Children's Safety Act of 2005
Floor Speech
CHILDREN'S SAFETY ACT OF 2005 -- (House of Representatives - September 14, 2005)
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Mr. SCOTT of Virginia. Mr. Chairman, I yield myself 7 minutes.
Mr. Chairman, we all abhor the horrific cases of child murders or sex offenses committed by those who are referenced in the bill. But the question before us is whether what we are doing in the bill will actually reduce the incidence of child molestation or actually increase it.
We should certainly seek to avoid enacting legislation that expends scarce resources in a manner that is not cost effective or that exacerbates the problem. It is clear that having police supervision and police awareness of the location and identification information about sex offenders is appropriate and helpful.
But it is not clear that putting that information indiscriminately on the Internet, regardless of the dangerousness of the individual, with no guidance or restriction of what people should do with the information, it is unclear whether that is helpful or harmful.
There have been incidents of vigilantes and other activities where offenders have actually been driven underground, so you actually do not know where they are. That is certainly not good for children. And try to sell your home when a sex offender moves a few blocks away. Are children actually helped by that? That would be a necessary problem; but there is no evidence that putting that information on the Internet actually reduces the incidence of child molestation, so the real estate prices all over the neighborhood go down.
Now, research shows that 90 percent of sex offenses against children involve either family members or someone well known to the victim. So when you put names and addresses on the Internet, 90 percent of the offenses are not even covered. We also have the situation where those on the Internet are ostracized and subjected to public notoriety, embarrassment, ridicule, and harassment.
In one actual case, a teacher was reading the names of offenders to grade school students in an apparent effort to protect them, when one student blurted out the question to another student: ``Is that not your father?''
This victimizes the victim twice and may well discourage offense reporting that is already considered very low in these situations. Many offenders identified on the Internet will not only become unemployed and unemployable because of that notoriety, but they may also have to leave their home to avoid embarrassment or other consequences to themselves and their families, and having done that, may just go underground and not bother to register again.
Where an offender clearly represents a threat to the public, perhaps the consequences to the victims and their family members cannot be avoided; but where the individual clearly does not present a threat to the public, informing the general public may do more harm than good.
Law enforcement and child-serving authorities should have access to the information. Until they have reliable information to show that the impact of the Internet will actually reduce the incidence of child molestation, we should be circumspect on how we use this information.
Now, we have taken a step in the right direction in the bill by encouraging those States and localities that are not already doing so to consider whether there are offenders who should be required to register, but may not have to be put on the Internet.
I am pleased, Mr. Chairman, that the gentleman from Wisconsin (Mr. Sensenbrenner) has indicated his willingness as the bill moves towards conference to continue to look for ways we might support the States and localities who are already making such assessments while encouraging those who are not making those assessments to do so.
There are effective things we can do, and hopefully we will have amendments that will deal with this. Because research has shown that intensive, therapeutic sexual offender treatment cuts sexual offense recidivism in half. Fortunately, the evidence is that, even without the treatment, recidivism is low amongst sexual offenders of children. This is not what the legend is, but the facts are that a recent study by the Department of Justice showed that the rearrest rate among child molesters is 3.3 percent, much less than the recidivism rate of other criminals.
Any recidivism rate is too high, so I am pleased that we are working together to fashion a provision that will assure that all sex offenders in the Federal system will receive appropriate, effective treatment prior to their release; and I hope that we can continue to work together to provide a similar system for State offenders where we could significantly reduce child victimization by assuring access to effective treatment for all.
Now there are provisions in this legislation that are not based on research or sound reasoning like the death penalty, mandatory minimums, both of which have been studied and shown not to have any effect on crime. We also have the anomaly in this because it is Federal legislation that because Indian reservations, their sole access to courts is the Federal system, they will all be under the Federal system but most others will not. So it will have a disproportionate effect against Native Americans.
Now, day by day we are seeing more and more evidence that the death penalty administration is fraught with mistake, racial discrimination and it is applied in an arbitrary way. We have also seen the mandatory minimums have been shown to waste the taxpayers' money, been racially discriminatory, and the Judicial Conference reminds us every time we have a mandatory minimum for consideration that mandatory minimums violate common sense compared to traditional sentencing approaches.
This bill includes a 5-year mandatory minimum for any technical violation involved in registration. For example, if you are already registered and you attend the local community college but forgot to recognize that the community college is in a different jurisdiction and you should have registered there, too, well, that offense is subject to a 5-year mandatory minimum. Notwithstanding the fact that the original offense was 15 years ago, was a misdemeanor for which no time was imposed, it is a 5-year mandatory minimum for the technical violation of not registering correctly.
Another provision that is in the bill that will not have much effect on reducing child molestation is eliminating the access to habeas corpus. That will not reduce sex crimes. All of these are good, politically appealing sound bites that will help politicians get elected but which have no evidence that they will actually reduce the incidence of child molestation.
This bill will cost over $500 million over the next few years. We need to make sure that when we spend that kind of money that we actually do something constructive. Here we have a bill with mandatory minimums, death penalties that have been shown that have nothing to do with reducing crime, it is primarily focused on Native Americans, and I would hope that we would support amendments to eliminate such extraneous matters on the bill so we can concentrate the $500 million on effective crime-reducing approaches.
Mr. Chairman, I reserve the balance of my time.
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Mr. SCOTT of Virginia. Mr. Chairman, I yield myself such time as I may consume.
During the last few minutes, we have heard a lot of praise of mandatory minimums. I just want to remind the House that the Judicial Conference writes us frequently and reminds us that mandatory minimums violate common sense. That is because if the offense requires the mandatory minimum and that makes common sense, it can be applied; but if it makes no sense, mandatory minimums require us to impose that sentence anyway.
Many of the provisions of the bill are crimes which we do not think would be subject to 5- or 10-year mandatory minimums. There is a provision in the bill that says that felonious assaults against a juvenile, which could be two juveniles having a fist fight in the school yard, if it gets into a big fight, that that is a 10-year mandatory minimum if no injury occurs. Now, of course, if an injury occurs in the fight, then you are talking about 20 years. I think common sense should prevail and a more appropriate sentence could be given.
This entire registration program that requires people to register has not been shown to reduce the incidence of child molestation. For someone who commits a crime, even as a juvenile, they will be subject to lifetime registration. There is no suggestion and there is no evidence that that reduces crime. It may actually increase crime.
We know that 90 percent of the offenses against children were people that would not be covered by the legislation, and 3.3 percent of those covered by the legislation might offend. We have other ways of dealing with that in such a way that we can actually reduce that 3.3 as much as 50 percent. We ought to be focused on that.
Mr. Chairman, we need to focus on the things that will actually reduce crime. This bill, many of the provisions of it, obviously, do not; and I would hope that we would focus appropriately to actually protect the children.
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AMENDMENT NO. 16 OFFERED BY MR. GIBBONS
Mr. GIBBONS. Mr. Chairman, I offer an amendment.
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Mr. SCOTT of Virginia. Mr. Chairman, I rise in opposition to the amendment and would just point out that this requirement for a driver's license just adds another little ``gotcha'' for which someone could be subjected to a 5-year mandatory minimum and, therefore, would oppose the amendment.
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AMENDMENT NO. 19 OFFERED BY MR. POE
Mr. POE. Mr. Chairman, I offer an amendment.
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Mr. SCOTT of Virginia. Mr. Chairman, I move to strike the last word.
I join in support of the amendment. It is money that will be extremely well spent and actually deals with the problem. I thank the gentleman for introducing the amendment.
The CHAIRMAN. The question is on the amendment offered by the gentleman from Texas (Mr. Poe).
The amendment was agreed to.
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AMENDMENT NO. 9 OFFERED BY MR. INGLIS OF SOUTH CAROLINA
Mr. INGLIS of South Carolina. Mr. Chairman, I offer an amendment.
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Mr. SCOTT of Virginia. Mr. Chairman, I move to strike the last word.
Mr. Chairman, this amendment eliminates the 5-year mandatory minimum for failing to properly register and the 5-year mandatory minimum for falsifying registration information, with the possibility still of 20 years.
The amendment keeps the 20-year maximum for both crimes and leaves it to the Sentencing Commission and the courts to determine the gradations of seriousness and the punishment for violations based on the facts and circumstances of the violation.
It is absurd that misdemeanants and other minor offenders who get a suspended sentence for a crime that was committed 15 years ago could get a 5-year mandatory minimum sentence for a technical violation of a registration requirement such as showing up at 5:30 on the last day of registration when the office closed at 5 o'clock or failing to register the fact that they are in a community college that has different sites. Do they have to register everywhere they might take a class or just the main registration place for the community college? Or if they work in construction, if they register at the home office of the construction company, do they also have to register at each location where they are doing construction? If they guess wrong, 5 years mandatory minimum, no discretion on the part of the judge.
Are our children going to be safer or less safe if an offender knows that he is in technical violation? If he shows up to register after he has been in technical violation, he knows he is looking at a 5-year mandatory minimum. Is he going to show up or not?
Mr. Chairman, it is also absurd that an offender would be sentenced to a minimum 5 years for giving a technically false statement regarding this registration when, under the same section of the law, there is a maximum of 8 years, no minimum sentence, for either making a false statement in connection with international or domestic terrorism. A false statement on terrorism, 8 years maximum, no minimum; technical violation on registration, 5 years mandatory minimum, 20 years possibility.
Again, this amendment retains the 20-year maximum for cases such as those cited by the chairman, but it allows common sense in determining which offenders would get what sentence for what violations.
We have been told by the Sentencing Commission and the Judicial Conference time and time again that mandatory minimum sentences violate common sense. For someone who deserves the time, the mandatory minimum has no effect because they will get the time. For those who do not deserve the time, that violates common sense. They will get that time anyway.
In everyday experiences judges can see differences, great and small, in the facts and circumstances in the cases before them. The name of the crime is often a poor indicator of the facts and circumstances of the crime. So it makes sense to have a rational assessment by one who has heard and seen the evidence and facts and circumstances of the case making the appropriate decision within the guidelines set by the Sentencing Commission relating to the gradations in seriousness of the crime and the other characteristics. That is why we set up the Sentencing Reform Act that set up the Sentencing Commission, and these mandatory minimums obviously violate that entire system.
Of course, under the Federal system, the ones who will primarily be affected will be Native Americans because they try all their cases in Federal courts; and it is unfair to them and unfair to common sense where identical offenses can be committed, one by a Native American, another a few miles away, the same crime and vastly different sentences because the Native American is stuck in Federal court with the 5-year mandatory minimum. These mandatory minimums violate common sense, and so I am delighted to join the gentleman from South Carolina in this amendment and hope our colleagues will support it.
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AMENDMENTS NO. 4 AND 7 OFFERED BY MR. SCOTT OF VIRGINIA
Mr. SCOTT of Virginia. Mr. Chairman, I offer amendments 4 and 7, which unanimous consent was granted to consider at this point.
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Mr. SCOTT of Virginia. Mr. Chairman, these amendments eliminate section 302 from the bill. Section 302 is extremely problematic.
First of all, it includes a death penalty that applies to unintentional deaths. That raises severe constitutional problems that you could be put to death for an unintentional act. We already have penalties for the death penalty for intentional acts. This would add unintentional acts.
Over 100 people have been totally exonerated or otherwise released from death row due to erroneous death penalties, and one study showed that 68 of death penalties were overturned as illegal. That does not include the ones where mistakes were made for which the error was so-called ``harmless.'' Other studies have shown that death penalties have been discriminatory against minorities, either affecting the consideration, undue consideration of the race of the defendant or the race of the victim.
We, a few years ago, passed the Innocence Protection Act, which provides for effective counsel and case development to be well-funded, but we have not fully funded that Innocence Protection Act, so until it is fully funded, we should not be passing more death penalties.
In addition, section 302 includes mandatory minimums. Let us see what these mandatory minimums are for. Any felonious attack on someone under 18 years of age. That would include a schoolyard brawl which gets bad enough when they start throwing chairs at each other or something like that. If there is no injury in that situation, that is a 10-year mandatory minimum. If a dangerous weapon, whatever that means, is used, then you get 15 years, if there is no injury. Now, if there is actually an injury, then the mandatory minimum for this brawl for teenagers fighting teenagers would be 20 years; and if the crime of violence is a more serious offense, then 30 years mandatory minimum.
Starting with 10 years mandatory minimum for a schoolyard brawl, Mr. Chairman, is why these mandatory minimums make no sense. If the felony has been committed, maybe they should be sentenced to 10 years, maybe 20 years. This says no less than 10 years, even if there is no injury.
I would hope, Mr. Chairman, as we consider mandatory minimums that we would look at this as being excessive. Give the judge the discretion to apply a sentence that makes sense. But to have a mandatory minimum to apply in situations where no injury has occurred, no dangerous weapon was involved, 10 years mandatory minimum for teenagers having a fight, this just does not make any sense at all. If an injury actually occurs, it is actually 20 years mandatory minimum.
I would hope we would eliminate the entire section 302 to eliminate those mandatory minimums. There are plenty of provisions throughout this bill and throughout the Criminal Code to deal with people who deserve this kind of time, but to have a mandatory minimum in cases where no injury occurred is clearly excessive to be applied in all cases without discretion, whether it makes any sense or not.
We need to remove this section, and I hope that is what we do by adopting the amendment.
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AMENDMENT NO. 13 OFFERED BY MR. FLAKE
Mr. FLAKE. Mr. Chairman, I offer an amendment.
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Mr. SCOTT of Virginia. Mr. Chairman, I move to strike the last word.
Mr. Chairman, the language in the bill is bad enough. This just makes it worse. We should eliminate the section of the bill where the bill already severely restricts the right of those convicted of sex offenses from their access to appeal.
Many who have been exonerated through DNA or other evidence have been exonerated and released due to their access to habeas corpus petitions. Restricting access to habeas will result in more innocent people being put to death or languishing in jail for crimes they did not commit.
We have a serious question, Mr. Chairman, as to whether guilty people are entitled a fair trial. If you have a person who is not suggesting that they are actually innocent, but they just did not get a fair trial, they do not have access to habeas corpus anyway. An allegation of innocence is a prerequisite to getting into habeas corpus petitions anyway. This is just going to make it worse, and more innocent people will be in jail. I would hope we would not adopt the amendment to make it worse.
Mr. FLAKE. Mr. Chairman, will the gentleman yield?
Mr. SCOTT of Virginia. I yield to the gentleman from Arizona.
Mr. FLAKE. Mr. Chairman, I would simply point out that this applies only to the sentencing portion of the hearing or the sentencing portion of the trial, not the guilt or innocent phase. We are not limiting habeas corpus at all on that phase.
Mr. SCOTT of Virginia. Mr. Chairman, if you are going to have any review, I think it ought to be a full review: sentencing, conviction, and otherwise. I would hope that we would not make the bill any worse than it is, and the underlying provision is bad enough.
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AMENDMENT NO. 1 OFFERED BY MR. PENCE
Mr. PENCE. Mr. Chairman, I offer an amendment.
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Mr. SCOTT of Virginia. Mr. Chairman, I move to strike the last word.
Mr. Chairman, in the recent case of Free Speech Coalition v. Ashcroft, the Supreme Court indicated that if the material is not obscene it cannot be prohibited unless real children are involved. This amendment prohibits simulated conduct, digital images that may have been produced without real children being involved. If real children are not involved, the material has to be technically obscene to be prohibited.
The Supreme Court indicated in the decision that the fact that this material may whet someone's appetite or the nature of the case caused problems for law enforcement, those could not be the grounds for violating the Constitution in having material that is not obscene being prohibited.
The case, whether you like it or not, and bringing it up as a floor amendment means we cannot try to conform the language to the Supreme Court decision, so the only thing we can do is to vote against it if we believe in the Constitution and if we read Free Speech Coalition v. Ashcroft.
The Acting CHAIRMAN. The question is on the amendment offered by the gentleman from Indiana (Mr. Pence).
The amendment was agreed to.
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