Zyla;
(9) Christy Fornoff; and (10) Alexandra Nicole Zapp.

SUBTITLE A--JACOB WETTERLING SEX OFFENDER REGISTRATION AND NOTIFICATION
PROGRAM

Sec. 111. Relevant Definitions, Including Amie Zyla Expansion of Sex
Offender Definition and Expanded Inclusion of Child Predators
This section sets forth the definitions for title I of the
Act and expands several existing terms to include a broader
category of sexual offenders, additional specified crimes
against minors, and needed clarifications to the existing law.
In particular, the category of crimes covered by the Act is
expanded to include juvenile sex offenses, possession of child
pornography, and a new definition of sex offense.
Sec. 112. Registry Requirements for Jurisdictions
This section requires each jurisdiction to maintain a
jurisdiction-wide sex offender registry conforming to the
requirements of this title and authorizes the Attorney General
to prescribe guidelines to carry out the purposes of the title.
Sec. 113. Registry Requirements for Sex Offenders
This section requires a sex offender to register, and
maintain current information in each jurisdiction where the sex
offender resides, is employed or attends school. It also
requires that such registration be filed prior to release from
jail or no later than 5 days after a sentence not requiring
imprisonment is imposed, not later than 5 days after any change
in residence, employment or student status. The Attorney
General is authorized to issue guidelines on application of the
Act to sex offenders who were not previously covered by the sex
offender registration requirements. Each jurisdiction is
required to provide a felony criminal offense for failure to
comply with the registration requirements.
Sec. 114. Information Required in Registration
This section specifies, at a minimum, what information the
registry must include. The sex offender must provide: (1) the
name (and any alias) of the sex offenders; (2) the sex
offender's Social Security number; (3) the sex offender's
address; (4) the sex offender's employment address; (5) the sex
offender's school address; (6) the license plate of any vehicle
owned or used by the sex offender; (7) a photograph; (8) a set
of fingerprints and palm prints; (9) DNA information; and (10)
any other information required by the Attorney General. The
jurisdiction must provide: (1) a statement of the facts
underlying the conviction for which the sex offender is
registering; (2) the sex offender's criminal history; and (3)
any other information required by the Attorney General.
Sec. 115. Duration of Registration Requirement
This section specifies the duration of the registration
requirement: (a) life for sex offenders who commit a felony sex
offense, commit a specified crime against a minor, or commit a
second misdemeanor sex offense against a minor; or (b) 20 years
for a sex offender who commits a misdemeanor sex offense
involving a minor.
Sec. 116. In Person Verification
This section requires a sex offender to appear in person
for verification of registration information no less frequently
than once every 6 months.
Sec. 117. Duty to Notify Sex Offenders of Registration Requirements and
to Register
This section requires a jurisdiction official to inform the
sex offender of the registration requirements, make sure the
sex offender understands the requirements by executing a form
that confirms the sex offender's understanding, and register
the sex offender.
Sec. 118. Jessica Lunsford Address Verification Program
This section establishes the Jessica Lunsford Verification
Program that requires State officials to verify the residence
of each registered sex offender every month if the underlying
conviction is a felony sex offense or specified criminal
offense against a minor, or every quarter if the underlying
conviction is a misdemeanor sex offense. In carrying out such
verification, the jurisdiction official can use a
nonforwardable mailing which can be sent on a random date and
returned, including a notarized signature, by a set date. The
failure to return such a mailing would constitute a failure to
register.
Sec. 119. National Sex Offender Registry
This section requires the Attorney General to maintain a
National Sex Offender Registry.
Sec. 120. Dru Sjodin National Sex Offender Public Website
This section creates the Dru Sjodin National Sex Offender
Public Website which allows the public to obtain relevant
information about sex offenders through a single query to the
website. In addition, the Attorney General is required to
forward electronically to any relevant jurisdiction any changes
in the registry information for a sex offender.
Sec. 121. Public Access to Sex Offender Information through the
Internet
This section requires each jurisdiction to make available
to the public through an Internet site information pertaining
to a sex offender except for the offender's Social Security
Number, the victim's identity or any other information exempted
by the Attorney General.
Sec. 122. Megan Nicole Kanka and Alexandra Nicole Zapp Community
Notification Program
This section requires an appropriate official to notify,
within 5 days of a change in a sex offender's information, the
following: (1) the Attorney General, who shall include the
update information in the National Sex Offender Registry; (2)
an appropriate law enforcement agency in the area where the sex
offender resides, is employed or is a student; (3) each
jurisdiction to or from which a change in residence, work or
student status occurs; (4) any agency responsible for
conducting employment-related background checks; (5) social
service entities responsible for protecting minors in the child
welfare system; and (6) volunteer organizations where contact
with minors or other vulnerable individuals might occur.
Sec. 123. Actions to be Taken When Sex Offender Fails to Comply
This section requires an appropriate official from the
State or other jurisdiction to notify the Attorney General and
appropriate State and local law enforcement agencies to inform
them of any failure by a sex offender to comply with the
registry requirements. The appropriate official, the Attorney
General, and each such State and local law enforcement agency
is required to take any appropriate action to ensure
compliance.
Sec. 124. Immunity for Good Faith Conduct
This section provides that law enforcement agencies,
employees of law enforcement agencies, contractors acting at
the direction of law enforcement agencies, and officials from
State and other jurisdictions shall not be held criminally or
civilly liable for carrying out a duty in good faith.
Sec. 125. Development and Availability of Registry Management Software
This section requires the Attorney General to develop
software and make it available to States and jurisdictions to
establish, maintain, publish and share sex offender registries.
Sec. 126. Federal Duty when State Programs Not Minimally Sufficient
This section requires that, if the Attorney General
determines that a jurisdiction does not have a minimally
sufficient sex offender registry program, the Attorney General
shall seek, to the extent practicable, to carry out the
obligations of the registry program.
Sec. 127. Compliance by State and Other Jurisdictions
This section requires jurisdictions to comply with the
requirements of this title within two years of enactment. The
Attorney General may authorize a one-year extension to a
jurisdiction to comply.
Sec. 128. Failure to Comply
This section imposes a 10-percent reduction in Byrne grant
and Local Government Law Enforcement Block grants in funding to
any jurisdiction that fails to comply with the requirements of
this Act.
Sec. 129. Sex Offender Management Assistance (SOMA) Program
This section authorizes the Sex Offender Management
Assistance (SOMA) Program to fund grants to jurisdictions to
implement the sex offender registry requirements. Bonus
payments to jurisdictions are authorized at 10 percent of prior
fiscal year funding for those entities complying with the
requirements within 1 year of enactment; and 5 percent bonus
payments for those entities complying with the requirements
within 2 years of enactment. Finally, this section authorizes
funding of such sums necessary to carry out this title for
fiscal years 2006 through 2008.
Sec. 130. Demonstration Projects for Use of Electronic Monitoring
Devices
This section authorizes the Attorney General to create up
to 10 projects to demonstrate the extent to which electronic
monitoring devices can be used effectively in a sex offender
registry program.
Sec. 131. Bonus Payments to States that Implement Electronic Monitoring
This section authorizes the Attorney General to award
grants to States that implement electronic monitoring programs
for life for certain dangerous sex offenders and for the period
of court supervision for any other case.
Sec. 132. National Center for Missing and Exploited Children Access to
Interstate Identification Index
This section provides NCMEC with access to Interstate
Identification Index data to carry out its duties and
responsibilities, and is limited to only those personnel who
have met all requirements for training, certification and
background screening.
Sec. 133. Limited Immunity for National Center for Missing and
Exploited Children with Respect to Cybertipline
This section provides NCMEC with limited immunity related
to its CyberTipline, except for intentional, reckless or other
deliberate misconduct.

SUBTITLE B--CRIMINAL LAW ENFORCEMENT OF REGISTRATION REQUIREMENTS

Sec. 151. Amendments to Title 18, United States Code, Relating to Sex
Offender Registration
This section creates a new Federal crime for a sex offender
who receives notice of the requirements to register in a sex
offender registry and: (1) is a Federal sex offender or (2) a
State or local sex offender who travels in interstate or
foreign commerce, or enters or leaves Indian country, and; (3)
knowingly fails to register. Such an offense is punishable by a
mandatory minimum sentence of 5 years imprisonment and a
maximum of 20 years imprisonment. In addition, this modifies
section 1001, of title 18 to add a mandatory minimum penalty of
5 years imprisonment and a maximum of 20 years imprisonment for
a false statement made in the investigation of various sex
offenses. This section also requires a defendant to comply with
registration requirements as a mandatory condition of probation
or supervised release, and if such a violation of that
condition occurs, the defendant's probation or supervised
release shall be revoked and the defendant detained pending
resolution of such revocation proceeding. The court shall
impose a 5 year mandatory minimum sentence of imprisonment for
a failure to register and a 10 year mandatory minimum sentence
for an offense involving a violation of Chapters 109A, 109B,
110 or 117. Finally, this section requires the Bureau of
Prisons to register sex offenders as required under this title
for the applicable jurisdiction.
Sec. 152. Investigation by United States Marshals of Sex Offender
Violations of Registration Requirements
This section reiterates the United States Marshals
authority to assist in the apprehension of sex offenders who
have failed to comply with applicable registration
requirements. In addition, this section authorizes funding of
such sums as necessary to undertake these activities for fiscal
years 2006 to 2008.
Sec. 153. Sex Offender Apprehension Grants
This section authorizes funding of such sums as necessary
for fiscal years 2006 to 2008 for the Attorney General to
provide grants to States and other jurisdictions to apprehend
sex offenders who fail to comply with registration
requirements.
Sec. 154. Use of Any Controlled Substances to Facilitate Sex Offense
This section creates an enhanced criminal penalty for the
use of a controlled substance against a victim to facilitate
the commission of a sex offense.
Sec. 155. Repeal of Predecessor Sex Offender Program
This section repeals the predecessor sex offender registry
program.

TITLE II--DNA FINGERPRINTING

Sec. 201. Short Title
This section names the short title as the ``DNA
Fingerprinting Act of 2005.''
Sec. 202. Expanding Use of DNA to Identify and Prosecute Sex Offenders
This section amends the DNA Identification Act to eliminate
the restrictions on the DNA profiles that can be included in
the national DNA index (NDIS). Specifically, it strikes
limiting language in Section 14132(a)(1)(C) that excludes
unindicted arrestees and eliminates DNA profiles from NDIS;
strikes the expungement provisions of Section 14132(d); and
strikes the ``keyboard search'' provisions of Section 14132(e),
which serve no purpose once the unjustified restrictions on
including DNA profiles in NDIS are eliminated. This section
also would authorize the Attorney General to collect DNA
samples from Federal arrestees and detainees. Finally, this
section strikes the exclusion of chapter 109A (``sexual abuse
'') offenses from the statute of limitations tolling provision
for cases involving DNA identification under 18 U.S.C. 3297.
Sec. 203. Stopping Violent Predators Against Children
This section directs the Attorney General to give
appropriate consideration to the need for collection and
testing of DNA to stop violent predators against children.
Sec. 204. Model Code on Investigating Missing Persons and Deaths
This section requires the Attorney General, within 60 days
of enactment, to publish a model code for law enforcement
officers when investigating a missing person or a death,
including DNA analysis to help locate missing persons and
identify human remains. In addition, this section directs the
GAO to conduct a study 2 years after the publication of the
model code on the extent to which States have implemented it.

TITLE III--PREVENTION AND DETERRENCE OF CRIMES AGAINST CHILDREN ACT OF
2005

Sec. 301. Short Title
This section designates this title as the ``Prevention and
Deterrence of Crimes Against Children Act of 2005.''
Sec. 302. Assured Punishment for Violent Crimes Against Children
This section modifies the existing statute, section
3559(d), of title 18, governing the sentencing of defendants
for crimes committed against children, and adopts new penalties
for felony crimes of violence (section 16 of title 18) crimes
committed against children. Criminal penalties range from a
death sentence or life imprisonment when a child is killed; a
mandatory minimum of 30 years imprisonment to life where the
crime of violence is a kidnapping, maiming, aggravated sexual
abuse, sexual abuse or where the crime results in serious
bodily injury (section 2119(2)); a mandatory minimum of 20
years where the crime of violence results in bodily injury to
the child (as defined in 1365); a mandatory minimum of 15 years
to life imprisonment when the defendant uses a dangerous
weapon; and a mandatory minimum of 10 years imprisonment or up
to life in any other case (e.g. attempt or conspiracy to commit
any crime of violence against a child).
Sec. 303. Ensuring Fair and Expeditious Federal Collateral Review of
Convictions for Killing of a Child.
This section imposes time limits and substantive limits on
Federal courts' review of habeas corpus petitions challenging a
State-court conviction for killing a child. In the district
court, parties will be required to move for an evidentiary
hearing within 90 days of the completion of briefing, the court
must act on the motion within 30 days, and the hearing must
begin 60 days later and last no longer than 3 months. All
district-court review must be completed within 15 months of the
completion of briefing. In the court of appeals, the court must
complete review within 120 days of the completion of briefing.
In most cases, these limits will ensure that Federal review of
a defendant's appeal is completed within less than two years.
This section also makes these deadlines practical and
enforceable by limiting Federal review to those claims
presenting meaningful evidence that the defendant did not
commit the crime--defendants would be barred from re-litigating
claims unrelated to guilt or innocence. (Defendants still will
be permitted to litigate all their claims in State court on
direct review and State-habeas review, and in petitions for
certiorari in the U.S. Supreme Court).

TITLE IV--PROTECTION AGAINST SEXUAL EXPLOITATION
OF CHILDREN ACT OF 2005

Sec. 401. Short Title
The short title of the section is entitled the ``Protection
Against Sexual Exploitation of Children Act of 2005''.
Sec. 402. Increased Penalties for Sexual Offenses Against Children
This section modifies the criminal penalties for several
existing sexual offenses against children by amending:
(a) Section 2241 to impose a mandatory minimum penalty of
30 years to life for knowingly engaging in a sexual act with
either a child less than 12 years old, or a child that is 12-16
years old by using force or intoxicants if the perpetrator is
at least 4 years older than the child; current law provides
that the perpetrator may be imprisoned for zero years up to
life;
(b) Section 2241 to require a mandatory minimum of 10 years
and a maximum of 25 years for engaging in abusive sexual
contact--i.e., intentional touching of private parts with
intent to abuse, humiliate, or sexually arouse, a child less
than 12 years old, or 12-16 years old where the perpetrator
used force or intoxicants and was at least 4 years older than
the child; the current penalty is imprisonment for zero up to
10 years;
(c) Section 2245 to impose a mandatory minimum of 30 years
imprisonment to life, or death where a perpetrator commits a
sexual-abuse offense against a child less than 12 years old
that results in death (current penalty is a sentence of death
or imprisonment for zero years up to life);
(d) Section 2251 to impose a mandatory minimum penalty of
25 years up to life, life imprisonment for a second conviction;
and death or life imprisonment, where the death of the child
results from sexual abuse of a minor for the purpose of
producing a visual depiction of such conduct, or where a legal
guardian of a minor knowingly permits the minor to engage in
such conduct for such purposes, or to advertise for a minor to
engage in such conduct for such purposes. (Current law makes
this offense punishable by 15 to 30 years imprisonment, and if
the perpetrator has one prior conviction for sexual
exploitation or abuse of children, 25 to 50 years imprisonment,
and if the perpetrator has two such prior convictions, 35 years
imprisonment up to life, and if conduct in the course of the
offense results in death, punishment by death or imprisonment
for zero years up to life.);
(e) Section 2252 to impose a mandatory minimum of 20 years
imprisonment up to life, or mandatory life imprisonment where
the defendant has a prior conviction for the same offense,
where a defendant knowingly ships, receives, distributes,
sells, or possesses with intent to sell, except that a
mandatory minimum of 10 years to a maximum of 30 years
imprisonment would be imposed for possession of such material
or imprisonment for 20 years if the perpetrator has a prior
conviction for sexual exploitation or abuse of children..
(Current law makes all of these offenses other than simple
possession punishable by 5 to 25 years' imprisonment, and if
the perpetrator has a prior conviction for sexual exploitation
or abuse of children, imprisonment for 15 to 40 years;
(f) Section 2252A to impose new mandatory minimum penalties
of 20 years up to life, and 10 years to life for possession to
knowingly mail, ship, reproduce for distribution, sell, possess
with intent to sell, or simply knowingly possess child
pornography, or to knowingly provide to a minor a visual
depiction of a minor engaging in sexually explicit conduct.
(Current law makes all of these offenses other than simple
possession punishable by 5 to 20 years imprisonment, and zero
to 10 years for simple possession).
(g) Section 2252B to increase the mandatory minimum penalty
from 4 years imprisonment to 10 years to a maximum of 30 years
imprisonment for use of a misleading domain name on the
Internet with the intent to deceive a minor into viewing
material that is harmful to minors.
(h) Section 2260 to increase mandatory minimum penalties to
25 years to life imprisonment (30 years if perpetrator has
prior conviction for sexual exploitation or abuse of child) for
use of a minor to engage in sexually explicit conduct for the
purpose of producing a visual depiction of such conduct for
importation into the United States or receive, ship,
distribute, or sell, or possess with intent to ship,
distribute, or sell, a visual depiction of a minor engaging in
sexually explicit conduct for the purpose of importing such
visual depiction into the United States. (Current law makes
this offense punishable by zero to 10 years imprisonment, and
if the perpetrator has a prior conviction for sexual
exploitation or abuse of children, punishable by zero to 20
years imprisonment.);
(i) Section 2423 to increase mandatory minimum penalties to
30 years up to life to knowingly transport in interstate
commerce a minor with the intent that the minor engage in child
prostitution or in sexual activity for which any person can be
charged with a criminal offense. (Current law makes this
offense punishable by imprisonment for 5 to 30 years). In
addition, this section would impose a mandatory minimum of 10
to 30 years imprisonment to travel in interstate commerce or
into the United States for the purpose of engaging in a sexual
act with a minor if that act would be an offense under chapter
109A if it occurred in a Federal jurisdiction, or for the
purpose of engaging in a commercial sex act with a minor, or to
be a U.S. citizen or permanent resident and travel in foreign
commerce (without regard to the purpose of the travel) and
either engage in a sexual act with a minor if that act would be
an offense under chapter 109A. Also, this section imposes a 30
year mandatory minimum where a perpetrator, for commercial
advantage or financial gain, arrange or facilitate the travel
of a person knowing that such person is traveling in interstate
or foreign commerce in order to either engage in a sexual act
with a minor if that act would be an offense under chapter 109A
if it occurred in a Federal jurisdiction, or to engage in a
commercial sex act with a minor. (Current law makes this
offense punishable by zero to 30 years imprisonment.)

TITLE V--FOSTER CHILD PROTECTION AND CHILD SEXUAL PREDATOR DETERRENCE
ACT

Sec. 501. Short Title
This section creates a short title ``Foster Child
Protection and Child Sexual Predator Deterrence Act.''
Sec. 502. Requirement to Complete Background Checks Before Approval of
Any Foster or Adoptive Placement and to Check National Crime
Information databases and State Child Abuse Registries abd
Suspension and Subsequent Elimination of Opt-Out
This section amends section 471(a)(20) of the Social
Security Act to require each State to complete background
checks and abuse registries and to check the national criminal
information databases relating to any foster parent or adoptive
parent application, before approval of such an application, and
provides read-only access to agencies responsible for foster
parent or adoptive parent placements.
Sec. 503. Access to Federal Crime Information Databases by Child
Welfare Agencies For Certain Purposes
This section authorizes the Attorney General to provide
read-only access to the national crime information databases
(section 435 of title 28, United States Code) to carry out
criminal history records checks. An individual who misuses such
information would be subject to criminal penalties of up to 10
years incarceration.
Sec. 504. Penalties for Coercion and Enticement by Sex Offenders
This section amends section 2422(a) of title 18, United
States Code, to increase penalties for coercion and enticement
of a minor by a sex offender.
Sec. 505. Penalties for Conduct Relating to Child Prostitution
This section increases mandatory-minimum penalties for
conduct relating to child prostitution ranging from a mandatory
minimum of 10 years to a mandatory minimum of 20 years
depending on the severity of the conduct.
Sec. 506. Penalties for Sexual Abuse
This section amends several statutes relating to sexual
abuse to create mandatory minimum sentences of 30 years to
life, and 25 years to life, respectively, for aggravated sexual
abuse; 15 to 40 years for sexual abuse; and new mandatory
minimums for abusive sexual contact ranging from 2 years to 5
years, and maximum terms ranging from 10 to 30 years, depending
on the severity of the conduct.
Sec. 507. Sex Offender Submission to Search as Condition of Release
This section expands the list of mandatory conditions of
probation and supervised release to include submission by the
sex offender under supervision to searches by law enforcement
and probation officers with reasonable suspicion, and to
searches by probation officers in the lawful discharge of their
supervision functions. This provision is important to permit
effective monitoring and oversight of released offenders, and
to enforce the conditions of their release.
Sec. 508. Kidnapping Jurisdiction
This section expands the Federal jurisdiction nexus for
kidnapping comparable to that of many other Federal crimes to
include travel by the offender in interstate or foreign
commerce, or use of the mails or other means, facilities, or
instrumentalities of interstate or foreign commerce in
furtherance of the offense.
Sec. 509. Marital Communication and Adverse Spousal Privilege
This section restricts the scope of the common law marital
privileges by making them inapplicable in a criminal child
abuse case in which the abuser or his or her spouse invokes a
privilege to avoid testifying.
Sec. 510. Abuse and Neglect of Indian Children
This section amends 18 U.S.C. Section 1153, the ``Major
Crimes Act'' for Indian country cases to add felony child abuse
or neglect to the predicate offenses. Such offenses would
typically be subject to felony penalties under State law, and
the only criminal recourse in Indian country is the possibility
of a misdemeanor prosecution in tribal court.
Sec. 511. Civil Commitment
This section authorizes civil commitment of certain sex
offenders who are dangerous to others because of serious mental
illness, abnormality or disorder. Such procedures would apply,
for example, where a pedophile who was sentenced to
imprisonment for child molestation offenses, states his
intention to resume such conduct upon his release from jail.
Under the civil commitment provisions in existing law, the sex
offender must be hospitalized while incarcerated and the
director of the facility must certify that the offender is
suffering from a ``mental disease or defect'' creating a
substantial risk of harm to others. Such a standard is narrow
and does not include sex offenders with mental disorders who
are clearly dangerous but who do not fall within the narrowly
applied definition of mental illness.
The proposed new section on civil commitment addresses the
problem in relation to sex offenders in Federal custody by
creating anew substantive section on this issue, and with
conforming and related amendments to the general provisions for
that chapter in Section 4247. The proposed provision combines
commitment standards substantively similar to those approved by
the Supreme Court in Kansas v. Hendricks, 521 U.S. 346 (1997),
and Kansas v. Crane, 122 S.Ct 867 (2002).
Sec. 512. Mandatory Penalties for Sex Trafficking of Children
This section amends section 1591 of title 18, United States
Code, to impose a mandatory-minimum penalty of 20 years when
the offense involved trafficking of a child under the age of
14, and a mandatory minimum penalty of 10 years when the
offense involved trafficking of a child between the ages of 14
and 17.
Sec. 513. Sexual Abuse of Wards
This section amends 2243 and 2244 to increase maximum
penalties for sexual abuse of wards. It also clarifies the
applicability of the criminal prohibition to Federal contract
prison facilities.

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 (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 227 OF THE VICTIMS OF CHILD ABUSE ACT OF 1990

SEC. 227. REPORTING OF CHILD PORNOGRAPHY BY ELECTRONIC COMMUNICATION
SERVICE PROVIDERS.

(a) * * *

* * * * * * *

(g) Limitation on Liability.--
(1) In general.--Except as provided in paragraphs
(2) and (3), the National Center for Missing and
Exploited Children, including any of its directors,
officers, employees, or agents, is not liable in any
civil or criminal action for damages directly related
to the performance of its CyberTipline responsibilities
and functions as defined by this section.
(2) Intentional, reckless, or other misconduct.--
Paragraph (1) does not apply in an action in which a
party proves that the National Center for Missing and
Exploited Children, or its officer, employee, or agent
as the case may be, engaged in intentional misconduct
or acted, or failed to act, with actual malice, with
reckless disregard to a substantial risk of causing
injury without legal justification, or for a purpose
unrelated to the performance of responsibilities or
functions under this section.
(3) Ordinary business activities.--Paragraph (1)
does not apply to an act or omission related to an
ordinary business activity, such as an activity
involving general administration or operations, the use
of motor vehicles, or personnel management.
----------

TITLE 18, UNITED STATES CODE

* * * * * * *

PART I--CRIMES

Chap. Sec.
1. General provisions............................................ 1
* * * * * * *
2250Sex offender and crimes against children registry...........

* * * * * * *

CHAPTER 47--FRAUD AND FALSE STATEMENTS

* * * * * * *

Sec. 1001. Statements or entries generally

(a) Except as otherwise provided in this section, whoever,
in any matter within the jurisdiction of the executive,
legislative, or judicial branch of the Government of the United
States, knowingly and willfully--
(1) * * *

* * * * * * *

shall be fined under this title, imprisoned not more than 5
years or, if the offense involves international or domestic
terrorism (as defined in section 2331), imprisoned not more
than 8 years, or both. If the matter relates to an offense
under chapter 109A, 109B, 110, or 117, then the term of
imprisonment imposed under this section shall be not less than
5 years nor more than 20 years.

* * * * * * *

CHAPTER 53--INDIANS

* * * * * * *

Sec. 1153. Offenses committed within Indian country

(a) Any Indian who commits against the person or property
of another Indian or other person any of the following
offenses, namely, murder, manslaughter, kidnapping, maiming, a
felony under chapter 109A, incest, assault with intent to
commit murder, assault with a dangerous weapon, assault
resulting in serious bodily injury (as defined in section 1365
of this title), an assault against an individual who has not
attained the age of 16 years, felony child abuse or neglect,
arson, burglary, robbery, and a felony under section 661 of
this title within the Indian country, shall be subject to the
same law and penalties as all other persons committing any of
the above offenses, within the exclusive jurisdiction of the
United States.

* * * * * * *

CHAPTER 55--KIDNAPPING

* * * * * * *

Sec. 1201. Kidnapping

(a) Whoever unlawfully seizes, confines, inveigles, decoys,
kidnaps, abducts, or carries away and holds for ransom or
reward or otherwise any person, except in the case of a minor
by the parent thereof, when--
(1) the person is willfully transported in
interstate or foreign commerce, regardless of whether
the person was alive when transported across a State
boundary [if the person was alive when the
transportation began], or the offender travels in
interstate or foreign commerce or uses the mail or any
means, facility, or instrumentality of interstate or
foreign commerce in committing or in furtherance of the
commission of the offense;

* * * * * * *

(b) With respect to subsection (a)(1), above, the failure
to release the victim within twenty-four hours after he shall
have been unlawfully seized, confined, inveigled, decoyed,
kidnapped, abducted, or carried away shall create a rebuttable
presumption that such person has been transported [to] in
interstate or foreign commerce. Notwithstanding the preceding
sentence, the fact that the presumption under this section has
not yet taken effect does not preclude a Federal investigation
of a possible violation of this section before the 24-hour
period has ended.

* * * * * * *

CHAPTER 77--PEONAGE, SLAVERY, AND TRAFFICKING IN PERSONS

* * * * * * *

Sec. 1591. Sex trafficking of children or by force, fraud, or coercion

(a) * * *
(b) The punishment for an offense under subsection (a) is--
(1) if the offense was effected by force, fraud, or
coercion or if the person recruited, enticed, harbored,
transported, provided, or obtained had not attained the
age of 14 years at the time of such offense, by a fine
under this title [or] and imprisonment for any term of
years not less than 20 or for life[, or both]; or
(2) if the offense was not so effected, and the
person recruited, enticed, harbored, transported,
provided, or obtained had attained the age of 14 years
but had not attained the age of 18 years at the time of
such offense, by a fine under this title [or
imprisonment for not] and imprisonment for not less
than 10 years nor more than 40 years[, or both].

* * * * * * *

CHAPTER 109A--SEXUAL ABUSE

Sec.
2241. Aggravated sexual abuse.
* * * * * * *
2249. Use of any controlled substance to facilitate sex offense.

Sec. 2241. Aggravated sexual abuse

(a) By Force or Threat.--Whoever, in the special maritime
and territorial jurisdiction of the United States or in a
Federal prison, or being in the custody of the Attorney
General or the Bureau of Prisons or confined in any institution
or facility by direction of the Attorney General or the Bureau
of Prisons, knowingly causes another person to engage in a
sexual act--
(1) * * *

* * * * * * *

or attempts to do so, shall be fined under this title[,
imprisoned for any term of years or life, or both] and
imprisoned for any term of years not less than 30 or for life.
(b) By Other Means.--Whoever, in the special maritime and
territorial jurisdiction of the United States or in a Federal
prison, or being in the custody of the Attorney General or the
Bureau of Prisons or confined in any institution or facility by
direction of the Attorney General or the Bureau of Prisons,
knowingly--
(1) * * *

* * * * * * *

or attempts to do so, shall be fined under this title[,
imprisoned for any term of years or life, or both] and
imprisoned for any term of years not less than 25 or for life.
(c) With Children.--Whoever crosses a State line with
intent to engage in a sexual act with a person who has not
attained the age of 12 years, or in the special maritime and
territorial jurisdiction of the United States or in a Federal
prison, or being in the custody of the Attorney General or the
Bureau of Prisons or confined in any institution or facility by
direction of the Attorney General or the Bureau of Prisons,
knowingly engages in a sexual act with another person who has
not attained the age of 12 years, or knowingly engages in a
sexual act under the circumstances described in subsections (a)
and (b) with another person who has attained the age of 12
years but has not attained the age of 16 years (and is at least
4 years younger than the person so engaging), or attempts to do
so, shall be fined under this title[, imprisoned for any term
of years or life, or both.] and imprisoned for not less than 30
years or for life. If the defendant has previously been
convicted of another Federal offense under this subsection, or
of a State offense that would have been an offense under either
such provision had the offense occurred in a Federal prison,
unless the death penalty is imposed, the defendant shall be
sentenced to life in prison.

* * * * * * *

Sec. 2242. Sexual abuse

Whoever, in the special maritime and territorial
jurisdiction of the United States or in a Federal prison, or
being in the custody of the Attorney General or the Bureau of
Prisons or confined in any institution or facility by direction
of the Attorney General or the Bureau of Prisons, knowingly--
(1) * * *

* * * * * * *

or attempts to do so, shall be fined under this title[,
imprisoned not more than 20 years, or both] and imprisoned not
less than 15 years nor more than 40 years.

Sec. 2243. Sexual abuse of a minor or ward

(a) Of a Minor.--Whoever in the special maritime and
territorial jurisdiction of the United States or in a Federal
prison, or being in the custody of the Attorney General or the
Bureau of Prisons or confined in any institution or facility by
direction of the Attorney General or the Bureau of Prisons,
knowingly engages in a sexual act with another person who--
(1) * * *

* * * * * * *

(b) Of a Ward.--Whoever, in the special maritime and
territorial jurisdiction of the United States or in a Federal
prison, or being in the custody of the Attorney General or the
Bureau of Prisons or confined in any institution or facility by
direction of the Attorney General or the Bureau of Prisons,
knowingly engages in a sexual act with another person who is--
(1) * * *

* * * * * * *

or attempts to do so, shall be fined under this title,
imprisoned not more than [one year] five years, or both.

* * * * * * *

Sec. 2244. Abusive sexual contact

(a) Sexual Conduct in Circumstances Where Sexual Acts Are
Punished by This Chapter.--Whoever, in the special maritime and
territorial jurisdiction of the United States or in a Federal
prison, or being in the custody of the Attorney General or the
Bureau of Prisons or confined in any institution or facility by
direction of the Attorney General or the Bureau of Prisons,
knowingly engages in or causes sexual contact with or by
another person, if so to do would violate--
(1) subsection (a) or (b) of section 2241 of this
title had the sexual contact been a sexual act, shall
be fined under this title, imprisoned not more than ten
years, or both;
(2) section 2242 of this title had the sexual
contact been a sexual act, shall be fined under this
title[, imprisoned not more than three years, or both]
and imprisoned not less than 5 years nor more than 30
years;
(3) subsection (a) of section 2243 of this title
had the sexual contact been a sexual act, shall be
fined under this title[, imprisoned not more than two
years, or both; or] and imprisoned not less than 4
years nor more than 20 years;
(4) subsection (b) of section 2243 of this title
had the sexual contact been a sexual act, shall be
fined under this title[, imprisoned not more than six
months, or both.] and imprisoned not less than 2 years
nor more than 10 years; or
(5) subsection (c) of section 2241 of this title
had the sexual contact been a sexual act, shall be
fined under this title and imprisoned for not less than
10 years and not more than 25 years.
(b) In Other Circumstances.--Whoever, in the special
maritime and territorial jurisdiction of the United States or
in a Federal prison, or being in the custody of the Attorney
General or the Bureau of Prisons or confined in any institution
or facility by direction of the Attorney General or the Bureau
of Prisons, knowingly engages in sexual contact with another
person without that other person's permission shall be fined
under this title, imprisoned not more than [six months] two
years, or both.
(c) Offenses Involving Young Children.--If the sexual
contact that violates this section (other than subsection
(a)(5)) is with an individual who has not attained the age of
12 years, the maximum term of imprisonment that may be imposed
for the offense shall be twice that otherwise provided in this
section.

Sec. 2245. Sexual abuse resulting in death

[A person] (a) In General.--A person who, in the course of
an offense under this chapter, chapter 110, chapter 117, or
section 1591, engages in conduct that results in the death of a
person, shall be punished by death or imprisoned for any term
of years or for life.
(b) Offenses Involving Young Children.--A person who, in
the course of an offense under this chapter, chapter 110,
chapter 117, or section 1591 engages in conduct that results in
the death of a person who has not attained the age of 12 years,
shall be punished by death or imprisoned for not less than 30
years or for life.

* * * * * * *

Sec. 2249. Use of any controlled substance to facilitate sex offense

(a) Whoever, knowingly uses a controlled substance to
substantially impair the ability of a person to appraise or
control conduct, in order to commit a sex offense, other than
an offense where such use is an element of the offense, shall,
in addition to the punishment provided for the sex offense, be
imprisoned for any term of years not less than 10, or for life.
(b) As used in this section, the term ``sex offense'' means
an offense under this chapter other than an offense under this
section.

CHAPTER 109B--SEX OFFENDER AND CRIMES AGAINST CHILDREN REGISTRY

Sec.
2250. Failure to register.

Sec. 2250. Failure to register

Whoever receives a notice from an official that such person
is required to register under the Sex Offender Registration and
Notification Act and--
(1) is a sex offender as defined for the purposes
of that Act by reason of a conviction under Federal
law; or
(2) thereafter travels in interstate or foreign
commerce, or enters or leaves Indian country;
and knowingly fails to register as required shall be fined
under this title and imprisoned not less than 5 years nor more
than 20 years.

CHAPTER 110--SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN

* * * * * * *

Sec. 2251. Sexual exploitation of children

(a) * * *

* * * * * * *

(e) Any individual who violates, or attempts or conspires
to violate, this section shall be fined under this title and
imprisoned not less than [15 years nor more than 30 years] 25
years or for life, but if such person has one prior conviction
under this chapter, section 1591, chapter 71, chapter 109A, or
chapter 117, or under section 920 of title 10 (article 120 of
the Uniform Code of Military Justice), or under the laws of any
State relating to [the sexual exploitation of children]
aggravated sexual abuse, sexual abuse, abusive sexual contact
involving a minor or ward, or sex trafficking of children, or
the production, possession, receipt, mailing, sale,
distribution, shipment, or transportation of child pornography,
such person shall be fined under this title and imprisoned for
[not less than 25 years nor more than 50 years, but if such
person has 2 or more prior convictions under this chapter,
chapter 71, chapter 109A, or chapter 117, or under section 920
of title 10 (article 120 of the Uniform Code of Military
Justice), or under the laws of any State relating to the sexual
exploitation of children, such person shall be fined under this
title and imprisoned not less than 35 years nor more than
life.] life. Any organization that violates, or attempts or
conspires to violate, this section shall be fined under this
title. Whoever, in the course of an offense under this section,
engages in conduct that results in the death of a person, shall
be punished by death or imprisoned for [any term of years or
for life] not less than 30 years or for life..

* * * * * * *

Sec. 2252. Certain activities relating to material involving the sexual
exploitation of minors

(a) * * *
(b)(1) Whoever violates, or attempts or conspires to
violate, [paragraphs (1)] paragraph (1), (2), or (3) of
subsection (a) shall be fined under this title and imprisoned
not less than [5 years and not more than 20 years] 25 years or
for life, but if such person has a prior conviction under this
chapter, section 1591, chapter 71, chapter 109A, or chapter
117, or under section 920 of title 10 (article 120 of the
Uniform Code of Military Justice), or under the laws of any
State relating to aggravated sexual abuse, sexual abuse, or
abusive sexual conduct involving a minor or ward, or the
production, possession, receipt, mailing, sale, distribution,
shipment, or transportation of child pornography, or sex
trafficking of children, such person shall be fined under this
title and imprisoned for [not less than 15 years nor more than
40 years.] life.
(2) Whoever violates, or attempts or conspires to violate,
paragraph (4) of subsection (a) shall be fined under this title
[or imprisoned not more than 10 years, or both] and imprisoned
for not less than 10 nor more than 30 years, but if such person
has a prior conviction under this chapter, chapter 71, chapter
109A, or under section 920 of title 10 (article 120 of the
Uniform Code of Military Justice), or chapter 117, or under the
laws of any State relating to aggravated sexual abuse, sexual
abuse, or abusive sexual conduct involving a minor or ward, or
the production, possession, receipt, mailing, sale,
distribution, shipment, or transportation of child pornography,
such person shall be fined under this title and imprisoned for
not less than [10 years nor more than 20 years.] 30 years or
for life.

* * * * * * *

Sec. 2252A. Certain activities relating to material constituting or
containing child pornography

(a) * * *
(b)(1) Whoever violates, or attempts or conspires to
violate, paragraph (1), (2), (3), (4), or (6) of subsection (a)
shall be fined under this title and imprisoned not less than [5
years and not more than 20 years] 25 years or for life, but, if
such person has a prior conviction under this chapter, section
1591, chapter 71, chapter 109A, or chapter 117, or under
section 920 of title 10 (article 120 of the Uniform Code of
Military Justice), or under the laws of any State relating to
aggravated sexual abuse, sexual abuse, or abusive sexual
conduct involving a minor or ward, or the production,
possession, receipt, mailing, sale, distribution, shipment, or
transportation of child pornography, or sex trafficking of
children, such person shall be fined under this title and
imprisoned for [not less than 15 years nor more than 40 years]
life.
(2) Whoever violates, or attempts or conspires to violate,
subsection (a)(5) shall be fined under this title [or
imprisoned not more than 10 years, or both] and imprisoned for
not less than 10 nor more than 30 years, but, if such person
has a prior conviction under this chapter, chapter 71, chapter
109A, or chapter 117, or under section 920 of title 10 (article
120 of the Uniform Code of Military Justice), or under the laws
of any State relating to aggravated sexual abuse, sexual abuse,
or abusive sexual conduct involving a minor or ward, or the
production, possession, receipt, mailing, sale, distribution,
shipment, or transportation of child pornography, such person
shall be fined under this title and imprisoned for not less
than [10 years nor more than 20 years] 30 years or for life.

* * * * * * *

Sec. 2252B. Misleading domain names on the Internet

(a) * * *
(b) Whoever knowingly uses a misleading domain name on the
Internet with the intent to deceive a minor into viewing
material that is harmful to minors on the Internet shall be
fined under this title [or imprisoned not more than 4 years, or
both] and imprisoned not less than 10 nor more than 30 years.

* * * * * * *

Sec. 2260. Production of sexually explicit depictions of a minor for
importation into the United States

(a) * * *

* * * * * * *

(c) Penalties.--A person who violates subsection (a) or
(b), or conspires or attempts to do so--
[(1) shall be fined under this title, imprisoned
not more than 10 years, or both; and
[(2) if the person has a prior conviction under
this chapter or chapter 109A, shall be fined under this
title, imprisoned not more than 20 years, or both.]
(1) shall be fined under this title and imprisoned
for any term or years not less than 25 or for life; and
(2) if the person has a prior conviction under this
chapter, section 1591, chapter 71, chapter 109A, or
chapter 117, or under section 920 of title 10 (article
120 of the Uniform Code of Military Justice), shall be
fined under this title and imprisoned for life.

* * * * * * *

CHAPTER 117--TRANSPORTATION FOR ILLEGAL SEXUAL ACTIVITY AND RELATED
CRIMES

* * * * * * *

Sec. 2422. Coercion and enticement

(a) Whoever knowingly persuades, induces, entices, or
coerces any individual to travel in interstate or foreign
commerce, or in any Territory or Possession of the United
States, to engage in prostitution, or in any sexual activity
for which any person can be charged with a criminal offense, or
attempts to do so, shall be fined under this title [or
imprisoned not more than 20 years, or both] and imprisoned not
less than 10 years nor more than 30 years.

* * * * * * *

Sec. 2423. Transportation of minors

(a) Transportation With Intent To Engage in Criminal Sexual
Activity.--A person who knowingly transports an individual who
has not attained the age of 18 years in interstate or foreign
commerce, or in any commonwealth, territory or possession of
the United States, with intent that the individual engage in
prostitution, or in any sexual activity for which any person
can be charged with a criminal offense, shall be fined under
this title and imprisoned not less than [5 years and not more
than 30 years] 30 years or for life.
(b) Travel With Intent To Engage in Illicit Sexual
Conduct.--A person who travels in interstate commerce or
travels into the United States, or a United States citizen or
an alien admitted for permanent residence in the United States
who travels in foreign commerce, for the purpose of engaging in
any illicit sexual conduct with another person shall be fined
under this title [or imprisoned not more than 30 years, or
both] and imprisoned for not less than 10 years and not more
than 30 years.
(c) Engaging in Illicit Sexual Conduct in Foreign Places.--
Any United States citizen or alien admitted for permanent
residence who travels in foreign commerce, and engages in any
illicit sexual conduct with another person shall be fined under
this title [or imprisoned not more than 30 years, or both] and
imprisoned for not less than 10 years and not more than 30
years.
(d) Ancillary Offenses.--Whoever, for the purpose of
commercial advantage or private financial gain, arranges,
induces, procures, or facilitates the travel of a person
knowing that such a person is traveling in interstate commerce
or foreign commerce for the purpose of engaging in illicit
sexual conduct shall be fined under this title, [imprisoned not
more than 30 years, or both] and imprisoned for not less than
10 nor more than 30 years.

* * * * * * *

PART II--CRIMINAL PROCEDURE

* * * * * * *

CHAPTER 207--RELEASE AND DETENTION PENDING JUDICIAL PROCEEDINGS

* * * * * * *

Sec. 3142. Release or detention of a defendant pending trial

(a) * * *
(b) Release on Personal Recognizance or Unsecured
Appearance Bond.--The judicial officer shall order the pretrial
release of the person on personal recognizance, or upon
execution of an unsecured appearance bond in an amount
specified by the court, subject to the condition that the
person not commit a Federal, State, or local crime during the
period of release and subject to the condition that the person
cooperate in the collection of a DNA sample from the person if
the collection of such a sample is authorized pursuant to
section 3 of the DNA Analysis Backlog Elimination Act of 2000
(42 U.S.C. 14135a), unless the judicial officer determines that
such release will not reasonably assure the appearance of the
person as required or will endanger the safety of any other
person or the community.
(c) Release on Conditions.--(1) If the judicial officer
determines that the release described in subsection (b) of this
section will not reasonably assure the appearance of the person
as required or will endanger the safety of any other person or
the community, such judicial officer shall order the pretrial
release of the person--
(A) subject to the condition that the person not
commit a Federal, State, or local crime during the
period of release and subject to the condition that the
person cooperate in the collection of a DNA sample from
the person if the collection of such a sample is
authorized pursuant to section 3 of the DNA Analysis
Backlog Elimination Act of 2000 (42 U.S.C. 14135a); and

* * * * * * *

CHAPTER 213--LIMITATIONS

* * * * * * *

Sec. 3297. Cases involving DNA evidence

In a case in which DNA testing implicates an identified
person in the commission of a felony, [except for a felony
offense under chapter 109A,] no statute of limitations that
would otherwise preclude prosecution of the offense shall
preclude such prosecution until a period of time following the
implication of the person by DNA testing has elapsed that is
equal to the otherwise applicable limitation period.

* * * * * * *

CHAPTER 227--SENTENCES

SUBCHAPTER A--GENERAL PROVISIONS

* * * * * * *

Sec. 3559. Sentencing classification of offenses

(a) * * *

* * * * * * *

[(d) Death or Imprisonment for Crimes Against Children.--
[(1) In general.--Subject to paragraph (2) and
notwithstanding any other provision of law, a person
who is convicted of a Federal offense that is a serious
violent felony (as defined in subsection (c)) or a
violation of section 2422, 2423, or 2251 shall, unless
the sentence of death is imposed, be sentenced to
imprisonment for life, if--
[(A) the victim of the offense has not
attained the age of 14 years;
[(B) the victim dies as a result of the
offense; and
[(C) the defendant, in the course of the
offense, engages in conduct described in
section 3591(a)(2).
[(2) Exception.--With respect to a person convicted
of a Federal offense described in paragraph (1), the
court may impose any lesser sentence that is authorized
by law to take into account any substantial assistance
provided by the defendant in the investigation or
prosecution of another person who has committed an
offense, in accordance with the Federal Sentencing
Guidelines and the policy statements of the Federal
Sentencing Commission pursuant to section 994(p) of
title 28, or for other good cause.]
(d) Mandatory Minimum Terms of Imprisonment for Violent
Crimes Against Children.--A person who is convicted of a felony
crime of violence against the person of an individual who has
not attained the age of 18 years shall, unless a greater
mandatory minimum sentence of imprisonment is otherwise
provided by law and regardless of any maximum term of
imprisonment otherwise provided for the offense--
(1) if the crime of violence results in the death
of a person who has not attained the age of 18 years,
be sentenced to death or life in prison;
(2) if the crime of violence is kidnapping,
aggravated sexual abuse, sexual abuse, or maiming, or
results in serious bodily injury (as defined in section
2119(2)) be imprisoned for life or any term of years
not less than 30;
(3) if the crime of violence results in bodily
injury (as defined in section 1365) or is an offense
under paragraphs (1), (2), or (5) of section 2244(a),
be imprisoned for life or for any term of years not
less than 20;
(4) if a dangerous weapon was used during and in
relation to the crime of violence, be imprisoned for
life or for any term of years not less than 15; and
(5) in any other case, be imprisoned for life or
for any term of years not less than 10.
(e) Mandatory Life Imprisonment for Repeated Sex Offenses
Against Children.--
(1) * * *
(2) Definitions.--For the purposes of this
subsection--
(A) the term ``Federal sex offense'' means
an offense under section 2241 (relating to
aggravated sexual abuse), 2242 (relating to
sexual abuse), 2244(a)(1) (relating to abusive
sexual contact), 2245 (relating to sexual abuse
resulting in death), 2251 (relating to sexual
exploitation of children), 2251A (relating to
selling or buying of children), 2422(b)
(relating to coercion and enticement of a minor
into prostitution), [or 2423(a)] 2423(a)
(relating to transportation of minors), 2423(b)
(relating to travel with intent to engage in
illicit sexual conduct), 2423(c) (relating to
illicit sexual conduct in foreign places), or
2425 (relating to use of interstate facilities
to transmit information about a minor);

* * * * * * *

SUBCHAPTER B--PROBATION

* * * * * * *

Sec. 3563. Conditions of probation

(a) Mandatory Conditions.--The court shall provide, as an
explicit condition of a sentence of probation--
(1) * * *

* * * * * * *

[(8) for a person described in section 4042(c)(4),
that the person report the address where the person
will reside and any subsequent change of residence to
the probation officer responsible for supervision, and
that the person register in any State where the person
resides, is employed, carries on a vocation, or is a
student (as such terms are defined under section
170101(a)(3) of the Violent Crime Control and Law
Enforcement Act of 1994); and]
(8) for a person required to register under the Sex
Offender Registration and Notification Act, that the
person comply with the requirements of that Act;
(9) that the defendant cooperate in the collection
of a DNA sample from the defendant if the collection of
such a sample is authorized pursuant to section 3 of
the DNA Analysis Backlog Elimination Act of 2000[.];
and
(10) for a person who is a felon or required to
register under the Sex Offender Registration and
Notification Act, that the person submit his person,
and any property, house, residence, vehicle, papers,
computer, other electronic communication or data
storage devices or media, and effects to search at any
time, with or without a warrant, by any law enforcement
or probation officer with reasonable suspicion
concerning a violation of a condition of probation or
unlawful conduct by the person, and by any probation
officer in the lawful discharge of the officer's
supervision functions.

* * * * * * *

SUBCHAPTER D--IMPRISONMENT

* * * * * * *

Sec. 3583. Inclusion of a term of supervised release after imprisonment

(a) * * *

* * * * * * *

(d) Conditions of Supervised Release.--The court shall
order, as an explicit condition of supervised release, that the
defendant not commit another Federal, State, or local crime
during the term of supervision and that the defendant not
unlawfully possess a controlled substance. The court shall
order as an explicit condition of supervised release for a
defendant convicted for the first time of a domestic violence
crime as defined in section 3561(b) that the defendant attend a
public, private, or private nonprofit offender rehabilitation
program that has been approved by the court, in consultation
with a State Coalition Against Domestic Violence or other
appropriate experts, if an approved program is readily
available within a 50-mile radius of the legal residence of the
defendant. The court shall order, as an explicit condition of
supervised release for a person [described in section
4042(c)(4), that the person report the address where the person
will reside and any subsequent change of residence to the
probation officer responsible for supervision, and that the
person register in any State where the person resides, is
employed, carries on a vocation, or is a student (as such terms
are defined under section 170101(a)(3) of the Violent Crime
Control and Law Enforcement Act of 1994).] required to register
under the Sex Offender Registration and Notification Act that
the person comply with the requirements of that Act. The court
shall order, as an explicit condition of supervised release,
that the defendant cooperate in the collection of a DNA sample
from the defendant, if the collection of such a sample is
authorized pursuant to section 3 of the DNA Analysis Backlog
Elimination Act of 2000. The court shall also order, as an
explicit condition of supervised release, that the defendant
refrain from any unlawful use of a controlled substance and
submit to a drug test within 15 days of release on supervised
release and at least 2 periodic drug tests thereafter (as
determined by the court) for use of a controlled substance. The
condition stated in the preceding sentence may be ameliorated
or suspended by the court as provided in section 3563(a)(4).
The results of a drug test administered in accordance with the
preceding subsection shall be subject to confirmation only if
the results are positive, the defendant is subject to possible
imprisonment for such failure, and either the defendant denies
the accuracy of such test or there is some other reason to
question the results of the test. A drug test confirmation
shall be a urine drug test confirmed using gas chromatography/
mass spectrometry techniques or such test as the Director of
the Administrative Office of the United States Courts after
consultation with the Secretary of Health and Human Services
may determine to be of equivalent accuracy. The court shall
consider whether the availability of appropriate substance
abuse treatment programs, or an individual's current or past
participation in such programs, warrants an exception in
accordance with United States Sentencing Commission guidelines
from the rule of section 3583(g) when considering any action
against a defendant who fails a drug test. The court may order,
as a further condition of supervised release, to the extent
that such condition--
(1) * * *

* * * * * * *

any condition set forth as a discretionary condition of
probation in section 3563(b)(1) through (b)(10) and (b)(12)
through (b)(20) , and any other condition it considers to be
appropriate. If an alien defendant is subject to deportation,
the court may provide, as a condition of supervised release,
that he be deported and remain outside the United States, and
may order that he be delivered to a duly authorized immigration
official for such deportation. The court may order, as an
explicit condition of supervised release for a person who is a
felon or required to register under the Sex Offender
Registration and Notification Act, that the person submit his
person, and any property, house, residence, vehicle, papers,
computer, other electronic communications or data storage
devices or media, and effects to search at any time, with or
without a warrant, by any law enforcement or probation officer
with reasonable suspicion concerning a violation of a condition
of supervised release or unlawful conduct by the person, and by
any probation officer in the lawful discharge of the officer's
supervision functions.

* * * * * * *

(k) Notwithstanding subsection (b), the authorized term of
supervised release for any offense under section 1201 involving
a minor victim, and for any offense under section 1591, 2241,
2242, [2244(a)(1), 2244(a)(2)] 2243, 2244, 2245, 2250, 2251,
2251A, 2252, 2252A, 2260, 2421, 2422, 2423, or 2425, is any
term of years not less than 5, or life. If a defendant required
to register under the Sex Offender Registration and
Notification Act violates the requirements of that Act or
commits any criminal offense for which imprisonment for a term
longer than one year can be imposed, the court shall revoke the
term of supervised release and require the defendant to serve a
term of imprisonment under subsection (e)(3) without regard to
the exception contained therein. Such term shall be not less
than 5 years, and if the offense was an offense under chapter
109A, 109B, 110, or 117, not less than 10 years.

* * * * * * *

CHAPTER 228--DEATH SENTENCE

* * * * * * *

Sec. 3592. Mitigating and aggravating factors to be considered in
determining whether a sentence of death is
justified

(a) * * *

* * * * * * *

(c) Aggravating Factors for Homicide.--In determining
whether a sentence of death is justified for an offense
described in section 3591(a)(2), the jury, or if there is no
jury, the court, shall consider each of the following
aggravating factors for which notice has been given and
determine which, if any, exist:
(1) Death during commission of another crime.--The
death, or injury resulting in death, occurred during
the commission or attempted commission of, or during
the immediate flight from the commission of, an offense
under section 32 (destruction of aircraft or aircraft
facilities), section 33 (destruction of motor vehicles
or motor vehicle facilities), section 37 (violence at
international airports), section 351 (violence against
Members of Congress, Cabinet officers, or Supreme Court
Justices), an offense under section 751 (prisoners in
custody of institution or officer), section 794
(gathering or delivering defense information to aid
foreign government), section 844(d) (transportation of
explosives in interstate commerce for certain
purposes), section 844(f) (destruction of Government
property by explosives), section 1118 (prisoners
serving life term), section 1201 (kidnapping), section
844(i) (destruction of property affecting interstate
commerce by explosives), section 1116 (killing or
attempted killing of diplomats), section 1203 (hostage
taking), section 1992 (wrecking trains), section 2245
(sexual abuse resulting in death), section 2280
(maritime violence), section 2281 (maritime platform
violence), section 2332 (terrorist acts abroad against
United States nationals), section 2332a (use of weapons
of mass destruction), or section 2381 (treason) of this
title, or section 46502 of title 49, United States Code
(aircraft piracy).

* * * * * * *

CHAPTER 237--CRIME VICTIMS' RIGHTS

* * * * * * *

Sec. 3771. Crime victims' rights

(a) * * *
(b) Rights Afforded.--In any court proceeding involving an
offense against a crime victim, the court shall ensure that the
crime victim is afforded the rights described in subsection
(a). Before making a determination described in subsection
(a)(3), the court shall make every effort to permit the fullest
attendance possible by the victim and shall consider reasonable
alternatives to the exclusion of the victim from the criminal
proceeding. The reasons for any decision denying relief under
this chapter shall be clearly stated on the record. The rights
established for crime victims by this section shall also be
extended in a Federal habeas corpus proceeding arising out of a
State conviction to victims of the State offense at issue.

* * * * * * *

PART III--PRISONS AND PRISONERS

* * * * * * *

CHAPTER 303--BUREAU OF PRISONS

* * * * * * *

Sec. 4042. Duties of Bureau of Prisons

(a) * * *

* * * * * * *

(c) Notice of Sex Offender Release.--(1) In the case of a
person described in paragraph [(4)] (3) who is released from
prison or sentenced to probation, notice shall be provided to--
(A) * * *

* * * * * * *

[(3) The Director of the Bureau of Prisons shall inform a
person described in paragraph (4) who is released from prison
that the person shall be subject to a registration requirement
as a sex offender in any State in which the person resides, is
employed, carries on a vocation, or is a student (as such terms
are defined for purposes of section 170101(a)(3) of the Violent
Crime Control and Law Enforcement Act of 1994), and the same
information shall be provided to a person described in
paragraph (4) who is sentenced to probation by the probation
officer responsible for supervision of the person or in a
manner specified by the Director of the Administrative Office
of the United States Courts.
[(4) A person is described in this paragraph if the person
was convicted of any of the following offenses (including such
an offense prosecuted pursuant to section 1152 or 1153):
[(A) An offense under section 1201 involving a
minor victim.
[(B) An offense under chapter 109A.
[(C) An offense under chapter 110.
[(D) An offense under chapter 117.
[(E) Any other offense designated by the Attorney
General as a sexual offense for purposes of this
subsection.]
(3) The Director of the Bureau of Prisons shall inform a
person who is released from prison and required to register
under the Sex Offender Registration and Notification Act of the
requirements of that Act as they apply to that person and the
same information shall be provided to a person sentenced to
probation by the probation officer responsible for supervision
of that person.

* * * * * * *

CHAPTER 313--OFFENDERS WITH MENTAL DISEASE OR DEFECT

Sec.
4241. Determination of mental competency to stand trial or to undergo
postrelease proceedings.
* * * * * * *
4248. Civil commitment of a sexually dangerous person.

Sec. 4241. Determination of mental competency to stand trial or to
undergo postrelease proceedings

(a) Motion To Determine Competency of Defendant.--At any
time after the commencement of a prosecution for an offense and
prior to the sentencing of the defendant, or at any time after
the commencement of probation or supervised release and prior
to the completion of the sentence, the defendant or the
attorney for the Government may file a motion for a hearing to
determine the mental competency of the defendant. The court
shall grant the motion, or shall order such a hearing on its
own motion, if there is reasonable cause to believe that the
defendant may presently be suffering from a mental disease or
defect rendering him mentally incompetent to the extent that he
is unable to understand the nature and consequences of the
proceedings against him or to assist properly in his defense.

* * * * * * *

(d) Determination and Disposition.--If, after the hearing,
the court finds by a preponderance of the evidence that the
defendant is presently suffering from a mental disease or
defect rendering him mentally incompetent to the extent that he
is unable to understand the nature and consequences of the
proceedings against him or to assist properly in his defense,
the court shall commit the defendant to the custody of the
Attorney General. The Attorney General shall hospitalize the
defendant for treatment in a suitable facility--
(1) for such a reasonable period of time, not to
exceed four months, as is necessary to determine
whether there is a substantial probability that in the
foreseeable future he will attain the capacity to
permit the [trial to proceed] proceedings to go
forward; and
(2) for an additional reasonable period of time
until--
(A) his mental condition is so improved
that trial may proceed, if the court finds that
there is a substantial probability that within
such additional period of time he will attain
the capacity to permit the [trial to proceed]
proceedings to go forward; or
(B) the pending charges against him are
disposed of according to law;
whichever is earlier.
If, at the end of the time period specified, it is determined
that the defendant's mental condition has not so improved as to
permit the [trial to proceed] proceedings to go forward, the
defendant is subject to the provisions of [section 4246]
sections 4246 and 4248.
(e) Discharge.--When the director of the facility in which
a defendant is hospitalized pursuant to subsection (d)
determines that the defendant has recovered to such an extent
that he is able to understand the nature and consequences of
the proceedings against him and to assist properly in his
defense, he shall promptly file a certificate to that effect
with the clerk of the court that ordered the commitment. The
clerk shall send a copy of the certificate to the defendant's
counsel and to the attorney for the Government. The court shall
hold a hearing, conducted pursuant to the provisions of section
4247(d), to determine the competency of the defendant. If,
after the hearing, the court finds by a preponderance of the
evidence that the defendant has recovered to such an extent
that he is able to understand the nature and consequences of
the proceedings against him and to assist properly in his
defense, the court shall order his immediate discharge from the
facility in which he is hospitalized and shall set the date for
trial or other proceedings. Upon discharge, the defendant is
subject to the provisions of [chapter 207] chapters 207 and
227.

* * * * * * *

Sec. 4247. General provisions for chapter

(a) Definitions.--As used in this chapter--
(1) ``rehabilitation program'' includes--
(A) * * *

* * * * * * *

[(C) drug, alcohol, and other treatment
programs that will assist the individual in
overcoming his psychological or physical
dependence; and]
(C) drug, alcohol, and sex offender
treatment programs, and other treatment
programs that will assist the individual in
overcoming a psychological or physical
dependence or any condition that makes the
individual dangerous to others; and
(D) organized physical sports and
recreation programs;
(2) ``suitable facility'' means a facility that is
suitable to provide care or treatment given the nature
of the offense and the characteristics of the
defendant; [and]
(3) ``State'' includes the District of Columbia[.];
(4) ``bodily injury'' includes sexual abuse;
(5) ``sexually dangerous person'' means a person
who has engaged or attempted to engage in sexually
violent conduct or child molestation and who is
sexually dangerous to others; and
(6) ``sexually dangerous to others'' means that a
person suffers from a serious mental illness,
abnormality, or disorder as a result of which he would
have serious difficulty in refraining from sexually
violent conduct or child molestation if released.
(b) Psychiatric or Psychological Examination.--A
psychiatric or psychological examination ordered pursuant to
this chapter shall be conducted by a licensed or certified
psychiatrist or psychologist, or, if the court finds it
appropriate, by more than one such examiner. Each examiner
shall be designated by the court, except that if the
examination is ordered under section [4245 or 4246] 4245, 4246,
4248, upon the request of the defendant an additional examiner
may be selected by the defendant. For the purposes of an
examination pursuant to an order under section 4241, 4244, or
4245, the court may commit the person to be examined for a
reasonable period, but not to exceed thirty days, and under
section 4242, 4243[, or 4246], 4246, or 4248, for a reasonable
period, but not to exceed forty-five days, to the custody of
the Attorney General for placement in a suitable facility.
Unless impracticable, the psychiatric or psychological
examination shall be conducted in the suitable facility closest
to the court. The director of the facility may apply for a
reasonable extension, but not to exceed fifteen days under
section 4241, 4244, or 4245, and not to exceed thirty days
under section 4242, 4243[, or 4246], 4246, or 4248, upon a
showing of good cause that the additional time is necessary to
observe and evaluate the defendant.
(c) Psychiatric or Psychological Reports.--A psychiatric or
psychological report ordered pursuant to this chapter shall be
prepared by the examiner designated to conduct the psychiatric
or psychological examination, shall be filed with the court
with copies provided to the counsel for the person examined and
to the attorney for the Government, and shall include--
(1) * * *

* * * * * * *

(4) the examiner's opinions as to diagnosis,
prognosis, and--
(A) * * *

* * * * * * *

(D) if the examination is ordered under
section 4248, whether the person is a sexually
dangerous person;
[(D)] (E) if the examination is ordered
under section 4244 or 4245, whether the person
is suffering from a mental disease or defect as
a result of which he is in need of custody for
care or treatment in a suitable facility; or
[(E)] (F) if the examination is ordered as
a part of a presentence investigation, any
recommendation the examiner may have as to how
the mental condition of the defendant should
affect the sentence.

* * * * * * *

(e) Periodic Report and Information Requirements.--(1) The
director of the facility in which a person is hospitalized
pursuant to--
(A) section 4241 shall prepare semiannual reports;
or
(B) section 4243, 4244, 4245[, or 4246], 4246, or
4248 shall prepare annual reports concerning the mental
condition of the person and containing recommendations
concerning the need for his continued hospitalization.
The reports shall be submitted to the court that
ordered the person's commitment to the facility and
copies of the reports shall be submitted to such other
persons as the court may direct. A copy of each such
report concerning a person hospitalized after the
beginning of a prosecution of that person for violation
of section 871, 879, or 1751 of this title shall be
submitted to the Director of the United States Secret
Service. Except with the prior approval of the court,
the Secret Service shall not use or disclose the
information in these copies for any purpose other than
carrying out protective duties under section 3056(a) of
this title.
(2) The director of the facility in which a person is
hospitalized pursuant to section 4241, 4243, 4244, 4245[, or
4246], 4246, or 4248 shall inform such person of any
rehabilitation programs that are available for persons
hospitalized in that facility.

* * * * * * *

(g) Habeas Corpus Unimpaired.--Nothing contained in section
[4243 or 4246] 4243, 4246, or 4248 precludes a person who is
committed under either of such sections from establishing by
writ of habeas corpus the illegality of his detention.
(h) Discharge.--Regardless of whether the director of the
facility in which a person is hospitalized has filed a
certificate pursuant to the provisions of subsection (e) of
section 4241, 4244, 4245[, or 4246], 4246, or 4248, or
subsection (f) of section 4243, counsel for the person or his
legal guardian may, at any time during such person's
hospitalization, file with the court that ordered the
commitment a motion for a hearing to determine whether the
person should be discharged from such facility, but no such
motion may be filed within one hundred and eighty days of a
court determination that the person should continue to be
hospitalized. A copy of the motion shall be sent to the
director of the facility in which the person is hospitalized
and to the attorney for the Government.
(i) Authority and Responsibility of the Attorney General.--
The Attorney General--
(A) * * *
(B) may apply for the civil commitment, pursuant to
State law, of a person committed to his custody
pursuant to section [4243 or 4246] 4243, 4246, or 4248;
(C) shall, before placing a person in a facility
pursuant to the provisions of section 4241, 4243, 4244,
4245[, or 4246], 4246, or 4248, consider the
suitability of the facility's rehabilitation programs
in meeting the needs of the person; and

* * * * * * *

Sec. 4248. Civil commitment of a sexually dangerous person

(a) Institution of Proceedings.--In relation to a person
who is in the custody of the Bureau of Prisons, or who has been
committed to the custody of the Attorney General pursuant to
section 4241(d), or against whom all criminal charges have been
dismissed solely for reasons relating to the mental condition
of the person, the Attorney General or any individual
authorized by the Attorney General or the Director of the
Bureau of Prisons may certify that the person is a sexually
dangerous person, and transmit the certificate to the clerk of
the court for the district in which the person is confined. The
clerk shall send a copy of the certificate to the person, and
to the attorney for the Government, and, if the person was
committed pursuant to section 4241(d), to the clerk of the
court that ordered the commitment. The court shall order a
hearing to determine whether the person is a sexually dangerous
person. A certificate filed under this subsection shall stay
the release of the person pending completion of procedures
contained in this section.
(b) Psychiatric or Psychological Examination and Report.--
Prior to the date of the hearing, the court may order that a
psychiatric or psychological examination of the defendant be
conducted, and that a psychiatric or psychological report be
filed with the court, pursuant to the provisions of section
4247(b) and (c).
(c) Hearing.--The hearing shall be conducted pursuant to
the provisions of section 4247(d).
(d) Determination and Disposition.--If, after the hearing,
the court finds by clear and convincing evidence that the
person is a sexually dangerous person, the court shall commit
the person to the custody of the Attorney General. The Attorney
General shall release the person to the appropriate official of
the State in which the person is domiciled or was tried if such
State will assume responsibility for his custody, care, and
treatment. The Attorney General shall make all reasonable
efforts to cause such a State to assume such responsibility.
If, notwithstanding such efforts, neither such State will
assume such responsibility, the Attorney General shall place
the person for treatment in a suitable facility, until--
(1) such a State will assume such responsibility;
or
(2) the person's condition is such that he is no
longer sexually dangerous to others, or will not be
sexually dangerous to others if released under a
prescribed regimen of medical, psychiatric, or
psychological care or treatment;
whichever is earlier. The Attorney General shall make all
reasonable efforts to have a State to assume such
responsibility for the person's custody, care, and treatment.
(e) Discharge.--When the Director of the facility in which
a person is placed pursuant to subsection (d) determines that
the person's condition is such that he is no longer sexually
dangerous to others, or will not be sexually dangerous to
others if released under a prescribed regimen of medical,
psychiatric, or psychological care or treatment, he shall
promptly file a certificate to that effect with the clerk of
the court that ordered the commitment. The clerk shall send a
copy of the certificate to the person's counsel and to the
attorney for the Government. The court shall order the
discharge of the person or, on motion of the attorney for the
Government or on its own motion, shall hold a hearing,
conducted pursuant to the provisions of section 4247(d), to
determine whether he should be released. If, after the hearing,
the court finds by a preponderance of the evidence that the
person's condition is such that--
(1) he will not be sexually dangerous to others if
released unconditionally, the court shall order that he
be immediately discharged; or
(2) he will not be sexually dangerous to others if
released under a prescribed regimen of medical,
psychiatric, or psychological care or treatment, the
court shall--
(A) order that he be conditionally
discharged under a prescribed regimen of
medical, psychiatric, or psychological care or
treatment that has been prepared for him, that
has been certified to the court as appropriate
by the Director of the facility in which he is
committed, and that has been found by the court
to be appropriate; and
(B) order, as an explicit condition of
release, that he comply with the prescribed
regimen of medical, psychiatric, or
psychological care or treatment.
The court at any time may, after a hearing employing
the same criteria, modify or eliminate the regimen of
medical, psychiatric, or psychological care or
treatment.
(f) Revocation of Conditional Discharge.--The director of a
facility responsible for administering a regimen imposed on a
person conditionally discharged under subsection (e) shall
notify the Attorney General and the court having jurisdiction
over the person of any failure of the person to comply with the
regimen. Upon such notice, or upon other probable cause to
believe that the person has failed to comply with the
prescribed regimen of medical, psychiatric, or psychological
care or treatment, the person may be arrested, and, upon
arrest, shall be taken without unnecessary delay before the
court having jurisdiction over him. The court shall, after a
hearing, determine whether the person should be remanded to a
suitable facility on the ground that he is sexually dangerous
to others in light of his failure to comply with the prescribed
regimen of medical, psychiatric, or psychological care or
treatment.
(g) Release to State of Certain Other Persons.--If the
director of the facility in which a person is hospitalized or
placed pursuant to this chapter certifies to the Attorney
General that a person, against him all charges have been
dismissed for reasons not related to the mental condition of
the person, is a sexually dangerous person, the Attorney
General shall release the person to the appropriate official of
the State in which the person is domiciled or was tried for the
purpose of institution of State proceedings for civil
commitment. If neither such State will assume such
responsibility, the Attorney General shall release the person
upon receipt of notice from the State that it will not assume
such responsibility, but not later than 10 days after
certification by the director of the facility.

* * * * * * *

----------

TITLE I OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968

* * * * * * *

PART JJ--SEX OFFENDER APPREHENSION GRANTS

SEC. 3011. AUTHORITY TO MAKE SEX OFFENDER APPREHENSION GRANTS.

(a) In General.--From amounts made available to carry out
this part, the Attorney General may make grants to States,
units of local government, Indian tribal governments, other
public and private entities, and multi-jurisdictional or
regional consortia thereof for activities specified in
subsection (b).
(b) Covered Activities.--An activity referred to in
subsection (a) is any program, project, or other activity to
assist a State in enforcing sex offender registration
requirements.

SEC. 3012. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated such sums as may be
necessary for fiscal years 2006 through 2008 to carry out this
part.
----------

VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994

* * * * * * *

TITLE XVII--CRIMES AGAINST CHILDREN

Subtitle A--Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Registration Act

[SEC. 170101. JACOB WETTERLING CRIMES AGAINST CHILDREN AND SEXUALLY
VIOLENT OFFENDER REGISTRATION PROGRAM.

[(a) In General.--
[(1) State guidelines.--The Attorney General shall
establish guidelines for State programs that require--
[(A) a person who is convicted of a
criminal offense against a victim who is a
minor or who is convicted of a sexually violent
offense to register a current address for the
time period specified in subparagraph (A) of
subsection (b)(6); and
[(B) a person who is a sexually violent
predator to register a current address unless
such requirement is terminated under
subparagraph (B) of subsection (b)(6).
[(2) Determination of sexually violent predator
status; waiver; alternative measures.--
[(A) In general.--A determination of
whether a person is a sexually violent predator
for purposes of this section shall be made by a
court after considering the recommendation of a
board composed of experts in the behavior and
treatment of sex offenders, victims' rights
advocates, and representatives of law
enforcement agencies.
[(B) Waiver.--The Attorney General may
waive the requirements of subparagraph (A) if
the Attorney General determines that the State
has established alternative procedures or legal
standards for designating a person as a
sexually violent predator.
[(C) Alternative measures.--The Attorney
General may also approve alternative measures
of comparable or greater effectiveness in
protecting the public from unusually dangerous
or recidivistic sexual offenders in lieu of the
specific measures set forth in this section
regarding sexually violent predators.
[(3) Definitions.--For purposes of this section:
[(A) The term ``criminal offense against a
victim who is a minor'' means any criminal
offense in a range of offenses specified by
State law which is comparable to or which
exceeds the following range of offenses:
[(i) kidnapping of a minor, except
by a parent;
[(ii) false imprisonment of a
minor, except by a parent;
[(iii) criminal sexual conduct
toward a minor;
[(iv) solicitation of a minor to
engage in sexual conduct;
[(v) use of a minor in a sexual
performance;
[(vi) solicitation of a minor to
practice prostitution;
[(vii) any conduct that by its
nature is a sexual offense against a
minor;
[(viii) production or distribution
of child pornography, as described in
section 2251, 2252, or 2252A of title
18, United States Code; or
[(ix) an attempt to commit an
offense described in any of clauses (i)
through (vii), if the State--
[(I) makes such an attempt
a criminal offense; and
[(II) chooses to include
such an offense in those which
are criminal offenses against a
victim who is a minor for the
purposes of this section.
For purposes of this subparagraph conduct which
is criminal only because of the age of the
victim shall not be considered a criminal
offense if the perpetrator is 18 years of age
or younger.
[(B) The term ``sexually violent offense''
means any criminal offense in a range of
offenses specified by State law which is
comparable to or which exceeds the range of
offenses encompassed by aggravated sexual abuse
or sexual abuse (as described in sections 2241
and 2242 of title 18, United States Code, or as
described in the State criminal code) or an
offense that has as its elements engaging in
physical contact with another person with
intent to commit aggravated sexual abuse or
sexual abuse (as described in such sections of
title 18, United States Code, or as described
in the State criminal code).
[(C) The term ``sexually violent predator''
means a person who has been convicted of a
sexually violent offense and who suffers from a
mental abnormality or personality disorder that
makes the person likely to engage in predatory
sexually violent offenses.
[(D) The term ``mental abnormality'' means
a congenital or acquired condition of a person
that affects the emotional or volitional
capacity of the person in a manner that
predisposes that person to the commission of
criminal sexual acts to a degree that makes the
person a menace to the health and safety of
other persons.
[(E) The term ``predatory'' means an act
directed at a stranger, or a person with whom a
relationship has been established or promoted
for the primary purpose of victimization.
[(F) The term ``employed, carries on a
vocation'' includes employment that is full-
time or part-time for a period of time
exceeding 14 days or for an aggregate period of
time exceeding 30 days during any calendar
year, whether financially compensated,
volunteered, or for the purpose of government
or educational benefit.
[(G) The term ``student'' means a person
who is enrolled on a full-time or part-time
basis, in any public or private educational
institution, including any secondary school,
trade, or professional institution, or
institution of higher education.
[(b) Registration Requirement Upon Release, Parole,
Supervised Release, or Probation.--An approved State
registration program established under this section shall
contain the following elements:
[(1) Duties of responsible officials.--
[(A) If a person who is required to
register under this section is released from
prison, or placed on parole, supervised
release, or probation, a State prison officer,
the court, or another responsible officer or
official, shall--
[(i) inform the person of the duty
to register and obtain the information
required for such registration;
[(ii) inform the person that if the
person changes residence address, the
person shall report the change of
address as provided by State law;
[(iii) inform the person that if
the person changes residence to another
State, the person shall report the
change of address as provided by State
law and comply with any registration
requirement in the new State of
residence, and inform the person that
the person must also register in a
State where the person is employed,
carries on a vocation, or is a student;
[(iv) obtain fingerprints and a
photograph of the person if these have
not already been obtained in connection
with the offense that triggers
registration; and
[(v) require the person to read and
sign a form stating that the duty of
the person to register under this
section has been explained.
[(B) In addition to the requirements of
subparagraph (A), for a person required to
register under subparagraph (B) of subsection
(a)(1), the State prison officer, the court, or
another responsible officer or official, as the
case may be, shall obtain the name of the
person, identifying factors, anticipated future
residence, offense history, and documentation
of any treatment received for the mental
abnormality or personality disorder of the
person.
[(2) Transfer of information to state and fbi;
participation in national sex offender registry.--
[(A) State reporting.--State procedures
shall ensure that the registration information
is promptly made available to a law enforcement
agency having jurisdiction where the person
expects to reside and entered into the
appropriate State records or data system. State
procedures shall also ensure that conviction
data and fingerprints for persons required to
register are promptly transmitted to the
Federal Bureau of Investigation.
[(B) National reporting.--A State shall
participate in the national database
established under section 170102(b) in
accordance with guidelines issued by the
Attorney General, including transmission of
current address information and other
information on registrants to the extent
provided by the guidelines.
[(3) Verification.--
[(A) For a person required to register
under subparagraph (A) of subsection (a)(1),
State procedures shall provide for verification
of address at least annually.
[(B) The provisions of subparagraph (A)
shall be applied to a person required to
register under subparagraph (B) of subsection
(a)(1), except that such person must verify the
registration every 90 days after the date of
the initial release or commencement of parole.
[(4) Notification of local law enforcement agencies
of changes in address.--A change of address by a person
required to register under this section shall be
reported by the person in the manner provided by State
law. State procedures shall ensure that the updated
address information is promptly made available to a law
enforcement agency having jurisdiction where the person
will reside and entered into the appropriate State
records or data system.
[(5) Registration for change of address to another
state.--A person who has been convicted of an offense
which requires registration under this section and who
moves to another State, shall report the change of
address to the responsible agency in the State the
person is leaving, and shall comply with any
registration requirement in the new State of residence.
The procedures of the State the person is leaving shall
ensure that notice is provided promptly to an agency
responsible for registration in the new State, if that
State requires registration.
[(6) Length of registration.--A person required to
register under subsection (a)(1) shall continue to
comply with this section, except during ensuing periods
of incarceration, until--
[(A) 10 years have elapsed since the person
was released from prison or placed on parole,
supervised release, or probation; or
[(B) for the life of that person if that
person--
[(i) has 1 or more prior
convictions for an offense described in
subsection (a)(1)(A); or
[(ii) has been convicted of an
aggravated offense described in
subsection (a)(1)(A); or
[(iii) has been determined to be a
sexually violent predator pursuant to
subsection (a)(2).
[(7) Registration of out-of-state offenders,
federal offenders, persons sentenced by courts martial,
and offenders crossing state borders.--As provided in
guidelines issued by the Attorney General, each State
shall include in its registration program residents who
were convicted in another State and shall ensure that
procedures are in place to accept registration
information from--
[(A) residents who were convicted in
another State, convicted of a Federal offense,
or sentenced by a court martial; and
[(B) nonresident offenders who have crossed
into another State in order to work or attend
school.
[(c) Registration of Offender Crossing State Border.--Any
person who is required under this section to register in the
State in which such person resides shall also register in any
State in which the person is employed, carries on a vocation,
or is a student.
[(d) Penalty.--A person required to register under a State
program established pursuant to this section who knowingly
fails to so register and keep such registration current shall
be subject to criminal penalties in any State in which the
person has so failed.
[(e) Release of Information.--
[(1) The information collected under a State
registration program may be disclosed for any purpose
permitted under the laws of the State.
[(2) The State or any agency authorized by the
State shall release relevant information that is
necessary to protect the public concerning a specific
person required to register under this section, except
that the identity of a victim of an offense that
requires registration under this section shall not be
released. The release of information under this
paragraph shall include the maintenance of an Internet
site containing such information that is available to
the public and instructions on the process for
correcting information that a person alleges to be
erroneous.
[(f) Immunity for Good Faith Conduct.--Law enforcement
agencies, employees of law enforcement agencies and independent
contractors acting at the direction of such agencies, and State
officials shall be immune from liability for good faith conduct
under this section.
[(g) Compliance.--
[(1) Compliance date.--Each State shall have not
more than 3 years from the date of enactment of this
Act in which to implement this section, except that the
Attorney General may grant an additional 2 years to a
State that is making good faith efforts to implement
this section.
[(2) Ineligibility for funds.--
[(A) A State that fails to implement the
program as described in this section shall not
receive 10 percent of the funds that would
otherwise be allocated to the State under
section 506 of the Omnibus Crime Control and
Safe Streets Act of 1968 (42 U.S.C. 3765).
[(B) Reallocation of funds.--Any funds that
are not allocated for failure to comply with
this section shall be reallocated to States
that comply with this section.
[(h) Fingerprints.--Each requirement to register under this
section shall be deemed to also require the submission of a set
of fingerprints of the person required to register, obtained in
accordance with regulations prescribed by the Attorney General
under section 170102(h).
[(i) Grants to States for Costs of Compliance.--
[(1) Program authorized.--
[(A) In general.--The Director of the
Bureau of Justice Assistance (in this
subsection referred to as the `Director') shall
carry out a program, which shall be known as
the ``Sex Offender Management Assistance
Program'' (in this subsection referred to as
the ``SOMA program''), under which the Director
shall award a grant to each eligible State to
offset costs directly associated with complying
with this section.
[(B) Uses of funds.--Each grant awarded
under this subsection shall be--
[(i) distributed directly to the
State for distribution to State and
local entities; and
[(ii) used for training, salaries,
equipment, materials, and other costs
directly associated with complying with
this section.
[(2) Eligibility.--
[(A) Application.--To be eligible to
receive a grant under this subsection, the
chief executive of a State shall, on an annual
basis, submit to the Director an application
(in such form and containing such information
as the Director may reasonably require)
assuring that--
[(i) the State complies with (or
made a good faith effort to comply
with) this section; and
[(ii) where applicable, the State
has penalties comparable to or greater
than Federal penalties for crimes
listed in this section, except that the
Director may waive the requirement of
this clause if a State demonstrates an
overriding need for assistance under
this subsection.
[(B) Regulations.--
[(i) In general.--Not later than 90
days after the date of enactment of
this subsection, the Director shall
promulgate regulations to implement
this subsection (including the
information that must be included and
the requirements that the States must
meet) in submitting the applications
required under this subsection. In
allocating funds under this subsection,
the Director may consider the annual
number of sex offenders registered in
each eligible State's monitoring and
notification programs.
[(ii) Certain training programs.--
Prior to implementing this subsection,
the Director shall study the
feasibility of incorporating into the
SOMA program the activities of any
technical assistance or training
program established as a result of
section 40152 of this Act. In a case in
which incorporating such activities
into the SOMA program will eliminate
duplication of efforts or
administrative costs, the Director
shall take administrative actions, as
allowable, and make recommendations to
Congress to incorporate such activities
into the SOMA program prior to
implementing the SOMA program.
[(3) Authorization of Appropriations.--There is
authorized to be appropriated for each of the fiscal
years 2004 through 2007 such sums as may be necessary
to carry out the provisions of section 1701(d)(10) of
the Omnibus Crime Control and Safe Streets Act of 1968
(42 U.S.C. 3796dd(d)(10)), as added by the PROTECT Act.
[(j) Notice of Enrollment at or Employment by Institutions
of Higher Education.--
[(1) Notice by offenders.--
[(A) In general.--In addition to any other
requirements of this section, any person who is
required to register in a State shall provide
notice as required under State law--
[(i) of each institution of higher
education in that State at which the
person is employed, carries on a
vocation, or is a student; and
[(ii) of each change in enrollment
or employment status of such person at
an institution of higher education in
that State.
[(B) Change in status.--A change in status
under subparagraph (A)(ii) shall be reported by
the person in the manner provided by State law.
State procedures shall ensure that the updated
information is promptly made available to a law
enforcement agency having jurisdiction where
such institution is located and entered into
the appropriate State records or data system.
[(2) State reporting.--State procedures shall
ensure that the registration information collected
under paragraph (1)--
[(A) is promptly made available to a law
enforcement agency having jurisdiction where
such institution is located; and
[(B) entered into the appropriate State
records or data system.
[(3) Request.--Nothing in this subsection shall
require an educational institution to request such
information from any State.

[SEC. 170102. FBI DATABASE.

[(a) Definitions.--For purposes of this section--
[(1) the term ``FBI'' means the Federal Bureau of
Investigation;
[(2) the terms ``criminal offense against a victim
who is a minor'', ``sexually violent offense'',
``sexually violent predator'', ``mental abnormality'',
``predatory'', ``employed, carries on a vocation'', and
``student'' have the same meanings as in section
170101(a)(3); and
[(3) the term ``minimally sufficient sexual
offender registration program'' means any State sexual
offender registration program that--
[(A) requires the registration of each
offender who is convicted of an offense in a
range of offenses specified by State law which
is comparable to or exceeds that described in
subparagraph (A) or (B) of section
170101(a)(1);
[(B) participates in the national database
established under subsection (b) of this
section in conformity with guidelines issued by
the Attorney General;
[(C) provides for verification of address
at least annually;
[(D) requires that each person who is
required to register under subparagraph (A)
shall do so for a period of not less than 10
years beginning on the date that such person
was released from prison or placed on parole,
supervised release, or probation.
[(b) Establishment.--The Attorney General shall establish a
national database at the Federal Bureau of Investigation to
track the whereabouts and movement of--
[(1) each person who has been convicted of a
criminal offense against a victim who is a minor;
[(2) each person who has been convicted of a
sexually violent offense; and
[(3) each person who is a sexually violent
predator.
[(c) Registration Requirement.--Each person described in
subsection (b) who resides in a State that has not established
a minimally sufficient sexual offender registration program
shall register a current address, fingerprints of that person,
and a current photograph of that person with the FBI for
inclusion in the database established under subsection (b) for
the time period specified under subsection (d).
[(d) Length of Registration.--A person described in
subsection (b) who is required to register under subsection (c)
shall, except during ensuing periods of incarceration, continue
to comply with this section--
[(1) until 10 years after the date on which the
person was released from prison or placed on parole,
supervised release, or probation; or
[(2) for the life of the person, if that person--
[(A) has 2 or more convictions for an
offense described in subsection (b);
[(B) has been convicted of aggravated
sexual abuse, as defined in section 2241 of
title 18, United States Code, or in a
comparable provision of State law; or
[(C) has been determined to be a sexually
violent predator.
[(e) Verification.--
[(1) Persons convicted of an offense against a
minor or a sexually violent offense.--In the case of a
person required to register under subsection (c), the
FBI shall, during the period in which the person is
required to register under subsection (d), verify the
person's address in accordance with guidelines that
shall be promulgated by the Attorney General. Such
guidelines shall ensure that address verification is
accomplished with respect to these individuals and
shall require the submission of fingerprints and
photographs of the individual.
[(2) Sexually violent predators.--Paragraph (1)
shall apply to a person described in subsection (b)(3),
except that such person must verify the registration
once every 90 days after the date of the initial
release or commencement of parole of that person.
[(f) Community Notification.--
[(1) In general.--Subject to paragraph (2), the FBI
may release relevant information concerning a person
required to register under subsection (c) that is
necessary to protect the public.
[(2) Identity of victim.--In no case shall the FBI
release the identity of any victim of an offense that
requires registration by the offender with the FBI.
[(g) Notification of FBI of Changes in Residence.--
[(1) Establishment of new residence.--For purposes
of this section, a person shall be deemed to have
established a new residence during any period in which
that person resides for not less than 10 days.
[(2) Persons required to register with the fbi.--
Each establishment of a new residence, including the
initial establishment of a residence immediately
following release from prison, or placement on parole,
supervised release, or probation, by a person required
to register under subsection (c) shall be reported to
the FBI not later than 10 days after that person
establishes a new residence.
[(3) Individual registration requirement.--A person
required to register under subsection (c) or under a
State sexual offender offender registration program,
including a program established under section 170101,
who changes address to a State other than the State in
which the person resided at the time of the immediately
preceding registration shall, not later than 10 days
after that person establishes a new residence, register
a current address, fingerprints, and photograph of that
person, for inclusion in the appropriate database,
with--
[(A) the FBI; and
[(B) the State in which the new residence
is established.
[(4) State registration requirement.--Any time any
State agency in a State with a minimally sufficient
sexual offender registration program, including a
program established under section 170101, is notified
of a change of address by a person required to register
under such program within or outside of such State, the
State shall notify--
[(A) the law enforcement officials of the
jurisdiction to which, and the jurisdiction
from which, the person has relocated; and
[(B) the FBI.
[(5) Verification.--
[(A) Notification of local law enforcement
officials.--The FBI shall ensure that State and
local law enforcement officials of the
jurisdiction from which, and the State and
local law enforcement officials of the
jurisdiction to which, a person required to
register under subsection (c) relocates are
notified of the new residence of such person.
[(B) Notification of fbi.--A State agency
receiving notification under this subsection
shall notify the FBI of the new residence of
the offender.
[(C) Verification.--
[(i) State agencies.--If a State
agency cannot verify the address of or
locate a person required to register
with a minimally sufficient sexual
offender registration program,
including a program established under
section 170101, the State shall
immediately notify the FBI.
[(ii) FBI.--If the FBI cannot
verify the address of or locate a
person required to register under
subsection (c) or if the FBI receives
notification from a State under clause
(i), the FBI shall--
[(I) classify the person as
being in violation of the
registration requirements of
the national database; and
[(II) add the name of the
person to the National Crime
Information Center Wanted
person file and create a wanted
persons record: Provided, That
an arrest warrant which meets
the requirements for entry into
the file is issued in
connection with the violation.
[(h) Fingerprints.--
[(1) FBI registration.--For each person required to
register under subsection (c), fingerprints shall be
obtained and verified by the FBI or a local law
enforcement official pursuant to regulations issued by
the Attorney General.
[(2) State registration systems.--In a State that
has a minimally sufficient sexual offender registration
program, including a program established under section
170101, fingerprints required to be registered with the
FBI under this section shall be obtained and verified
in accordance with State requirements. The State agency
responsible for registration shall ensure that the
fingerprints and all other information required to be
registered is registered with the FBI.
[(i) Penalty.--A person who is--
[(1) required to register under paragraph (1), (2),
or (3) of subsection (g) of this section and knowingly
fails to comply with this section;
[(2) required to register under a sexual offender
registration program in the person's State of residence
and knowingly fails to register in any other State in
which the person is employed, carries on a vocation, or
is a student;
[(3) described in section 4042(c)(4) of title 18,
United States Code, and knowingly fails to register in
any State in which the person resides, is employed,
carries on a vocation, or is a student following
release from prison or sentencing to probation; or
[(4) sentenced by a court martial for conduct in a
category specified by the Secretary of Defense under
section 115(a)(8)(C) of title I of Public Law 105-119,
and knowingly fails to register in any State in which
the person resides, is employed, carries on a vocation,
or is a student following release from prison or
sentencing to probation, shall, in the case of a first
offense under this subsection, be imprisoned for not
more than 1 year and, in the case of a second or
subsequent offense under this subsection, be imprisoned
for not more than 10 years.
[(j) Release of Information.--The information collected by
the FBI under this section shall be disclosed by the FBI--
[(1) to Federal, State, and local criminal justice
agencies for--
[(A) law enforcement purposes; and
[(B) community notification in accordance
with section 170101(d)(3); and
[(2) to Federal, State, and local governmental
agencies responsible for conducting employment-related
background checks under section 3 of the National Child
Protection Act of 1993 (42 U.S.C. 5119a).
[(k) Notification Upon Release.--Any State not having
established a program described in section 170102(a)(3) must--
[(1) upon release from prison, or placement on
parole, supervised release, or probation, notify each
offender who is convicted of an offense described in
subparagraph (A) or (B) of section 170101(a)(1) of
their duty to register with the FBI; and
[(2) notify the FBI of the release of each offender
who is convicted of an offense described in
subparagraph (A) or (B) of section 170101(a)(1).]

* * * * * * *

----------

SECTION 8 OF THE PAM LYCHNER SEXUAL OFFENDER TRACKING AND
IDENTIFICATION ACT OF 1996

[SEC. 8. IMMUNITY FOR GOOD FAITH CONDUCT.

[State and Federal law enforcement agencies, employees of
State and Federal law enforcement agencies, and State and
Federal officials shall be immune from liability for good faith
conduct under section 170102.]
----------

SECTION 210304 OF THE DNA IDENTIFICATION ACT OF 1994

SEC. 210304. INDEX TO FACILITATE LAW ENFORCEMENT EXCHANGE OF DNA
IDENTIFICATION INFORMATION.
(a) Establishment of Index.--The Director of the Federal
Bureau of Investigation may establish an index of--
(1) DNA identification records of--
(A) * * *

* * * * * * *

(C) other persons whose DNA samples are
collected under applicable legal authorities[,
provided that DNA profiles from arrestees who
have not been charged in an indictment or
information with a crime, and DNA samples that
are voluntarily submitted solely for
elimination purposes shall not be included in
the National DNA Index System];

* * * * * * *

[(d) Expungement of Records.--
[(1) By director.--(A) The Director of the Federal
Bureau of Investigation shall promptly expunge from the
index described in subsection (a) the DNA analysis of a
person included in the index on the basis of a
qualifying Federal offense or a qualifying District of
Columbia offense (as determined under sections 3 and 4
of the DNA Analysis Backlog Elimination Act of 2000,
respectively) if the Director receives, for each
conviction of the person of a qualifying offense, a
certified copy of a final court order establishing that
such conviction has been overturned.
[(B) For purposes of subparagraph (A), the term
``qualifying offense'' means any of the following
offenses:
[(i) A qualifying Federal offense, as
determined under section 3 of the DNA Analysis
Backlog Elimination Act of 2000.
[(ii) A qualifying District of Columbia
offense, as determined under section 4 of the
DNA Analysis Backlog Elimination Act of 2000.
[(iii) A qualifying military offense, as
determined under section 1565 of title 10,
United States Code.
[(C) For purposes of subparagraph (A), a court
order is not ``final'' if time remains for an appeal or
application for discretionary review with respect to
the order.
[(2) By states.--(A) As a condition of access to
the index described in subsection (a), a State shall
promptly expunge from that index the DNA analysis of a
person included in the index by that State if--
[(i) the responsible agency; or official of
that State receives, for each conviction of the
person of an offense on the basis of which that
analysis was or could have been included in the
index, a certified copy of a final court order
establishing that such conviction has been
overturned; or
[(ii) the person has not been convicted of
an offense on the basis of which that analysis
was or could have been included in the index,
and all charges for which the analysis was or
could have been included in the index have been
dismissed or resulted in acquittal.
[(B) For purposes of subparagraph (A), a court
order is not ``final'' if time remains for an appeal or
application for discretionary review with respect to
the order.
[(e) Authority for Keyboard Searches.--
[(1) In general.--The Director shall ensure that
any person who is authorized to access the index
described in subsection (a) for purposes of including
information on DNA identification records or DNA
analyses in that index may also access that index for
purposes of carrying out a one-time keyboard search on
information obtained from any DNA sample lawfully
collected for a criminal justice purpose except for a
DNA sample voluntarily submitted solely for elimination
purposes.
[(2) Definition.--For purposes of paragraph (1),
the term ``keyboard search'' means a search under which
information obtained from a DNA sample is compared with
information in the index without resulting in the
information obtained from a DNA sample being included
in the index.
[(3) No preemption.--This subsection shall not be
construed to preempt State law.]

* * * * * * *

----------

SECTION 3 OF THE DNA ANALYSIS BACKLOG ELIMINATION ACT OF 2000

SEC. 3. COLLECTION AND USE OF DNA IDENTIFICATION INFORMATION FROM
CERTAIN FEDERAL OFFENDERS.

(a) Collection of DNA Samples.--
(1) From individuals in custody.--[The Director]
(A) The Attorney General may, as provided
by the Attorney General by regulation, collect
DNA samples from individuals who are arrested,
detained, or convicted under the authority of
the United States. The Attorney General may
delegate this function within the Department of
Justice as provided in section 510 of title 28,
United States Code, and may also authorize and
direct any other agency of the United States
that arrests or detains individuals or
supervises individuals facing charges to carry
out any function and exercise any power of the
Attorney General under this section.
(B) The Director of the Bureau of Prisons
shall collect a DNA sample from each individual
in the custody of the Bureau of Prisons who is,
or has been, convicted of a qualifying Federal
offense (as determined under subsection (d)) or
a qualifying military offense, as determined
under section 1565 of title 10, United States
Code.

* * * * * * *

(3) Individuals already in codis.--For each
individual described in paragraph (1) or (2), if the
Combined DNA Index System (in this section referred to
as ``CODIS'') of the Federal Bureau of Investigation
contains a DNA analysis with respect to that
individual, or if a DNA sample has been collected from
that individual under section 1565 of title 10, United
States Code, the [Director of the Bureau of Prisons]
Attorney General, the Director of the Bureau of
Prisons, or the probation office responsible (as
applicable) may (but need not) collect a DNA sample
from that individual.
(4) Collection procedures.--(A) The [Director of
the Bureau of Prisons] Attorney General, the Director
of the Bureau of Prisons, or the probation office
responsible (as applicable) may use or authorize the
use of such means as are reasonably necessary to
detain, restrain, and collect a DNA sample from an
individual who refuses to cooperate in the collection
of the sample.
(B) The [Director of the Bureau of Prisons]
Attorney General, the Director of the Bureau of
Prisons, or the probation office, as appropriate, may
enter into agreements with units of State or local
government or with private entities to provide for the
collection of the samples described in paragraph (1) or
(2).

* * * * * * *

(b) Analysis and Use of Samples.--The [Director of the
Bureau of Prisons] Attorney General, the Director of the Bureau
of Prisons, or the probation office responsible (as applicable)
shall furnish each DNA sample collected under subsection (a) to
the Director of the Federal Bureau of Investigation, who shall
carry out a DNA analysis on each such DNA sample and include
the results in CODIS.

* * * * * * *

----------

TITLE 28, UNITED STATES CODE

* * * * * * *

PART V--PROCEDURE

* * * * * * *

CHAPTER 119--EVIDENCE; WITNESSES

Sec.
1821. Per diem and mileage generally; subsistence.
* * * * * * *
1826A. Marital communications and adverse spousal privilege.

* * * * * * *

Sec. 1826A. Marital communications and adverse spousal privilege

The confidential marital communication privilege and the
adverse spousal privilege shall be inapplicable in any Federal
proceeding in which a spouse is charged with a crime against--
(1) a child of either spouse; or
(2) a child under the custody or control of either
spouse.

* * * * * * *

PART VI--PARTICULAR PROCEEDINGS

* * * * * * *

CHAPTER 153--HABEAS CORPUS

* * * * * * *

Sec. 2254. State custody; remedies in federal courts

(a) * * *

* * * * * * *

(j)(1) A court, justice, or judge shall not have
jurisdiction to consider any claim relating to the judgment or
sentence in an application described under paragraph (2),
unless the applicant shows that the claim qualifies for
consideration on the grounds described in subsection (e)(2).
Any such application that is presented to a court, justice, or
judge other than a district court shall be transferred to the
appropriate district court for consideration or dismissal in
conformity with this subsection, except that a court of appeals
panel must authorize any second or successive application in
conformity with section 2244 before any consideration by the
district court.
(2) This subsection applies to an application for a writ of
habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court for a crime that involved the killing
of a individual who has not attained the age of 18 years.
(3) For an application described in paragraph (2), the
following requirements shall apply in the district court:
(A) Any motion by either party for an evidentiary
hearing shall be filed and served not later than 90
days after the State files its answer or, if no timely
answer is filed, the date on which such answer is due.
(B) Any motion for an evidentiary hearing shall be
granted or denied not later than 30 days after the date
on which the party opposing such motion files a
pleading in opposition to such motion or, if no timely
pleading in opposition is filed, the date on which such
pleading in opposition is due.
(C) Any evidentiary hearing shall be--
(i) convened not less than 60 days after
the order granting such hearing; and
(ii) completed not more than 150 days after
the order granting such hearing.
(D) A district court shall enter a final order,
granting or denying the application for a writ of
habeas corpus, not later than 15 months after the date
on which the State files its answer or, if no timely
answer is filed, the date on which such answer is due,
or not later than 60 days after the case is submitted
for decision, whichever is earlier.
(E) If the district court fails to comply with the
requirements of this paragraph, the State may petition
the court of appeals for a writ of mandamus to enforce
the requirements. The court of appeals shall grant or
deny the petition for a writ of mandamus not later than
30 days after such petition is filed with the court.
(4) For an application described in paragraph (2), the
following requirements shall apply in the court of appeals:
(A) A timely filed notice of appeal from an order
issuing a writ of habeas corpus shall operate as a stay
of that order pending final disposition of the appeal.
(B) The court of appeals shall decide the appeal
from an order granting or denying a writ of habeas
corpus--
(i) not later than 120 days after the date
on which the brief of the appellee is filed or,
if no timely brief is filed, the date on which
such brief is due; or
(ii) if a cross-appeal is filed, not later
than 120 days after the date on which the
appellant files a brief in response to the
issues presented by the cross-appeal or, if no
timely brief is filed, the date on which such
brief is due.
(C)(i) Following a decision by a panel of the court
of appeals under subparagraph (B), a petition for panel
rehearing is not allowed, but rehearing by the court of
appeals en banc may be requested. The court of appeals
shall decide whether to grant a petition for rehearing
en banc not later than 30 days after the date on which
the petition is filed, unless a response is required,
in which case the court shall decide whether to grant
the petition not later than 30 days after the date on
which the response is filed or, if no timely response
is filed, the date on which the response is due.
(ii) If rehearing en banc is granted, the court of
appeals shall make a final determination of the appeal
not later than 120 days after the date on which the
order granting rehearing en banc is entered.
(D) If the court of appeals fails to comply with
the requirements of this paragraph, the State may
petition the Supreme Court or a justice thereof for a
writ of mandamus to enforce the requirements.
(5)(A) The time limitations under paragraphs (3) and (4)
shall apply to an initial application described in paragraph
(2), any second or successive application described in
paragraph (2), and any redetermination of an application
described in paragraph (2) or related appeal following a remand
by the court of appeals or the Supreme Court for further
proceedings.
(B) In proceedings following remand in the district court,
time limits running from the time the State files its answer
under paragraph (3) shall run from the date the remand is
ordered if further briefing is not required in the district
court. If there is further briefing following remand in the
district court, such time limits shall run from the date on
which a responsive brief is filed or, if no timely responsive
brief is filed, the date on which such brief is due.
(C) In proceedings following remand in the court of
appeals, the time limit specified in paragraph (4)(B) shall run
from the date the remand is ordered if further briefing is not
required in the court of appeals. If there is further briefing
in the court of appeals, the time limit specified in paragraph
(4)(B) shall run from the date on which a responsive brief is
filed or, if no timely responsive brief is filed, from the date
on which such brief is due.
(6) The failure of a court to meet or comply with a time
limitation under this subsection shall not be a ground for
granting relief from a judgment of conviction or sentence, nor
shall the time limitations under this subsection be construed
to entitle a capital applicant to a stay of execution, to which
the applicant would otherwise not be entitled, for the purpose
of litigating any application or appeal.

* * * * * * *

----------

SECTION 471 OF THE SOCIAL SECURITY ACT

STATE PLAN FOR FOSTER CARE AND ADOPTION ASSISTANCE

Sec. 471. (a) In order for a State to be eligible for
payments under this part, it shall have a plan approved by the
Secretary which--
(1) * * *

* * * * * * *

(20)(A) unless an election provided for in
subparagraph (B) is made with respect to the State,
provides procedures for criminal records checks,
including checks of national crime information
databases (as defined in section 534(e)(3)(A) of title
28, United States Code), for any prospective foster or
adoptive parent before the foster or adoptive parent
may be finally approved for placement of a child [on
whose behalf foster care maintenance payments or
adoption assistance payments are to be made] regardless
of whether foster care maintenance payments or adoption
assistance payments are to be made on behalf of the
child under the State plan under this part, including
procedures requiring that--
(i) in any case involving a child on whose
behalf such payments are to be so made in which
a record check reveals a felony conviction for
child abuse or neglect, for spousal abuse, for
a crime against children (including child
pornography), or for a crime involving
violence, including rape, sexual assault, or
homicide, but not including other physical
assault or battery, if a State finds that a
court of competent jurisdiction has determined
that the felony was committed at any time, such
final approval shall not be granted; and
(ii) in any case involving a child on whose
behalf such payments are to be so made in which
a record check reveals a felony conviction for
physical assault, battery, or a drug-related
offense, if a State finds that a court of
competent jurisdiction has determined that the
felony was committed within the past 5 years,
such final approval shall not be granted; and
(B) subparagraph (A) shall not apply to a State
plan if, on or before September 30, 2005, the Governor
of the State has notified the Secretary in writing that
the State has elected to make subparagraph (A)
inapplicable to the State, or if, on or before such
date, the State legislature, by law, has elected to
make subparagraph (A) inapplicable to the State; and
(C) provides that the State shall--
(i) check any child abuse and neglect
registry maintained by the State for
information on any prospective foster or
adoptive parent and on any other adult living
in the home of such a prospective parent, and
request any other State in which any such
prospective parent or other adult has resided
in the preceding 5 years, to enable the State
to check any child abuse and neglect registry
maintained by such other State for such
information, before the prospective foster or
adoptive parent may be finally approved for
placement of a child, regardless of whether
foster care maintenance payments or adoption
assistance payments are to be made on behalf of
the child under the State plan under this part;
(ii) comply with any request described in
clause (i) that is received from another State;
and
(iii) have in place safeguards to prevent
the unauthorized disclosure of information in
any child abuse and neglect registry maintained
by the State, and to prevent any such
information obtained pursuant to this
subparagraph from being used for a purpose
other than the conducting of background checks
in foster or adoptive placement cases;

[Pursuant to section 502(c)(2) of HR 3132, effective October 1, 2007
paragraph (20) reads as follows:]

(20)(A) [unless an election provided for in
subparagraph (B) is made with respect to the State,]
provides procedures for criminal records checks for any
prospective foster or adoptive parent before the foster
or adoptive parent may be finally approved for
placement of a child on whose behalf foster care
maintenance payments or adoption assistance payments
are to be made under the State plan under this part,
including procedures requiring that--
(i) in any case in which a record check
reveals a felony conviction for child abuse or
neglect, for spousal abuse, for a crime against
children (including child pornography), or for
a crime involving violence, including rape,
sexual assault, or homicide, but not including
other physical assault or battery, if a State
finds that a court of competent jurisdiction
has determined that the felony was committed at
any time, such final approval shall not be
granted; and
(ii) in any case in which a record check
reveals a felony conviction for physical
assault, battery, or a drug-related offense, if
a State finds that a court of competent
jurisdiction has determined that the felony was
committed within the past 5 years, such final
approval shall not be granted; and
[(B) subparagraph (A) shall not apply to a State
plan if the Governor of the State has notified the
Secretary in writing that the State has elected to make
subparagraph (A) inapplicable to the State, or if the
State legislature, by law, has elected to make
subparagraph (A) inapplicable to the State; and]
[(C)] (B) provides that the State shall--
(i) check any child abuse and
neglect registry maintained by the
State for information on any
prospective foster or adoptive parent
and on any other adult living in the
home of such a prospective parent, and
request any other State in which any
such prospective parent or other adult
has resided in the preceding 5 years,
to enable the State to check any child
abuse and neglect registry maintained
by such other State for such
information, before the prospective
foster or adoptive parent may be
finally approved for placement of a
child, regardless of whether foster
care maintenance payments or adoption
assistance payments are to be made on
behalf of the child under the State
plan under this part;
(ii) comply with any request
described in clause (i) that is
received from another State; and
(iii) have in place safeguards to
prevent the unauthorized disclosure of
information in any child abuse and
neglect registry maintained by the
State, and to prevent any such
information obtained pursuant to this
subparagraph from being used for a
purpose other than the conducting of
background checks in foster or adoptive
placement cases;

* * * * * * *

Committee Jurisdiction Letters

ATTACHMENT

Markup Transcript

BUSINESS MEETING

WEDNESDAY, JULY 27, 2005

House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:38 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. (Chairman of the Committee) presiding.
[Intervening business.]
Chairman Sensenbrenner. Pursuant to notice, I now call up
the bill H.R. 3132, the ``Children's Safety Act of 2005,'' for
purposes of markup and move its favorable recommendation to the
House. Without objection, the bill will be considered as read
and open for amendment at any point.
[The bill, H.R. 3132, follows:]

Chairman Sensenbrenner. The Chair recognizes himself for 5
minutes to explain the bill.
On June 30th, I introduced, along with 11 original and
bipartisan cosponsors, the Children's Safety Act of 2005. This
bill addresses the growing epidemic of violence against
children and enhances the safety of children and the security
of our communities by enhancing protection from convicted sex
offenders through coordinated State registration and
coordination programs. In recent months, our country has been
devastated by a series of brutal attacks against our children.
In June, America was shocked by the kidnapping of 8-year-
old Shasta Groene and the abduction and murder of her 9-year-
old brother Dylan. Joseph Duncan, a convicted sex offender,
kidnapped these kids from their homes after murdering their
older brother, mother, and her boyfriend. Duncan repeatedly
sexually abused both Dylan and Shasta before he killed Dylan,
dumped his body in a Montana campground, and reportedly boasted
to Shasta about using a hammer and shotgun to kill her family.
Duncan had previously been convicted for molesting two young
boys near a school playground, was released on bail, and
subsequently failed to check in with his probation officer.
In March, 9-year-old Jessica Lunsford was abducted, raped,
and buried alive. In April, 13-year-old Sarah Lundy was
murdered. Both were murdered by convicted sex offenders.
While horrific violence against children is by no means
uncommon, statistics show that one in five girls and one in ten
boys were sexually exploited before they reached adulthood. And
yet less than 50--excuse me, less than 35 percent of these
assaults are reported to the authorities.
According to the Department of Justice, one in five
children 10 to 17 years old received unwanted sexual
solicitations online; 67 percent of all the victims of sexual
assault are under age 18; and 34 percent are under the age of
12. One out of every seven victims of sexual assault is under
the age of 6.
Last month, the Subcommittee on Crime, Terrorism, and
Homeland Security held three hearings focusing on violent
crimes against children, sexual exploitation of children, the
sex offender registration and notification program, and related
issue. Yesterday, I participated in a news conference focusing
on this legislation and the urgent need to better protect
America's children against sexual predators.
John Walsh of ``America's Most Wanted,'' Ernie Allen from
the National Center for Missing and Exploited Children, and
Robbie Callaway from the Boys and Girls Clubs, and other
victims and representatives of victims organizations urged
Congress to enact this legislation. As their testimonials
demonstrate, violence against children occurs with heart-
breaking regularity and the time for action is now.
This bill helps eliminate loopholes in the sex offender and
registration program in important ways. It expands coverage of
registration and notification requirements; increases the
duration of registration requirements for sex offenders;
requires States to provide Internet availability of sex
offender information; ensures timely registration by sex
offenders and verification; requires sex offenders to register
in person and on a regular basis and to provide details
personal information whenever they move to a new area to live,
attend school, or work; requires States to notify the Attorney
General, law enforcement agencies, schools, housing agencies
and development background check agencies, social service
agencies, and volunteer organizations in the area where a sex
offender may live, work, or attend school; and authorizes
demonstration programs for a new electronic monitoring program,
such as DPS monitoring, which will requires examination of
multijurisdictional monitoring procedures; creates a new
national sex offender registry; establishes a new Federal crime
for a sex offender's failure to register; authorizes U.S.
Marshals to apprehend sex offenders who fail to register; and
increases grants to States to apprehend sex offenders who are
in violation of registration requirements.
The legislation also revises law relating to the use of DNA
evidence; increases penalty for violent crimes committed
against children or sexual exploitation of children;
streamlines habeas review of State death sentences imposed
against child killers; and enhances protection of foster
children by requiring foster parents to complete criminal
background checks, authorizing child welfare agencies to obtain
access to national criminal history databases, and requiring
sex offenders to submit to searches as a condition of
supervised release or probation.
It's a good bill. I would urge that it be enacted, and I
yield to the gentleman from Michigan.
Mr. Conyers. Thank you, Mr. Chairman. Well, here we are
again with a bill that combines several bills. There have been
partial hearings on some of them.
Now, all the parts of the bill that deal with trying to
invest in preventive solutions that get to the root of this
serious social problem--the vulnerability of children to
molesters that prey on them--I support. But here is a measure
that just incidentally creates about 36 new mandatory minimum
criminal penalties.
I have a deep, long-lasting opposition about mandatory
minimum sentences, which have been proven arbitrary,
ineffective at reducing crime, and a rather considerable waste
of our tax money.
Mandatory sentences now constitute almost 10 percent of all
those who are incarcerated in State and Federal prisons, are
serving life sentences, an 83-percent increase since 1992.
What do we have to show for these statistics? The answer is
simple: the largest prison system in the world, roughly
quadruple the number of individuals incarcerated in 1985 in
this country, at a cost of about $40 billion a year to run and
operate.
So my appeal is to Members of this Committee to move past
the emotional side of this issue and let's work together to
come up with solutions to prevent such tragedies from occurring
in the future. And to the extent that we look at registration,
Internet consideration, Attorney General and other kinds of
notification, fine. But when we start talking about mandatory
minimums at about the rate of about three dozen a bill, I know
we're rushing to get out of here, but this is sort of going
over the top.
Did you know there were two new death penalty eligible
offenses installed at a time when all available evidence
suggests to many that the death penalty should be curbed, if
not eliminated, but certainly not expanded? This spring, 120
death row inmates so far have been exonerated due to new proof
of innocence.
What is the point? That the death penalty fails to serve as
an adequate deterrent, unfairly punishes the poor, and is very
definitely racially biased.
So, in the end, if we're truly serious about protecting our
children from the acts of sexual exploitation and violence, we
need to invest in solutions of a preventive nature that try
more carefully to get at the root of the problem. The measure
before us, 3132, fails in that respect in a very large way.
I return any time that may be unused, Mr. Chairman.
Chairman Sensenbrenner. Without objection, all Members may
include opening statements in the record at this point.
[The prepared statement of Mr. Green follows:]
Prepared Statement of the Honorable Mark Green, a Representative in
Congress from the State of Wisconsin
Good morning, I want to first thank the Chairman for working with
me and many other colleagues to put together this comprehensive bill
that will help protect children from violent predators.
Unfortunately the news is all too often riddled with stories of
children being abducted, assaulted and/or murdered. Each story is
shocking, heartbreaking to see, and, more importantly, means a family's
life is forever changed.
Sadly, there are too many examples of brutal acts of violence and
exploitation of our children occurring every day. Just think,
statistics show that 1 in 5 girls and 1 in 10 boys are sexually
exploited before they reach adulthood. 67 percent of all victims of
sexual assault were juveniles under the age of 18, 34 percent were
under the age of 12 and one of every seven victims of sexual assault
was under the age of 6.
One job our government must do is protect us. That begins with
protecting our most vulnerable of citizens--our children. It means
ensuring we are giving law enforcement the tools they need to catch the
criminals before they escalate to worse crimes. This begins with
allowing the police to take a DNA sample when they are booking
criminals--DNA fingerprinting. We know that criminals escalate their
behavior and that breaking and entering can evolve into violent sexual
assault. By expanding the DNA database we will help the police find
matches to sex crimes faster which will get these criminals off of the
streets. This is a common sense step to help protect our communities.
We also must increase penalties for crimes against children. If for
no other reason we need longer sentences because it will keep these
monsters off the streets and away from our children. Sexual predators
are the worst kind of criminals, not only violating their victim but
leaving them with fear, guilt and hurt many years after the attack.
These cases lead to suicidal thoughts and actions--I met with a family
whose five-year-old was molested and she, at the age of six, is
displaying suicidal tendencies. These predators are monsters in every
sense of the word and must be locked up for a long time--if not
forever. The measures in this legislation will ensure these criminals
can be taken off the streets and out of our lives.
This legislation will help protect children, ensure their safety
and, hopefully, prevent another tragedy--like the tragedies that struck
Amie Zyla, Jessica Lunsford, Sarah Lunde or the many other children we
have heard about. It is imperative that we act quickly and send a
strong message that we will not allow our children to be victimized.
This bill does that and I urge my colleagues to support it.
Thank you.

ATTACHMENT

Chairman Sensenbrenner. Are there amendments? Are there
amendments? The gentleman from California, Mr. Schiff, for what
purpose do you seek recognition?
Mr. Schiff. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3132, offered by Mr. Schiff of
California. Insert after section 130 the following new section:
Section 130A. Bonus Payments to States That Implement
Electronic Monitoring. (a) In General.--A State that, within 3
years after the date of the enactment of this Act, has in
effect laws and policies described in subsection (b) shall be
eligible for a bonus payment described in subsection----
Chairman Sensenbrenner. Without objection, the amendment
will be considered as read.
[The amendment follows:]

Chairman Sensenbrenner. The gentleman from California is
recognized for 5 minutes.
Mr. Schiff. I thank the Chairman.
At the outset I want to express my support for the
legislation. I have expressed many reservations during the
course of time, particularly last year since the Booker
decision with the growth of proposals that provide mandatory
minimums, and those concerns are certainly implicated in this
bill. But there are cases, I think, where an exception is
warranted, where I can support an exception, and this is one of
them.
I have been very discouraged, I know as many around the
country, that people that prey on children that are sexual
predators recidivate. They do not have a good rate of
rehabilitation, and the consequences are devastating.
I had the opportunity just a few weeks ago to sit down with
Mark Lunsford, Jessica Lunsford's father, and talk about his
terrible experience. And, frankly, I'm much less concerned
about those of us on this panel being potential victims of
crime than our children being victims of crime or our
grandchildren. And we have the highest obligation to keep our
kids safe.
So I support the legislation even if there are some
provisions in it that I would write differently. But one I
wanted to propose as an amendment is one that draws on
Florida's experience, Florida's tragic experience, but also
their legislative response. Specifically, Florida law
establishes a mandatory sentence of 25 years to life behind
bars for people convicted of certain sex crimes against
children 11 and younger, with lifetime tracking by global
positioning satellites after they're released. All other
offenders would have to be monitored electronically only during
their probation, not for life.
The State of Oklahoma has also passed an electronic
monitoring law that applies to repeat offenders.
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Schiff. Yes, Mr. Chairman.
Chairman Sensenbrenner. I have reviewed--I thank the
gentleman for yielding. I have reviewed the amendment, and I
think the amendment is a great step in the right direction
because it does incentivize the States to do the right thing,
to track these folks.
The concern that I have with the gentleman's amendment is
that the definition of the sex crime in the amendment is not
the same as the definition of the sex crime that is in the
bill. And I would be willing to work with the gentleman from
California, if he would withdraw the amendment at this point,
so that we have an identical definition of sex crimes in the
bill and in the amendment so there is not any confusion. And
either the gentleman can offer, re-offer his amendment that is
corrected later on today, or we can offer it when the bill
reaches the floor in September.
But at this point I'd like to ask the gentleman to withdraw
the amendment so that we have an identical definition of sex
crimes in both the bill and the amendment.
Mr. Schiff. Mr. Chairman, thank you. I'd be more than
willing to do that, and depending on the length of the hearing,
perhaps we can correct it in time to take it up again.
Chairman Sensenbrenner. If the staff will work on that, and
I'd like to get it out before the bill is reported, so they've
got something to do between now and the end of the
consideration of this bill.
Mr. Schiff. Mr. Chairman, if I might just conclude for a
moment on the bill itself, again, it's with great reluctance
that I embrace a bill that has as many mandatory minimums as
this one. But I just don't see, frankly, another way to make
sure these people never commit these crimes again. And when I
learned, for example, recently of the murder of this family and
the kidnapping of these two children, the murder of one of
them, the molestation of the other, and the person who did this
was out on $15,000 bail, which the judge defended, the
prosecutor in that case argued, well, hey, the prosecutor asked
for $25,000 bail, which I found equally inexplicable. This was
somebody who had a prior conviction for molestation of a child
at gunpoint who was now brought up on subsequent charges of
molesting another child, and the prosecutor was only asking for
$25,000 bail.
You know, I think the vast majority of prosecutors and
judges do good, difficult work, but these cases are all too
common and too terrifying for parents and too devastating for
children. And I'm prepared to embrace the strong measures that
are in this bill, and I yield back.
Chairman Sensenbrenner. Does the gentleman----
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. Does the gentleman withdraw his
amendment?
Mr. Schiff. Yes, Mr. Chairman.
Ms. Lofgren. Would the gentleman yield?
Chairman Sensenbrenner. The amendment is withdrawn.
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. Are there further amendments?
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York.
Mr. Nadler. I do not have an amendment. I have a--I move to
strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. I just wanted to ask a question in view of the
comments of the gentleman from California a moment ago about
this tragedy in which the perpetrator was free on bail. That
was pre-trial bill? If the gentleman would yield?
Mr. Schiff. if the gentleman would yield, as I understand
it, yes, it was pre-trial----
Mr. Nadler. Reclaiming my time, I don't believe--and I hope
the Chairman or someone will correct me if I'm wrong--that this
bill would do anything about pre-trial bail, would it?
Mr. Schiff. Would the gentleman yield?
Mr. Nadler. Yes, sir.
Mr. Schiff. You know, again, I don't know all the
particulars of this case. What it would potentially have had
the most significant impact on is the prior conviction for
which he had served his time and was out and would have
prevented the subsequent--potentially prevented the subsequent
molestation, depending on the age of the first victim, which is
a question I don't know. But not only would it have had an
impact potentially----
Mr. Nadler. Reclaiming my time, this bill would do a lot of
things, but I want to be very clear. People make statements
about people being released on bail and he should have been on
a $15,000 bail or he should have been on $25,000 bail. But the
fact of the matter is bail is a question that has to be set--
that has to be dealt with on its own merits. And this bill
would do nothing about the question of bail. It would do
nothing good, it would do nothing bad. As far as I can tell, it
would have no impact on that and we shouldn't bring it into
this discussion for emotional purposes. I yield back----
Mr. Issa. Would the gentleman yield?
Mr. Nadler. I'll yield--if I can reclaim my time, I'll
yield.
Mr. Issa. I thank the gentleman. I might only bring to the
gentleman's attention that consideration of bail in a judge's
mind includes what he's charged with and the length of time of
incarceration. The higher the penalty for which he is charged,
such as a life imprisonment charge, the greater the flight
risk. So very well had there been high minimum penalties, it
could have affected his flight risk characteristics and----
Mr. Nadler. Reclaiming my time, that is possible. It might
have affected the judge's consideration. I will grant that. But
the bill itself--but the bill does nothing specifically about
bail, and I don't want to leave anybody with the impression
that it does, because there's too much misinformation about
this kind of legislation all around, anyway.
Ms. Lofgren. Would the gentleman yield?
Mr. Nadler. Yes, I'll yield.
Ms. Lofgren. I thank the gentleman for yielding.
I would just like to note that we can--there's no way to
know what a judge would have done on a bail motion with a
different set of facts. But I would like to--there has been--I
think my colleague Mr. Schiff and others have talked about the
issue of mandatory minimums, which I think have had an adverse
impact that has not promoted necessarily the goals of justice
in America when it comes to drug crimes. I think that has
become clear.
However, you know, I formed my opinion in a positive sense
on mandatory minimums when it came to child molestation when I
was in local government and had occasion to review the
sentencing patterns on a daily basis because of our jail
overcrowding lawsuit on who was in jail and why. And it was
absolutely shocking to me the kind of sentences that were being
handed down for people who victimized children. And I came to
the conclusion over a period of time, without mentioning any
individual judges, that it was because, really, this is a crime
that is a majority of the time committed by white men because
white men are the majority of men in America and this is a
crime that is not--and I think the judges who were of a similar
racial and economic background were unwilling to sentence these
offenders in a way that their crime deserved.
And I think that the mandatory minimum in this case is
really a necessity to overcome that institutional bias on the
part of the bench to really be too easy on the offenders who
look just like them and who are from an economic class just
like them. And it's--I support this bill. It's not perfect, but
I just thought it was worthwhile to share that personal
experience that I had in local government.
I thank the gentleman for yielding.
Mr. Nadler. Thank you. I thank the gentlelady for her
comments, and I yield back the balance of my time.
Mr. Coble. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Coble.
Mr. Coble. Mr. Chairman, move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Coble. And, Mr. Chairman and colleagues, I will not
take the full 5 minutes, but I just want to weigh in.
I have previously during this session expressed some
reservation about mandatory minimums ad infinitum. I think
maybe we can go overboard sometimes with imposing mandatory
minimums, but when citizens commit crimes against the most
innocent and the most vulnerable in our society, i.e.,
children, I think perhaps at that point mandatory minimums
might well be in order. The gentlelady from California has
touched on it. The gentleman from California touched on it.
Perhaps the Chairman did.
But that's the extent of my comments, Mr. Chairman. I yield
back.
Chairman Sensenbrenner. Are there amendments? The gentleman
from Virginia, Mr. Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk,
number one.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3132, offered by Mr. Scott of
Virginia. On page 6, line 19, after the semi-colon, insert
``or,'' and on line 20 strike ``or'' and all that follows
through line 22.
[The amendment follows:]

Chairman Sensenbrenner. The gentleman from Virginia is
recognized for 5 minutes.
Mr. Scott. Mr. Chairman, the intent of this amendment is to
remove misdemeanor offenses from the coverage of the bill. This
way, the way the scheme works is an offender could be required
to register and be subjected to a 5-year mandatory minimum
felony for some technical problem with the registration
requirement that could be deemed failure to register. For
example, a homeless person may have problems registering and
may find himself subject to a 5-year mandatory minimum because
he didn't get a shelter or where--whether it was a shelter or
where he last lived, or whatever.
Once someone is labeled a sex offender under these
requirements, people are not likely to make the distinction
about how they respond or treat anyone whose name is published.
Employment or other normal activities will not be feasible for
anybody on the list because as the list gets more publicity and
promotion to protect families from the potential ridicule or
harassment that they may be subject to by anxious and sometimes
hysterical public with the notoriety of the incidents that has
occurred, many offenders will have to leave their homes or be
forced out of their families who are trying to avoid the impact
on their children or adults with the situation associated with
the registry.
Sometimes this registry can have a counter--can have a
counterproductive effect. One incidence that has been listed
was where a grade school teacher trying to protect their
students read the names of everybody on the list to a class. At
the mention of one of those names, a student blurted out to
another student, ``Isn't that your father?''
And so, Mr. Chairman, I'd like--we would hope that if we're
going to have this list, it would not include misdemeanor
offenses, and I'd hope the Committee would adopt another
amendment which I'll offer, which would classify offenders by
their assessed risk rather than just the fact that they were
convicted. The extent to which we apply such measures will be
working its way through the courts, and I hope we will have a
much better chance than having those--this scheme actually
found constitutional if we put some limitations on it. So I
would hope it would be the pleasure to adopt this amendment to
eliminate misdemeanor offenses from the coverage of the bill.
Mr. Lungren. Would the gentleman yield on that point?
Mr. Scott. I yield.
Mr. Lungren. I'm just interested in the particular incident
the gentleman mentioned. It's been my experience that at times
child molestation takes place by the parent or guardian of
another child. And you object to the fact that information
would be given that a particular child's parent happened to be
a registered sex offender when, in fact, at least on numerous
occasions that's the avenue by which a child molestation takes
place?
Mr. Scott. Reclaiming my time, the gentleman is exactly
right, but if you're going to be spreading this information all
over town, the question is what kind of offenses should be
included. This amendment would delete misdemeanor sexual
offenses. It could not be the kind of predatory offenses. It
could be just a misdemeanor. And you're going to--somebody
commits a misdemeanor like that early in their life, for the
rest of their life they're on this registry.
Ms. Wasserman Schultz. Would the gentleman yield?
Mr. Scott. I yield.
Ms. Wasserman Schultz. Can you give me an example of the
kinds of misdemeanor sex offenses that you're talking about so
we can be more clear about what you'd be removing from the
bill?
Mr. Scott. Contributing to the delinquency of a minor,
exposure, some things that would be misdemeanors, early in
life.
Ms. Wasserman Schultz. What would be an example of
contributing to the delinquency of a minor? A sex crime that
would be----
Mr. Scott. It would be the court rules that it's a sex
offense, but it's contributing--well, having sex with a friend
that happens to be a 19-year-old and a 15-year-old, having sex,
you're on the sexual registry. Of course, that's a felony for
which you can get life without parole if you cross a State line
under one of those bills. But if it was just a misdemeanor,
you'd still be--these are teenagers--you know, teenagers can be
committing these offenses.
Ms. Wasserman Schultz. The reason I'm asking----
Mr. Scott. Touching.
Ms. Wasserman Schultz. I just want to figure out
specifically what kinds of crimes--misdemeanor sex crimes are
that you'd be removing to ensure that I would feel comfortable
knowing that I wouldn't want that type of criminal to be on a
sex registry.
Mr. Scott. First of all, it can't be too serious because
it's a misdemeanor.
Ms. Wasserman Schultz. Right.
Mr. Scott. And, second of all, it could be committed by
someone who is, in fact, a teenager, would have this registry
for life. So when they're 43 years old, they're still being
registered as a sex offender, having their name read to
children in the neighborhood.
Chairman Sensenbrenner. The gentleman's time has expired.
The gentleman from Wisconsin, Mr. Green.
Mr. Green. Thank you, Mr. Chairman. I rise in strong
opposition to----
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Green. The accuracy and completeness of the sexual
offender registry system is vitally important to our national
efforts to fight crimes against kids. It is essential.
One of the opening statements today said that we need to
focus more on prevention. This is one of the ways we focus on
prevention, by creating usable tools where communities have the
information they need to take steps to be safe. It is very
important that we build up this registry system so that it is
accessible, that it is usable, that it contains the kind of
information that we need for communities to be able to make
choices and to take into account the actions of those who may
move into their community. It is awfully important.
I have far more faith than the gentleman does of the
ability of communities, of citizens, of organizations to judge
the seriousness of a crime. And so it may be a misdemeanor that
is reported, and that can be taken into account when people are
able to access that information. But they need to know it.
If someone is convicted of a sex crime against a kid and
that person moves into my neighborhood, as a father I demand
the right to know that he's there. I cannot take steps to
prevent my kids if I don't have that information. It is vitally
important.
The bottom line for me is real simple. If people who commit
these misdemeanor offenses are worried about being part of the
registry, don't commit the crime. They have chosen to commit
the crime. And when they chose to commit the crime, yes, they
surrendered certain things; and, yes, people are going to find
out about what they did. I'm sorry if that's unpleasant for
them.
I yield back----
Mr. Lungren. Would the gentleman yield for a moment? Would
the gentleman yield?
Mr. Green. I would be happy to yield to the gentleman.
Mr. Lungren. The fact of the matter is if you know anything
about these cases, you understand how difficult it is to
prosecute sex cases because of the complaining witness is a
child. In many cases, there's on corroborating witness. So
oftentimes prosecutors accept a plea to a lesser offense, and
for someone to suggest that an inappropriate touching of a
sexual nature is--if it's classified as a misdemeanor is an
insignificant crime for which we ought not to be aware, I would
just--I would just register opposition to that.
The nature of these crimes have in the past been extremely
difficult to prosecute. When we first came up with a public
registry in California, I heard the same arguments the
gentleman has registered, that it would embarrass people, that
there would be vigilantes, that they would be targeted, that
they would have to move out of town. That may have happened in
a very, very, very few cases. I can think of one vigilante case
in California since we did that some 12 years ago where someone
burned an automobile of someone who was a registered sex
offender.
We have penalties in the law for people who would use the
registry for purposes of taking violent action against an
individual. So I would just say this is--some might call it a
unique area of the law, but because of the nature of the
crimes, because of the difficulty in prosecuting, because of
oftentimes the acceptance of a plea to a lesser offense, I
think there is a reason for us to treat these categories of
crimes differently.
Ms. Lofgren. Would the gentleman yield?
Mr. Green. Mr. Chairman, in the limited time I have left, I
guess I'd also like to bring out another point, and I hope I'll
have a chance to talk about it a little bit further on. But a
well-publicized case back in my home State of Wisconsin led to
the passage in Wisconsin of the Aime Zyla Act, and she was
brutally assaulted, but she was assaulted by a young man, a
juvenile, I guess a youthful error, some might call it. But the
offense he committed was serious. The record had been sealed,
so when he was released back into the community, people weren't
notified. And, of course, he went on to commit a number of
offenses and molest a number of other children, and I blame the
incompleteness and the inaccessibility of the sexual offender
registry.
It is vitally important that we are able to count upon that
registry, and that means making sure that it is complete, that
we have the information in there that parents can use, that
communities can use, and organizations can use. That's why I
think it's so important that this kind of information remain
part of the registry, which is warning letter under this
legislation.
And with that, Mr. Chairman----
Ms. Lofgren. Would the gentleman yield?
Mr. Green.--I yield back.
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler.
Mr. Nadler. Thank you. Mr. Chairman, I rise in support of
the amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Thank you, and I'd like to address some of the
arguments.
The idea of a sex--of a registry which follows you for
life, while we have to do it in some cases, it is fundamentally
against our normal sense of justice. Our normal sense of
justice says someone who commits a crime should be punished for
that crime with an appropriate punishment, and once that
appropriate punishment is finished, should be free of it and go
about his business and try to be--fit into society. That's our
normal sense of justice.
Because we know that certain types of crime, certain types
of sex crimes tend to have a great degree of recidivism and we
want to protect our children and protect our people from them,
we say, okay, we'll suspend some of our normal objections to a
lifetime hounding of a person, and in order to protect society,
we'll have a sexual offenders registry.
I go along with that. That's fine. But it's not the ideal.
We don't live an ideal world. We have to do that. But we have
to do that only--we should limit it to the seriousness of what
we're doing and to the risk that promotes it. And I would
submit that if the predicate offense is a misdemeanor, it
doesn't justify it.
Now, two arguments are advanced against this. One, there
are some serious things that are misdemeanors. Well, if they're
serious things, the State or the Federal Government should
amend the law and they shouldn't be misdemeanors. They should
be felonies. If they're misdemeanors, they're by definition not
to serious that you should get a lifetime registry to follow a
person for life. And maybe something should be reclassified
from misdemeanors to felonies, but that's a different law,
that's a different bill. This bill should say that for serious
sex offenses, we will strengthen our law on sex registries, and
it would be a fine bill if it did that. But that doesn't mean
misdemeanors.
Mr. Lungren raises the issue that, well, because of the
difficulty of prosecuting some of these offenses, on occasion,
maybe many occasions, you get a situation where a prosecutor
will accept a plea to a misdemeanor when what was really
committed was a felony and, therefore, we better have the sex
registry because this guy's really a dangerous guy.
Well, that amendment--or that comment is not totally
fallacious, but it's fundamentally subversive of our notion of
justice, because what you're really saying is you should punish
someone not for what he was convicted of but for what he might
have been guilty of but you couldn't prove.
What you're saying is that this guy--we know he committed a
felony or we think he committed a felony. The prosecutor thinks
he committed a felony. We'll take the prosecutor's word for it,
even though he couldn't convict him of it and he took a plea to
a misdemeanor. Well, sometimes you have to take pleas to
misdemeanors, and sometimes the guy didn't commit the felony.
Sometimes people plead to misdemeanors because they can't
afford a good lawyer even though they're entirely innocent. It
works both ways.
So to predicate a lifetime hounding of a person, which is
what a sex registry amounts to, which we may have to do
sometimes to protect our children, granted, but to predicate it
on something that isn't really serious, on a misdemeanor, on
the off chance that maybe the guy really committed a serious
crime but you couldn't convict him of it, that is fundamentally
subversive of our notion of justice that we punish people for
crimes they are convicted of. What this is saying is that we
are going to protect ourselves by punishing a person for
something of which he was not convicted or really making a much
too serious punishment for a light crime because maybe he was
really guilty of a more serious crime.
That doesn't make sense. That we shouldn't do because it
destroys our entire system of justice. It destroys the
difference between felonies and misdemeanors. It destroys the
difference between serious and non-serious crimes. And it
destroys the notion of proving guilt beyond a reasonable doubt
if we start putting heavy penalties on things because maybe he
committed a more serious crime than what he was convicted of.
So if it's not a misdemeanor, if it's a serious crime, use
the sex registry. If it's a misdemeanor, it's too light a crime
to justify it, and you can't justify it by saying, well, maybe
he's really guilty of a more serious crime. So I urge the
adoption of this amendment.
Thank you and I yield back.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from Virginia, Mr. Scott. 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?
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. I have an amendment at the desk, number two.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3132, offered by Mr. Scott of
Virginia. On page 7, line 17 strike subsection (I), and
redesignate the succeeding subsection accordingly.
[The amendment follows:]

Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, could I have number three and we
can take them en bloc because they're very similar?
Chairman Sensenbrenner. The clerk will report amendment
number three.
The Clerk. Amendment to H.R. 3132, offered by Mr. Scott of
Virginia. On page 8, line 13 strike subsection (D).
[The amendment follows:]

Chairman Sensenbrenner. Without objection, the amendments
are considered en bloc, and the gentleman from Virginia is
recognized for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman amendment two would delete the authority of
the Attorney General to essentially legislate who is a sexual
predator by delegating to the Attorney General the ability to
designate any other offense--any other offense for inclusion in
the definition of a specified offense against a minor.
Amendment three deals with the authority of the Attorney
General to designate what constitutes a serious sex offense.
And both of those, it is unfair for the defendant in an
adversarial situation to give the ability of the other side the
ability to essentially legislate whether they're guilty or not.
If we're going to have standards, we ought to put the standards
on who has to register, who doesn't register, and we shouldn't
designate to the Attorney General the ability to kind of make
it up as he goes along.
There may be, in fact, an unconstitutional delegation of
legislative authority to the executive branch under several
Supreme Court decisions by giving the Attorney General the
ability to make that designation. So I would hope that we would
delete that provision.
I yield back.
Chairman Sensenbrenner. The gentleman from Wisconsin, Mr.
Green.
Mr. Green. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Green. Thank you, Mr. Chairman. I rise in opposition.
These amendments together would take away, as I understand it,
the ability, the authority of the Attorney General to add
serious sex offenses to the list of offenses for which
registration would be required. The sad reality is that
Congress is a slow-moving body, and I believe that in this
case, these crimes are so serious that the Attorney General
needs the ability to add offenses, again, because the registry
is such an important part of our national effort against crimes
against kids. I think it is appropriate that he have that
ability to add those offenses.
Again, what we are talking about here is not putting new
penalties. We are talking about making a registry accurate and
complete so that communities and parents and organizations can
use it and rely upon it. I think it is important that the
Attorney General have that authority, and with that I yield
back.
Chairman Sensenbrenner. The question is on the amendments
en bloc offered by the gentleman from Virginia, Mr. Scott.
Those in favor will say aye? Opposed, no?
The noes appear to have it. The noes have it. The
amendments are not agreed to.
Are there further amendments? The gentleman from Virginia,
Mr. Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk,
number four.
Chairman Sensenbrenner. The clerk will report amendment
number four.
The Clerk. Amendment to H.R. 3132, offered by Mr. Scott of
Virginia. On page 24, line 11 and starting on line 21, strike
``less than 5 years nor.''
[The amendment follows:]

Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, this amendment would change two
mandatory minimum sentences related to the registration
requirements to a scheme with a maximum number of years and
leave it to the Sentencing Commission and the courts to
determine the gradation of seriousness and punishment and the
appropriate punishment.
We have been told by the Judicial Conference time and time
again that mandatory minimum sentences violate common sense.
For someone who deserves the time, they have no effect because
they'll get that time. For someone who clearly does not deserve
the time, they'll get that time, anyway, whether it makes sense
or not.
In our everyday experience, judges can see differences
small and great in the facts and circumstances of the cases
before them. The name of the crime is often a very poor
reflector of the facts and circumstances of the crime, and it
makes sense to have a rational assessor who has heard and seen
the evidence and the facts and circumstances in the case making
the decision of the appropriate sentence within a range that
relates to the gradations of seriousness of the crime and the
characteristics of the offender. That system was what we
established in 1984 with the Sentencing Reform and establishing
the Sentencing Commission. Yet we are constantly violating that
system with mandatory minimum sentences. Those sentences are
not based on any rational determination of their impact but,
unfortunately, often just the politics of the day.
The Sentencing Commission has recently substantially
enhanced the punishment guidelines for sex offenses against
children, and we've already seen the harsh mandatory minimums
that we've set in the PROTECT Act. Here we are back again to
increase those mandatory minimums and more before we have even
see--had an opportunity to see whether they have an effect or
not.
There's one caveat. When we do these mandatory minimums,
it's just those with Federal jurisdiction, which means that our
Native Americans will bear the unfortunate brunt of this
rhetorical flourish. About 70 percent of the cases in Federal
jurisdiction involve Native Americans, and there's no
suggestion that Native Americans have more problem in this area
than others.
And before I finish, Mr. Chairman, I just want to remind
everyone that 90 to 95 percent of those who are committing
sexual crimes against children are not going to be covered by
these registrations, anyway, and 99 percent of those covered
and having to register are not a threat. It is a very
inefficient way to have registrations and jailings and the
expense involved in that. It's a very inefficient way to try to
protect children. There are a lot of other things we can do in
a much more cost-effective way to prevent child abuse against--
child and sexual abuse against children, and this bill is
certainly not one of them.
I would hope that we would eliminate this mandatory
minimum, and I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from Wisconsin, Mr.
Green.
Mr. Green. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Green. Thank you, Mr. Chairman. I rise in opposition to
this amendment, and strongly so.
First off, before I deal specifically with the points of
the amendment, the gentleman just made an argument that I think
he's going to try to make over and over again today. He's
arguing--making an argument that we are unfairly focusing on
offenses that may take place in reservations, in tribal
jurisdictions. Remember--and I represent as many reservations
and as much tribal land as probably anybody in this House.
Children of Native Americans are no less worthy of protection,
no less deserving of protection than anyone else. And when the
argument is made that somehow this shouldn't apply to tribal
lands, I think that's offensive.
We need to make sure that children are protected. And it is
true that a large part of Federal jurisdiction, Federal lands,
may be lands that are in trust. But, nonetheless, those
children, many of whom I am fortunate to represent in my neck
of the woods, are certainly deserving of our strongest possible
protection.
Now to the question of the registry, and the gentleman
would remove the mandatory minimum penalty for failing to
register as a sex offender when you cross State lines. Again,
I've said it before and I think it's so crucial today. We know
that the information that can be gleaned from the sexual
offender registry is effective. It can help communities, it can
help parents, it can help organizations take precautions to
keep kids safe. It is vitally important--vitally important--
that sex offenders are required to register and required to
update the registry when their lives change, when they move,
when they change careers. That is information that we must
have, that we need to have if we're going to keep our kids
safe.
So removing the mandatory minimum here is a terrible idea.
It is the heart of this bill that we update our registry and we
make it more accessible, we make it more effective. And taking
away the penalty for those who would avoid the accuracy and the
reach that the sexual offender registry provides, removing the
penalty I think is a terrible idea.
With that I yield back.
Chairman Sensenbrenner. The question is on the amendment
number----
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Scott.
Mr. Watt. Mr. Watt, you mean.
Chairman Sensenbrenner. Mr. Watt. I'm sorry.
Mr. Watt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman Mr. Watt is
recognized for 5 minutes.
Mr. Watt. And I yield to Mr. Scott.
Mr. Scott. Mr. Chairman, you had it right. [Laughter.]
Chairman Sensenbrenner. I'm not fooled.
Mr. Scott. Mr. Chairman, I would just point out that this
mandatory minimum is not for committing another offense. On
page 24, line 11, the section--it says knowingly fails to
register as required shall be fined and imprisoned for not less
than 5, no more than 20 years. This is not for committing
another offense.
Mr. Green. Would the gentleman yield?
Mr. Scott. This is just failing to register. You can get up
to 20 years whether you eliminate the mandatory minimum or not.
We're just talking about failing to register.
Mr. Green. Would the gentleman yield?
Mr. Watt. I would yield to the gentleman.
Mr. Green. So the gentleman does not believe that failing
to register is an offense.
Mr. Scott. Reclaiming--would the gentleman yield?
Mr. Watt. I would yield to the gentleman.
Mr. Scott. I would say that failing to register should
subject you to a punishment of up to 20 years.
Mr. Green. So it should be--but it is an offense. You agree
with that.
Mr. Scott. Up to 20 years. But not a mandatory minimum.
Mr. Nadler. Would the gentleman yield?
Mr. Watt. I will yield to the gentleman from New York.
Mr. Nadler. Thank you. I think the distinction here which
may be being lost is that it's a heck of a thing to say
something is a 5-year minimum, 5 to 20, as opposed to saying up
to 20 years. And what the gentleman is saying, I think--correct
me if I'm wrong--is that failing to register as opposed to a
sex offense itself, but failing to register should be an
offense for up to 20 years, but should not have a mandatory
minimum of 5 years, just the offense of failing to register.
Letting a judge have discretion of saying--it's a serious
crime. Up to 20 years in prison, it's a serious crime. You
don't need the minimum of 5 years in prison simply for failing
to register. So the judge can make that determination.
I think that's what the gentleman is saying. It's clearly
an offense. It's clearly a serious offense. It's not a sex
offense, and it shouldn't have the mandatory minimum of 5
years, but it could be a serious offense of up to 20 years.
I yield back to the gentleman. I thank the gentleman for
yielding.
Mr. Watt. I yield to the gentleman from Virginia.
Mr. Scott. I thank the gentleman for yielding.
I want to remind everyone who just voted against my last
amendment that this entire process can be provoked with a
misdemeanor for which the punishment was less than 1 year, and
you're going to get as a result of the punishment for that
failing to register for what you committed, the offense was
less than 1 year, you can get 5 years mandatory minimum if you
fail to register. The original offense was an offense that the
Government thought wasn't worth even 12 months, and here you
are giving a 5-year mandatory minimum.
Chairman Sensenbrenner. The gentleman from Florida, Mr.
Keller.
Mr. Keller. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Keller. And I will yield to Mr. Green.
Mr. Green. I thank the gentleman for yielding. Everything
that my friend Mr. Scott has said may be on occasion true, but,
again, the importance of the registry is so great that I
believe that when you are required to report and fail to do so,
you have, in fact, committed a very serious offense. And it is
a serious offense because you have, at least in part, hurt the
accuracy and the completeness of that registry.
Mr. Nadler. Would the gentleman yield?
Mr. Green. And as we have heard in case after case in
recent months, where the tragedies have arisen in part because
of the lack of completeness of that registry, it is a very
serious offense when you fail to do something that you have
been ordered to do.
I think it should be a mandatory minimum. The gentleman
disagrees and that's a fair philosophical difference. But in my
view, if we are going to begin to get our arms around the
problem of sex crimes against kids, if we are, in fact, going
to take steps to prevent future crimes against kids, we have to
have tools like this registry. They have to be complete. People
have to be able to count upon them. It is in my view a very
serious offense.
Mr. Nadler. Would the gentleman yield?
Mr. Green. It's not my time.
Chairman Sensenbrenner. The time belongs to the gentleman
from Florida.
Mr. Keller. Yes, I'll yield.
Mr. Nadler. Thank you. I thank the gentleman for yielding.
But the fact is that it is a very serious offense. You're
leaving--without the mandatory minimum, it's up to 20 years
imprisonment. Normally we write laws that say this shall be
punished by a fine not exceeding X thousand dollars and a term
of imprisonment not more than 5 years or 20 years or whatever.
Twenty years is a very serious sentence, up to 20 years is a
very serious sentence. Five years--what you're really saying
with this, with the mandatory minimum, is that you should not
leave to the judge any discretion to look at what's happening
here. And certainly I think that depending on what the initial
predicate offense was and what the evidence was, if it was a
serious crime, 5 to 20 might be reasonable for not registering.
Maybe 10 to 20 would be reasonable for not registering.
Mr. Keller. Reclaiming my time----
Mr. Nadler. But if it was not a serious crime----
Mr. Keller. Reclaiming my time, and I yield to the
gentleman from Wisconsin, Mr. Green.
Mr. Green. I thank the gentleman for yielding. The problem
is under your approach the person may get a month or 2 months.
That hardly sends a serious, clear message that this is a
serious offense. Yes, it is possible they get 20 years. It is
also possible to get a matter of months.
Mr. Nadler. Would the----
Mr. Green. I believe that this is a case where we do need
to send a very strong signal, and I think that's what a
mandatory minimum here does. So that's the difference that we
have.
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. Does the gentleman from Florida
yield back?
Mr. Keller. I'll yield back.
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler.
Mr. Nadler. Thank you. I strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. Thank you. It is theoretically possible that
someone could get a month, but the reality is that the
Sentencing Commission, which is what we have--we've established
a Sentencing Commission to set up ranges for all different
types of circumstances. We cannot sitting here envision the
different crimes, the different circumstances, the different
situations. That's why we have, A, a Sentencing Commission and,
B, a judge.
We've all been offended at times by reading of grossly
disproportionate sentences for trivial crimes or grossly light
sentences for heavy crimes, and that's what inevitably happens
when you try to dictate from this Committee room. That's why we
have a Sentencing Commission, to make it somewhat finer. That's
why we have judges.
And, again, the fact is that if we're saying up to 20
years, you've got to allow a judge, you've got to allow the
Sentencing Commission some discretion to look at the situation
of this case and say, well, this was a serious sex offense this
guy was committed for, and he tried to evade registering and he
fled the jurisdiction and he moved next to a school and we're
going to hit him with 20 years, or, well, it was only a
misdemeanor he was convicted of and it was really trivial, it
was only a technicality that we call it under the law a sex
offense, and it wasn't as serious--serious enough to be labeled
as such, but not as serious. And, anyway, his crime was coming
in on the sixth day instead of the fifth day to register and
it's technically a violation because we're only giving him 5
days. So we'll give him a year.
You've got to allow some discretion for circumstances that
you can't foresee because, otherwise, you get great
miscarriages of justice in all directions. And that's why
mandatory minimums as a result are not a good idea. And
certainly when you're allowing--when you're talking not about
the crime itself but simply failing to register, and when the
predicate for that failing to register can be a misdemeanor, a
5-year mandatory minimum does not make any sense at all.
It makes no sense, frankly, to have a mandatory minimum on
a failure to register when the predicate is much less than--the
predicate offense can be much less than 5 years. The failure to
register is much more seriously punished than the sex offense
that you're talking about? That doesn't make any sense at all.
Now, if you're saying that this only applies to felonies,
to underlying felonies whose minimum sentence is 5 years,
maybe. But you got to have some flexibility in the law;
otherwise, you're setting up very, very unjust situations, and
situations that we can't now foresee. All wisdom does not
reside in this room. That's why we have a Sentencing
Commission, that's why we have judges, and that's why we
shouldn't have this mandatory minimum in this situation.
Mr. Scott. Would the gentleman yield?
Mr. Nadler. So I support the amendment, and I yield to
gentleman from Virginia.
Mr. Scott. Thanks for yielding. I remind people that if the
appropriate sentence says usually at least 5 to 20, there could
be circumstances where 5 years for something that started off
as a misdemeanor--it might have been a technical violation--5
years might be too much in a given circumstance. That's why the
Sentencing Commission has explained to us time and time again
that mandatory minimums violate common sense. When it violates
common sense, you got to impose it anyway.
I would hope that we would allow the Sentencing Commission
and the Judge looking at the facts and circumstances to give a
punishment up to 20 years but not be bound by a 5-year
mandatory minimum in all circumstances.
Thank the gentleman for yielding.
Mr. Nadler. I thank the gentleman. I yield back.
Chairman Sensenbrenner. The gentleman from South Carolina,
Mr. Inglis.
Mr. Inglis. Move to strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Inglis. I'm inclined to agree with the gentleman from
Virginia, Mr. Scott. I think that he's got a reasonable
amendment. I also agree with Chairman Coble in what he said
about my misgivings about mandatory minimum don't apply so much
in the case of sexual predators, and the underlying bill I'm
happy with. But here we really could be talking about a
technical violation that could end up with a 5-year mandatory
minimum, which could work great injustice.
For example, I'm working right now with a fellow who's a
contractor in Iraq. He has a sexual crime in his background. By
all accounts that I have heard from some people in our
community, he really has cleaned up his act. He wants back in
the active duty. It's going to be hard to get him there. Maybe
he gets National Guard, let's say. Maybe he gets called up, and
maybe in the calling up process there's confusion about where
the gentleman lives. In that case he comes before a judge and
he has technically failed to register within 5 days of moving
jurisdictions, he's facing a mandatory minimum of 5 years in
that confusion. And I can see some judges saying, ``I can't
believe I'm going to have to give this guy 5 years.''
So it seems to me reasonable to give the judge discretion
in a technical violation like that where somebody just fails to
register, perhaps because of good reason, confusing about where
he's residing and where he is at the moment, say, of call up in
this fellow's case.
This hasn't happened. This is a hypothetical. This has not
happened to this fellow, but I can see something like that
happening, in which case why not make it so that it's just up
to 20 years, rather than mandatory 5 and up to 20? It seems
reasonable to me.
Mr. Green. Would the gentleman yield?
Mr. Inglis. Happy to yield.
Mr. Green. First off, let me say my guess is a fair number
of folks who are caught in that situation are going to say it's
a technical violation even if it isn't a technical violation.
What else are you going to say? But remember who we are talking
about here. We are talking about sex offenders, and as we know,
the recidivism rates for sex offenders much higher than for
other types of crimes. And we also know that each subsequent
crime committed against a child is a life in some cases
destroyed, a family upended and seriously damaged for many,
many years. The tools that they have to take steps to keep
their kids safe include an accurate and complete sexual
offender registry.
That's why we hold it up to be so important. That's why we
have in past Congresses and this Congress and I suspect in
future Congresses will take such strides, such important steps
to build upon it to make sure that the funding is there for it,
to make sure that it is accessible, because it is that
important. Some may say a technical violation, but again,
remember, on the other hand, creating loopholes and cracks in a
system that we have to be able to rely upon, is so very, very
important, and that's something I would remind the gentleman
of, the types of offenses that we're talking here----
Mr. Inglis. If I may reclaim my time, it's this, the
underlying bill, as I say, requires mandatory minimums for the
offense, and I don't have a problem with that. I join Mr. Coble
and some others on the Democratic side in saying even though I
have real hesitations about mandatory minimums because of the
recidivism problem, I'm willing to go with it in this case. But
you really are talking about potentially some technical
violations, and in those cases, I'm willing to trust a judge. I
mean, after all, we do confirm these judges----
Mr. Green. If the gentleman will yield?
Mr. Inglis. Happy to yield.
Mr. Green. We are here because unfortunately, judges have
failed us in these types of cases. That's one of the reasons
that we are here. That's why some of these families are here,
that sadly, some judges, a small number, but some judges have
failed. Where the discretion has existed, the discretion I'm
afraid has--and my colleague and friend, Mr. Schiff, has raised
the case early on--I'm afraid that we have an obligation to
take strong steps here because in too many cases judicial
discretion has failed families and has failed children. That's
why we're here taking up this strong legislation.
Chairman Sensenbrenner. The gentleman's time has expired.
The question is on the amendment offered by the gentleman from
Virginia, Mr. Scott. Those in favor will say aye.
Opposed, no.
The noes appear to have it--recorded vote is ordered. The
question is on agreeing to the Scott amendment. Those in favor
will, as your names are called, answer aye, those opposed no,
and the clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Lungren?
The Clerk. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. Aye.
The Clerk. Mr. Inglis, aye. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. Aye.
The Clerk. Mr. Gohmert, aye. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. No.
The Clerk. Mr. Schiff, no. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members who wish to cast or change
their votes? Gentleman from Texas, Mr. Smith?
Mr. Smith. I vote no.
The Clerk. Mr. Smith, no.
Chairman Sensenbrenner. Gentleman from California, Mr.
Lungren?
Mr. Lungren. Aye.
The Clerk. Mr. Lungren, aye.
Chairman Sensenbrenner. Further Members who wish to cast of
change their votes? If not, the clerk will report.
The Clerk. Mr. Chairman, there are 16 ayes and 17 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are three further amendments? The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk,
Amendment 6,
Chairman Sensenbrenner. The clerk will report Scott No. 6.
The Clerk. Amendment to H.R. 3132 offered by Mr. Scott of
Virginia.
On page 12, line 24, insert ``and'' after the semicolon;
strike subsection ``(2)'' and redesignate subsections
accordingly.
[The amendment follows:]

Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Scott. Mr. Chairman, this strikes section 117,
subsection 3, which, quote, ``requires the sex offender to read
and sign a form stating that the duty to register has been
explained and the sex offender understands the registration
requirement.'' The purpose of this is--I mean the statement of
understanding is required whether the person actually
understands or not. The registration requirement of this and
other registry laws are complex. Lawyers who represent sex
offenders report their clients often believe that they are in
compliance, but are in fact confused, and even the police do
not always understand or accurately convey the registration
requirement.
This section would essentially relieve the prosecution of
the burden of proof as to an essential element of the offense,
that as we just provided, will carry a 5-year mandatory
minimum. We defeated another amendment so it includes
misdemeanors, 5 years mandatory minimum, and in fact the person
didn't understand, thought they were in compliance when they
actually weren't.
Mr. Chairman, these things can be complex because you have
to register where you live or where you work, and where you
work can be sometimes confusing. If you're a carpenter and go
from place to place, you have to register in all of the
jurisdictions. Well, if you thought you just had to work at
your employer's place of business and you're registered, and
you go somewhere around, are you still in compliance? You could
be technically out of compliance, convicted because you signed
the statement. And the only purpose of the statement is to
relieve the prosecution of the burden of actually having to
prove that you understood it, so you have a misdemeanor
offense, 5-year mandatory minimum, and you thought you were in
compliance when you actually weren't.
I would hope that we would delete the section and I yield
back the balance of my time.
Chairman Sensenbrenner. Gentleman from Wisconsin, Mr.
Green?
Mr. Green. I move to strike the last word.
Chairman Sensenbrenner. Gentleman's recognized for 5
minutes.
Mr. Green. Thank you, Mr. Chairman. I rise in opposition to
the amendment, and the amendment very simply ensures that the
sex offender is apprised of his rights and his requirements and
his obligations under the registry. I think that's a good
thing. Again, we are attaching serious consequences to it. I
think it is appropriate that they be fully informed and they be
required to read the requirements and sign. I think it makes
sense, and quite frankly, I'm somewhat confused that this is
the target of the gentleman's amendment.
Mr. Berman. Would the gentleman yield for a question?
Mr. Green. Sure, I'd yield for the gentleman.
Mr. Berman. The gentleman from Virginia mentioned a
requirement to register at your home. Is it ``and'' at your
work or is it ``or'' at your work?
Mr. Green. Well, this provision deals with----
Mr. Berman. The registration requirement I'm talking about.
Mr. Green. Right, but that's elsewhere in the bill and I'll
be happy to get that answer to you later to make sure I'm
absolutely accurate. This provision in the gentleman's
amendment----
Mr. Berman. Is about the understanding, I understand.
Mr. Green. Correct, yes.
Mr. Berman. But I was just curious----
Mr. Green. I will get--I will be happy to get the answer
for the gentleman so I am absolutely certain shortly, although
that might affect----
Mr. Berman. Well, in other words, is there something that--
--
Mr. Green. Reclaiming my time, that doesn't get to this
provision because this provision simply says that the person
questioned should be notified and have their obligations
explained to them, and sign accordingly, correct.
Mr. Berman. I tend to agree with the gentleman's arguments.
All I'm trying to understand, is there something so incredibly
complicated about the obligation of where one registers, that
if one--is the place of jurisdiction the county, the State?
Mr. Green. I'll be happy to find the answer off of that
gentleman, but let me say this, I don't believe that anything
we are talking about--I guess the gentleman's question really
gets more to the information that's explained to the offender,
how well it's explained, the detail that's involved, and of
course, we don't deal with that explicitly here in this
provision, so I'm afraid I can't provide an entirely
satisfactory answer to the gentleman.
I yield back my time, Mr. Chairman.
Chairman Sensenbrenner. The question is on the----
Mr. Watt. Mr. Chairman?
Chairman Sensenbrenner. Gentleman from North Carolina, Mr.
Watt.
Mr. Watt. Move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Watt. Yield to the gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you. I thank the gentleman for yielding.
On page 9, line 17, it says--and I apologize to the gentleman
from California--I said ``or.'' That was imprecise. It is
``and.'' The language is: A sex offender must register and keep
the registration current in each jurisdiction where the
offender resides, where the offender is an employee, and where
the offender is a student.
It says where you have to initially register before
completing a sentence of imprisonment, or not less than 5 days
after being sentenced for that offense if the sex offender is
not sentenced to a term of imprisonment, and it says that a sex
offender--keeping current, a sex offender must inform each
jurisdiction involved, not later than 5 days after each change
of residence, employment or student status.
Now, again, if you're a carpenter or a plumber and cross
jurisdictional lines, what does ``employee'' mean? I don't
know. And if you guess wrong, you're looking at a 5-year
mandatory minimum. Also, I'll remind people, that this whole
thing could have started off with a misdemeanor and you're
going to get 5 years mandatory minimum if you guess wrong.
While I have the floor, Mr. Chairman, I just want to remind
people of the Department of Justice offender statistics.
Overall, sex offenders are less likely than non-sex offenders
to be rearrested for any offense within 3 years of release.
Generally, non-sex offenders are arrested 68 percent of the
time, sex offenders 43 percent of the time, and of the
approximately 4,300 child molesters released from prisons in 15
States in 1994, 3.3 percent were arrested for another sex crime
against a child within 3 years. In comparison, released
offenders with--who are robbers were rearrested 70 percent of
the time, burglars 74 percent of the time, larceny 74 percent
of the time, motor vehicle thieves 78 percent of the time,
possession of stolen property 77 percent of the time, illegal
weapons 70 percent of the time----
Mr. Green. Would the gentleman yield?
Mr. Scott. I yield. It's not my time.
Mr. Green. Is the gentleman aware of the studies which
suggest----
Mr. Watt. I'll yield to the gentleman.
Mr. Green. I thank the gentleman from North Carolina for
yielding.
Is the gentleman from Virginia aware of the numerous
studies showing that in the area of sex crimes, particularly
sex crimes against children, that those crimes are dramatically
under reported. And in fact, the actual numbers, one study
suggests that from 2001 or at least 2.4 times higher, and that
when admitted sex offenders are interviewed under polygraph,
the number of offenses that they confess to having been
involved with is dramatically higher than what some of the
studies the gentleman is citing would suggest.
Mr. Scott. Would the gentleman yield?
Mr. Watt. Yield to the gentleman from Virginia.
Mr. Scott. I would think that--that's nice speculation. I'm
just reading what the Department of Justice has published as
the recidivism rates showing child offenders much lower than
about anything else. So the suggestion that there is a higher
recidivism rate is inconsistent with the numbers the Department
of Justice has published.
And so the amendment we're talking about here is just the
amendment to keep the offender from getting caught up in a
complex requirement, having to sign a form saying he
understands it, when in fact he did not, thereby relieving the
prosecution of that essential element of the offense having to
be proved. And we've indicated that we didn't know and couldn't
answer the question as to whether you had to register in your
place of residence or employment, or is it and employment? And
what does employment mean? Does that mean everywhere you work
or just the base of the operations? Do we know? Well, we don't
have to worry about it, because if they guess wrong, they'll be
subject to a 5-year mandatory minimum as a result of failing to
register for something that started off as a misdemeanor.
They're going to end up with 5 years in prison.
Mr. Green. Will the gentleman yield? I don't remember whose
time it is.
Mr. Watt. It's my time, and I'm looking at Mr. Green. He
appears to have been confused by the facts here, so if he wants
me to yield to him, I'll yield.
Mr. Green. I appreciate it. I am far from confused by the
facts, though the gentleman from Virginia may be apparently.
First off, the requirements of registration are laid out pretty
clearly in section 1 to 14 on pages 10 to 11 of the bill, so I
refer the gentleman to those. But I am confused by the numbers
that the gentleman from Virginia was citing, and apparently he
isn't aware--he didn't answer my question--about the 2001
report from the Center for Sex Offender Management, which dealt
head on with the study to which the gentleman refers, and
again, the numbers here are dramatically higher----
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Watt. I yield back.
Chairman Sensenbrenner. The gentleman from California, Mr.
Schiff.
Mr. Schiff. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Schiff. I just wanted to ask the gentleman from
Virginia what the impact of the proposed amendment is? As I
read section 117, if we strike the semicolon and add an ``and''
and collapse subsections 1 and 2, is that effectively what we
would be doing? How does that affect substantively what's being
required? Because as I read the current section I would think
you're required to do No. 1 and No. 2 and No. 3. Is it your
sense, reading the statute, or reading the bill, that all three
things are not currently required and this would change that?
Mr. Scott. If the gentleman would yield.
Mr. Schiff. Yes.
Mr. Scott. The registration process would require the sex
offender--inform the sex offender of his duty to register and
explain that duty, and ensure that the sex offender is
registered. That's 1 and 3. But the idea that you have to sign
a form stating that you have received information and that you
understand it, only serves the purpose of relieving the
prosecution from proving that particular element of the case.
If in fact you can show that you had registered in your place
of employment, but they have concluded that you should have
registered in all the places that you worked, not just the home
office, then they don't have to worry about that because you
understood it.
Mr. Schiff. If I could reclaim my time, I see. I
misunderstood the amendment. So you would strike section 2
effectively?
Mr. Scott. Right.
Mr. Schiff. Reclaiming my time, you know, I guess the
concern I would have with that, I think No. 2 is actually
designed to be a safeguard so that you don't have a situation
where the official says they inform the sex offender of their
duty, but in fact never did, or there's a question about
whether in fact they gave them the information. Having the sex
offender sign the form, I think improves the likelihood that
the appropriate official will actually go through the drill of
making sure that they're given this information.
So I guess I view it in a little different context. I view
it more as a safeguard than as something curtailing the
obligation of the official to really explain what the
requirements are.
I'll yield back the balance of my time.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from Virginia, Mr. Scott. 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? The gentleman from
California, Mr. Schiff?
Mr. Schiff. Mr. Chairman, I have an amendment labeled 95
revised 2 at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3132 offered by Mr. Schiff of
California.
Insert after section 130 the following new section.
Section----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read. The gentleman from California is recognized
for 5 minutes.
[The amendment follows:]

Chairman Sensenbrenner. And will the gentleman yield?
Mr. Schiff. Yes, Mr. Chairman.
Chairman Sensenbrenner. I am pleased to support the
amendment. I think it cleans up the objection I expressed to
his earlier amendment, and I hope we can adopt it.
Mr. Schiff. I thank the Chairman, and very briefly, this
will help incentivize States to develop the kind of tracking
systems that Florida and Oklahoma are pioneering, regrettably
as a result of their bad experiences, and I would urge my
colleagues to support it.
Mr. Nadler. Would the gentleman yield for a question?
Mr. Schiff. Yes.
Mr. Nadler. And perhaps the Chairman would answer the
question or the gentleman. What definition was changed, and
what is that definition now?
Mr. Schiff. The definition section that was changed appears
at the end of the amendment under the section labeled
``definition.'' And the term ``state sex offense'' means any
criminal offense in a range of offenses specified by State law,
which is comparable to or which exceeds the range of offenses
encompassed the following: (1) a specified offense against a
minor; or (2) a serious sex offense.
In fact, if I can go on to say we had a third section that
included misdemeanor offenses, and we actually struck that
because it was not our intention to provide this kind of
monitoring for misdemeanor offenses.
Mr. Nadler. Thank you. Reclaiming my time, would the
gentleman yield again? In this definition it says the term
``state sex offense'' means any criminal offense in a range of
offenses specified by State law, which is comparable to or
which exceeds the range of offenses encompassed by the
following: (1) a specified offense against a minor; or (2) a
serious sex offense. That 1 and 2, are they defined defenses in
Federal law?
Mr. Schiff. Reclaiming my time, yes, they are. They're
defined in the bill. If you look at page 7 of the bill, the
term ``sex offense'' means a criminal offense that has as an
element involving a sexual act or sexual contact with another,
or an attempt or conspiracy to commit such an offense. It then
goes into serious sex offenses and misdemeanor sex offenses. So
we are drawing----
Mr. Nadler. That's on page 7?
Mr. Schiff. That's on page 7 of the bill. So we're drawing
on the definitions of sex offense that are in the legislation,
and the only change really is we have narrowed it not to
include misdemeanors because the goal is not to provide in some
cases lifetime monitoring for a misdemeanor sex offense, but it
is designed to cover specific offenses and serious sex
offenses.
Mr. Nadler. Thank you.
Mr. Schiff. And with that, I'll yield back the balance of
my time.
Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by the gentleman from California, Mr. Schiff.
Those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it and the
amendment is agreed to.
Are there further amendments?
Ms. Wasserman Schultz. Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from Florida, Ms.
Wasserman Schultz.
Ms. Wasserman Schultz. Thank you, Mr. Chairman. Mr.
Chairman, Members of the--I'm sorry. I have an amendment at the
desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3132 offered by Ms. Wasserman
Schultz of Florida.
Add at the end of title V the following:
Sec. 5___. Non-Federal Civil Confinement Programs for
Sexually Violent Predators.
(a) Guidelines.--(1) The Attorney General shall establish
guidelines for State programs that require a person who is a--
--
Chairman Sensenbrenner. Without objection, the amendment is
considered as read. The gentlewoman from Florida is recognized
for 5 minutes.
[The amendment follows:]

Ms. Wasserman Schultz. Thank you, Mr. Chairman. Mr.
Chairman and Members of the Committee, I'm offering an
amendment that provide guidelines and incentives for States to
civilly confine violent sexual predators. This amendment, in
addition to the provision already in the bill that covers
Federal sexual violent offenders, would guide States to adopt
their own civil confinement laws. Most criminals deemed as
sexually violent have broken State rather than Federal laws.
This amendment would ensure that we keep many more of them off
the street.
The amendment offers a carrot and a stick approach to
States by requiring them to reimburse the Federal Government
for the cost of Federal investigation assistance for a sexually
violent predator. It also provides for a grant assistance
program to assist States in implementing a civil confinement
law in their State.
As of 2002, 16 States and the District of Columbia have
some form of a civil confinement law. Under this amendment,
civil confinement would not be limited only to those who admit
their illness, but also to those who are deemed too dangerous
to return to society without proper treatment and
rehabilitation. This diagnosis would be determined by a panel
of experts, including psychiatrists, psychologists, law
enforcement agencies and mental health professionals.
Texas prison inmate Larry Don McQuay is a convicted child
molester, who describes himself as, alternatively, scum of the
earth, and a monster. McQuay is currently serving a 20-year
sentence for molesting 3 children. Prior to this conviction,
McQuay served 6 years of a 8-year sentence for molesting the 6-
year-old son of a former girlfriend. He was then released by
the State of Texas.
He claims to have molested more than 240 children and has
said that he would attack again given the opportunity. We have
no idea how many of his victimizations occurred during his
period of release.
In my home State of Florida, the pedophile who confessed to
killing young Jessica Lunsford, John Couey, had a long history
of inappropriate contact with children, and a rap sheet
totaling 25 arrests for various crimes. Following a 1991 arrest
in central Florida in which Couey admitted to exposing himself
to another young girl, he admitted to molesting numerous
children over the years, but this was the first time he had
been caught.
In his confession to Kissimmee Police, Couey told
investigators that the 5-year prison sentence he was about to
serve would not cure his desires. State courts and the U.S.
Supreme Court have all upheld civil confinement laws that
recognize the need for continued confinement in a non-
correctional setting when the person is still considered
sexually violent after serving his criminal sentence.
According to the Department of Justice, sex offenders are 4
times more likely than non-sex offenders to be arrested for
another sex crime after being discharged from prison.
Furthermore, of released sex offenders who allegedly committed
another sex crime, 40 percent perpetrated the new offense
within a year or less of their prison discharge. Among child
molesters, 60 percent are in prison for molesting a child 13
years old or younger.
Case studies show that treatment of sexual offenders
contributes to community safety, and that persons who attend
and cooperate with these programs are less likely to re-offend
and commit another sexual crime, according to several published
studies.
But civil confinement by itself is not enough. It is only
one part of a comprehensive approach that provides our justice
system with all the tools necessary to keep violent criminals
off of our streets as long as they remain a threat to society,
and particularly, our most vulnerable, our children.
This amendment will allow States to protect communities and
provide treatment where possible to a small but extremely
dangerous segment of society. When successful treatment is not
possible, civil confinement will ensure that our children are
protected by ensuring that these violent sexual predators
cannot break the heart of one more parent by keeping them
confined and our children safer.
Chairman Sensenbrenner. Will the gentlewoman yield?
Ms. Wasserman Schultz. Yes.
Chairman Sensenbrenner. I have reviewed the amendment, and
I think the gentlewoman is on the right track. There are some
drafting problems with the amendment, and if she will withdraw
the amendment, I will give her a commitment that between now
and the time that this bill goes to the floor in September,
we'll get this drafted right, and we'll incorporate it as a
part of the bill that passes the House and is sent to the
Senate.
Ms. Wasserman Schultz. I thank the Chairman for that kind
offer. I withdraw the amendment.
Chairman Sensenbrenner. Any further amendments? The
gentleman from Virginia, Mr. Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk,
No. 15.
Chairman Sensenbrenner. The clerk will report Scott 15.
The Clerk. Mr. Chairman, I don't have amendment No.----
Chairman Sensenbrenner. Do you have amendment No. 15 now?
The clerk will report.
The Clerk. Amendment to H.R. 3132 offered by Mr. Scott of
Virginia.
Strike Section 303.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
[The amendment follows:]

Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, section
303 is the habeas corpus provision of the bill. Section 303
substantially strips the Federal Courts of jurisdiction to
entertain habeas corpus petitions in cases involving killing of
persons age 18 or under, under the age of 18, and sets up
procedural problems of having to be able to get habeas corpus
review.
First, Mr. Chairman, as a constitutional matter, it may be
difficult to justify the basis on which this restriction is
made. There's no evidence of any constitutional error is less
likely to be occurring in cases involving young children,
thereby warranting the wholesale preclusion or review. If
anything, it's just these kinds of crimes, because of the
passions they arise in local communities, that are more likely
to be tainted with unfairness.
Second, Mr. Chairman, the provisions are unjust and
unpractical. The circumstances which the jurisdiction would be
permitted are unjustifiably narrow. It says that a factual
predicate would have to--could not have been previously
discovered through the exercise of diligence, and the facts
underlying the claim would be sufficient to establish by clear
and convincing evidence that but for the constitutional error,
no reasonable fact finder would have found the applicant guilty
of an underlying offense.
You can have gross constitutional violations of rights, but
still not be able to overcome the no ``reasonable fact finder
would have found the person guilty.'' This is an unreasonable
restriction, Mr. Chairman, and I would hope that we would put
more thought into the significant deletion of habeas corpus
review, put more thought into it than just sticking it into a
bill that appears to be on its way to passage.
I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from California, Mr.
Lungren.
Mr. Lungren. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Lungren. And rise in opposition to the amendment. Mr.
Chairman, this again goes back to the debate as to whether or
not the trial experience ought to be the prime experience in
the process. As Chief Justice Rehnquist has said many times,
under our justice system the trial is supposed to be the main
event. It's not supposed to be a mere lounge act in Las Vegas
that prepares you for the big act which is the Federal courts
coming in and telling us by their wisdom what ought to be done.
Currently, many Federal habeas corpus cases require 10, 15,
even 20 years to complete. These delays burden the courts, but
more importantly, deny justice to defendants with meritorious
claims. They also are deeply unfair to the victims of serious
violent crimes. We've had testimony here from a parent whose
child has been murdered, and they've been waiting for as long
as 20, 25 years for final resolution whether there really is no
question about the guilt or innocence, but there's the question
about when the Federal courts are going to get finally around
to reviewing it.
There seems to be this sense that only the Federal courts
can do justice. I mean if that's the case, let's get rid of all
the State courts. Let's just go directly to the Federal courts
because they have the wisdom within themselves to decide these
particular issues.
This bill does nothing to limit State appeals. We should
note that the provision does not in any way limit the State
court's review of State criminal convictions, nor does it
affect the U.S. Supreme Court's review of either a defendant's
direct appeals or State habeas petition. The provision only
restricts the Federal habeas review that begins in the lower
Federal courts after--and I repeat--after all State appeals and
U.S. Supreme Court cert review are completed.
Congress unquestionably has the authority to limit such
review. Some people have said in debate that we're doing
something to the great writ. This has nothing to do with the
great writ that's in the Constitution. This is the statutory
writ that was created I believe in 1867, a statutory writ that
doesn't have to exist. Congress has the full power to eliminate
this if they wish to, or to limit it in any way, shape or form.
And under the circumstances we're talking about, with the
testimony that we have received from parents who have suffered
such a delay, let me just refer you to the testimony we heard
from Ms. Carol Fornoff, whose 13-year-old daughter was raped
and murdered in Tempe, Arizona in 1984. The evidence of the
guilt of the man convicted of killing her daughter is
overwhelming. Yet today, 21 years after Christy Ann Fornoff was
murdered, the defendant is still litigating the habeas appeals
in the Federal courts.
Mrs. Fornoff asked us this: ``I understand that the Federal
Government has a right to create such a system. It can let the
Federal courts hear any challenge to a State conviction at any
time with no limits. My question to you, Mr. Chairman, is why
would we want such a system? Why would we want a system that
forces someone like me to relive my daughter's murder again and
again and again. My daughter's killer already litigated all the
challenges to his case in the State courts. Why should we let
him bring all the same legal claims again for another round of
lawsuits in the Federal courts? Why should this killer get a
second chance? My daughter never had a second chance.''
The gentleman has talked about the clear and convincing
standard. It is appropriate and necessary, and the reason for
requiring that habeas evidence be able to show clear and
convincing proof of innocence rather than just a preponderance
is simple and basic: it is the jury, the jury that saw all of
the witnesses testify and that heard all of the evidence when
it was fresh. If the jury comes to a conclusion about the facts
after reviewing all the evidence at trial, that conclusion is
entitled to deference. Otherwise they're just wasting their
time. It should not be overruled if a contrary conclusion
appears probable but is not clear and convincing.
The jury's finding should be set aside only if a contrary
finding is clear enough that it outweighs the superior access
to the evidence enjoyed by the jury. The jury sees the
witnesses. It sees their demeanor. It gets to check them to see
if they're honest or not. We're talking about a review years
after by a Federal judge that doesn't have the opportunity to
do that, and because of that, the evidence standard should be
clear and convincing, not mere a preponderance of the evidence.
The decades long delays in Federal habeas corpus are unfair
to everyone, especially the victims and the victim's family.
That simply is why we have this in this bill. It is that
important. People understand it now. Remember, we are not
denying any constitutional right. This is a statutory creation
of Congress. We have the right and the ability to change it as
we see fit, and for those reasons, I would suggest that the
gentleman's amendment ought to be voted down.
Chairman Sensenbrenner. The gentleman's time is expired.
The gentleman from New York, Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman. In 1996 this Committee
and this Congress passed the Antiterrorism and More Effective
Death Penalty Act of 1996. I voted against that bill, but that
bill, which is now the law, severely restricted habeas corpus
access to the Federal courts against State court decisions on
death penalties or other serious crimes. We've already severely
restricted habeas corpus access. What this bill does is to say
that when you're talking about alleged acts of crimes against
children, sexual crimes against children, we should further
severely restrict habeas corpus acts more than we have already
done for all crimes or for all allegations of crimes which this
includes.
Mr. Lungren. Will the gentleman yield?
Mr. Nadler. No, I will not at this point.
Now, habeas corpus is not something you do because you want
to be nice to the prisoner. It is something that we have done
in order to provide procedural due process to increase the odds
that we get the right results, that we do not convict innocent
people, and thereby, if we've convicted an innocent person, the
real child molester is walking free in society because we think
we've got the real guy behind bars.
Now, the fact is that the effect of the provision to
further restrict habeas corpus would be to bury meritorious
claims, when they occur, of innocence, and for each innocent
defendant precluded from court, a guilty murderer or a guilty
child molester is remaining free, at liberty to strike again.
Now, the specifics here, this says that you cannot get
habeas corpus review, is a factual--unless a--well, a factual
predicate that could not have been--you have to establish a
factual predicate that could not have been previously
discovered through the exercise of due diligence, but that
would preclude the vast majority of claims, which, however
meritorious, however innocent the alleged person may be, might
have been discovered through the exercise of due diligence but
wasn't because very often the court-appointed counsel in some
of our States that get paid pennies a day, didn't do the job.
We know that in the majority of cases where people sentenced to
death were found innocent by DNA proof, the real reason the
miscarriage of justice occurred, that an innocent person was
found guilty of murder and the murderer is walking free, was
because of ineffective assistance of court-appointed counsel
who was paid pennies a day. This would simply help us keep that
situation going.
It also would exclude all cases in which the factual
predicate was indeed previously discovered and presented to the
State court but the State court disregarded it.
Second claim is that the facts underlying the claim would
be sufficient to establish--second provision of the bill,
rather--the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable fact finder would have
found the applicant guilty of the underlying offense, close
quote.
This is unfair because many gross constitutional violations
of fair trial rights would pass this test. For example, you
could prove that a juror would bribed, and it would pass this
test. You could prove that the appointed defense lawyer was
asleep, and it would pass this test. Because the court can
still say, well, maybe a juror was bribed, but no reasonable
fact finder would have found to the contrary anyway, guessed
the judge.
Many capital cases turn on egregious errors at the
sentencing phase, and such claims would be excluded. We know
that many of the cases where people have been proven innocent
by DNA would be excluded from habeas corpus review by these
tests which we're putting into this bill.
I submit, Mr. Chairman, that, you know, we heard from Mr.
Lungren, that why are you retrying the case? You're not
retrying the case. The person is in jail, and even if it takes
a few years, he's in jail. It does it no harm. Where there may
in fact be real innocence, real constitutional objections, a
real objection where--we heard that the jury has seen all the
facts. Very often the jury hasn't seen all the facts because
the sleeping defense attorney didn't bother to bring the facts,
or because the prosecution hid the facts, or because no one
knew the facts.
The fact is that we know that a fairly high proportion,
where we have actual scientific evidence, a fairly high
proportion of our convictions are erroneous. Very often we
don't find them because we don't have the scientific evidence,
but that should tell us to be humble. Human justice, human
institutions are not perfect. Only God's justice is perfect,
and as long as we know that our justice is not perfect, we
ought to allow the possibility of review while the offender is
safely in jail, and we should not cut it off when we know that
by so doing many innocent people will be--will remain
convicted, and many guilty people will remain free to roam the
streets and molest our children.
I suggest----
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Nadler. I ask unanimous consent for one additional
minute.
Chairman Sensenbrenner. Without objection.
Mr. Nadler. I thank the Chairman.
So I suggest that we rethink this, that we pass the
gentleman's amendment. These additional restrictions of habeas
corpus over and above those that we placed in the bill, that we
were told then were fine, were completely sufficient, that we
placed in the law 9 years ago, we don't have to place further
restrictions on habeas corpus just in these crimes as if it is
likely that because these are particularly heinous crimes, that
somehow the people accused are more likely to be guilty than in
other crimes. They may be guilty, they may be innocent. We
should--our courts of law should give every avenue of proof
both ways so we can maximize the odds that we get it right.
So I urge the gentleman's amendment to be adopted. I thank
you.
Chairman Sensenbrenner. The gentleman's time has once again
expired.
Mr. Chabot. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot.
Mr. Chabot. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Mr. Chairman, I yield to the gentleman from
California.
Mr. Lungren. I thank the gentleman for yielding.
The gentleman from New York I hope misspoke when he
referred to these cases as someone who has been alleged to have
committed these crimes. We're talking about habeas corpus. That
is after a conviction. This person has been charged, probably
indicted as a result of a grand jury, has been prosecuted, has
been found guilty by a jury of his or her peers, has had the
judge with the opportunity to overrule that if he or she
believes that ought to be the case. If it's a capital case, has
had a bifurcated trial in which after guilt or innocence they
make the determination as to whether or not it qualifies for
the death penalty, and then whether the aggravating
circumstances outweigh the mitigating circumstances, and then
at least in my State of California, one has a direct combined
appeal to the California Supreme Court and the habeas, then has
an opportunity to go to cert directly to the Supreme Court.
Then we're talking about habeas corpus.
This is hardly someone who is alleged to have committed a
crime. This is a convicted individual who has had greater
processes--and we're talking the death penalty----
Mr. Nadler. Would the gentleman yield?
Mr. Lungren.--than anybody else. No. I'm responding to what
the gentleman said. The gentleman made a statement about
alleged perpetrator of a crime.
Then with respect to the processes that we have, why the
due diligence predicate? It is appropriate and necessary. State
prosecutors have stressed the importance of using this standard
as a gateway for allowing procedurally improper claims to
proceed for the following reasons.
First, it is necessary to prevent exception from being used
to relitigate the same evidence presented at trial. The purpose
of habeas review is not simply to relitigate the trial, to
reweigh the same evidence that the jury already considered. Yet
if the standard for an exception to procedural rules were just
a claim of innocence, any defendant who went to trial could
simply present the same evidence that he presented to and was
rejected by the jury.
Secondly, it's necessary to present claims based on
insubstantial or cumulative evidence that defense counsel had
access to and chose not to use. In every criminal trial, as we
know, the defense counsel would choose not to use some of the
exculpatory evidence that's available to him. Such evidence may
be cumulative. It merely reproves a fact whose existence
already is strongly proved by other evidence, or the evidence
may be insubstantial. It does not show much. A system or
procedure simply could not function if all such evidence could
be used as a basis for further litigation and further hearings.
There must be a gatekeeper in place for narrowing the range
of evidence to that which is truly worth a second look.
Evidence that previously was not available to the defense meets
this standard.
Now, the gentleman said, what's the harm? They're sitting
there in jail or they're sitting there in prison. Listen to the
testimony of the parents of the people who have been killed.
Listen to what they say. Listen to the harm that they undergo.
I mean I got a case in my old district, Robin Samsoe, 12 years
old, 1979, shortly after I was here in the Congress the first
time. Huntington Beach, California. This person brutally raped
and murdered. And yet after all the evidence is in that goes to
the proof of absolute guilt in this case, in June 2003, 24
years after this child was murdered, the Federal Court of
Appeals on the Ninth Circuit granted the man a new trial.
There's no evidence whatsoever, in my judgment, that that
person in fact did not commit the crime, but in any event, why
did it take 24 years for that to happen? What does that do to
the parent who has to go through that? Listen to these people
talking about what they go through. So I reject absolutely the
notion of the gentleman from New York, it does no harm. It does
tremendous harm to the families involved. It does tremendous
harm to the people, the public who believes in a system of
justice, that what's going to happen to them? They can be left
slowly twisting in the wind for years and years and years and
years because somehow some people believe that because you put
a Federal judge's robe on, you know far more than the State
court judge.
I've said this before. We had a Federal District Court
judge in California named Malcolm Lucas. He was named by George
Deukmejian, our Governor, as Chief Justice of the California
Supreme Court. Suddenly he lost all of his wisdom. He lost all
of his constitutional knowledge. He lost all of his fairness
because he had taken off the Federal robe and instead put on
the robe of the Chief Justice of the California Supreme Court.
I reject that notion absolutely and utterly. There ought to
be limitations on the abuse of habeas corpus.
Thank you very much.
Mr. Berman. Mr. Chairman?
Chairman Sensenbrenner. For what purpose the gentleman from
California, Mr. Berman, seek recognition?
Mr. Berman. Move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Berman. I yield to the gentleman from New York.
Mr. Nadler. I thank the gentleman for yielding.
Mr. Chairman, I must comment on a number of things. I
probably shouldn't have used the word ``alleged,'' but the fact
is--and obviously if someone's been adjudged guilty, he has to
be presumed guilty--but the fact is that 44 percent of the
death penalty convictions that reach a Federal court on habeas
corpus are found to have violated procedural due process and
are remanded for retrial, and a fair percentage of those people
are found to be innocent at the end. Our system of justice is
not perfect.
Number 2. Most of the time, you talk about 24 years till it
came--till a new trial was granted. Most of the time that is
spent on Federal review these days is spent on wasting time,
going back and forth to see whether or not the procedural
hurdle that we have enacted to getting a habeas review of the
conviction, whether you have met those hurdles. Once you've met
those hurdles, the habeas review is fairly quickly. If we'd
take down those hurdles, you wouldn't have all the litigation
on whether they jump through the hoops properly.
Certainly, this fellow spent 24 years in jail and then was
granted a new trial, and you think that he was guilty. Well,
the Federal Court, after 24 years, obviously felt that he
didn't get a fair trial. Maybe he was guilty, maybe he wasn't.
I have no idea, I don't know the case. But if in fact he wasn't
guilty, he spent 24 years in jail, and he wasn't guilty. And
the fact is that we know from scientific evidence, where the
scientific evidence, the DNA evidence is available, that a lot
of our convictions are wrong. So it is not harmless error to
allow habeas review, to allow another review.
And when 44 percent of the death penalties--we're not
talking just about death penalties here--but if 44 percent of
the death penalties that get habeas review are found that the
conviction violate fair trial standards and they have to be
retried, that tells you that too many of the States are cutting
too many corners. And you talk about a trial attorney, a
defense attorney, who chose not to use certain evidence, we
know that in a fair number of States, the judge appoints or the
court appoints a defense attorney.
That defense attorney has 500 cases pending, doesn't bother
hiring expert witnesses, doesn't bother getting a handwriting
expert, doesn't bother doing--performing due diligence, and you
don't get a real fair trial. He didn't choose, as a matter of
trial strategy not to introduce this evidence. He didn't bother
because he was only being paid $2 an hour or whatever. That
happens in many of our States. That's one of the reasons we
must have habeas review, and that's why a lot of people don't
get fair trials and we have a lot of reversals in habeas review
because there wasn't a fair trial in the first place.
So to limit--if we were to require, if the Federal
Government were to require--and no one's suggesting this
because it would violate States' rights--but if we were to
require and say, okay, you've got to provide a defense
attorney, which they have to provide, and you've got to pay him
at least $300 an hour, and you've got to provide money for
handwriting experts and ballistics experts and all the other
things the prosecution has, and you have to provide a really
fair trial, then you may--then it might be okay to say we'll
greatly restrict habeas corpus review.
But to allow the kind of justice that we have in many of
our States now, frankly, not because our judges on State levels
have any less brains or any less integrity than our Federal
judges, but because they don't want to appropriate the money,
and we haven't required that they appropriate the money. And
then to have the restrictions on the habeas review guarantees
that what we know to be happening already will happen in
greater numbers, namely that innocent people will sit in jail
and guilty people will continue to roam free to molest our
children. Greater habeas review is not a question, was not
primarily a question of not getting closure, it's a question of
making sure the right person is in jail and the wrong person
isn't roaming free.
Since we know that human justice isn't perfect, and since
we know that our justice, governed as it is to a large extent
by restrictions on resources made available to the defense, and
for that matter less so the prosecution is far from perfect,
then these safeguards are very, very necessary, and we have
some proof that they're very necessary, is that 44 percent of
the death penalty convictions that get to the Federal courts
through the hurdles we set up for various--to get habeas
review, when they finally get reviewed are set aside because
exculpatory evidence wasn't provided, because the defense
attorney didn't do his job, because the court determines there
was not a fair trial, and the jury did not have all the
information necessary to it.
And we should not make it more likely that guilty people
will go free and innocent persons will be executed or sit in
jail, and our children subject to the mercies of the guilty
people roaming the streets, who we don't know about because the
innocent people who we think are guilty are in jail.
And so I support the gentleman's amendment.
Mr. Smith. (Presiding.) The gentleman's time has expired.
Are there any other Members who wish to----
Mr. Chabot. Mr. Chairman, could I ask the gentleman to
yield just one additional minute.
Mr. Smith. The gentleman's time has expired.
Mr. Chabot. Could I ask unanimous consent the gentleman get
one more minute?
Mr. Smith. Without objection, the gentleman is recognized
for 1 minute.
Mr. Chabot. Thank you. And I'll be very brief if the
gentleman would yield.
The 44 percent figure that the gentleman uses, I just want
to make clear that we're not talking about 44 percent of the
cases the people were determined to be innocent of the crime.
We're talking about some technicality or something because they
weren't----
Mr. Nadler. Would the gentleman yield?
Mr. Chabot. Yeah.
Mr. Nadler. I think I said this is 44 percent of the cases
that went to habeas, it was determined that the trial wasn't
fair--either that the person was innocent or that the trial
wasn't fair. It was remanded. And there have been a
technicality or it may have been something very serious.
Mr. Chabot. I understand that, but oftentimes that's
loosely thrown around that they were innocent, and I thought
the gentleman did that----
Mr. Nadler. I made very clear that 44 percent of----
Mr. Smith. The gentleman's time has expired.
Are there any other Members with an amendment? The
gentleman from Virginia, Mr. Forbes is recognized.
Mr. Forbes. I move to strike the last word.
Mr. Smith. The gentleman is recognized for 5 minutes.
Mr. Forbes. Mr. Chairman, I yield to the gentleman from
California.
Mr. Lungren. I thank the gentleman. I don't want to belabor
this point, but the gentleman did talk about the case that I
mentioned, and let me just give you the outline of the case
because it goes right to the core of what we're talking about.
Robin Samsoe, 12 years old, 1979. In the first 6 months I
was here in the Congress, sitting in this very place. She was
kidnaped on a beach in Huntington Beach, California, and
murdered in June of '79. A friend who had been with her on the
beach described a strange man had taken pictures of her. Police
produced a composite sketch of the man who was soon recognized
by his parole officer.
He had a history of kidnaping and sexually assaulting young
girls. He had raped and nearly killed an 8-year-old girl, for
which he had served just 2 years in prison. And he was awaiting
trial for raping another girl at the time that Robin
disappeared. He had taken that girl to the mountains outside of
Los Angeles, which is also where Robin's body was found. He
attacked a third girl at the same point on the beach where
Robin was last seen.
When police tracked him down after TV news began
broadcasting his composite sketch, he had just cut his hair
short and straightened it, and was beginning to make plans to
leave town.
A friend of Robin's family recognized him as the man who
was with Robin on the beach. In a locker that he rented, police
officers found an earring that Robin had borrowed from her
mother. Robin's mother recognized the earring as hers because
of changes that she had made to it with a nail clipper.
Yet despite all this evidence, in June 2003, exactly 24
years after she was murdered, the Federal Court of Appeals for
the Ninth Circuity--yes, the famous Ninth Circuit--granted the
man a new trial.
This is a terrible burden on her mother. According to one
newspaper story, she described the decision as ``like someone
had slapped me hard in the face.'' In Robin Samsoe's case at
least the family can know that the killer will almost certainly
never be free. At the same time, he was granted a new trial in
Robin's killing, DNA evidence linked him to a rape and murder
that he committed in 1977, and police have said they'll
prosecute him for that after his trial in Robin's case.
Nevertheless, the impact on the family in the way that this
case has been handled in the course of the courts'
consideration has been horrific. One of the news stories notes
that the families even lost their house because they spent so
much time away from work at the trials and hearings in the
case.
Today Robin's family is preparing for another trial of the
man who killed their 12-year-old daughter. If she had lived,
she'd be 37 years old today. This is the outrageous actions of
the Federal courts with the abuse of habeas corpus that I'm
talking about. It's as if the courts had punished her family
instead of the man who had killed her.
And if the gentleman would like I could recite case after
case after case in California when this has occurred. I will
admit we are in the Ninth Circuit Court of Appeals, but I will
also say to you that we in the Ninth Circuit Court of Appeals
utilizing our best efforts to try and reform habeas corpus. And
I wasn't in the House when it was reformed in '96, but my
office did write the statutory language that was adopted at
that time. And we thought it would be sufficient. It has proven
to be insufficient. And if there are cases that cry out more
for justice in the area of reform of habeas corpus than these
cases of child molestations, rapes and killings, I don't know
what they are.
I thank the gentleman for yielding.
Mr. Smith. The gentleman's time has expired.
The gentleman from California, Mr. Schiff, is recognized.
Mr. Schiff. Thank you, Mr. Chairman. I move to strike the
last word.
Mr. Smith. The gentleman is recognized for 5 minutes.
Mr. Schiff. I think the gentleman from California, Mr.
Lungren, has highlighted with the case he cited, some of the
tragedy of cases that are drawn out, and the enormous impact it
has on the victims and their families, and I think that's very
real.
I think there are ways to streamline the process. I'm not
sure this is the right formula, and I think, frankly, I don't
think any of us here on this panel can tell whether what's
contained in this quite detailed reform, proposed reform of the
Federal Court processes is the right remedy. I see nothing in
the majority summary or the minority summary that sheds light,
for example, on what the Judicial Council has said about these
proposed timetables or reforms.
And I question whether this is the bill to enact this kind
of a sweeping reform.
Mr. Lungren has a stand-alone bill to reform habeas corpus,
the Streamline Procedures Act of 2005. It's had, as I
understand it, in Subcommittee a partial hearing. A further
hearing on that bill was postponed and has not taken place yet.
None of us--well, maybe some of us have been privy to partial
hearing on this issue. I don't know that the murders--cases of
murder of a child are different in terms of the evidence than
cases of murder of an adult that warrant different habeas
procedures. My guess is that this is being put in this bill
because it's a moving vehicle, but I'm not sure that's how we
ought to reform the Federal Court system.
Again, I think there are changes that need to be made to
prevent exactly the situation which Mr. Lungren describes. But
I don't think we ought to do it in a piecemeal way. It's one
thing to increase the penalties for sex offenders that prey on
kids, to increase the monitoring, to increase the registration
to make sure these people are taken off the street, and I fully
support that.
It's another as part of that same legislation to take
actions which may have the effect of reducing the confidence in
whether the right people have been convicted. And regrettably,
although there is seldom a number, we have found through the
success of DNA evidence that we have sent on occasion the wrong
people to death row. And so I would like to see us have a full
Judiciary Committee Oversight Hearing of how to expedite the
habeas process in murder cases. I think it's a very important
issue, but without having the benefit of the feedback from the
judges themselves, without having the ability to hear witnesses
talk about what these very detailed changes in procedures would
do, I just don't think this is the right place to make this
change.
I understand why it's been incorporated in this bill, but I
support the gentleman's amendment. I think this provision
doesn't belong in this bill, and I think we ought to treat this
problem across the board, perhaps in the oversight and
potential markup of Mr. Lungren's standalone bill.
And with that, Mr. Chairman, I'll yield back the balance of
my time.
Mr. Smith. The gentleman yields back the balance of his
time. Are there other Members who wish to be heard on this
amendment. The gentleman from Texas, Mr. Gohmert is recognized.
Mr. Gohmert. Thank you, Mr. Chairman. First of all, I have
to address comments by the gentleman from New York regarding
defense in felony cases. There are allegations about many of
our States. Those kind of generalities do a great disservice to
the people that defend criminal cases. Having handled thousands
of felony cases as a judge, I'm telling you if somebody does
the things that you have said they do by not calling witnesses
they should have, by not presenting defenses they should have,
by not properly representing their defendants, those things are
raised on appeal, direct appeal.
Those things are raised in State habeas corpus proceedings
and, besides that, if you could be more specific and give me
examples of attorneys who have acted in the manner in you
alleged, then I will help you work to get them disbarred. They
have no business practicing law. Anybody who will not live up
to their oath as an attorney to represent their clients to the
full extent of the law should not be practicing, not now, not
ever.
So I would be delighted to work with you in those
situations and as someone who has been one of those who was
appointed to handle cases I didn't want to handle, I did the
best job I could and that includes appeal of a capital murder
case that I did a great job on on behalf of my client.
So I could not sit here and allow those kind of comments to
go on. Let's get specific if you have them----
Mr. Schiff. Would the gentleman yield?
Mr. Gohmert. Not yet.
I also would like to address the comments of Mr. Schiff. I
tend to agree. He says he's not sure that the murder of a child
should be treated differently from other cases. And I'd be open
to amending this to make this apply across the board the
restrictions on habeas corpus not only for murder of children,
but also adults.
And also one other comment regarding the timetable. It says
under subsection D that the district court should act not later
than 15 months. I don't know why we have to wait 15 months.
There are State remedies for habeas corpus. There are State
remedies for direct appeal. There are grievances that should be
filed against people who are not properly representing their
client.
Mr. Schiff. Would the gentleman yield?
Mr. Gohmert. And----
Mr. Lungren. Mr. Gohmert?
Mr. Gohmert. Yeah.
Mr. Lungren. Mr. Schiff.
Mr. Gohmert. I yield.
Mr. Schiff. If I might pose a question to the gentleman
from California, does your bill, the Streamlined Procedures Act
of 2005, apply in murder cases of both adults and children?
Mr. Lungren. If the gentleman will yield, whoever has time,
yes.
Mr. Schiff. So we do have a bill that is across the board,
and I would submit that's the right venue to really hear and
resolve this issue. And I thank the gentleman for yielding.
Mr. Gohmert. Thank you. I yield back.
Ms. Jackson Lee. Mr. Chairman?
Mr. Smith. The gentleman yields back the balance of his
time. The gentlewoman from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Thank you very much. I simply want to
acknowledge that the habeas is constitutionally grounded, which
warrants this Committee with such a high responsibility to look
at it as a separate issue. I also admit that there is an
epidemic in child murders and child molestation.
I believe the habeas issue, however, should be separated,
and I rise to support the gentleman's amendment; and I yield to
the gentleman, Mr. Scott.
Mr. Scott. Thank you, and I thank the gentlelady for
yielding.
Mr. Chairman, the discussion we've had I think points to
some fundamental questions of our concept of justice. How you
got into Federal court or what the State court should have
done, the fact is that this amendment requires that you rely on
facts that could not have previously been discovered to show
the error and by clear and convincing evidence that no
reasonable fact finder could have found you guilty.
Now, if you believe that a person is guilty, and if the
recitation of the facts that the gentleman from California
made, if you believe a person is guilty, do you believe that
the guilty person is entitled to a fair trial, because under
this amendment if you can prove that the trial was clearly
unfair, but you are guilty, you still believe the person is
guilty, then they do not have access to habeas corpus
consideration.
So is guilty person entitled to fair trial?
The other is if you know there's an unfair trial, should an
innocent person have to prove innocence by showing that they're
innocent using only evidence that could not have been
reasonably obtained before the trial and that innocent to the
point where no reasonable fact finder could believe other than
not guilty.
Now, we've had situations where a person could have an
unfair trial. Does the burden shift? Suppose you have an unfair
trial where it is clear that the person is probably innocent.
But some fact finder might have not believed a witness or two
and concluded not sure whether they are guilty or not.
In that circumstance, according to this language, they
would not be entitled to consideration. An allegation that
you're probably innocent isn't enough. You got to show that
you're innocent by clear and convincing evidence and that no
reasonable fact finder could have concluded otherwise.
Now, Mr. Chairman, we talk about this alleged--whether
they're alleged or whether they're actually guilty, we've had
documented cases, case after case, where someone was indicted;
had what appeared to be a fair trial; had all those endless,
exhausted appeals; and then through DNA evidence well after the
fact found they just didn't--weren't the ones. It was somebody
else. The DNA evidence didn't even--not only showed they were
not guilty, but pinpointed the guilty offender.
They had gone through the indictment, the trial, the
appeal, and the system just got it wrong.
So when you say well, we believe the person is guilty and
they've had the fair process, sometimes we just don't get it
right. And here you have a situation where someone didn't have
a fair trial, but you'd think somebody might have considered
them innocent should we be able to review the case, and what do
you do with somebody that's probably innocent? Do you put them
to death? They're probably innocent, but some fact finder might
have found them guilty. Now, what do you do in those
circumstances?
These are somewhat fundamental questions. Is a guilty
person entitled to a fair trial and should an innocent person
with an unfair trial have to prove their innocence?
I would hope that we would, as the gentleman from
California suggested, consider these issues independently and
not part of a bill that's on the fast track to passage.
I yield back to the gentlelady.
Mr. Smith. Does the gentlewoman yield back her time?
Ms. Jackson Lee. I would yield to the distinguished
gentleman from New York.
Mr. Nadler. Thank you. Thank you. I want to associate
myself with the remarks of the gentleman from Virginia, but I
would also say going back to Mr. Lungren's case, after 24
years, I don't know the circumstances of that case, and he gave
us all the allegations of what happened and that those
allegations are truly horrible, but the fact is maybe that
individual is the one who did it, and maybe it's somebody else.
Now, a court, a lower court, found that that individual did it.
Twenty-four years later, a Federal court said in effect I
gather that the original trial failed in some way. It wasn't a
fair trial. It violated constitutional processes and ordered a
retrial.
At that point, you can no longer say this person is guilty.
This person is now again allegedly guilty, because there's been
no fair trial that found him guilty.
And maybe he was guilty and maybe not. I don't know the
facts of the case, but reciting the horrors of the crime
doesn't affect the question of whether you got the right
person. And you can sit here and recite the horrors of the
crime. You get everybody emotionally upset, but did you get the
right person.
And when the Federal court says 24 years later--and it's an
indictment of the system that it took 24 years to get to that
point. It's not an indictment that they finally got to that
point, that the court said you didn't get a fair trial. It's an
indictment that it took 24 years to get to that point.
Mr. Smith. The gentlewoman's time has expired.
Mr. Nadler. Can I ask unanimous consent for one additional
minute.
Mr. Smith. Without objection, the gentlewoman is recognized
for another minute.
Ms. Jackson Lee. I yield to the gentleman.
Mr. Nadler. Thank you. It's an indictment that it took 24
years to get to the point of recognizing that the original
trial was not fair. So we ought to streamline the process but
not reduce the safeguards that we have to make sure that the
trial and the proceedings are fair and that we got the right
person. And the gentleman from Texas asked me for specifics. I
don't have any specifics here. But I will say--and the
gentleman from Texas I'm sure was a wonderful defense
attorney--but from what I have read, one of the worst offenders
among the States in giving incompetent counsel to people who go
to death row is the State of Texas.
I yield back.
Mr. Gohmert. Mr. Chairman?
Mr. Smith. The gentlewoman's time has expired. The
gentleman from Texas has already I believe spoken on this
amendment.
The gentleman from Iowa is recognized.
Mr. King. Mr. Chairman, I move to strike the last word.
Mr. Smith. The gentleman is recognized for 5 minutes.
Mr. King. Thank you, Mr. Chairman, and I'd yield to the
gentleman from Texas.
Mr. Gohmert. Thank you. Mr. Chairman and the gentleman from
New York, I really do want specifics when you talk about Texas,
and I hope you won't refer to one case that came from my county
where he was tried three, maybe four times, and each time ended
up the court flips it back on a writ, and each time more
evidence was cut out and he's probably one of these 44 percent
you're referring to, and even though he was a hero to some when
the case was finally thrown out, the last straw was when the
court said the one key witness was dead; and the court's
allowing his prior testimony at the prior trials no longer
could be used in the last case. The DA had no choice but to
dismiss the case.
There was nothing left, and that's outrageous.
Now, that--three or four times in one case adds to your
percentages, and I'm telling you Texas does a good job. There
was some guy that went to sleep. The case got flipped, and did
another shot.
But those are isolated cases, and I know that Texas has
been taking a lot of shots, but I would be prepared to defend
any specific case you want to give, whether we agree or
disagree. Texas is a shining example of good trial procedure,
and we put our lawyers up against any State. Thank you very
much.
Mr. Smith. The gentleman yields back the balance of his
time.
Mr. King. I yield back.
Mr. Smith. The question occurs on the amendment. All those
in favor say aye.
All those opposed nay?
The nays have it. The amendment is not agreed to.
Are there any other amendments?
Mr. Scott. Mr. Chairman, I ask for a rollcall vote.
Mr. Smith. The gentleman requests rollcall on his
amendment. The Clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
Mr. Smith. No.
The Clerk. Mr. Smith, no. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Lungren?
Mr. Lungren. No.
The Clerk. Mr. Lungren, no. Mr. Jenkins?
[No response.]
The Clerk. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
[No response.]
The Clerk. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye..
The Clerk. Mr. Nadler, aye.. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
[No response.]
The Clerk. Ms Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler.
[No response.]
The Clerk. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. (Presiding.) No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Further Members who wish to cast or
change their votes?
The gentleman from California, Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye.
Chairman Sensenbrenner. The gentleman from Florida, Mr.
Wexler.
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye.
Chairman Sensenbrenner. The gentleman from Tennessee, Mr.
Jenkins.
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Chairman Sensenbrenner. Further Members who wish to cast or
change their votes? If not, the clerk will report.
The Clerk. Mr. Chairman, there are 12 ayes and 18 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments?
The gentlewoman from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Thank you, Mr. Chairman. I have an
amendment at the desk, number two.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3132, offered by Ms. Jackson
Lee of Texas. Under section 202, page 30, line 24, after the
word arrest----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read. The gentlewoman is recognized for 5
minutes.
[The amendment follows:]

Ms. Jackson Lee. Thank you very much, Mr. Chairman.
Mr. Green knows that in the course of the work that many of
us have done on this issue of child predators that I offered
legislation regarding DNA and a DNA bank dealing with the
question of convicted child predators.
This helps refine this particular section by adding the
language ``or convicted.'' And I hope to work with the
Committee as we move toward the House and, of course, the
Senate to provide that separate and distinctive DNA bank on the
basis of providing for----
Chairman Sensenbrenner. Will the gentlewoman yield?
Ms. Jackson Lee. I'd be happy to yield.
Chairman Sensenbrenner. I believe this a very constructive
amendment and am prepared to accept it.
Ms. Jackson Lee. I thank the distinguished gentleman for
his accepting, and I'd like to conclude by thanking him for
accepting it saying that I hope as recognize that there is an
epidemic in the nation frankly, maybe in around the world, on
the attacks on children, brutal attacks on children, that we
will work toward making sure that this legislation provides
some long-standing tools for our law enforcement, which would
include this DNA bank.
I ask my colleagues to support the amendment. I thank the
Chairman for supporting it by adding the language ``or
convicted'' to this, and I ask for my statement to be in its
entirety submitted into the record.
Chairman Sensenbrenner. Without objection, so ordered.
[The prepared statement of Ms. Jackson Lee follows:]

********** COMMITTEE INSERT **********

Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by the gentlewoman from Texas, Ms. Jackson
Lee. Those in favor will say aye.
Opposed, no?
The ayes appear to have it. The ayes have it, and the
amendment is agreed to.
Are there further amendments?
The gentleman from New York, Mr. Nadler?
Mr. Nadler. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3132, offered by Mr. Nadler.
At the end of Title IV, insert the following: 18 USC 922(d)
is amended by inserting the following at the end: '(10).
Chairman Sensenbrenner. Without objection, the amendment is
considered as read. The gentleman from New York is recognized
for 5 minutes.
[The amendment follows:]

Mr. Nadler. Thank you, Mr. Chairman. Under current law, it
is illegal to transfer a gun to anyone convicted of a crime
punishable by more than 1 year.
It is also illegal for any such individual to posses a gun.
However, for some crimes that we consider to be particularly
serious, we prohibit all transfers of guns to or possession of
guns by individuals convicted of any such crime.
For example, we prohibit anyone convicted of a crime of
domestic violence whether a felony or a misdemeanor from
purchasing or possessing a gun. I believe child sex crimes are
such a case. We should not treat child sex offenders any more
leniently with respect to possessing guns than we do domestic
abusers.
I ask my colleagues to support this amendment to close this
loophole. I yield back.
Chairman Sensenbrenner. The gentleman from Wisconsin, Mr.
Green.
Mr. Green. Mr. Speaker, or, Mr. Chairman, you have me
saying it now. I'm still studying the amendment, so don't wish
to be recognized at this time.
Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by the gentleman from New York, Mr. Nadler.
Those in favor--the gentleman from Iowa, Mr. King.
Mr. King. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. King. And I'll be brief, Mr. Chairman. But I just
wanted to speak to this issue and I recall that I have in the
past for this Committee listed the exceptions to gun rights
that's in the Federal Code, and they're called those rights are
disabled, according to the Federal Code. I have the section
here in front of me that already covers this amendment. So I
would suggest and submit that this is a redundant amendment
that's already covered by another section of the code, which I
believe is 922(g). And I----
Mr. Nadler. Would the gentleman yield?
Mr. King. I would yield.
Mr. Nadler. Yeah. I think it's incorrect. It covers more
than 1 year. It does not cover any crime committed against a
child--any crime of violence committed against a child.
Mr. King. Reclaiming my time, I'm suggesting that this
section of the code covers any crime committed that precludes a
person from having a gun. That's a felony. Anything that's a
felony----
Mr. Nadler. If the gentleman would yield?
Mr. King. I would yield.
Mr. Nadler. It has to be a felony. This does not have to be
a felony. You're quite correct. It--well, you're correct in
that sentence. It covers any crime committed, punishable by
more than a year. It does not cover crimes of violence against
a child or child sex crimes rather. It does not cover child sex
crimes punishable by less than a year, and we had part of that
discussion with respect to making that a predicate for a 5-year
sentence for failure to register earlier today. But that is not
covered. This amendment would cover that for possession or
transfer of a gun.
Mr. King. Reclaiming my time, if the gentleman could cite
that section of the Code, I'm sure this Committee would be
interested in that section. Otherwise, I'll be opposing this
amendment. Thank you, and I yield back.
Mr. Nadler. Would the gentleman--Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York has
already been recognized.
Mr. Nadler. I ask unanimous consent for 30 seconds.
Chairman Sensenbrenner. Without objection, the gentleman is
recognized.
Mr. Nadler. Thank you. The section is 18 U.S.C., 922(d).
It's cited right in the amendment. I yield back.
Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by the gentleman from New York. Those in
favor will say aye. Opposed, no?
The noes appear to have it.
Mr. Nadler. Mr. Chairman, I ask for the ayes and nays.
Chairman Sensenbrenner. A rollcall is ordered. Those in
favor of the Nadler Amendment will, as your names are called,
answer aye. Those opposed, no, and the clerk will call the
roll.
The Clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. No.
The Clerk. Mr. Coble, no. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
[No response.]
The Clerk. Mr. Lungren?
[No response.]
The Clerk. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Bachus?
[No response.]
The Clerk. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. No.
The Clerk. Mr. Inglis, no. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Mr. Flake?
Mr. Flake. No.
The Clerk. Mr. Flake, no. Mr. Pence?
[No response.]
The Clerk. Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no. Mr. King?
Mr. King. No.
The Clerk. Mr. King, no. Mr. Feeney?
[No response.]
The Clerk. Mr. Franks?
Mr. Franks. No.
The Clerk. Mr. Franks, no. Mr. Gohmert?
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye..
The Clerk. Mr. Nadler, aye.. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
[No response.]
The Clerk. Ms Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler.
[No response.]
The Clerk. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members who wish to cast or change
their votes?
The gentleman from California, Mr. Lungren.
Mr. Lungren. No.
The Clerk. Mr. Lungren, no.
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Smith.
Mr. Smith. No.
The Clerk. Mr. Smith, no.
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot.
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Chairman Sensenbrenner. Further Members who wish to cast or
change their vote. If not, the clerk will report.
The Clerk. Mr. Chairman, there are 9 ayes and 17 noes.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments?
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk,
number 13.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3132, offered by Mr. Scott of
Virginia. On page 40, line 21, insert the following: Section
304, Sex Offender Treatment Programs. The Federal Bureau of
Prisons shall establish sufficient----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
The gentleman from Virginia, Mr. Scott, is recognized for 5
minutes.
[The amendment follows:]

Mr. Scott. Mr. Chairman, the Department of Justice
statistics reveals that the recidivism rate among child sex
offenders is about 3 percent. This came from a comprehensive
study tracking thousands of offenders over a 3-year period. And
we've heard documented evidence during our hearings that
intensive sex offender treatment cuts the recidivism rate in
half.
Despite that fact that we can cut the recidivism rate in
half, the Federal Bureau of Prisons has only one sex offender
treatment program, and that program turns away many inmates who
seek treatment. As a result, only 1 percent of sex offenders in
Federal prison receive treatment before they're released,
notwithstanding the fact that we could reduce recidivism----
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Scott. I yield.
Chairman Sensenbrenner. I think the gentleman has gone down
the right road with this amendment. I would like to see the
amendment be made more specific and more targeted so that the
Federal Bureau of Prisons will have a precise idea of what the
Congress wants them to do in this area.
If the gentleman will withdraw the amendment now, I'll be
willing to work with him between now and the floor so we can
sharpen up the razor so that it is a very targeted amendment,
and we'll do the job.
Mr. Scott. With that, Mr. Chairman, reclaiming my time, I
would withdraw the amendment.
Chairman Sensenbrenner. The amendment is withdrawn.
Are there further amendments?
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk,
number 9.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3132, offered by Mr. Scott of
Virginia. On page 12, line 4, insert the following section and
redesignate each succeeding section accordingly. Section 1----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read. The gentleman from Virginia will be
recognized for 5 minutes.
[The amendment follows:]

Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, the title
of the bill is the Sex Offender Registration and Notification
Act, and it states that its purpose is to respond to ``vicious
attacks by violent sexual predators.'' It would apply, however,
to people who are not, in fact, sexual predators and pose--and
also pose no risk of reoffense.
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Scott. I yield.
Chairman Sensenbrenner. I will make the same deal that I
made on his previous amendment with this one. Sharpen it up.
Mr. Scott. I would withdraw the amendment, Mr. Chairman.
Chairman Sensenbrenner. The amendment is withdrawn.
Are there further amendments?
Mr. Scott. I have an amendment at the desk, number 17.
Chairman Sensenbrenner. The clerk will report Scott Number
17.
The Clerk. Amendment to H.R. 3132, offered by Mr. Scott of
Virginia.
On page 57, line 15, strike ``shall'' and insert ``may''.
[The amendment follows:]

Chairman Sensenbrenner. The clerk is--or excuse me--the
gentleman from Virginia is recognized for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, this
amendment is under the supervised release. The language in the
bill says the court----
Chairman Sensenbrenner. Will the gentleman yield?
Mr. Scott. I yield.
Chairman Sensenbrenner. This looks like a good and sharp
amendment, and I'm prepared to accept it.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, I withdraw the amendment. No, excuse me.
Chairman Sensenbrenner. The Chair objects.
Mr. Scott. I yield back the balance of my time.
Chairman Sensenbrenner. Yeah. The question is on agreeing
to Scott Amendment Number 17. Those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment is agreed to. Are there further amendments?
Mr. Scott. Mr. Chairman, I would just like to mention the
fact that I have another amendment at the desk, number 16.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3132, offered by Mr. Scott of
Virginia.
Mr. Scott. I move that the reading of the amendment be
waived.
Chairman Sensenbrenner. Without objection. And the
gentleman is recognized for 5 minutes.
[The amendment follows:]

Mr. Scott. Mr. Chairman, this amendment would eliminate the
death penalties and mandatory minimums from the bill. I would
incorporate at this point the discussion that we have had on
this and rather than waste the Committee's time just point out
that we had an opportunity to eliminate all the mandatory
minimums and the death penalty, and I would yield back the
balance of my time.
Chairman Sensenbrenner. The gentleman from Wisconsin, Mr.
Green.
Mr Green. Move to strike the last word, Mr. Chairman.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Green. I rise in opposition to the amendment, as the
gentleman from Virginia would probably guess.
The crimes that we are talking about here today, the crimes
that are dealt with in this legislation are among the most
serious crimes that we can possibly have in society, because
they strike at the heart of who we are, our sensibility, our
families, our sense of security. I believe that these crimes
are worthy in some cases the death penalty, and they are worthy
of mandatory minimums. I believe that we do need to send a very
strong signal about how society--what society's attitude is
towards those who would prey upon our kids.
And they are mandatory minimums because, sadly, we have
learned that judicial discretion in too many cases and too many
places has been abused, and has given rise to some of the
crimes that are really represented by those pictures over to
the side of these chambers.
It is important for us as policy makers, as the elected
representatives of families all across this country, to not
only send a strong signal about our attitudes towards those who
would prey upon our kids, but also to take steps to prevent
future such actions.
You know, it's interesting in some of the opening
statements, I heard some say that the penalties that we have in
this legislation will not deter. I'm not sure deterrence is the
purpose. One thing we do know: we do know that those who
repeatedly prey upon our kids are likely to do it yet again.
But with this legislation, and the tough approach that
we've taken, the mandatory minimums, in some places the most
serious punishment, the capital punishment, we are taking steps
to ensure that at least these offenders will not claim future
victims.
I made reference earlier to some studies that have been
done of admitted child molesters and the extraordinary
likelihood that they will reoffend. Sexual offender recidivism
is underreported. The rate that it's underreported by is at
least two and half times.
When imprisoned sex offenders are interviewed in polygraph
sessions, the numbers are truly frightening. In one study,
sexual offenders had an average of 110 victims, and 318
offenses. And each one of those numbers represents a life
destroyed, a family destroyed, a shattering of a community, the
shaking of a neighborhood down to its very core.
Another study suggested that convicted sex offenders commit
their sex crimes for an average of 16 years before they're
caught.
So when you see those numbers, and you see the--or hear the
stories of those victims, what makes it even worse is when you
realize that it is extremely likely that there are many, many
victims before the victim that you've seen on that TV screen or
on that picture or read about in that story.
The chances are very likely that there have been a whole
string of young lives destroyed. These are serious crimes. They
deserve our most serious penalties.
The public is crying out for it. We have all seen the
stories, and we've all been outraged. This legislation, in my
view, takes a very strong step forward in providing new tools,
in providing new penalties. It is an appropriate response.
This amendment will take away in so many ways the most
important part of this: that strong stance; those tough
penalties; those penalties that will remove those offenders
from society that will keep our families safe and hopefully
protect the innocent.
I strongly urge that you reject the amendment.
Mr. Chairman, with that I yield back.
Chairman Sensenbrenner. The question is on agreeing to the
Scott amendment number 16. Those in favor will say aye?
Opposed, no?
The noes appear to have it. The noes have it. The amendment
is not agreed to.
Are there further amendments?
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Mr. Chairman, I ask unanimous consent that a
letter from Professor Eric Friedman be entered into the record.
Chairman Sensenbrenner. Without objection.
[The letter from Professor Friedman follows:]

Chairman Sensenbrenner. Are there further amendments? There
are no further amendments.
A reporting quorum is present. The question occurs on the
motion to report the bill H.R. 3132 favorably, as amended. All
in favor will say aye? Opposed, no?
The ayes appear to have it.
Mr. Green. Mr. Chairman, on that I would request the ayes
and nays.
Chairman Sensenbrenner. rollcall will be ordered.
Those in favor of reporting the bill H.R. 3132 favorably,
as amended, will, as your names are called, answer aye; those
opposed, no. And the clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye. Mr. Lungren?
Mr. Lungren. Aye.
The Clerk. Mr. Lungren, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. Aye.
The Clerk. Mr. Inglis, aye. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Mr. Issa?
[No response.]
The Clerk. Mr. Flake?
[No response.]
The Clerk. Mr. Pence?
[No response.]
The Clerk. Mr. Forbes?
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye. Mr. King?
Mr. King. Aye.
The Clerk. Mr. King, aye. Mr. Feeney?
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye. Mr. Franks?
Mr. Franks. Aye.
The Clerk. Mr. Franks, aye. Mr. Gohmert?
Mr. Gohmert. Aye.
The Clerk. Mr. Gohmert, aye. Mr. Conyers?
Mr. Conyers. No.
The Clerk. Mr. Conyers, no. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. No.
The Clerk. Mr. Nadler, no. Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no. Mr. Watt?
[No response.]
The Clerk. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Ms. Sanchez?
Ms. Sanchez. No.
The Clerk. Ms. Sanchez, no. Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye. Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Further Members who wish to cast or
change their votes? The gentleman from Texas, Mr. Smith?
Mr. Smith. Mr. Chairman, I vote aye.
The Clerk. Mr. Smith, aye.
Chairman Sensenbrenner. Further Members in the chamber who
wish to cast or change their vote? If not, the clerk will
report.
The Clerk. Mr. Chairman, there are 22 ayes and 4 noes.
Chairman Sensenbrenner. And the motion to favorably report
the bill, as amended, is agreed to. Without objection, the bill
will be reported favorably to the House in the form of a single
amendment in the nature of a substitute incorporating the
amendments adopted here today.
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 House rules, in which to submit
additional, dissenting, supplemental, or minority views.
[Intervening business.]
Chairman Sensenbrenner. The business having been concluded,
without objection the Committee stands adjourned.
[Whereupon, at 1:45 p.m., the Committee was adjourned.]

DISSENTING VIEWS

We strongly dissent from H.R. 3132. While we agree with the
legislation's stated objective of tackling the problem of
violence against children, in particular violent offenses
committed by sexual offenders, it does so in a manner that
trammels the Constitution beyond the justifications underlying
the bill itself. Specifically, the legislation would impose
unduly harsh and discriminatory mandatory minimum sentences; it
would expand the use of the federal death penalty to new
offenses; and it would limit habeas corpus review in certain
cases, leading to an increase in the number of innocent people
being executed or languishing in prison. In addition, the
legislation would unwisely treat juvenile offenders on par with
adults and would have a disproportionate impact on Native
Americans. Multiplying these important substantive issues, we
are also concerned that many provisions of the bill are being
rushed through Committee without adequate debate, consideration
or consultation.
Among the professionals who have opposed, or have expressed
serious concerns with H.R. 3132 are scientific researchers,
treatment professionals, and child advocates, including: Mark
Chaffin, Ph.D., Professor and Director of Research, Center on
Child Abuse and Neglect; Steven J. Ondersma, Ph.D. Editor-in-
Chief, Child Maltreatment: The Journal of the American
Professional Society on the Abuse of Children; Barbara L.
Bonner, Ph.D., University of Oklahoma Health Sciences Center;
David Finkelhor, Ph.D., Director, Crimes against Children
Research Center; John E.B. Myers, Professor of Law, University
of the Pacific; Benjamin E. Saunders, Ph.D. Professor and
Director, Family and Child Program, National Crime Victims
Research and Treatment Center; William N. Friedrich, Ph.D, Mayo
Clinic and Mayo Medical School; Jill Levenson, Ph.D., L.C.S.W.,
Professor of Human Services, Board of Directors, Association
for the Treatment of Sexual Abusers; David Prescott, Treatment
Assessment Director, Sand Ridge Secure Treatment Center; Robert
E. Longo, MRC; LPC, Sexual Abuse Prevention & Education
Resources International; Toni Cavanagh Johnson, Ph.D., Author
and Consultant; Jane F. Silovsky, Ph.D., Director, Child Sexual
Behavior Problem Treatment Program; Paul Stern, J.D. Board of
Directors, Association for the Treatment of Sexual Offenders;
Daniel Smith, Ph.D. Associate Professor and Director of
Training, National Crime Victims Research & Treatment Center;
Lucy Berliner, Harborview Center for Sexual Assault & Traumatic
Stress; and the American Civil Liberties Union.
For the reasons set forth herein, we respectfully dissent
from H.R. 3132.

Description of Legislation\1\

---------------------------------------------------------------------------
\1\H.R. 3132 is a compilation (with some modification) of five
different bills: H.R. 2423, the ``Sex Offender Registration and
Notification Act of 2005;'' H.R. 2796, the ``DNA Fingerprinting Act of
2005;'' H.R. 2388, the ``Prevention and Deterrence of Crimes Against
Children Act of 2005;'' H.R. 2318, the ``Protection Against Sexual
Exploitation of Children Act of 2005;'' and H.R. 3129, the ``Foster
Child Protection and Child Sexual Predator Sentencing Act of 2005.''
---------------------------------------------------------------------------
Title I of H.R. 3132, entitled ``Sex Offender Registration
and Notification Act,'' would establish a mandatory sex
offender registry and notification program to be implemented by
all relevant jurisdictions, including every federally
recognized Indian tribe, within two years.\2\ It would require
these jurisdictions to: (1) ensure that each person required to
register does so; (2) collect specified information and prepare
a statement of facts, criminal history and any other
information required by the Attorney General; (3) publish this
information on an internet website\3\ ; (4) transmit the
information to various federal, state and local agencies within
5 days of registration or any change in information; (5) verify
the address of each registrant monthly for a sex offense
against a minor (quarterly for a misdemeanor); and (6) enact a
penalty of more than one year for failure to register. See
Sections 112, 114, 117, 118, 119, 120, 121, and 127.
---------------------------------------------------------------------------
\2\Relevant jurisdictions include every State, the District of
Columbia, every federally recognized Indian tribe, Guam, American
Samoa, the Northern Mariana Islands, and the U.S. Virgin Islands.
\3\This includes publication of ``all'' information about ``each
sex offender'' except social security number, victim's identity and any
other information exempted by the Attorney General, on the
jurisdiction's own internet website. See Sec. 121.
---------------------------------------------------------------------------
Under Title I, the term ``sex offender'' places juveniles
in the same category as adults: it is one who has a conviction
of or adjudication as a juvenile delinquent for a ``specified
offense against a minor,'' a ``serious sex offense,'' or a
``misdemeanor sex offense against a minor.'' See Sec. 111. More
importantly, Title I imposes a myriad of registration
requirements\4\ and numerous mandatory minimums for even the
slightest violation of these requirements. These mandatory
minimums include, among others:
---------------------------------------------------------------------------
\4\The registration requirements placed on sex offenders include:
Registration in each jurisdiction where the individual
resides, works or goes to school
Initial registration before completion of a sentence of
imprisonment or if not sentenced to imprisonment not later than 5 days
after being sentenced
Notice to each jurisdiction involved of any change in
residence, work or school not later than 5 days after such change
If convicted before enactment, retroactively registration
under a method determined by the Attorney General (Sec. 113)
Lifetime registration generally or for a first misdemeanor
sex offense against a minor for twenty years (Sec. 115)
Verification of information in person at least once every
six months (Sec. 116).
---------------------------------------------------------------------------
Each jurisdiction must enact legislation
requiring punishment of a maximum term of imprisonment
exceeding one year (Sec. 113(e))
Creates a new offense, Chapter 109B, 18
U.S.C. Sec. 2250: A person who receives a notice from
an official that s/he is required to register, and is a
sex offender by reason of a conviction of one of the
listed offenses or thereafter travels in interstate or
foreign commerce or leaves Indian country, and
knowingly fails to register is subject to imprisonment
for a mandatory minimum of 5 years and not more than 20
years. (Sec. 151).\5\
---------------------------------------------------------------------------
\5\Note that shortly before release from custody or immediately
after sentencing, an ``appropriate official'' must ``require the sex
offender to read and sign a form stating that the duty to register has
been explained and that the sex offender understands the registration
requirement,'' whether the person actually understands the registration
requirement or not. (Sec. 117(2)).
---------------------------------------------------------------------------
Title II of H.R. 3132 expands the national DNA Index
System, but includes many controversial provisions in the
process. For example, Section 202 amends Section 3 of the DNA
Analysis Backlog Elimination Act of 2000 (42 U.S.C. 14135a) to
give the Attorney General (or any agency within the Department
of Justice or any agency that arrests, detains or supervises
individuals facing charges) the power to collect DNA samples
from persons who have not been found guilty, but are merely
``arrested or detained under the authority of the United
States.''
Title III of the legislation, entitled ``Prevention and
Deterrence of Crimes Against Children Act,'' limits the ability
of any individual convicted of killing a child to petition the
court for habeas corpus review.\6\ In addition, Title III adds
a host of mandatory minimum sentences. For example, Sec. 302
would require for a ``felony crime of violence against the
person'' of someone under 18, unless a higher mandatory minimum
otherwise applies and regardless of any maximum:
---------------------------------------------------------------------------
\6\Sec. 303, entitled ``Ensuring Fair and Expeditious Federal
Collateral Review of Convictions for Killing a Child,'' would strip
federal courts of jurisdiction to review claims on habeas corpus of
persons in state custody for a ``crime that involved the killing of'' a
person under 18 unless ``(A) the claim relies on--(i) a new rule of
constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable; or (ii) a factual
predicate that could not have been previously discovered through the
exercise of due diligence; and (B) the facts underlying the claim would
be sufficient to establish by clear and convincing evidence that but
for constitutional error, no reasonable fact finder would have found
the applicant guilty of the underlying offense.'' The rare claim that
cleared this hurdle would be subjected to a complex set of truncated
timetables.
---------------------------------------------------------------------------
Life or death if death results--this would
substantially broaden the offenses for which life or
death may be imposed, and require a life sentence even
in the absence of one of the mental culpability
factors. That is, it would require a life sentence if
death resulted from recklessness, negligence or by
accident.
Not less than 30 years or for life if the
``crime of violence'' is kidnapping, aggravated sexual
abuse, sexual abuse, maiming, or results in serious
bodily injury, i.e., involves a substantial risk of
death, extreme physical pain, protracted and obvious
disfigurement, or protracted loss of the function of a
bodily member, organ or mental faculty.
Not less than 20 years or for life if the
``crime of violence'' is a sexual contact offense under
18 U.S.C. 2244(a)(1), (2) or (5), or results in bodily
injury, i.e., a cut, abrasion, bruise, burn, or
disfigurement, physical pain, illness, impairment of a
bodily member, organ, or mental faculty, or any other
injury to the body, no matter how temporary.
Not less than 15 years or for life if a
``dangerous weapon was used during and in relation to
the crime of violence'' (dangerous weapon is not
defined in the federal criminal code, and has been held
under state law to include anything from a firearm to a
shoe, and even a pencil)
Not less than 10 years or for life in any
other case.
Title IV, entitled ``Protection Against Sexual Exploitation
of Children Act,'' and Title V, entitled ``Foster Child
Protection and Child Sexual Predator Deterrence Act,'' create a
host of mandatory minimums criminal penalties and increase a
number of existing mandatory minimum sentences. For example,
Title IV would create mandatory minimums for felonies under
Title 18, Chapter 109A, Sec. Sec. 2241, 2244, 2245, which are
specifically included in the Major Crimes Act, 18 U.S.C.
Sec. 1153, and would add death as a possible penalty for
offenses under Chapter 110, Chapter 117, and Section 1591. It
would also increase mandatory minimums for offenses under Title
18, Chapter 110, Sec. Sec. 2251, 2252, 2252A, 2252B and 2260,
which are not specifically included in the Major Crimes Act.
Title V would also provide for the civil commitment of
individuals determined to be ``sexually dangerous persons.''

I. THE LEGISLATION IMPOSES INEFFECTIVE AND DISCRIMINATORY MANDATORY
MINIMUMS

The premise underlying H.R. 3132 is that tough mandatory
minimum sentences will solve the problem of sex crimes against
minors.\6\ The empirical evidence, however, does not support
this premise. The Judicial Conference of the United States and
the U.S. Sentencing Commission have found that mandatory
minimums distort the sentencing process and have the ``opposite
of their intended effect.''\7\ Mandatory minimums ``destroy
honesty in sentencing by encouraging charge and fact plea
bargains.'' Moreover, mandatory minimums result in unwarranted
sentencing disparity. That is, ``mandatory minimums * * * treat
dissimilar offenders in a similar manner, although those
offenders can be quite different with respect to the
seriousness of their conduct or their danger to society * * *''
and * * * ``require the sentencing court to impose the same
sentence on offenders when sound policy and common sense call
for reasonable differences in punishment.''\8\
---------------------------------------------------------------------------
\6\The legislation establishes 36 new mandatory minimum sentences
and increases the sentences in eight existing provisions.
\7\See U.S. Sentencing Commission, Special Report to Congress:
Mandatory Minimum Penalties in the Federal Criminal Justice System
(August 1991).
\8\Id.
---------------------------------------------------------------------------
In addition, mandatory minimums tend to discriminate
against minorities. Both the Judicial Center in its study
report entitled ``The General Effects of Mandatory Minimum
Prison Terms: a Longitudinal Study of Federal Sentences
Imposed'' and the United States Sentencing Commission in its
study entitled ``Mandatory Minimum Penalties in the Federal
Criminal Justice System'' found that minorities were
substantially more likely than whites under comparable
circumstances to receive mandatory minimum sentences. The
Sentencing Commission study also reflected that mandatory
minimum sentences increased the disparity in sentencing of like
offenders with no evidence that mandatory minimum sentences had
any more crime-reduction impact than discretionary sentences.
Finally, the mandatory minimum sentences prescribed in H.R.
3132 have an additional dimension of harshness and unfairness
in the form of technical registration requirements. Under the
bill, an offender who is required to register could be
subjected to a 5 year mandatory minimum sentence for some
technical problem with the registration requirement that could
be deemed a failure to register.\9\
---------------------------------------------------------------------------
\9\In this regard, Mr. Scott offered an amendment that would have
eliminated the mandatory minimum sentences related to the registration
requirements in favor of a scheme with maximum sentences, granting
discretion to the Sentencing Commission and the courts to determine the
gradation of seriousness and punishment. Unfortunately, the amendment
was narrowly defeated by a 17 to 16 vote.
---------------------------------------------------------------------------
H.R. 3132 simply takes the wrong approach. Instead of
focusing on correctional and rehabilitative programs, it unduly
focuses on registration requirements. For example, a recent
report by the Ohio Department of Rehabilitation and Correction
demonstrated that paroled sex offenders completing basic sex
offender programming while incarcerated had a lower recidivism
rate than those who did not have programming. This was true for
both recidivism of any type (33.9% with programming recidivated
compared with 55.3% without programming) and sex-related
recidivism (7.1% with programming recidivated compared with
16.5% without programming).\10\
---------------------------------------------------------------------------
\10\``Ten-Year Recidivism Follow-up of 1989 Sex Offender
Releases,'' Department of Rehabilitation and Correction, Ohio (April
2001).
---------------------------------------------------------------------------
In fact, excluding those convicted of rape, numerous
studies evidence that sex offenders are highly treatable and
have very low recidivism rates.\11\ For example, according to
the latest comprehensive Department of Justice offender
statistics, overall, sex offenders are less likely than non-sex
offenders to be rearrested for any offense within 3 years of
release--43 percent of sex offenders versus 68 percent of non-
sex offenders. And of the approximately 4,300 child molesters
released from prisons in 15 States in 1994, 3.3% of these were
rearrested for another sex crime against a child within 3 years
of release from prison. In comparison, released prisoners with
the highest re-arrest rates were robbers (70.2%), burglars
(74.0%), larcenists (74.6%), motor vehicle thieves (78.8%),
those in prison for possessing or selling stolen property
(77.4%), and those in prison for possessing, using or selling
illegal weapons (70.2%). Therefore, there is little evidence
that harsher penalties in the form of technical registration
requirements are needed to solve the problem of sexual abuse of
children.
---------------------------------------------------------------------------
\11\See Orlando, Dennise, ``Sex Offenders,'' Special Needs
Offenders Bulletin, a publication of the Federal Judicial Center, No.
3, Sept. 1998, at 8; see also Alexander, M.A., ``Sexual Offender
Treatment Efficacy Revisited,'' 11 Sexual Abuse: A journal of Research
and Treatment 2, at 101-117 ( cited in Center for Sex Offender
Management, ``Recidivism of Sex Offenders,'' 13-14 (May 2001).
---------------------------------------------------------------------------

II. THE LEGISLATION UNJUSTIFIABLY EXPANDS THE FEDERAL DEATH PENALTY

H.R. 3132 would create 2 new death penalty provisions at a
time when evidence continues to expose the fallibility of the
system and its discriminatory effects.
Numerous studies, including those conducted by the ACLU and
the University of Michigan among others, have documented the
exposure of innocent individuals to the death penalty
system.\12\ Last year, a University of Michigan study
identified 199 murder exonerations since 1989, 73 of them in
capital cases. The same study found that death row inmates
represent a quarter of 1 percent of the prison population but
22 percent of the exonerated. Since 1973, 119 innocent people
have been released from death row. An earlier study found that
more than two out of every three capital judgments reviewed by
the courts during a 23-year period were seriously flawed.
Moreover, when experts reviewed all the capital cases and
appeals imposed in the United States between 1973 and 1995 at
the state and federal levels, they found a national error rate
of 68%. In other words, over two-thirds of all capital
convictions and sentences are reversed because of serious error
during trial or sentencing phase. This does not include errors
that were not serious enough to warrant a reversal.\13\
---------------------------------------------------------------------------
\12\See American Bar Association, ``Gideon's Broken Promise:
America's Continuing Quest for Equal Justice'' (2005) (demonstrating
that innocent people are wrongfully convicted in our criminal justice
system due to the lack of effective defense representation for the
poor). In fact, Governor Ryan of Illinois declared a moratorium in his
state after 13 people were released from death row because of
innocence. Ryan wanted assurances that the system was working before
resuming executions. Some death penalty proponents have argued that the
problems in Illinois are exceptional. In fact, however the error rate
in Illinois is 66%, slightly lower than the national average of 68%.
\13\See ``A Broken System: Error Rates in Capital Cases'', 1973-
1995 (Retrieved April 26, 2005 from http:// justice.policy.net/
jpreport/).
---------------------------------------------------------------------------
In fact, due in part to the high number of wrongful
convictions with respect to the death penalty, Congress passed
the Justice for All Act of 2004,\14\ which received strong
bipartisan support. The Act increases federal resources
available to state and local governments to combat crimes with
DNA technology and provides safeguards to prevent wrongful
convictions and executions. Title III of the Innocence
Protection Act also provides access to post-conviction DNA
testing in federal cases, helps States improve the quality of
legal representation in capital cases and increases
compensation in federal cases of wrongful conviction. By
increasing the number of federal death penalty provisions, H.R.
3132 runs counter to the spirit of the Innocence Protection Act
and would actually prevent that legislation from achieving its
full purpose. Even worse, these new death penalties are being
proposed at a time when the Innocence Protection Act has not
even been funded.
---------------------------------------------------------------------------
\14\Pub. L. No. 108-405, S. 401-432 (2004).
---------------------------------------------------------------------------
Furthermore, the death penalty has been shown to be
racially and economically discriminatory.\15\ Studies which
examine the relationship between race and the death penalty
have now been conducted in every active death penalty state. In
96% of these reviews, there was a pattern of either race-of-
victim or race-of-defendant discrimination, or both. After its
careful study of the death penalty in the United States, the
United Nations' Human Rights Commission in 1998 issued a report
which rightly concluded: ``Race, ethnic origin and economic
status appear to be key determinants of who will, and who will
not, receive a sentence of death.''\16\
---------------------------------------------------------------------------
\15\See Department of Justice Report, ``The Federal Death Penalty
System: A Statistical Survey'' (1988-2000) (finding numerous racial and
geographic disparities in the death penalty and revealing that 80% of
the cases submitted by federal prosecutors for death penalty review in
the past five years have involved racial minorities as defendants); see
also University of Maryland Report, ``An Empirical Analysis of
Maryland's Death Sentencing System With Respect to the Influence of
Race and Legal Jurisdiction,'' (2003) (available at newsdesk.umd.edu/
pdf/finalrep.pdf) (concluding that defendants are much more likely to
be sentenced to death if they have killed a Caucasian).
\16\Report of the Special Rapporteur on Extrajudicial, Summary, or
Arbitrary Executions, Mission to the United States of America, U.N.
ESCOR, Hum. Rts. Comm., 54th Sess., Agenda Item 10, P 62, U.N. Doc. E/
CN.4/1998/68/Add.3 (1998).
---------------------------------------------------------------------------

III. THE LEGISLATION UNJUSTIFIABLY LIMITS THE RIGHT OF HABEAS CORPUS
REVIEW

H.R. 3132 seeks to limit the ability of an individual to
apply for a writ of habeas corpus in any case that involves the
killing of a person under the age of eighteen. In essence, this
bill completely strips federal judges, justices and courts of
jurisdiction over this very rare class of claims.
The constitutional review of state cases assigned to
federal courts is a serious matter, calling for careful
consideration. It is a hallmark of the liberty that defines
America. In the past, Congress has consistently avoided
enacting such jurisdiction-stripping legislation. In fact, in
1996 when Congress passed the Antiterrorism and Effective Death
Penalty Act (AEDPA), Congress intentionally decided against
eliminating habeas jurisdiction, in its entirety, for any class
of cases or claims.
Additionally, the need for such a measure is doubtful.
Since passage of the AEDPA, there has been a clear decline in
the number of state prisoners filing habeas corpus petitions in
the federal district courts. Over the last five years, the
number of state prisoners seeking federal habeas corpus review
has declined 13%; the number of federal habeas corpus cases
filed by state death-row inmates has declined 17% during that
period.\17\ Needless to say, these declines are quite
significant, given that the 9% increase in the total state
prison population.\18\
---------------------------------------------------------------------------
\17\See, Administrative Office of the United States Courts,
Judicial Facts and Figures, Table 2.9, available at http://
www.uscourts.gov/judicialfactsfigures/table2.09.pdf.
\18\See, Bureau of Justice Statistics, U.S. Department of Justice,
Prison and Jail Inmates at Midyear 2000 and at Midyear 2004, available
at http://www.ojp.usdoj.gov/bjs/pub/pdf/pjm00.pdf and http://
www.ojp.usdoj.gov/bjs/pub/pdf/pjim04.pdf.
---------------------------------------------------------------------------

IV. THE LEGISLATION UNWISELY TREATS JUVENILES AS ADULTS

H.R. 3132 unwisely includes juveniles within its ambit and
treats juvenile offenders on par with adult offenders. Under
the current provisions of H.R. 3132, the legislation would
mandate lifetime sex offender registration for children and
youth.\19\
---------------------------------------------------------------------------
\19\Youth in grade school or junior high will be swept up alongside
paroled adult sex offenders. Many caught in it will be 13 and 14 year
olds. In some states, children 10 and under would be registered.
---------------------------------------------------------------------------
H.R. 3132 does not recognize the extensive research which
underscores significant differences between youth who sexually
abuse younger children and adult sex offenders. One significant
difference is that the vast majority of children and teenagers
adjudicated for sex crimes exhibit a high response rate to
treatment and also do not progress onward to become adult sex
offenders.\20\
---------------------------------------------------------------------------
\20\In fact, low recidivism rates are a consistent finding across
over five decades of follow-up research and over 30 studies. For
example, the Association for the Treatment of Sexual Abusers (ATSA),
the largest international organization of professionals studying sex
offender risk assessment and management approaches, states: ``Recent
research suggests that there are important distinctions between
juvenile and adult sexual offenders, as well as the finding that not
all juvenile sexual offenders are the same. There is little evidence to
support the assumption that the majority of juvenile sexual offenders
are destined to become adult sexual offenders * * * recent prospective
and clinical outcome studies suggest that many juveniles who sexually
abuse will cease this behavior by the time they reach adulthood,
especially if they are provided with specialized treatment and
supervision. Research also indicates that juvenile offenders may be
more responsive to treatment than their adult counterparts due to their
emerging development.'' (ATSA Position Paper, 2000).
---------------------------------------------------------------------------
Moreover, childhood and adolescent sexual offenses are
different from adult sex offenses in their motivation, nature,
and extent. For example, a deviant sexual interest in young
children, which is a major driving factor among persistent
adult sex offenders, does not appear to play a role in the
behavior of most children and teens. With rare exception, these
youth are not pedophiles. Rather, for many children and youth,
these behaviors are opportunistic, driven by curiosity and poor
judgment, and are more impulsive rather than compulsive.
Critical distinctions such as these between juveniles and
adults have been clearly pointed out by blue-ribbon panels
commissioned by the U.S. Department of Justice and by public
information resources such as the Center for Sex Offender
Management (CSOM), the National Center on the Sexual Behavior
of Youth (NCSBY), and by professional and research
organizations.
The United States has a century-long tradition of
maintaining different standards and treatment for juvenile
delinquents as opposed to adult criminals. Our values dictate
that individuals should not be stigmatized for life based on
childhood or early teenage behavior. Including juveniles under
H.R. 3132 violates this tradition of American justice and
creates a special class of juveniles mandated to bear lifetime
public stigma.

V. THE LEGISLATION FAILS TO PROHIBIT THE SELL OF DANGEROUS FIREARMS TO
CONVICTED SEX OFFENDERS

HR 3132 fails to address a glaring loophole that presently
exists in our current system of gun laws. Namely, it fails to
prohibit the sell of dangerous firearms to all convicted sex
offenders.
Under current law, it is illegal to transfer a gun to
anyone convicted of a crime punishable by more than one year.
In addition, we also prohibit the transfer of such weapons to
individuals convicted of committing misdemeanor crimes that we
consider to be of a particularly serious nature. For example,
we prohibit anyone convicted of committing a misdemeanor crime
of domestic violence from purchasing or possessing a gun.
Unfortunately, similar restrictions are not placed on
individuals convicted of committing misdemeanor sex offenses.
Guaranteeing that all sex offenders are prevented from
gaining access to dangerous firearms is of grave importance.
Not long ago, Keith Dwayne Lyons, a high-risk sex offender, was
convicted of engaging in unlawful sexual intercourse with a
minor. According to filed police reports, Mr. Lyon was aided by
the use of a firearm in carrying-out his crime.\21\
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\21\Reno Gazette-Journal, ``High Risk Sex Offender Arrested'', Page
5c December 10, 2004.
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We also have been made painfully aware of the recent child
molestations involving at least three Boy Scout officials who,
over the course of the past several years, have been accused of
molesting dozens of young boys. In the case of one of the
alleged molesters in particular, Mr. Dennis Empey, we also
learned he had been previously convicted of committing a sex
offense after having been accused of ``flashing a gun before
sodomizing his victims.''\22\ During the course of the
Committee's consideration of HR 3132, Representative Nadler
offered an amendment to address this problem. Unfortunately,
that amendment was defeated on a straight party-line basis.
---------------------------------------------------------------------------
\22\Idaho's ``Post Register'' Uncovers Pedophiles Among Boy Scout
Officials, Editor & Publisher, July 5, 2005.
---------------------------------------------------------------------------

VI. THE LEGISLATION WILL HAVE A DISPROPORTIONATE IMPACT ON NATIVE
AMERICANS

H.R. 3132's creation of additional federal crimes will
disproportionately affect Native Americans who are
significantly over-represented in the federal criminal
system.\23\ H.R. 3132 would add felony child abuse and neglect
to the Major Crimes Act,\24\ and would impose a host of harsh
new mandatory minimum sentences for existing offenses under the
Major Crimes Act. This will have a disproportionate impact on
Native Americans because they comprise the vast majority of
people prosecuted in federal court for offenses listed in the
Major Crimes Act, and their sentences are already significantly
longer than the sentences imposed in state courts on others for
the same conduct.\25\
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\23\As Indian reservations are considered federal reserves which
fall under federal jurisdiction, a significant amount of federal
criminal prosecution is focused on Indian reservations. Native
Americans are consequently over-represented in the federal prison
population. As of 2000, while Native Americans are roughly 1% of the
population, they represent 1.5% of the prison population. The rate of
incarceration for Native Americans increases significantly in states
with larger reservations. For example, while Native Americans are 6% of
the population of Montana, Native Americans account for more than 20%
of those incarcerated there, and 32% of women incarcerated in that
state. Overall, Native Americans are incarcerated there at a rate more
than 4 times that of white residents.
\24\Under the Major Crimes Act, any ``Indian'' who commits one of a
list of felonies in ``Indian country'' is subject to prosecution and
sentencing exclusively under federal law. H.R. 3132 would add ``felony
child abuse or neglect'' to the list of offenses in the Major Crimes
Act.
\25\In June of 2002, the United States Sentencing Commission formed
the Ad Hoc Advisory Group on Native American Sentencing Issues
(``Advisory Group'') in response to concerns that Native American
defendants were treated more harshly under the U.S. Sentencing
Guidelines than similarly situated defendants prosecuted by the states.
Focusing solely on aggravated assault, sexual abuse, and manslaughter,
the Advisory Group found that sentences for sexual abuse and aggravated
assault under the U.S. Sentencing Guidelines were significantly longer
than those imposed for the same conduct by state courts, and were
either higher or lower with respect to manslaughter.
---------------------------------------------------------------------------

VII. PROVISIONS OF THE LEGISLATION ARE BEING RUSHED THROUGH WITHOUT
ADEQUATE DEBATE

A number of substantive provisions of H.R. 3132 are being
rushed through the House without adequate debate, consideration
or consultation with relevant interest groups. For example, as
mentioned above, Sec. 510 of the bill adds felony child abuse
and neglect to the Major Crimes Act; however, to date there has
been no deliberative consultation with the representatives from
the group most affected by the legislation, Native
Americans.\26\ Moreover, no hearing has been held on some of
the more controversial provisions of the bill, including the
provision which authorizes the Attorney General to collect DNA
samples from any person arrested or detained under federal
authority. Finally, the Committee has yet to hold hearings on
the mandatory mininum provisions of the legislation, a central
aspect of how H.R. 3132 addresses sex offenses.
---------------------------------------------------------------------------
\26\There are a number of other provisions of the bill that would
disproportionately affect Native Americans, but about which
representative groups have not been consulted. See Sec. 302, 402, 504,
505, 506, 508, 512, and 513.
---------------------------------------------------------------------------

Conclusion

While there is no question that we must address the problem
of violence against children and in particular violent offenses
committed by sexual offenders, the emphasis of H.R. 3132 on the
death penalty, mandatory minimums, and unforgiving registration
requirements is misplaced. Mandatory minimum sentences have
been studied extensively and have been proven to be ineffective
in preventing crime. Moreover, the death penalty system has
numerous deficiencies, not to mention its discriminatory
effects. The bill also unwisely advocates lumping juvenile
offenders with adult criminals without recognizing the critical
distinctions between the two. Unfortunately, instead of
addressing the issues underlying violence against children,
H.R. 3132 adopts a ``lock 'em up and throw away the key''
strategy with technical registration requirements and mandatory
minimum sentences.

Description of Amendments Offered by Democratic Members

1. Amendment offered by Rep. Adam Schiff

Description of amendment: The Schiff amendment proposed to
award bonus payments to any state that implemented an
electronic monitoring system of sex offenders following their
release from prison.
Vote on Amendment: The amendment was agreed to by voice-
vote.

2. Amendment offered by Rep. Bobby Scott (#1)

Description of amendment: The Scott amendment proposed to
eliminate the registration requirements for any individual
convicted of a misdemeanor sex offense.
Vote on Amendment: The amendment was defeated by voice-
vote.

3. Amendment offered by Rep. Bobby Scott (#2)

Description of amendment: The Scott amendment proposed to
delete the two provisions of the bill that authorized the
Attorney General to determine who should be labeled a `sexual
predator' for purposes of the registry and the provision that
authorized the AG to designate which crimes would constitute a
`serious sex offense' under the terms of the bill.
Vote on Amendment: The amendment was defeated by voice-
vote.

4. Amendment offered by Rep. Bobby Scott (#3)

Description of amendment: The Scott amendment proposed to
eliminate the five year mandatory minimum penalty for
individuals who fail to register or make false statements when
complying with the registration requirements, as prescribed by
the bill.
Vote on Amendment: The amendment was defeated by voice-
vote.

5. Amendment offered by Rep. Bobby Scott (#4)

Description of amendment: The Scott amendment proposed to
strike the language in section 117, subsection 3 of the bill
requiring a sex offender to ``read and sign a form stating that
the duty to register has been explained and the sex offender
understands the registration requirement.''
Vote on Amendment: The amendment was defeated by a vote of
16-17. Ayes: Representatives Conyers, Berman, Nadler, Scott,
Watt, Jackson Lee, Waters, Meehan, Weiner, Sanchez, Van Hollen,
Wasserman Schultz, Lungren, Inglis, Flake, Gohmert. Nays:
Representatives Sensenbrenner, Coble, Smith, Gallegly, Chabot,
Jenkins, Cannon, Hostettler, Green, Keller, Issa, Pence,
Forbes, King, Feeney, Franks, Schiff.

6. Amendment offered by Rep. Bobby Scott (#5)

Description of amendment: The Scott amendment proposed to
strike section 303 of the bill in its entirety; thereby
eliminating the restrictions that the bill places on
applications for the writ of habeas corpus review.
Vote on Amendment: The amendment was defeated by a vote of
12-18. Ayes: Representatives Conyers, Berman, Nadler, Scott,
Jackson Lee, Waters, Wexler, Weiner, Schiff, Sanchez, Van
Hollen, Wasserman Schultz. Nays: Representatives Sensenbrenner,
Coble, Smith, Chabot, Lungren, Jenkins, Cannon, Inglis,
Hostettler, Green, Keller, Issa, Flake, Forbes, King, Feeney,
Franks, Gohmert.

7. Amendment offered by Rep. Debbie Wasserman Schultz

Description of amendment: The Wasserman Schultz amendment
directed the Attorney General to establish guidelines for the
civil confinement of certain sexually violent predators within
state institutions.
Vote on Amendment: The amendment was withdrawn.

8. Amendment offered by Rep. Sheila Jackson Lee

Description of amendment: The Jackson Lee amendment
proposed to expand the authority of the Attorney General to
collect DNA samples from anyone convicted of committing a
federal crime.
Vote on Amendment: The amendment was agreed to by voice-
vote.

9. Amendment offered by Rep. Jerrold Nadler

Description of amendment: The Nadler amendment proposed to
amend section 922 of title 18 U.S.C. in order to prohibit the
transfer or possession of a firearm by any individual who had
been convicted of committing a sex offense against a minor.
Vote on Amendment: The amendment was defeated on a straight
party-line basis by a vote of 9 to 17. Ayes: Representatives
Conyers, Nadler, Scott, Meehan, Weiner, Schiff, Sanchez, Van
Hollen, Wasserman Schultz. Nays: Representatives Sensenbrenner,
Coble, Smith, Chabot, Lungren, Jenkins, Cannon, Inglis,
Hostettler, Green, Keller, Issa, Flake, Forbes, King, Franks,
Gohmert.

10. Amendment offered by Rep. Bobby Scott (#6)

Description of amendment: The Scott amendment directed the
Federal Bureau of Prisons to establish and provide access to a
sex offender treatment program for all federal inmates, prior
to the time of their release.
Vote on Amendment: The amendment was withdrawn with the
understanding that Majority and Minority staff would work out a
mutually agreeable version to be accepted by the Majority.

11. Amendment offered by Rep. Bobby Scott (#7)

Description of amendment: The Scott amendment proposed to
establish a comprehensive risk classification for all sex
offenders based upon the offender's risk of re-offense and
degree of dangerousness to the public.
Vote on Amendment: The amendment was withdrawn with the
understanding that Majority and Minority staff would work out a
mutually agreeable version to be accepted by the Majority.

12. Amendment offered by Rep. Bobby Scott (#8)

Description of amendment: The Scott amendment proposed to
provide the court with greater discretion in establishing the
terms of supervised release for individuals covered under the
bill.
Vote on Amendment: The amendment was agreed to by voice-
vote.

13. Amendment offered by Rep. Bobby Scott (#9)

Description of amendment: The Scott amendment proposed to
strike all of the death penalty eligible offenses and mandatory
minimum sentences included throughout the bill.
Vote on Amendment: The amendment was defeated by voice-
vote.

John Conyers, Jr.
Robert C. Scott.
Linda Sanchez.

ATTACHMENTS