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Children's Safety and Violent Crime Reduction Act of 2006

By:
Date:
Location: Washington, DC


CHILDREN'S SAFETY AND VIOLENT CRIME REDUCTION ACT OF 2006 -- (House of Representatives - March 08, 2006)

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Mr. CONYERS. Madam Speaker, I yield 4 minutes to the gentleman from Virginia (Mr. Scott), and no one has worked harder in this area than he.

Mr. SCOTT of Virginia. Madam Speaker, I thank the gentleman for yielding me this time.

Madam Speaker, this is a very difficult bill to try to debate because it includes a lot of different bills, everything except the hate crimes bill, which had broad support at least on this side. It includes a variety of slogans and sound bites, many of which have actually been shown to increase crime, disrupt orderly, proportionate, and fair sentencing, it wastes money and violates common sense.

Among these approaches are trying more juveniles as adults, the mandatory minimums, new death penalties, and habeas corpus restrictions, which is a process by which dozens of innocent people on death row have been able to show their innocence and escape the death penalty because they were innocent of the underlying charges. It also includes a national sex offender registry that includes misdemeanors and juveniles in the same kind of registration as the most serious predatory offenses.

If we are going to be serious about dealing with child sexual abuse, we ought to face the fact that virtually all of the abusers are either related to the child or at least known to the child's family. No studies have shown that these things actually reduce child abuse; and, in fact, anecdotal evidence would suggest that we might be actually increasing crime. Because the people who are the subject of these are unable to get a job, unable to live in any kind of neighborhood, have nothing to lose, the restrictive covenants now restricting where they can live, and all of these things may in fact increase crime. But there are certainly no studies to show that they have reduced by any measurable amounts the amount of child sexual abuse.

We are treating more juveniles as adults. That thing has been studied over and over again, and we know that treating more juveniles as adults will increase the crime rates. In every State, the most heinous crimes are already subject to juveniles being treated as adults. So if this passes, we are talking about those who are not now treated as adults who would be treated as adults under this bill. Those are the marginal cases.

We know that those marginal cases sent to adult court will not have education and psychological services and family services available in the juvenile court. They will either be locked up with adults or just released on probation. Whatever the adult court judge does will be more likely to have crime in the future than if the juvenile court can provide those services.

We know how to reduce juvenile crime. It is the prevention programs. And unlike many bills, there is actually some money in this bill for prevention programs. They work. So those provisions are actually meaningful. We also have reentry programs in here. They work and have been proven to reduce recidivism. So there are at least some provisions of the bill that have something to recommend them.

But the mandatory minimums in the bill have been studied. We know from all the studies that mandatory minimums have been shown to waste money, discriminate against minorities, and violate common sense. This bill includes mandatory minimums for juveniles that includes a 20-year mandatory minimum for a fistfight that results in a serious injury, and 10 years mandatory minimum if there is no serious injury; 10 years mandatory minimum for a fistfight in a school yard. This bill cannot be serious.

We have death penalties which have been proven to have no effect on crime. Innocent people are convicted. We have a habeas corpus provision that will eliminate the possibility that many of those who are innocent on death row, and we know there are many of them, will not have the opportunity to have their cases adjudicated.

We saw in the confirmation hearings for Justice Alito, when he was asked if an innocent person had a constitutional right against execution, and he didn't give a straight answer. We need to make sure people's rights are protected and that habeas corpus provisions are eliminated from the bill.

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Mr. CONYERS. Mr. Speaker, I yield 15 seconds to the gentleman from Virginia (Mr. Scott).

(Mr. SCOTT of Virginia asked and was given permission to revise and extend his remarks, and include extraneous material.)

Mr. SCOTT of Virginia. Mr. Speaker, I want to refer to a letter that says, ``For the first time, the statute would implicate a wide array of legitimate, mainstream businesses that have never been linked in any way to the sexual exploitation of children.'' It continues, ``In some instances, the proposed amendments are vague and offer little guidance as to what is required of those needing to comply, and in others, they impose requirements that are simply impossible to meet.''

The letter is signed by the Chamber of Commerce, the American Library Association, the National Association of Broadcasters, the National Cable and Telecommunications Association, Screen Actors Guild, American Association of Advertising Agencies, the American Association of Law Libraries and others.

February 7, 2006.
Hon. Orrin G. Hatch,
U.S. Senate,
Washington, DC.

Dear Senator Hatch: We are writing to express our continuing concern with the legislative language contained in S. 2140, the Prevention of Sexual Exploitation of Children Act that would significantly expand the scope of Title 18 U.S.C. §2257. As you know, we strongly support the objective of increasing the Justice Department's ability to combat child pornography and exploitation. The members of our broad coalition are committed to protecting children from exploitation. That is why we appreciate and acknowledge the efforts of the sponsors of S. 2140 to address many of the issues raised by prior attempts to amend §2257. However, serious concerns remain.

S. 2140 would significantly expand the types and categories of conduct that would trigger the requirements of §2257. For the first time, the statute would implicate a wide array of legitimate, mainstream businesses that have never been linked in any way to the sexual exploitation of children. S. 2140 dramatically expands the class of persons required to keep records and to label products under §2257. Many affected by the proposed expansion are businesses and individuals that have no actual contact or relationship with the performers in question. In some instances, the proposed amendments are vague and offer little guidance as to what is required of those needing to comply, and in others, they impose requirements that are simply impossible to meet. Expansion of §2257 as envisioned by the proposed legislation will likely divert even more resources toward legal challenges to the statute and away from the legislation's primary objective of prosecuting those who sexually exploit children.

It is important to note that since §2257 was passed in 1988, the inspection regime of the law has, to our knowledge, never been used. Rather than expanding the scope of §2257 to cover a myriad of lawful, legitimate, Main-street businesses, we believe effective enforcement of the existing regime is first necessary. Accordingly, any amendments to the statute should be narrow and focused on individuals that seek to harm young people.

Finally, from the outset of this process, we have been prepared to discuss the serious concerns our coalition has with the proposals to amend §2257. However, we are not involved in the negotiation of the current bill language. While we remain committed to working with all interested parties, we do not believe that in its current form, S. 2140 addresses the myriad of legitimate concerns raised by our coalition.

We applaud you for your continued leadership and dedication to protecting children and reiterate our commitment to work with you to address this serious issue.

Sincerely,
United States Chamber of Commerce; Video Software Dealers Association; Americans for Tax Reform; American Library Association; American Conservative Union; National Association of Broadcasters; National Cable & Telecommunications Association; Motion Picture Association of America; Screen Actors Guild; Media Freedom Project; American Hotel and Lodging Association; The American Federation of Television and Radio Artists; Magazine Publishers of America; Directors Guild of America; Digital Media Association; Computer & Communications Industry Association; Association of Research Libraries; The Creative Coalition; Association of National Advertisers; Association of American Publishers; American Association of Advertising Agencies; American Advertising Federation; American Booksellers Foundation for Free Expression; Publishers Marketing Association; Freedom to Read Foundation; American Association of Law Libraries

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Mr. SCOTT of Virginia. Mr. Speaker, I submit the following items for inclusion in the RECORD regarding the House floor consideration of H.R. 4472 on March 8, 2006.

Oppose H.R. 4472, the Children's Safety and Violent Crime Reduction Act of 2005

DEAR REPRESENTATIVE: On behalf of the American Civil Liberties Union, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nation-wide, we write to express our opposition to H.R. 4472, the Children's Safety and Violent Crime Reduction Act of 2005 (``Omnibus Crime''). H.R.4472 would create ten new federal death penalties and almost 30 new discriminatory mandatory minimums that infringe upon protected First Amendment speech, effectively eliminate federal and state prisoners' ability to challenge wrongful convictions in federal court, make it more difficult to monitor sex offenders and create more serious juvenile offenders by incarcerating children in adult prisons. H.R. 4472 is scheduled for a vote on the House floor on Wednesday, March 8, 2006; we strongly urge you to oppose this legislation.

CONGRESS SHOULD NOT EXPAND THE FEDERAL DEATH PENALTY UNTIL IT ENSURES INNOCENT PEOPLE ARE NOT ON DEATH ROW

The death penalty is in need of reform, not expansion. According to the Death Penalty Information Center, 123 prisoners on death row have now been exonerated. Chronic problems, including inadequate defense counsel and racial disparities, plague the death penalty system in the United States. The expansion of the death penalty for gang and other crimes creates an opportunity for more arbitrary application of the death penalty.

In addition to expanding the number of federal death penalty crimes, this bill also expands venue in capital cases, making any location even tangentially related to the crime a possible site for the trial. This raises constitutional as well as public policy concerns. The U.S. Constitution states that ``the Trial of all Crimes ..... shall be by Jury; and shall be held in the State where the said Crimes shall have been committed.'' This concept is important in order to prevent undue hardship and partiality when an accused person is prosecuted in a place that has no significant connection to the offense with which he is charged. This proposed change in H.R. 4472 would increase the inequities that already exist in the federal death penalty system, giving prosecutors tremendous discretion to ``forum shop'' for the most death-friendly jurisdiction in which to try their case.

In carjacking cases, this legislation would effectively relieve the government from having to prove that a person intended to cause the death of a person before being subject to the death penalty. This provision is likely unconstitutional in the context of capital cases. In addition, the bill would allow the death penalty for attempt and conspiracy in carjacking cases, which we believe is unconstitutional.

H.R. 4472 ERODES FEDERAL JUDGES' SENTENCING DISCRETION BY PROPOSING HARSHER MANDATORY MINIMUM SENTENCES

This legislation would create 29 new mandatory minimum sentences that would result in unfair and discriminatory prison terms. Many of the criminal penalties in this bill are increased to mandatory minimum sentences, including the sentence for second-degree murder that would be a mandatory sentence of 30 years. Although, in theory, mandatory minimums were created to address disparate sentences that resulted from indeterminate sentencing systems, in reality they shift discretion from the judge to the prosecutor. Prosecutors hold all the power over whether a defendant gets a plea bargain in order for that defendant to avoid the mandatory sentence. This creates unfair and inequitable sentences for people who commit similar crimes, thus contributing to the very problem mandatory minimums were created to address.

PEOPLE COULD BE CONVICTED OF A ``GANG'' CRIME EVEN IF THEY ARE NOT MEMBERS OF A GANG

This legislation would impose severe penalties for a collective group of three or more people who commit ``gang'' crimes. This bill amends the already broad definition of ``criminal street gang'' to an even more ambiguous standard of a formal or informal group or association of three (3) or more people who commit two (2) or more ``gang'' crimes. The number of people required to form a gang decreases from five (5) people in an ongoing group under current law to three (3) people who could just be associates or casual acquaintances under this proposed legislation. Under current law it is essential to establish that a gang had committed a ``continuing series of offenses.'' By eliminating this requirement, H.R. 4472 defeats the purpose of a gang law, i.e. to target criminal activity that has some type of connection to a tight knit group of people that exists for the purpose of engaging in illegal activities.

H.R. 4472 JEOPARDIZES A PERSON'S RIGHT TO A FAIR TRIAL

Innocent people could be convicted of crimes they did not commit if the statute of limitations is extended as proposed in this legislation. The Omnibus Crime bill proposes to extend the statute of limitations for non-capital crimes of violence. Generally, the statute of limitations for non-capital federal crimes is five (5) years after the offense is committed. Fifteen years after a crime is committed, alibi witnesses could have disappeared or died, other witnesses' memories could have faded and evidence may be unreliable. The use of questionable evidence could affect a person's ability to defend him or herself against charges and to receive a fair trial.

This legislation would also preclude defense attorneys in child pornography cases from obtaining possession of the alleged child pornography, possibly depriving the defendant of a fair trial. This provision is entirely unnecessary, since federal courts routinely issue extremely restrictive protective orders regarding alleged child pornography. These protective orders preclude duplication or review of the alleged child pornography except as necessary for the preparation of the defense. Giving the government sole possession of the material may well harm the defendant's case. Forensic analysis is often critical in determining whether the material is, in fact, child pornography.

TITLE VI INFRINGES UPON CONSTITUTIONALLY PROTECTED SPEECH UNDER THE FIRST AMENDMENT

The legislation would require record keeping for simulated sexual conduct. Simulated sexual conduct that is not obscene is protected under the First Amendment. ``Laws that burden material protected by the First Amendment must be approached from a skeptical point of view and must be given strict scrutiny.'' The fact that those laws only burden rather than prohibit protected material does not save them constitutionally.

This provision of the bill infringes upon protected speech and is not narrowly tailored to solve the problems of child pornography. Understandably, mainstream producers will comply with the law, but those who are intent on making child pornography are unlikely to do so. This provision is therefore constitutionally suspect.

FEDERAL COURTS WOULD ESSENTIALLY BE UNABLE TO RELEASE SOME PEOPLE ON DEATH ROW WHO WERE WRONGFULLY CONVICTED

Most habeas corpus petitions that challenge a person's death or criminal sentence are brought to federal court based on a constitutional error that under the law is considered ``harmless'' or ``non-prejudicial.'' These types of legal errors do not involve substantial rights and do not necessarily result in a person being released from custody. H.R. 4472 would prevent federal courts from hearing claims in death penalty cases that involve claims of cruel and unusual punishment under the Eighth Amendment or whether a defendant's lawyer was ineffective during the sentencing phase of a capital case.

This provision of the bill has serious implications for the independence of the federal judiciary. Congress' attempt to strip Article III courts of their constitutional habeas corpus jurisdiction is unconstitutional under the doctrine of Separation of Powers. Removing jurisdiction over many habeas claims from Federal courts ignores the Separation of Powers doctrine by eliminating the role of the courts in upholding constitutional rights of prisoners.

H.R. 4472 WOULD RESULT IN THE ROUTINE COLLECTION AND PERMANENT RETENTION OF DNA SAMPLES AND PROFILES FROM INNOCENT PEOPLE

The ``Violence Against Women Act of 2005'' (VAWA) was signed into law on January 5, 2006, (P.L. No: 109-162) and dramatically expands the government's authority to collect and permanently retain DNA samples. Under this law, persons who are merely arrested or detained by federal authorities would be forced to have their DNA collected and stored alongside those of convicted felons in the Federal DNA database. However, under current law, DNA samples that are voluntarily submitted to law enforcement authorities are not included in the Combined DNA Indexing System (CODIS). In addition, DNA profiles of individuals arrested but not convicted of crimes can be expunged from CODIS upon receipt of a ``certified copy of a final court order establishing that such charge has been dismissed or has resulted in an acquittal.''

However, H.R. 4472 would permit voluntarily submitted samples to be included in CODIS and would eliminate the expungement provision for people whose DNA was incorporated in the federal database based on an arrest that never resulted in a conviction. Retaining a person's DNA in a criminal database renders him or her an automatic suspect for any future crime. This is problematic for any category of tested persons, but especially for those who have been arrested but not convicted of a crime.

In addition, the Omnibus Crime bill would allow states to upload to CODIS DNA samples submitted voluntarily in order to eliminate people as suspects of a crime. This will increase the use by law enforcement of DNA ``sweeps'' and reducing the willingness of citizens to cooperate with the police.

H.R. 4472 WILL MAKE IT MORE DIFFICULT TO MONITOR SEX OFFENDERS BY SIMPLY FORCING OFFENDERS UNDERGROUND

The proposed legislation requires sex offenders to update registry information within 5 days of a change in residence, employment or student status. This requirement is unrealistic and works against the goal of being able to monitor sex offenders. If the registration requirements are unrealistic, offenders will fail to register and end up underground, which is contrary to the goal of tracking and locating them. Under the Omnibus Crime bill, states will be required to verify sex offender registry information in persons possibly as frequently as once every three months and required to verify their residences as often as once every month depending on the class of offender. This will be an enormous burden on the states to create and implement systems to track sex offenders on a monthly basis.

The bill will also require the work addresses of sex offenders to be available on the Internet. Publicizing information about employers and their addresses on the Internet could ultimately lead to employers refusing to hire former sex offenders. Research has shown that significant supervision upon release and involvement in productive activities are critical to preventing sex offenders from reoffending. Limiting the opportunities of sex offenders to maintain gainful employment is counter-productive to their rehabilitation as well as to keeping communities safe.

CHILDREN WOULD BE PUT IN FEDERAL PRISON WITH LITTLE OPPORTUNITY FOR EDUCATION OR REHABILITATION

Under the Omnibus Crime bill, more children will become hardened criminals after being tried in Federal court and incarcerated in adult prisons. H.R. 4472 would give prosecutors the discretion to determine when to try a young person in Federal court as an adult, if the juvenile is 16 years of age or older and commits a crime of violence. The decision by a prosecutor to try a juvenile as an adult cannot be reviewed by a judge under this legislation. This unreviewable process of transferring youth to adult Federal court is particularly troubling when juveniles are not routinely prosecuted in the Federal system and there are no resources or facilities to address the needs of youth.

For the above-mentioned reasons, we urge members to oppose H.R. 4472 when the House votes on the bill on March 8, 2006.

Sincerely,

Caroline Fredrickson,

Director,

Jesselyn McCurdy,

Legislative Counsel

Human Rights Watch Letter

DEAR MEMBERS OF THE HOUSE OF REPRESENTATIVES: We write to urge you to vote against the Omnibus Crime Bill, H.R. 4472, which is scheduled for a vote on Wednesday, March 8, 2006. This legislation would at the whim of the Attorney General subject children to adult trials and adult penalties, impose a wide array of new, harsh mandatory minimum sentences, and mandate prolonged registration for former sex offenders, even if they have remained offense-free for decades after being released from prison.

The following provisions of the bill are of particular concern:

Juvenile Transfer Provisions: Under this legislation, the Attorney General could make unreviewable and unilateral decisions to subject children to adult trials and adult sentences. Under current law, children can generally only be tried and sentenced as adults after a transfer hearing, where a court considers the age and background of the child and determines whether a transfer serves the interest of justice. Under H.R. 4472, these teenagers would be subject to adult sentences, including life without parole, regardless of their vulnerability and capacity for reform.

More than 20 years of experience across the nation has revealed that subjecting children to adult sentences is an ineffective, unjust, and costly means of combating crime. Certainly, children can and do commit terrible crimes, and when they do, they should be held accountable. Yet, they should be held accountable in a manner that reflects their special capacity for rehabilitation. There is no legitimate basis for granting the Attorney General the unchecked authority to subject an increased number of children to adult sanctions.

Mandatory Minimums: The legislation would impose harsh, new mandatory minimums for a wide array of crimes, including crimes of conspiracy, aiding, and abetting. Punishment should be tailored to the conduct of the individual, including his or her role in the offense and his culpability. Blanket mandatory minimums tied to one or two factors do little to protect community safety at high cost to the criminal justice system. This legislation incorporates three bills that have already passed the House, H.R. 1279 (``Gang Deterrence Act of 2005''), H.R. 3132 (``Children's Safety Act of 2005''), and H.R. 1751 (``Secure Access to Justice and Court Protection Act of 2005''), with some modifications. It does not include the hate crime enhancement and gun prohibition provisions that passed as part of H.R. 3132.

If anything, Congress should be looking for ways to eliminate mandatory minimums and restore judicial discretion, proportionality, and fairness in sentencing.

Expansion of the Federal Death Penalty: The legislation greatly expands the number of federal crimes that carry the death penalty. This expansion of the death penalty is at odds with the growing recognition that the criminal justice system is fallible, arbitrary and unfair, and does not deter crime. There is no legitimate basis for expansion of this inherently cruel and immutable punishment.

Registration Requirements for Low-Level Offenders: There may be legitimate community safety rationales for requiring, for a limited period of time, certain sexual offenders to register. There is, however, no legitimate community safety justification for the provisions in this legislation that require offenders to register for the rest of their lives, regardless of whether they have lived offense free for decades. There is also no legitimate community safety goal served by the provisions that impose 20-year registration requirements on low-level or misdemeanor offenders. These registration requirements are imposed on individuals who have already served their sentences and are attempting to reintegrate into the community. Registration requirements put these individuals at risk of retaliation and discrimination and make it extremely difficult for these individuals to find employment, housing, and to rebuild their lives.

Human Rights Watch fully supports holding accountable those who violate the rights of others. But commission of a crime, even a crime that involves sexual misconduct, should not be license to run roughshod over principles of fairness and proportionality. Human Rights Watch urges you to vote against H.R. 4472.

Respectfully submitted,

Jennifer Daskal,
Advocacy Director, U.S. Program.

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