<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:21652.wais]
PROTECTION AGAINST SEXUAL EXPLOITATION OF CHILDREN ACT OF 2005, AND THE
PREVENTION AND DETERRENCE OF CRIMES AGAINST CHILDREN ACT OF 2005
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
H.R. 2318 and H.R. 2388
----------
JUNE 7, 2005
----------
Serial No. 109-33
----------
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciaryFOR
SPINE deg.
PROTECTION AGAINST SEXUAL EXPLOITATION OF CHILDREN ACT OF 2005, AND
THE PREVENTION AND DETERRENCE OF CRIMES AGAINST CHILDREN ACT OF 2005
PROTECTION AGAINST SEXUAL EXPLOITATION OF CHILDREN ACT OF 2005, AND THE
PREVENTION AND DETERRENCE OF CRIMES AGAINST CHILDREN ACT OF 2005
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
H.R. 2318 and H.R. 2388
__________
JUNE 7, 2005
__________
Serial No. 109-33
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
U.S. GOVERNMENT PRINTING OFFICE
21-652 WASHINGTON : 2005
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona ADAM SMITH, Washington
MIKE PENCE, Indiana CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida MAXINE WATERS, California
STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
Jay Apperson, Chief Counsel
Elizabeth Sokul, Special Counsel for Intelligence
and Homeland Security
Jason Cervenak, Full Committee Counsel
Michael Volkov, Deputy Chief Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
----------
JUNE 7, 2005
OPENING STATEMENT
Page
The Honorable Mark Green, a Representative in Congress from the
State of Wisconsin and Member of the Subcommittee on Crime,
Terrorism, and Homeland Security............................... 1
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 3
WITNESSES
Ms. Laura Parsky, Deputy Assistant Attorney General, Criminal
Division,
Oral Testimony................................................. 6
Prepared Statement............................................. 8
The Honorable Charlie Crist, Attorney General, State of Florida
Oral Testimony................................................. 11
Prepared Statement............................................. 13
Mrs. Carol Fornoff, Mesa, Arizona, mother of a murdered child
Oral Testimony................................................. 16
Prepared Statement............................................. 19
Mr. John Rhodes, Assistant Federal Defender, Federal Defenders of
Montana
Oral Testimony................................................. 38
Prepared Statement............................................. 40
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 67
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas............. 69
Center for Sex Offender Management, ``Recidivism of Sex
Offenders,'' May 2001, available ar http://www.csom.org/pubs/
recidsexof.pdf................................................. 70
Dennise Orlando, `Sex Offenders,'' Special Needs Bullentin No. 3,
September 1998................................................. 90
Department of Rehabilitation and Correction, State of Ohio,
``Ten-Year Recidivism Follow-Up of 1989 Sex Offender
Releases,'' April 2001, available at http://
www.drc.state.oh.us/web/Reports/Ten--Year--Recidivism.pdf...... 110
U.S. Department of Justice, 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................................................ 140
U.S. Sentencing Commission, ``Report of the Native American
Advisory Group,'' November 4, 2003, available at http://
www.ussc.gov/NAAG/NativeAmer.pdf............................... 188
Jan Looman, Jeffrey Abracen, and Terry P. Nicholaichuk,
``Recidivism Among Treated Sexual Offenders and Matched
Controls,'' Journal of Interpersonal Violence, Vol. 15 No. 3,
March 2000..................................................... 237
Letter from the Honorable Jon Kyl to the Honorable F. James
Sensenbrenner, Jr. (June 9, 2005).............................. 249
Senator Jon Kyl, Introduction of the Streamlined Procedures Act,
Congressional Record, pages S5540-S5543........................ 257
The Streamlined Procedures Act Section-by-Section Analysis,
submitted by the Honorable Senator Jon Kyl..................... 262
S.1088 the ``Streamlined Procedures Act of 2005,'' submitted by
the Honorable Senator Jon Kyl.................................. 272
U.S. Department of Justice, Bureau of Statistics, ``Criminal
Offenders Statistics,'' available at http://www.ojp.usdoj.gov/
bjs/crimoff.htm................................................ 290
Letter from John Rhodes, Assistant Federal Defender to Bobby
Vasser, Minority Counsel, Subcommittee on Crime, Terrorism, and
Homeland Security.............................................. 301
PROTECTION AGAINST SEXUAL EXPLOITATION OF CHILDREN ACT OF 2005, AND THE
PREVENTION AND DETERRENCE OF CRIMES AGAINST CHILDREN ACT OF 2005
----------
TUESDAY, JUNE 7, 2005
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 2:05 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Mark
Green (acting Chair of the Subcommittee) presiding.
Mr. Green. Good afternoon, everyone. I want to welcome
everyone to this important hearing to examine the national
epidemic of crimes against our Nation's children. In recent
months, our country has been shocked and outraged by a series
of brutal attacks against our children. Two of these recent
brutal attacks were committed by criminals in Florida. Nine-
year-old Jessica Lunsford was abducted, raped and buried alive
and eventually died. And 13-year-old Sarah Lunde was brutally
murdered. Both of these young girls were murdered by convicted
sex offenders.
Just 2 weeks ago, also in Florida, a missing 8-year-old
girl was found buried under rocks inside a trash bin. A 17-
year-old was later charged with attempted murder and sexual
battery of the young child. These tragic events in Florida
occurred after a disturbing series of events in other parts of
the country.
In Iowa, Jetsetta Gage, a 10-year-old girl, was abducted
from her Cedar Rapids home last March and raped and murdered by
a sex offender convicted of prior lascivious acts with a child.
In Los Angeles, a 58-year-old suspect was charged this past
April with child molestation charges and is accused of
victimizing numerous young boys over a 25-year period. In that
same month in California, three men were convicted of sexually
assaulting an unconscious teenage girl as they videotaped the
brutal sexual attack on a pool table at the home of the
millionaire father of one of the offenders.
Last month, an Oregon judge sentenced a sex offender to
eight additional years in prison for sexually abusing a woman
when she was 4 and 5 years old. The offender was already in
prison for molesting a 3-year-old boy after abducting the 3-
year-old and his 1-year-old brother. The record shows that he
has a history of rape, molestation and torture going back to
the age of 7, attacking family members, school teachers,
setting fires, and torturing animals.
Or take the case of infamous child molester, Larry Don
McQuay, who was released from prison in Texas. He claimed to
have molested more than 200 children and vowed to kill the next
child he molested. McQuay served 8 years of a 25-year sentence
when his release was mandated under Texas law, and he is now
back in the community.
Sadly, these are just a few examples of the brutal acts of
violence and exploitation of our children occurring each and
every day. Consider these facts: Statistics show that one in
five girls and one in 10 boys are sexually exploited before
they reach adulthood, yet less than 35 percent of the incidents
are actually reported to the authorities. According to the
Department of Justice, one in five children receive unwanted
sexual solicitations online, 67 percent of all victims of
sexual assault were juveniles, and 34 percent were under the
age of 12. One of every 7 victims of sexual assault was under
the age of 6.
I have introduced two bills, which are the subject of
today's hearing, H.R. 2318 and H.R. 2388, each of which
addresses the problems of sexual exploitation of children and
crimes of violence against children respectively. These
measures include mandatory minimum penalties which reflect the
seriousness of the violent crimes and sexual exploitation of
children.
Mr. Green. Under H.R. 2388, for Federal crimes of
kidnapping, maiming, or aggravated sexual abuse, a sex offender
will be subject to a 30-year mandatory minimum. For assaults
resulting in serious bodily injury, that is nearly killing or
permanently disabling a child, sexual offenders will face a
mandatory minimum of 20 years. And for all other crimes of
violence against a child, offenders will face a 10-year
mandatory minimum penalty. Similarly for sexual exploitation
crimes, offenders will face increased mandatory minimum
penalties depending on the severity of the crime, the age of
the victim, and the circumstances of the offense.
In 2003, Congress enacted the PROTECT Act, which sought to
restrict the ability of Federal judges to grant downward
departures in cases involving sex crimes and exploitation of
our children. The data shows that while in effect, the law was
working and the number of unwarranted downward departures was
falling. Since the Supreme Court's decision in United States
versus Booker, which rendered the Federal sentencing guidelines
advisory, the need for mandatory minimum penalties in certain
areas has become even more critical. Congress has an
institutional right to prescribe the sentencing of criminal
defendants to reflect the will of the people.
Mandatory minimum penalties are favored overwhelmingly by
the American public because they are not willing to entrust
Federal judges to act in a consistent manner when sentencing
sexual predators for sexual abuse and exploitation of our
children. Some on the bench will be attempted to coddle sex
offenders, to ignore the rights of the law-abiding public to
live free from crime in the neighborhoods and seek to deviate
from sentencing guidelines with what they feel is reasonable.
In the absence of the mandatory sentencing guideline
scheme, mandatory minimum penalties are the only way in which
Congress can ensure that fair and consistent sentences to these
dangerous sexual predators are handed out at the Federal level.
Congress must act now and must do so to protect our Nation's
youth from sexual predators in our communities and online on
the Internet. We simply have no greater resource than our
children. It has been said that the benevolence of a society
can be judged on how well it treats its old people and how well
it treats its young. Our children represent our Nation's
future. I am anxious to hear from our distinguished panel of
witnesses and now yield to the Ranking Minority Member of this
Subcommittee, the gentleman from Virginia, Mr. Bobby Scott.
Mr. Scott. Thank you, Mr. Chairman and I appreciate you
convening this hearing. But as usual, every 2 years we are
pontificating about child crimes and dramatically increasing
Federal sentences, and we are doing so despite the fact that
crimes against children prosecuted in Federal Court constitute
a miniscule percentage of such crimes and represent none of the
horrendous crimes against children that have been in the media
in recent months. There is no evidence that Federal
prosecutions of crimes against children has any significant
impact on these horrendous State crimes against children, nor
do we have any evidence that either State or Federal law for
crimes against children are too lenient. Indeed, we recently
dramatically increased Federal sentences for crimes against
children in the PROTECT Act. We have not had enough time or
enough cases to determine whether or not these draconian
increases in Federal sentences has had any effect on crime.
We are moving forward dramatically increasing Federal
sentences, also in the worst possible way, through increased
mandatory minimum sentences. Mandatory minimum sentences only
affect those offenses or those offenses or those who have a
role in an offense which would warrant a less severe sentence,
since those who warrant the mandatory minimum or even a more
serious sentence get those under the sentencing guidelines. I
call attention to the recommendations released today by a group
of bipartisan philosophically diverse scholars and high level
current and former public policy makers, including former
Attorney General Ed Meese, and former Deputy General Phil
Hayman indicating that sentencing policies should provide for
proportionality and sufficient flexibility to reflect
differences in the role and background of the offenders.
These increases are occurring at a time when the evidence
from the Department of Justice is that for sex offenders the
recidivism rate is lower than other offenders in general with a
5 percent recidivism rate for new sex offenses and a 3.3
percent recidivism rate for child molesters recidivating with a
new offense of that nature. I will ask this study and four
others from other sources be made part of the record.
[The information referred to follows in the Appendix]
Mr. Scott. Also the evidence reveals that the low
recidivism rate is cut in half with sexual abuse treatment.
While recidivism is bad, 3 to 5 percent rates with the prospect
of that being cut in half do not suggest that the situation is
hopeless, yet there is nothing in any of these bills to ensure
treatment for these offenders who seek treatment or are already
receiving sentences and will be leaving prison soon. The bills
before us suggest that it is better to wait for the
victimization to occur and then apply draconian penalties.
One of our speakers at an earlier hearing on the subject,
criminologist and law professor Frank Zimmer of the Berkeley
School of Law pointed out that treating all offenses and
offenders the same and mandating life sentences for repeat
offenders regardless of the crime, may actually endanger more
children than it helps. He expressed the concern that putting
the offender in the position of concluding that once a crime is
completed or attempted, he is facing a minimum of a life
sentence, he will more likely conclude that the best chance of
avoiding detection would be to kill the victim and the witness.
Certainly, this question should be considered against the
conventional justification for harsh mandatory minimum
sentences of forcing co-defendants to testify against their
partners in crime since these crimes are more often than not
carried out by lone offenders. We also know that greatly
increasing Federal sentences would disproportionately affect
Native Americans simply because they are more likely to fall
under Federal jurisdiction whereas those who are committing the
horrendous crimes giving rise to this Federal sentencing frenzy
actually fall under State jurisdiction.
We are also doing so without consulting the Native American
tribal authorities as we have in the past, when we dramatically
increase sentencing, such as we did with three strikes and you
are out and the death penalty and the 1994 crime bill. There is
no evidence that Native Americans have asked that offenders on
tribal lands be treated more harshly than offenders in State
courts now right next to them, and it simply appears that
having politicians being able to prove how tough they are on
crime in an election year is more important than giving plain
fairness to Native Americans and respecting their tribal
sovereignty.
Finally, Mr. Chairman, the provisions of the bill before us
exacerbate the already horrendous Federal sentencing scheme.
For example, under the PROTECT Act, we provided a 5-year
mandatory minimum sentence to transport a minor across State
lines or international lines to commit any criminal sex offense
involving a minor. This bill increases that mandatory minimum
to 30 years. This means that an 18-year-old high school student
who transports a minor or causes a minor to travel from
Washington D.C. to Virginia to engage in consensual sex,
thereby committing the crime of contributing to the delinquency
of a minor would be subject to a 30-year mandatory minimum
sentence. One can only imagine how many times this law was
violated in this area during prom season and what possible
sense does it make to mandate a 30-year sentence? And if our
goal, Mr. Chairman, is to reduce incidents of child abuse, we
have to look at the cost effectiveness of these initiatives. If
we are going to sentence somebody to a mandatory minimum of 30
years in prison, we have to look at the cost and what we could
have done with that similar amount of money in child abuse
prevention programs.
Under H.R. 2388 it appears that a mere fist fight between
teenagers if one is under 18 and is even slightly injured would
require a mandatory minimum sentence, even if the younger teen
was the instigator. The provision limiting habeas corpus
jurisdiction will only increase litigation and delays and
increase the risk that innocent people will be put to death.
Several of the 159 people that were exonerated of their
crimes in the last 10 years, including some on death row,
received exoneration more than 20 years after their conviction.
I look forward to the testimony and enlightenment of our
witnesses on the bills before us and thank you for convening
the hearing.
Mr. Green. Thank you, Mr. Scott. It is the practice of the
Subcommittee to swear in all witnesses appearing before it. I
would ask the witnesses to stand and raise their right hands.
[Witnesses sworn.]
Mr. Green. Let the record show that each of the witnesses
answered in the affirmative, please be seated. We have four
distinguished witnesses with us today. I will introduce three
of the witnesses and then turn to Mr. Keller of Florida for an
introduction of our fourth. Our first witness is Laura Parsky,
the deputy assistant attorney general of the criminal division
at the United States Department of Justice. In addition to
serving at the Department of Justice, Ms. Parsky has served as
director of the international justice and contingency planning
at the National Security Council. She graduated from Yale
University and obtained her law degree from Bolt Hall School of
Law at the University of California at Berkeley. Following law
school, Ms. Parsky clerked for the Honorable D. Lowell Jenson
of the United States District Court for the northern district
of California.
Our second witness is Carol Fornoff. Mrs. Fornoff is a
mother of seven in Mesa, Arizona. In 1984, Mrs. Fornoff's 13-
year-old daughter Christy Ann was brutally murdered by a
criminal who is still on death row awaiting another round of
habeas review. We look forward to Mrs. Fornoff's testimony
regarding this horrible tragedy before the Subcommittee today.
Our third witness will be Mr. John Rhodes, assistant
Federal defender and branch chief of the Missoula branch office
in Montana. Mr. Rhodes previously served a temporary duty
assignment with the defender services division of the
Administrative Office of the United States Courts. Prior to
working at the defender services division, he served 6 months
as special counsel and visiting Federal defender at the United
States Sentencing Commission.
Previously, Mr. Rhodes worked as a State public defender
and as an associate with Dorsey and Whitney. Mr. Rhodes is a
graduate of DePauw University and Harvard Law School.
Mr. Keller.
Mr. Keller. Thank you, Mr. Chairman. I am very pleased
today to introduce to the Crime Subcommittee, my friend,
Charlie Crist, the Attorney General for the State of Florida.
Attorney General Crist has been a real champion in Florida when
it comes to cracking down against child molesters by making
sure they serve longer sentences and by using innovative
technology to track their whereabouts. As a State Senator from
'92 to '98, Mr. Crist sponsored the stop-turning-out-prisoners
legislation, which requires criminals to serve at least 85
percent of their criminal sentence.
In November of 2002, Mr. Crist was elected Florida's first
Republican Attorney General. For the past 2\1/2\ years,
Attorney General Crist has led the fight to establish longer
prison sentences for criminals who sexually molest children and
to require tracking devices once they do get out. Attorney
General Crist understands that the best way to protect young
children is to keep child predators locked up in the first
place, because someone who has molested a child will do it
again and again and again.
For example, earlier this year, two young Florida girls, 9-
year-old Jessica Lunsford and 13-year-old Sarah Lunde were
abducted, raped and killed. Both men who confessed to these
horrific crimes were convicted sex offenders and career
criminals. Mr. Crist takes these crimes personally and has
traveled here to Washington today to help do something about
this nationwide problem. Mr. Attorney General, we are honored
to have you with us today. We applaud your efforts to protect
the young people of Florida and we look forward to your
testimony today.
Mr. Green. Thank you, Mr. Keller. We do have written
testimony from each of our witnesses. We would ask if possible
to limit their testimony to 5 minutes. And we will begin with
Ms. Parsky. Welcome.
TESTIMONY OF LAURA PARSKY, DEPUTY ASSISTANT ATTORNEY GENERAL,
CRIMINAL DIVISION, DEPARTMENT OF JUSTICE
Ms. Parsky. Thank you. Mr. Chairman, Ranking Member Scott,
and distinguished Members of the Subcommittee. Thank you for
inviting me to testify before you today on sexual crimes
against children and two legislative proposals to address this
critical topic. As we all know, crimes against children are
terrible and reprehensible acts. In addition to the tragedy of
violent crimes against children, the sexual abuse and
exploitation of children is particularly horrific, and this
horror is often exacerbated by child molesters who memorialize
their repugnant crimes in photographs and videos.
We, as a Nation, must stand together to fight against these
crimes and must explore every avenue for strengthening Federal
laws in this area. Therefore, I commend you for holding this
hearing today. 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
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. We should be ever mindful that
each image of what we call child pornography graphically
depicts the sexual abuse of an innocent child.
Further, once on the Internet, the images are passed
endlessly from offender to offender and are perhaps used to
whet the appetite of a pedophile to act out the deviant
fantasies of the image on yet another child thereby continuing
the cycle of abuse. 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, and, therefore, are often prosecuted under
Federal law. While sexual abuse of children is typically
prosecuted under State law, child sexual abuse on Federal lands
such as a military base or an Indian territory may be
prosecuted under Federal law. Accordingly, Federal laws
prohibiting sexual abuse has an important role in combating
these crimes.
Sexual crimes against children are a growing problem. For
example, the number of Federal child pornography cases has more
than tripled from fiscal year 1997 to fiscal year 2004. Child
abuse and neglect cases are also increasing. Accordingly, a
Federal legislative response is warranted and important. The
Department of Justice is working hard to combat child
exploitation and sexual abuse crimes. For example, the criminal
division's child exploitation and obscenity's section already
has generated more than a 445 percent increase in its caseload
over the past 2 years. The Department has also made great
strides in responding to the misuse of advancing technologies
in child exploitation offenses. In August 2002, the Department
created the high tech investigative unit comprised of computer
forensic specialists equipped to ensure the Department's
capacity to prosecute the most complex and advanced offenses
against children committed online. In addition, the Department
focuses its efforts on investigations that have the maximum
deterrent impact, including nationwide child pornography
operations that involve hundreds or thousands of offenders.
The Department also targets advancing Internet technologies
to keep pace with the criminal exploitation of technology in
the realm of crimes against children and works toward the
critical goal of identifying the victims depicted in images
depicted in child pornography. Several examples of these
efforts are detailed in my written statement. A chilling
example of the important work the Department is doing to fight
child exploitation is the case of United States versus Mariscal
prosecuted in the southern district of Florida. In that case,
defendant Angel Mariscal was sentenced last September to a 100-
year prison term following his conviction on seven counts
involving the production of child pornography and related
offenses. Mariscal traveled repeatedly over a 7-year period to
Cuba and Ecuador where he produced and manufactured child
pornography including videotapes of himself sexually abusing
minors, some of them under the age of 12.
More than 100 victims were filmed exposing their genitals
and/or engaging in sexual activity with the defendant and at
least two adult female co-conspirators. Mariscal further
endangered these minors by being HIV positive. Thankfully none
of the identified victims has yet tested positive for HIV.
After videotaping the children using a camcorder, the
defendant imported the tapes, reproduced them onto CD ROMS or
VHS in Miami and distributed the CD ROMS and VHS tapes
throughout the United States by mail or Federal Express.
Mariscal's arrest has led to the prosecution of many of his
U.S. customers through the coordinated efforts of the U.S.
Postal Inspection Service. The Department of Justice deeply
appreciates recent legislation that Congress has passed to
combat child exploitation crimes such as the PROTECT Act. This
extremely useful legislation includes provisions that imposes
mandatory life imprisonment for defendants who commit two or
more sex offenses against minors, permits supervised release
for up to life for child exploitation crimes, and makes it a
crime to travel in foreign commerce and engage in illicit
sexual conduct with a minor regardless of whether that was the
purpose of the travel.
The Department is still reviewing the bills that are being
discussed in today's hearing. We are grateful to the Committee
for pursuing additional legislation to combat these terrible
crimes and look forward to working with you on this and any
other legislation that will help protect our children from
violence and sexual exploitation. I thank you and the
Subcommittee for the opportunity to speak to you today. And I
would be happy to answer any questions.
Mr. Green. Thank you.
[The prepared statement of Ms. Parsky follows:]
Prepared Statement of Laura H. Parsky
INTRODUCTION
Mr. Chairman, Ranking Member Scott, and distinguished Members of
the Subcommittee, thank you for inviting me to testify before you today
on sexual crimes against children and two legislative proposals to
address this critical topic, H.R. 2388, the ``Prevention and Deterrence
of Crimes Against Children Act of 2005,'' and H.R. 2318, the
``Protection Against Sexual Exploitation of Children Act of 2005.''
Generally, H.R. 2388 would mandate minimum sentences in all cases
involving violent crimes against children, while H.R. 2318 would
mandate minimum sentences in cases involving the sexual abuse and
sexual exploitation of children.
As we all know, such crimes against children are terrible and
reprehensible acts. In addition to the tragedy of violent crimes
against children, the sexual abuse and exploitation of children is
particularly horrific, and this horror is often exacerbated by child
molesters who memorialize their repugnant crimes in photographs and
videos. We all, as a nation, must stand together to fight against these
crimes and must explore every avenue for strengthening federal laws in
this area; therefore, I commend you for holding this hearing.
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 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. We should be ever mindful that each image
of what we call child pornography graphically depicts the sexual abuse
of an innocent child. Further, once on the Internet, the images are
passed endlessly from offender to offender and perhaps used to whet the
appetite of a pedophile to act out the deviant fantasies of the image
on yet another child, thereby continuing the cycle of abuse. 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 in Indian
territory, depending on the circumstances, 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 ARE A GROWING PROBLEM
Crimes against children such as child exploitation and sexual abuse
are unfortunately 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. Sections 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 the Department of Health and Human
Services' 2003 report on child maltreatment, an estimated 906,000
children were victims of child abuse or neglect. 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 warranted and
important.
THE DEPARTMENT OF JUSTICE IS AGGRESSIVELY FIGHTING CRIMES AGAINST
CHILDREN
The Department of Justice is working hard to combat child
exploitation and sexual abuse crimes. For example, the Criminal
Division's Child Exploitation and Obscenity Section (CEOS) already has
generated a more than 445% increase in its caseload, including child
pornography cases and investigations, handled in the past two years. In
addition to increasing the sheer number of investigations and
prosecutions brought by our attorneys, the quality and import of the
cases has increased substantially, with a focus on producers and
commercial distributors.
The Department of Justice has also made great strides in responding
to the misuse of advancing technologies in child exploitation offenses.
In August 2002, the Department created within CEOS the High Tech
Investigative Unit (HTIU), which consists of computer forensic
specialists equipped to ensure the Department's capacity to prosecute
the most complex and advanced offenses against children committed
online. The HTIU renders expert forensic assistance and testimony in
districts across the country in the most complex child pornography
prosecutions conducted by the Department. Additionally, the HTIU
currently receives and reviews an average of more than 200 tips per
month from citizens and non-governmental organizations, such as the
National Center for Missing and Exploited Children, and initiates
investigations from these tips.
The Department focuses its efforts on investigations that have the
maximum deterrent impact. For example, CEOS is currently coordinating
17 nationwide operations involving child pornography offenders. These
are significant investigations of national impact. Nearly each one of
the 17 involves hundreds or thousands, and in a few cases tens of
thousands, of offenders. The coordination of these operations is
complex, but the results can be tremendous. By way of example, the FBI
is currently investigating the distribution of child pornography on
various ``member-only'' online bulletin boards. As of March 19, 2005,
the investigation had yielded 180 search warrants, 75 arrests, 130
indictments, and 61 convictions.
Quickly advancing Internet technologies present many challenges to
investigators, and the Department is determined to keep pace with the
criminal exploitation of technology in the realm of crimes against
children. As child pornographers have started using peer-to-peer file
sharing networks to distribute their images, national enforcement
initiatives against peer-to-peer offenses have been launched. These
initiatives encompass operations by the Federal Bureau of
Investigation, the Department of Homeland Security, Immigration and
Customs Enforcement (ICE), and state and local Internet Crimes Against
Children task forces. Since the fall of 2003, these initiatives
collectively have resulted in more than 1000 investigations, 350
searches, and at least 65 arrests.
The Department also works toward the critical goal of identifying
the victims depicted in images of child pornography, so that they can
be rescued and protected from further abuse. One method for achieving
this goal is already underway. The FBI Endangered Child Alert Program
(ECAP) was launched on February 21, 2004, by the FBI's Innocent Images
Unit and is conducted in partnership with CEOS. The purpose of ECAP is
to proactively identify unknown subjects depicted in images of child
pornography engaging in the sexual exploitation of children. Since
ECAP's inception, seven ``John Doe'' subjects have been profiled by
America's Most Wanted, and with the assistance of tips from viewers,
five have been identified. More importantly, 31 victims (so far) in
Indiana, Montana, Texas, and Colorado have been identified as a result
of this initiative. All of the victims had been sexually abused over a
period of years, some since infancy. CEOS is working with the field to
identify suitable targets for this program, and we will continue to
ensure that this program is utilized to its maximum potential.
A chilling example of the important work the Department is doing to
fight child exploitation is the case of United States v. Mariscal,
prosecuted in the Southern District of Florida. In that case, defendant
Angel Mariscal was sentenced last September to a 100-year prison term,
following his conviction on seven counts relating to the production of
child pornography and related offenses. Mariscal had traveled
repeatedly over a seven-year period to Cuba and Ecuador, where he
produced and manufactured child pornography, including videotapes of
himself sexually abusing minors, some under the age of 12. More than
100 victims were filmed exposing their genitals and/or engaging in
sexual activity with the defendant and at least two adult female co-
conspirators. Mariscal further endangered these minors, because he is
HIV-positive; thankfully, none of the identified victims has yet tested
positive for HIV. After videotaping the children using a camcorder, the
defendant imported the tapes, reproduced them onto CD-ROMS or VHS tapes
in Miami, and distributed the CD-ROMs and VHS tapes throughout the
United States by mail or Federal Express. Mariscal would advertise
these items by mail, and in 2002, the child pornography sold for
anywhere from $595.00 to $995.00 per item. Customers were also given
the option of writing their own fantasy script. Mariscal's arrest has
led to the prosecution of many of his customers across the country due
to the coordinated efforts of the U.S. Postal Inspection Service and
CEOS.
RECENT LEGISLATION HAS BEEN INSTRUMENTAL IN THE DEPARTMENT'S FIGHT
AGAINST CHILD EXPLOITATION CRIMES
The Department of Justice deeply appreciates recent legislation
that Congress has passed to combat child abuse and child exploitation
crimes, such as the PROTECT Act. We have found that legislation
extremely useful and have used it effectively, as shown by the
following examples.
Section 106 of the PROTECT Act, codified at 18 U.S.C. Sec. 3559(e),
imposes mandatory life imprisonment for a defendant convicted of a
federal sex offense in which the victim is a minor, if the defendant
has a prior sex conviction in which a minor was the victim, unless the
sentence of death is imposed. In United States v. Albert J. Kappell,
prosecuted in the Western District of Michigan, the defendant was
sentenced in March 2004 to life imprisonment for his conviction on nine
counts of sexual abuse of two young girls, ages six and three. The
victims, who are Native Americans, are enrolled members of the Keweenaw
Bay Indian Community (KBIC) in Michigan's Upper Peninsula. Kappell, a
non-Indian, repeatedly abused the young girls, including with acts of
penile and digital penetration, during a four-month period in which he
lived with the girls' mother. Because Kappell had been previously
convicted of sexual abuse against a minor in 1982, he was sentenced to
a mandatory life term of imprisonment pursuant to this new sentencing
provision of the PROTECT Act.
Section 101 of the PROTECT Act, codified at 18 U.S.C. Sec. 3583(k),
permits a term of supervised release of any number of years up to the
life of the defendant for child exploitation crimes. In United States
v. Larry N. Cole, prosecuted in the Southern District of Texas, the
defendant was sentenced in January 2004 to more than six years in
prison and court supervision for the rest of his life for possessing
over 300 images of child pornography on several computers. A life term
of supervised release was imposed under the PROTECT Act in recognition
of the recidivist nature of Cole's conduct.
Section 105 of the PROTECT Act, codified at 18 U.S.C. Sec. 2423(c),
makes it a crime to travel in foreign commerce and engage in illicit
sexual conduct with a minor, regardless of whether that was the purpose
of the travel. This is a critical improvement over the previous law,
under which the government had to prove that the perpetrator traveled
for the purpose of engaging in a sexual act with a minor. The maximum
penalty for this new offense is 30 years' imprisonment. In United
States v. Michael Lewis Clark, prosecuted in the Western District of
Washington, United States citizen Michael Lewis Clark was arrested in
June 2003 in Cambodia for sexually abusing two Cambodian boys, ages 10
and 13. Clark was charged with engaging in illicit sexual conduct after
travel in foreign commerce. The case was the first such prosecution
under the new provision of the PROTECT Act. Clark had flown to Cambodia
in May 2003, but he had also spent considerable time in Cambodia over
the previous five years. The investigation revealed that Clark targeted
boys ranging from 10 to 18 years of age along the river front area of
Phnom Penh, Cambodia, and would pay the boys for engaging in sexual
contact with him. Clark pled guilty and was sentenced to 97 months of
imprisonment. He currently has an appeal pending.
H.R. 2388 AND H.R. 2318
Both H.R. 2388 and H.R. 2318 would impose additional mandatory
minimum sentences for child exploitation and sexual abuse crimes. The
Department of Justice supports mandatory minimum sentences in
appropriate circumstances. In a way sentencing guidelines cannot,
mandatory minimum statutes provide a level of uniformity and
predictability in sentencing. They deter certain types of criminal
behavior, determined by Congress to be sufficiently egregious as to
merit these penalties, by clearly forewarning the potential offender
and the public at large of the minimum potential consequences of
committing such offenses. Moreover, mandatory minimum sentences can
also incapacitate dangerous offenders for long periods of time, thereby
increasing public safety. In the context of sexual abuse crimes against
children, this can be particularly important. Finally, in cases
involving multiple offenders, mandatory minimum sentences provide an
indispensable tool for prosecutors, because they provide the strongest
incentive for defendants to cooperate against the others who were
involved in their criminal activity.
In addition, H.R. 2318 effectively would 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. Although we are currently
analyzing this provision, we have two preliminary concerns.
First, while we agree that those who murder children should be
punished without undue delay, we note that other murderers would not be
covered by this provision. We ask the Subcommittee to consider whether
other categories of condemned murderers should be subject to
accelerated federal habeas review as well. We also ask the Subcommittee
to consider whether the laudable goal of accelerating habeas corpus
review for child-killers would run the risk of diverting judicial
resources so that the already-long delays in providing federal habeas
review for other murderers, particularly those under sentences of
death, may be inadvertently lengthened.
Second, we note that this provision would only cover habeas claims
under Section 2254 and not claims for post-conviction relief under
Section 2255. We ask the Subcommittee to consider whether it would be
appropriate to consider applying the same procedures for child killers
in federal custody.
CONCLUSION
In sum, the Department of Justice shares your goals of protecting
children from violence and sexual exploitation and looks forward to
working with you on H.R. 2388 and H.R. 2318. We deeply appreciate the
legislative tools that Congress has already provided law enforcement in
our fight against these awful crimes and your commitment to consider
additional measures that would aid us in our efforts.
Mr. Chairman, I again thank you and the Subcommittee for the
opportunity to speak to you today, and I would be pleased to answer any
questions the Subcommittee might have.
Mr. Green. Attorney General Crist.
TESTIMONY OF THE HONORABLE CHARLIE CRIST, ATTORNEY GENERAL,
STATE OF FLORIDA
Mr. Crist. Thank you, Mr. Chairman and Ranking Member
Scott. I want to thank Congressman Keller for his kind
introduction and I want to say hello to my friend Congressman
Feeney. On behalf of the State of Florida and the many State
Attorneys General, I thank you for the opportunity to address a
problem that is as horrific as it is pervasive. The problem of
sex crimes against children has been a blight on society for
far too long, but it seems to have exploded onto the national
consciousness as a result of a series of recent high profile
cases.
Sadly, several of these cases have occurred in my own
State. I believe this is more a consequence of our State's
appeal to newcomers than it is an indication of any systemic
problem unique to Florida, but it has made us acutely aware of
the complexities of the issue. Florida is home to some 34,000
registered sex offenders, approximately 5,000 of whom are
classified as sexual predators. The odds are that in every
neighborhood in every city, there is a sex offender living down
the street. It is highly likely that every Floridian, and
probably every American, drives past the home of a sex offender
on a regular basis without even knowing it.
I believe it is no accident that our founding fathers
stressed the importance of safety and security by placing in
the very first line of the United States Constitution the
mandate that the very purpose of our Government is to, ``ensure
domestic tranquility.'' Little we do as public servants will
really matter if we do not do something to prevent our most
innocent citizens from falling victim to the unspeakable
horrors committed by sex offenders and sex predators. The
experts tell us that someone who has molested a child will do
it again and again.
Child molesters are dangerous, and they will remain
dangerous as long as they can roam unimpeded in our
neighborhoods, our schools, our churches, our synagogues, and
our playgrounds. To make a meaningful difference, I believe we
will have to employ a multi-faceted strategy embracing a wide
range of approaches, including prevention, education, tracking,
and enforcement. Beginning with the tragic abduction and murder
of 11-year-old Carlie Brucia in Sarasota only 16 months ago,
Florida has taken numerous steps to protect children from the
monsters who would prey upon them.
There is still much work to be done, but I believe these
initiatives represent an important first start. The best way to
eliminate sex crimes against children, of course, is to prevent
them from happening in the first place. We may never be able to
totally eliminate the predators who commit these deviant acts,
so we must do what we can to keep young boys and girls from
becoming their victims. In Florida, we have directed our
prevention and education initiatives at both parents and
children. One of our most important steps was taken 3 weeks ago
with the help of an outstanding corporate citizen, Pitney
Bowes. On May 17, Pitney Bowes' chairman and CEO Michael
Critelli and I unveiled an enhanced State website that for the
first time, it lets parents and other Floridians zero in on
registered sex offenders who live nearby. The Florida
Department of Law Enforcement maintains a database of 34,000
registered sex offenders and sexual predators, one of the
largest of its kind in the Nation. For the past 10 years, a
website maintained by that agency has allowed Floridians to
search for sex offenders as well as predators. This has been an
extremely useful service, but it was limited. Parents could
find out which sex offender were registered to live in the same
town or zipcode, but unless a parent was familiar with every
street in that zipcode, it was not always possible to know just
how close the offender might live.
Now thanks to user-friendly software developed by Pitney
Bowes and donated to the State of Florida, parents can find
that out. When we announced the new system, we did a sample
search to see if any registered sexual offenders lived near our
State Capitol. We found out that within 3 miles, 96 sexual
offenders resided. Thanks to our new website search parents and
others throughout Florida will be able to pinpoint the
addresses of these registered sex offenders. Our other program
for children was launched last October when we introduced the
Escape School program to Florida. At hour-long programs
conducted at public schools throughout the State, we have had
the opportunity to better empower children as to how to escape
the possibility. As I said earlier, the case of Carlie Brucia
which occurred in Sarasota 16 months ago, an 11-year-old girl
being abducted from a carwash parking lot was played over and
over again on national television. That was followed by a case
that occurred including the Jessica Lunsford case where
Congresswoman Ginny Brown-Waite has led the effort, along with
Congressman Mark Foley, to try to stop those kinds of things
from happening on a national level and I applaud their effort.
There was another case that got a lot less play. This
occurred in Deltona, Florida, Volusia County. It affected 6
innocent Floridians who were beaten to death with baseball bats
in the wee hours on August 6 of last year. Those cases
involving Carlie Brucia, Jessica Lunsford, Sarah Lunde in the
Tampa Bay area where my family resides, and the 6 innocent
Floridians in Deltona, Volusia County, Florida, all had a
common theme and a common thread. The common thread was that
each and every one of these cases had somebody who had already
been in prison in Florida. They had served their time and
gotten out, they had been placed on probation, given a second
chance, been on the privilege of probation--it is a privilege
that our criminal justice extends. They all violated probation.
At the time they violated, they go before a judge, and the
judge has to make a determination of whether or not that person
should go back to jail or stay free.
Regrettably, in each and every one of those cases, the
judges decided to let them stay out. And in Sarasota, he saw
Carlie Brucia, in Citrus County, Jessica Lunsford, in
Hillsborough County, Sarah Lunde, and in Deltona, Volusia
County, those six innocent Floridians. We must do more to make
sure we lock these bad people up and protect the citizens of
our State and our country.
Mr. Green. Thank you, General Crist.
[The prepared statement of Mr. Crist follows:]
Prepared Statement of Charlie Crist
Good afternoon Chairman Coble, Ranking Member Scott, and
distinguished members of the Subcommittee.
On behalf of the State of Florida and the many state attorneys
general, I thank you for this opportunity to address a problem that is
as horrific as it is pervasive.
The problem of sex crimes against children has been a blight on
society for far too long, but it seems to have exploded onto the
national consciousness as a result of a series of recent high-profile
cases. Sadly, several of these cases have occurred in my own state. I
believe this is more a consequence of our state's appeal to newcomers
than it is an indication of any systemic problem unique to Florida, but
it has made us acutely aware of the complexities of this issue.
Florida is home to some 34,000 registered sex offenders,
approximately 5,000 of whom are classified as sexual predators. The
odds are that in every neighborhood, in every city, there is a sex
offender living down the street. It is highly likely that every
Floridian--and probably every American--drives past the home of a sex
offender on a regular basis without even knowing it.
I believe it was no accident that the Founding Fathers stressed the
importance of safety and security by placing in the very first line of
the U.S. Constitution the mandate that the very purpose of our
government is ``to insure domestic tranquility.'' Little we do as
public servants will really matter if we do not do something to prevent
our most innocent citizens from falling victim to the unspeakable
horrors committed by sex offenders and predators.
The experts tells us that someone who has molested a child will do
it again and again. Child molesters are dangerous, and they will remain
dangerous as long as they can roam unimpeded in our neighborhoods, our
schools, our churches, our playgrounds.
To make a meaningful difference, I believe we will have to employ a
multi-faceted strategy embracing a wide range of approaches including
prevention and education, tracking and enforcement.
Beginning with the tragic abduction and murder of 11-year-old
Carlie Brucia in Sarasota 16 months ago, Florida has taken numerous
steps to protect children from the monsters who would prey on them.
There is still much work to be done, but I believe these initiatives
represent an important start.
PREVENTION AND EDUCATION
The best way to eliminate sex crimes against children, of course,
is to prevent them from happening in the first place. We may never be
able to totally eliminate the predators who commit these deviant acts,
so we must do what we can to keep young boys and girls from becoming
their victims.
In Florida, we have directed our prevention and education
initiatives at both parents and children.
One of our most important steps forward was taken three weeks ago
with the help of an outstanding corporate citizen, Pitney Bowes. On May
17, Pitney Bowes Chairman and CEO Michael Critelli and I unveiled an
enhanced state website that for the first time lets parents and other
Floridians zero in on registered sex offenders who live nearby.
The Florida Department of Law Enforcement maintains a database of
34,000 registered sex offenders and sexual predators, one of the
largest of its kind in the nation. For the past 10 years, a website
maintained by that agency has allowed Floridians to search for sex
offenders and predators.
This has been an extremely useful service, but it was limited.
Parents could find out which sex offenders were registered to live in
the same town or zip code. But unless a parent was familiar with every
street in the zip code, it was not always possible to know just how
close the offender lived.
Now, thanks to user-friendly software developed by Pitney Bowes and
donated to the State of Florida, parents can type in their home
address--or, if they prefer, their child's school address, church or
any other place they choose--and see how many sex offenders live within
one mile. If they wish, they can expand the search up to five miles.
The new system crosses zip code and city or county lines, so it
lets you know if sex offenders or sexual predators live close by, even
if they live in a different zip code or county. It will tell how far
away the sex offender lives, and can even produce a map so parents can
figure out alternate routes for their children to travel safely. With a
few more clicks, an internet user can visit our state Department of
Corrections web site and pull up a mug shot, prison history and other
information about any sex offender they find in their neighborhood.
When we announced the new system, we did a sample search to see
whether any registered sex offenders lived near the State Capitol in
Tallahassee. Much to our surprise, we found that there are 96 sex
offenders living within three miles of the Capitol--with the nearest
one just three-tenths of a mile away.
Thanks to our new search website, parents and others throughout
Florida will be able to pinpoint the addresses of registered sex
offenders and predators, virtually anywhere in our state.
Two other important elements of our prevention efforts are aimed at
the children themselves.
Last year our office placed a link on our home page for NetSmartz,
an interactive educational safety resource that teaches kids and teens
how to stay safer on the Internet. NetSmartz was put together by the
National Center for Missing and Exploited Children and the Boys & Girls
Clubs of America, and is aimed at children ages 5 to 17.
As adults, we all immediately recognize the risks to children
associated with the Internet. But the harsh reality is that, despite
our best efforts, children will explore the online world without an
adult to supervise them. That is why it is especially important that
children learn that people they first ``meet'' on the Internet should
never be considered a friend. They must learn what kinds of questions
and pictures are inappropriate, and to tell a trusted adult if they are
ever approached online with such information.
NetSmartz offers helpful information through age-appropriate
interactive lessons. It can reach children in a way most adults cannot.
This makes it another valued facet of our efforts to use a combination
of prevention and education, tracking and enforcement to stop sex
offenders from threatening our children.
Our other program for children was launched last October when we
introduced the Escape School program to Florida. At hour-long programs
conducted at public schools throughout the state, experts teach
children how to make smart, safe choices in potentially dangerous
situations. We want children to know how to do whatever it takes to get
away from someone who might harm them.
To date, our office has conducted 25 Escape School programs
attended by some 4,669 Florida children and parents. We hope no Florida
child is ever forced to rely on the skills taught at Escape School. But
it is comforting to know that so many children have had the opportunity
to learn the techniques, just in case.
TRACKING
The February 2004 murder of Carlie Brucia shocked the nation.
Millions of Americans saw the horrifying security camera video of this
precious 11-year-old girl being abducted from a parking lot, and all of
Florida mourned when it was learned that Carlie had been killed.
That sadness turned to anger when it was learned that her accused
killer was a man whose history showed a propensity for violent crimes.
He had violated terms of his probation--but had not been reincarcerated
for these violations.
The months that followed Carlie's murder brought reports of more
terrible crimes against young Floridians by perpetrators who had
histories of criminal violence.
These awful incidents came to a head with the murders earlier this
year of 9-year-old Jessica Lunsford and 13-year-old Sarah Lunde. The
men who confessed to abducting, raping and killing each girl were
convicted sex offenders. The man who said he killed Jessica was a
probation violator who registered with local authorities as required by
law--but then moved to a mobile home 150 yards from Jessica's home
without telling anyone.
Jessica's father, Mark Lunsford, is a true American hero. Just
weeks after his beloved daughter was ripped from his life forever, this
quiet, unassuming man was in Tallahassee promoting legislation to make
sure no other Florida father had to endure the anguish he was still
experiencing. The result was the Jessica Lunsford Act, which
establishes longer prison sentences for criminals who sexually molest
children and requires tracking devices once they do get out.
This measure could not have become law without the extraordinary
efforts of Mark Lunsford, as well as ``America's Most Wanted'' host
John Walsh--himself a Floridian whose son was abducted, sexually
assaulted and murdered. Governor Jeb Bush also deserves praise for
quickly signing this bill into law.
As helpful as the Jessica Lunsford Act may be, I believe it does
not go far enough to stop sex offenders from violating probation and
victimizing more young children. Using ankle bracelets with GPS
technology to track sex offenders will let us know where they are, but
it will not prevent them from committing more crimes. The only way to
make sure they do not ruin the lives of more young children is to keep
them locked up in the first place.
We know the people who are committing these horrible crimes. They
are people who already committed crimes. They are people who, at least
in Carlie and Jessica's cases, violated the terms of their probation.
To stop these people, I will continue pushing the Florida Legislature
to change the law in order to require that violent felons who violate
probation be returned directly to jail unless a judge holds a hearing
and determines that the offender does not pose a danger to the
community.
Tracking bracelets are good--but prison bars are better.
ENFORCEMENT
All indications are that Jessica Lunsford and Sarah Lunde were
careful, intelligent girls, yet they were still abducted from their own
homes. There are some things that education programs simply will not
prevent. Ultimately, our ability to limit the activities of sex
offenders who prey on children will depend on enforcement and
prosecution.
Just last week, my office won a conviction against a 52-year-old
man who tried to use an Internet chat room to lure a 13-year-old boy to
his home to engage in sexual activity and to view child pornography.
Unfortunately for the man, the 13-year-old boy turned out to be an
undercover officer, and now this sex offender faces up to 75 years in
prison.
Local law enforcement throughout Florida, and I am sure throughout
the nation, has done a remarkable job responding in the wake of so many
terrible incidents. Allow me to give you an example from the small
North Florida town of Green Cove Springs, population about 5,600.
Police Chief Gail Russell made a decision that sex crimes against
children would be a priority. In the past 18 months, the police
department has arrested 14 `travelers' in cases where a child has left
home or been targeted by an adult, via the Internet, to leave home. The
police department has identified and referred 10 cases to other
jurisdictions, one of which involved 20 potential child victims in
other states. One computer seized through the department's efforts
contained 3,000 pornographic images of children and 1,000 videos.
This is a clear example of what even a small police department can
do when it makes sex crimes against children a priority. But they
cannot do it alone. I am pleased that last month, the Florida
Legislature agreed to establish a Cyber Crime Unit within the Attorney
General's Office. This small but dedicated unit will target internet
crimes against children and will work closely with local law
enforcement agencies throughout the state.
We at the state level will do whatever we can to support these
efforts. But in today's mobile and electronic society, sex crimes know
no political boundaries. That is why we are so encouraged to see your
subcommittee, and the entire Congress, giving serious consideration to
national legislation to address this issue.
In the aftermath of Carlie Brucia's death, Congresswoman Katherine
Harris offered a significant proposal to create a national sex
offenders registry. I enthusiastically support establishment of such a
system, and offer the full assistance of my office to bring this to
fruition. For a state like Florida, which attracts so many from other
areas, a national registry would make it much easier for local law
enforcement agencies to learn when sex offenders from other places move
into our state.
I am also gratified by the strong commitment shown by other members
of Florida's Congressional Delegation, especially Representatives Mark
Foley and Ginny Brown-Waite, to finding workable solutions to this most
difficult problem.
We also support the Department of Justice's work coordinating
efforts to link various state offender databases. Short of a full-
fledged nationwide registry, such a system of inter-connected state
databases would be a meaningful help to local and state agencies. The
Department's participation in joint local-state-federal operations,
including two Internet Crimes Against Children (ICAC) task forces in
Florida, has been indispensable in bringing offenders to justice.
As I said earlier, we cannot rely on one single approach, or one
single level of government, to successfully target sex crimes against
children. We must maintain and expand prevention initiatives, tracking
activities and enforcement efforts. We must fight the battle at the
local level and the state level.
But in the end, the success of these efforts will depend on the
overall coordination and resources that can come only through a
nationwide commitment to wiping out this blight.
With the well-being of American youth at stake, no amount of
commitment can be considered too much.
I commend this subcommittee for its interest in this important
issue, and I look forward to working with you as we craft meaningful
national legislation to protect America's children.
Again, Mr. Chairman, I am grateful for the opportunity to
contribute to this hearing and to help ensure that the legacies of
Carlie Brucia, Jessica Lunsford, Sarah Lunde and so many other innocent
victims of sexual predators will serve to prevent other such tragedies
in the future.
Thank you.
Mr. Green. Mrs. Fornoff, welcome.
TESTIMONY OF CAROL FORNOFF, MESA, ARIZONA, MOTHER OF A MURDERED
CHILD
Mrs. Fornoff. Thank you for inviting me to testify. My
husband Roger and I are here today to tell you about our
daughter Christy Ann Fornoff. Christy was our youngest
daughter. She was a loving child, very gentle. She often seemed
to make friends with the kids at school who weren't so popular.
She was very dear to us. In 1984, our family was living in
Tempe, Arizona, and Christy was 13-years-old. Christy Ann and
her brother Jason both held jobs as news carriers for the
Phoenix Gazette, a local newspaper. Roger and I believed that
jobs like this would teach our children responsibility while
also helping them earn a little money.
After dinner on Wednesday evening, May 9, 1984, both
Christy Ann and Jason had been invited to go jumping on the
trampoline. Jason went but Christy had just had a cast removed
from her ankle. So instead, she went to collect on her
newspaper's route at the apartment complex near our home.
Christy delivered papers at the complex everyday. It was two,
just two short blocks from our house. Nevertheless, it was
getting dusk, so I went with her. She rode her brother's bike
while I walked alongside with our little dog. At the first
apartment that Christy visited, I was stopped by a neighbor who
wanted to talk about our cute dog.
Christy went on to the next apartment alone, and I followed
a few minutes later. When I got there, the bike was outside,
but there was no Christy. I started calling her name, but there
was no answer. Our dog started to get so nervous. After a few
minutes I ran home and came back with my daughter's boyfriend.
We went to the apartment and asked. They said Christy had been
here, but she had left about 10 minutes ago. While I knew that
Christy wouldn't leave her brother's bike, I ran home again. My
husband had just arrived at home and I told him that Christy
was missing. He immediately called the police and then went to
the apartment complex and began knocking on doors. Outside of
one apartment, people standing nearby told him, don't bother
knocking on that door, that is the maintenance man and he is
looking for Christy.
Shortly after, the maintenance man joined Roger in the
search for Christy. That night, police helicopters with search
lights examined every corner of our neighborhood. Our son drove
up and down everywhere in the area on his motorcycle. Christy's
newspaper collection book was found over a fence by the
apartment complex but no one found Christy. Two days later, a
policeman knocked on our door. Christy's body had been
discovered wrapped in a sheet lying behind a trash dumpster in
that apartment complex. We were absolutely devastated. We had
began hoping against hope and couldn't believe that our
beautiful daughter was dead. Christy's body was taken to a
morgue so an autopsy could be performed.
On Sunday, which was Mother's Day, we were able to view
Christy's body. Mother's Day has never been the same since. 10
days after Christy's body was found, the maintenance man at the
apartment complex, the same man who had been looking for her
that night, was arrested for her murder. Christy had been
sexually assaulted and suffocated. There was blood, semen and
hair on Christy's body that was consistent with that of the
maintenance man. Vomit on Christy's face matched vomit in the
maintenance man's closet. Fibers on Christy's body matched the
carpet and a blanket in the man's apartment. And police found
Christy's hair inside of the apartment. We knew who had killed
our daughter. In 1985, the maintenance man was convicted of
Christy's murder and sentenced to death.
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. By
that time, we already felt that the case had been going on for
a long time. It had been 7 years. We couldn't imagine that the
killer would have any more challenges to argue. But in 1992,
the killer filed another challenge to his conviction in the
United States district court. That challenge then remained in
that one court for over 7 years. Finally in November 1999, the
district court dismissed the case.
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. 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. 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 the evidence even still available. Could this man one day
be released? Could I run into him on the street, a free man,
the man who assaulted and killed our daughter. The court has
turned this case into an open wound for our family, a wound
that has not been allowed to heal for 21 years. 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 of 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.
When you and your colleagues are writing laws, Mr.
Chairman, please think about people like me. Please think about
the fact that every time there is another appeal, another
ruling, another hearing, I am forced to think about my
daughter's death. Every time I am forced to wonder if only
Christy hadn't had the cast on her ankle. If only she could
have gone on the trampoline that evening, she would still be
alive today. Every time I hear a helicopter, I am terrified. I
think of the police helicopters searching for Christy on the
night that she disappeared. Every time I hear a motorcycle, I
think of my son searching for Christy. Every time that the
courts reopen this case, I am forced to wonder, why didn't I go
with Christy to that second apartment. Why did I let that
neighbor stop me to talk?
Every time I am forced to think about how scared my little
girl must have been when she died. I urge you Mr. Chairman, to
do what you can to fix this system. And my family and I have
forgiven our daughter's murderer, but we cannot forgive a
justice system that would treat us this way.
Mr. Green. Thank you, Mrs. Fornoff. I appreciate you coming
here and the courage it took for you to tell your story.
[The prepared statement of Mrs. Fornoff follows:]
Prepared Statement of Carol Fornoff
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Mr. Green. Mr. Rhodes, welcome.
TESTIMONY OF JOHN RHODES, ASSISTANT FEDERAL DEFENDER, FEDERAL
DEFENDERS OF MONTANA
Mr. Rhodes. Mr. Chairman, Ranking Member Scott, Members of
the Subcommittee, thank you for inviting me to testify today. I
have been a Federal public defender in the District of Montana
for over 7 years. Before that I was a State public defender
where I specialized in serving as a guardian for teenage rape
victims. In my current job as a Federal defender, I have
defended hundreds and hundreds of individuals accused of
Federal crimes, including Indians from six of Montana's seven
Indian reservations. I represent my clients from their initial
appearances before United States magistrate judges through the
conclusion of their cases, including appeals.
The Major Crimes Act brings reservation offenses normally
prosecuted in State courts into Federal courts, including
crimes of violence such as homicide, arson, assault, and sex
offenses. My practice includes defending Indians in Major
Crimes Act cases, particularly in assault and reservation sex
offenses. First and most importantly, I want to emphasize that
although Native Americans are not named in these bills, the
bills will have the greatest impact on reservation communities.
At least half of the Federal sex abuse cases arise on
reservations. Indian communities believe that disparate
punishment results from Federal prosecution of reservation
offenses. The statistics show that they are right. Compared to
punishment for the same crimes prosecuted in State courts,
Indians prosecuted in Federal Court receive longer sentences.
The Native American advisory group convened by the Sentencing
Commission to look into the impact of the guidelines in Federal
sentencing on reservations concluded that Federal sentences for
sexual abuse and assault are longer than those for offenses in
State court.
H.R. 2388 would impose long, mandatory minimum sentences
that the affected tribal communities, including the victims,
may not support. For instance, under the bill, if two teenage
boys got in a fight and one of them was under 18, the person
who was over 18 could end up doing at least 10 years in prison.
Many of the reservation offenses are committed within the
family and all of them are committed in small towns and rural
areas.
The tribal communities are well aware of the offenses that
happen on their reservations and the resulting Federal
prosecutions. The tribes should be consulted regarding the
appropriate punishment for these crimes, particularly because
of the tribal emphasis on rehabilitation and community healing.
I thus recommend that the Congress convene hearings in Indian
country and apply what is learned from the tribes that are
going to be impacted by this legislation to deter sex offenses
and crimes of violence. My personal experience teaches that the
current penalties and guideline calculations achieve the severe
punishment that is appropriate for the most culpable
defendants.
In April 2003, Congress enacted the PROTECT Act, which
dramatically increased the punishment for sex offenders by
imposing mandatory minimums, a two-strikes-you-are-out
provision, enhancing the guidelines and limiting judicial
discretion. In October 2003 the Sentencing Commission increased
sex offense punishments in the guidelines consistent with the
PROTECT Act. In November 2004, the Commission again
dramatically increased punishment for sex offenses. These laws
direct and require harsh sentences when appropriate. Even
before the PROTECT Act, one of my reservation clients received
a 33-year sentence in a sex offense case. Under current
guidelines, his sentence would likely be longer.
At the other extreme, a child pornography client of mine
prosecuted before the PROTECT Act has successfully his term--
has completed his term of supervised release, graduated from
sex offender treatment, and is living with his wife and two
children and working. Under current law, he would still be
serving a 5-year mandatory minimum sentence. Under the proposed
bill, he would be serving a 25-year mandatory minimum sentence.
Unnecessarily imprisoning such citizens punishes their
families, their communities, and the taxpayers and erodes the
respect that anchors our criminal justice system. That is the
unintended consequence of otherwise well intentioned mandatory
minimums.
Such measures are not necessary when severe punishments
already exist. We have attached to our written testimony
excerpts from five studies. The first study dated November 2003
is a report from the Bureau of Justice statistics. It studied
over 270,000 prisoners released by 15 States in 1994. The study
found that, compared to non-sex offenders, sex offenders had a
lower overall re-arrest rate. The other four studies document
that sex offender treatment reduces recidivism by more than
half. We request that you direct the Bureau of Prisons to
establish more than just one sex offender treatment program.
As you may know, currently, there is only one program for
sex offenders in the entire Bureau of Prison system and that is
in Butner, North Carolina. That is particularly problemmatic
for my clients who are from small towns or rural ranch areas
and certainly have not been very far from their home, let alone
across the country. There is a demand for treatment that brings
us here today and that is why the Bureau of Prisons should be
directed by yourselves to meet that demand and establish more
treatment programs. Finally, the availability of habeas corpus
review exonerated 159 wrongly convicted individuals as
documented by the Innocence Project. Many of those exonerated
spent decades in prison.
Their life was at issue. Finality, while important, must
never come at the price of certainty. Taking someone's life is
a hollow virtue without certainty. That is what the great writ
protects. Thank you for this opportunity to address the
Committee. I and the Federal public and community defenders
have a wealth of experience in Federal sentencing generally and
in the sentencing of Native Americans particularly. We would be
happy to answer any questions or respond to any requests for
further information.
[The prepared statement of Mr. Rhodes follows:]
Prepared Statement of John Rhodes
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Mr. Green. Thank you, Mr. Rhodes, and thanks to all of our
witnesses for coming here and testifying today. I will begin
the questioning. Ms. Parsky, you note that mandatory minimum
penalties can be an appropriate tool. Can you elaborate this in
the context of child exploitation and sex abuse crimes.
Ms. Parsky. Certainly. One of the things that is
particularly useful about mandatory minimum sentences is that
they serve the important purpose of deterrence and they send a
very strong message not only to potential offenders, but also
to the public at large that the community takes these crimes
really seriously and that, if they are caught and if they
commit this conduct, that they will be spending a very long
time in jail. And, in addition, one other element that is
important to keep in mind about mandatory minimums that is
particularly pertinent to the sexual abuse crimes is that they
incapacitate particularly dangerous individuals and protect our
communities from those individuals being on the streets. And
that is important to keep in mind when you are looking at
mandatory minimums in this context.
Mr. Green. General Crist, can you describe how the Florida
Sex Offender Registry works and what the role is that you see
in coordinating in these areas with Federal law enforcement?
Mr. Crist. I wanted to make a correction. I think when I
was describing the four cases that I did I wanted to make sure
I said that the perpetrator or alleged perpetrator of each of
those crimes was a probation violator. The way the registry
works, people have to register, and have their names attached
once they are found guilty. Let me give you a more precise
description. To be a subject of a Florida sexual offender
registry, a person must qualify and be designated as such.
There are three ways to be designated a sex offender in
Florida. The first is to commit a qualified crime in the State,
two, commit a crime in another jurisdiction that meets Florida
sex offender criteria, or three, be designated a sex offender
in another jurisdiction. Someone designated as a sex offender
must register with the State within 48 hours of establishing
residence. When registering, the offender must provide his or
her name, Social Security number, physical characteristics,
residence, employment or school information, and fingerprints.
Within 48 hours of registering, sex offenders must also
register with the driver's license office, identify himself as
a sex offender, and obtain a license or identification card.
They must maintain this registration for life unless they
receive a full pardon or the conviction is set aside.
Mr. Green. Mrs. Fornoff, in your written testimony, you
give an interesting statistic: Nearly 100 of the death row
inmates in California have been there for over 20 years. Have
you been in touch with any of the families of the victims of
those cases? And if so, can you tell us what you have learned
from them?
Ms. Fornoff. I have not been in touch with any of those
particular victims. In fact, I wrote a letter to support the
family of Jessica. I happened to be in Florida at the time and
of course it knocks us out when some other little girl has been
taken. And I try to write a letter to the family and tell them
we have gotten through, we will never get over the death of our
child. And we work with parents of murdered children in
Arizona. And so I have been supportive of them in that way.
Mr. Green. Ms. Parsky, you heard Mr. Rhodes' testimony, his
position that these laws have a disparate impact on offenders,
Native American offenders. Do you have any response to that in
terms of the percentage of crimes or victims that might come
from those areas?
Ms. Parsky. I don't have particular numbers with me today,
but there are a couple of points that are important to keep in
mind with respect to some of his arguments. The first is that I
think we need to keep in mind that the victims on Indian
reservations need the same amount of protection as the victims
anywhere else. And the Federal Government in its enforcement of
its laws and the Federal legislature in its creation of laws
sends a powerful message to the Nation about what conduct we
find reprehensible. We at the Department of Justice deal with a
lot of different Federal laws that protect children.
I mentioned child pornography, but also travel for the
purpose of engaging in sexual acts with children, sex tourism,
other laws that involve interstate or foreign commerce or
Federal property. So all of those laws are something we are
looking to enforce and enforce in a way that is going to send a
strong deterrent message to the community.
Mr. Green. Mr. Scott, questions?
Mr. Scott. Ms. Parsky, in H.R. 2388, it talks about Federal
crime of violence. What is that? What is a Federal crime of
violence. Page 2, line 3 of the bill.
Ms. Parsky. As I indicated in my written testimony, the
Department is still taking a look at the legislation that has
been tabled here today, and we don't have a position. This is
not an Administration bill, so I can't tell you what was
intended by the language that is in the bill here.
Mr. Scott. You are not testifying in support of H.R. 2388?
Ms. Parsky. Our position is we are still reviewing it and
we are anxious to work with the Committee to provide
legislation that is going to have an important effect in this
area.
Mr. Scott. Are you testifying in favor of H.R. 2388?
Ms. Parsky. We don't have a position yet.
Mr. Scott. Federal crime of violence is not a term of art
for which you know the definition?
Ms. Parsky. I am not in a position to testify here today to
as to what was the intent of the definition in the bill.
Mr. Scott. If it included fist fights under line 23, fist
fights involving school yard fist fights in which there are no
injuries, 10 years mandatory minimum isn't the kind of thing
you are testifying on behalf of today?
Ms. Parsky. The purpose of my testimony today is to let you
know that we are very supportive of strong legislation in this
area, that we do support mandatory minimums in appropriate
circumstances, and that we are anxious to work with this
Committee to craft appropriate legislation here.
Mr. Scott. You indicated that mandatory minimums create a
deterrence?
Ms. Parsky. That's correct.
Mr. Scott. Do you have any studies to support that
statement?
Ms. Parsky. I don't have studies with me, but I can tell
you we would be happy to go back and look for some that would
address that issue.
Mr. Scott. You're aware that the Judicial Conference
categorizes mandatory minimums as a violation of common sense?
Ms. Parsky. I'm not aware of that quotation.
Mr. Scott. Every time we consider a bill that has a
mandatory minimum in it, the Federal Judicial Conference, Chief
Justice Rehnquist presiding, writes us a letter to remind us
that mandatory minimums--because if it is the appropriate
sentence--it can be imposed, and if it doesn't make any sense
at all, then it has to be imposed anyway, and, therefore,
mandatory minimums often violate common sense.
Mr. Green. Is that a question?
Mr. Scott. It's a quote from the letter of the Judicial
Conference. How does the child pornography part of the other
bill--H.R. 2318 doesn't change substantive law, it just changes
the penalties, is that right?
Ms. Parsky. That's how I read it.
Mr. Scott. Mr. Crist, for these cases that you mentioned,
do you have any indication that State laws are not sufficient
to deal with the cases that you have recited?
Mr. Crist. Simply by the fact that they have happened, I
would answer in the affirmative.
Mr. Scott. Sorry.
Mr. Crist. I said simply by the fact that they occurred, I
would answer yes. They are insufficient. I think they are
getting better.
Mr. Scott. How much more time would they get under the bill
than under your Florida law?
Mr. Crist. Under your bill?
Mr. Scott. Under the bill.
Mr. Crist. I don't know what the time frame would be that
would be different. We are trying to encourage even more severe
legislation, more appropriate legislation in Florida and would
encourage you to do the same in Washington.
Mr. Scott. Could you remind me what penalties were imposed
on the cases that you mentioned.
Mr. Crist. In each of those cases, the individuals that
were charged with the crime were out on probation at the time.
They were free.
Mr. Scott. And what do they get under Florida law and what
would they get under the bill?
Mr. Crist. The new Jessica Lunsford Act that we just passed
does have a minimum mandatory, and that would be 25 to 50
years.
Mr. Scott. How many of those cases that you recited would
be in Federal jurisdiction?
Mr. Crist. I don't know that any of them.
Mr. Scott. So this bill wouldn't make any difference at
all?
Mr. Crist. I didn't say that either. They might.
Mr. Scott. Ms. Parsky, if there is Federal jurisdiction on
these cases, is there concurrent State jurisdiction for
prosecution in these cases, in any cases for which there would
only be Federal jurisdiction?
Ms. Parsky. I think it is hard to answer that question,
because it really is quite fact-specific. It depends on the
particular statute. These two bills address a number of Federal
statutes, some of which might involve conduct that crosses over
State line. There would be some conduct in each State that
potentially could be prosecuted by the State but there would
also be an interstate travel aspect that would bring it under
Federal law.
Mr. Scott. Does that mean that there is State jurisdiction
in just about every one of those cases?
Ms. Parsky. It is hard to say. There are several different
statutes implicated. And some of the statutes may involve both
State violations and Federal violations and some statutes it
may be limited to Federal.
Mr. Green. Mr. Lungren, questions.
Mr. Lungren. Thank you very much, Mr. Chairman. I would
like to focus on the habeas corpus aspect of this. Mr. Rhodes,
you made a statement that the report you talked about
exonerated a number of people. I would like to correct the
record, it didn't exonerate them, which means innocence. For
whatever reason, including finding technicalities in those
particular situations, their particular sentences or
convictions were overturned.
And I appreciate your testimony, but I am tired for the
last 25 years of hearing people talk about exoneration or
innocence when that is not the case. When I was attorney
general of the State of California, we probably handled more
habeas cases than any office in the country. Not only because
we are the largest attorney general's office, but because we
happen to be in the Ninth Circuit Court of Appeals, which is
famous for its judicial activity and its reversal.
For one term, I remember the Supreme Court reversed 21 out
of 22 cases from the Ninth Circuit. Ms. Fornoff, when we
usually focus on these things, we as lawyers focus on the fact
that there are specific bases that will allow the Federal Court
to come in and so forth. And you heard some mention that some
people were exonerated 20 years thereafter. You have brought to
us the testimony of the other side of the fact, which are the
family members who sit there and wait and wait and wait and
wait.
In 1992, I was at San Quentin when we had the first
execution in 26 years of Robert Alton Harris, who had murdered
two teenagers. Wasn't sexual. It was just plain meanness. He
laughed as he killed them. He told one kid to stand like a man
and take it and then later on, ate their half eaten hamburgers
and laughed at his brother who wasn't able to do it. Robert
Alton Harris, who had gotten a short-term sentence for an
earlier killing, who had raped in prison and had been out a
short period of time when he murdered these individuals.
And that night, the Ninth Circuit seriatim had habeas after
habeas after habeas granted for stays of execution four times,
the only time in the history of the United States. It so
offended the idea of justice that the United States Supreme
Court withdrew jurisdiction in that case for all Federal courts
except themselves.
That has only happened one time in the history of the
Nation and that was that night. And the reason we have tried to
reform habeas corpus is because as Mr. Rehnquist has said, the
jury in our system is supposed to be the main event, not a
second chance Monday morning quarterbacking by Federal courts
20 years thereafter who didn't have an opportunity to see the
witnesses testify. And, if you believe in our jury system where
you have juries who actually have the opportunity to see
witnesses and be able to see them as they testify and make a
judgment as to whether they are saying something that is honest
or not, you understand what we are talking about when we have a
distortion of the system.
With habeas corpus, which assumes that the Federal courts
somehow have greater wisdom than the State courts. I can never
understand it. We had a Federal judge in California who became
the chief justice of the California Supreme Court and suddenly
because he no longer had the Federal robes but had the State
robes, he wasn't as wise as these Federal judges who 20 years
thereafter loved to have these hearings.
I have been there and seen these evidentiary hearings when
they bring psychiatrists on 20 years after the event to give us
an idea of what they think the person was thinking about 20
years before when the person performed the terrible act. Let's
be serious about what we're talking about here in terms of
habeas reform. I'll grant you Mr. Rhodes when a case is set
aside it is set aside for a reason, but that does not equal
innocence. And frankly, it is in my judgment misleading to
suggest that we have saved people from dire straits because
they weren't guilty, when, in fact, it was set aside for
various reasons.
I would just ask you, Ms. Parsky, you have raised some
concern in your written statement about the habeas provisions
that are contained in the bill before us, suggesting that by
limiting it to those who murder children, it might run the risk
of diverting judicial resources in a way that Federal habeas
review for other murders might inadvertently be lengthened.
To me, that is not a criticism of the bill so much as a
suggestion that maybe we ought to look at broader habeas
reform. Is that the position of the Justice Department?
Ms. Parsky. Well, as I indicated, we are still in the
process of reviewing the bill, but we had hoped to at least
provide some suggestions for things that the Committee might
want to consider, and that was one of the points we thought
should be considered; is that we certainly acknowledge that
child murderers are particularly heinous offenders and that
they should be looked at carefully, but that there are also
other heinous offenders that are currently in custody.
And so the only point of that comment was to bring it to
the attention of the Committee so that you may consider that.
Likewise, with the second point that we made, was just to bring
the issue to the attention of the Committee, if that in fact
was----
Mr. Lungren. The concern I have----
Mr. Green. The gentleman's time has expired. He may finish
his point.
Mr. Lungren. The concern I have is this: When my office
worked with the Congress a decade ago to get the reforms of
habeas corpus, we got little, very little, support from the
Justice Department at that time. In part because it really is a
problem affecting State court convictions, and we didn't get
the attention from the Justice Department at that time because
that was not in their bailiwick.
All I am asking, does this Justice Department understand
that even though these are not cases from Federal Court, these
are cases originating in State court convictions, we need the
assistance of the Justice Department in understanding the
concerns people like Mr. Crist have when we are dealing with
these cases? That is my only point.
Mr. Green. Mr. Feeney.
Mr. Feeney. Thank you, Mr. Chairman, and I appreciate all
the witnesses' testimony. The gentleman from California focused
on habeas. I'd like to focus on minimum mandatories and
sentencing guidelines.
I think my Attorney General put it very good, that
convicted pedophiles that are a danger to their community are
well covered by ankle bracelets, but we are better off if they
are behind bars. In his testimony, he says that.
Mr. Rhodes talked about the guidelines as part of the
PROTECT Act, and you refer, on page 7 and 8 of your testimony,
to what has been referred to by Senator Kennedy and others as
the Feeney amendment that talks about making it more difficult
to depart downwards and give out lenient sentences for people
preying on children in Federal offenses.
And by the way, I'm glad that Feeney is finally known as a
noun, other than referring to a human being. I look forward to
it one day being a verb, you know, like he or she got Feenied.
But the problem with Feeney is that after Fanfan and
Booker, which were some of the most nonsensical opinions I have
ever read by our Supreme Court, nobody knows what the status of
the guidelines are. And as you point out on page 8 of your
testimony, the downward departures under Feeney are limited and
have to be spelled out in the guidelines. We don't know if the
guidelines are anything other than mere suggestions, and we
have got some courts deviating downwards on a 2 percent basis;
in other courts, some Federal crimes, deviating downward as
much as 62 percent of the time. So there is little or no
uniformity from one jurisdiction to another, often from one
court to another, and it is a big problem.
After Booker and Fanfan, where, by the way, only two of the
nine Justices said the guidelines themselves were
unconstitutional per se, the five justices that threw out the
guidelines only had a majority because of the situation where
greater sentences are given without jury involvement. Scalia
and Thomas, for example, think the guidelines themselves are
constitutional.
But then the court went on in the remedial phase with a
different five-member majority and totally threw out the
guidelines as being anything other than mere suggestions to
Federal courts.
So, Mr. Rhodes, much of your argument, matter of fact the
whole basis of your argument in point three, the sentencing
guidelines reflect the seriousness of the crimes. To the extent
that we don't know what the status of the guidelines are, how
can they be a deterrence in any way, shape, or form, let alone
protect people, if the Supreme Court has now said that the
guidelines, specifically the Feeney amendment, designed to
protect children, are not mandatory in any way, shape, or form?
Mr. Rhodes. First----
Mr. Feeney. You don't like minimum mandatories. You like
the guidelines, other defense lawyers didn't. The guidelines
are now almost meaningless.
Mr. Rhodes. First, the Booker and Fanfan decisions did not
address the Feeney amendment or the PROTECT Act. In fact,
conspicuous by its absence is there was no reference in any of
the opinions to 18 USC 3553(b)2.
Mr. Feeney. Well, that's true, but they addressed the whole
issue of guidelines, which is largely what your testimony
regarding the PROTECT Act and Feeney relates to, the
guidelines. And the guidelines are in a state of real limbo. I
think everybody would acknowledge that right now.
Mr. Rhodes. The decisions addressed the guidelines for all
offenses other than sex offenses. Now, there is an issue
playing out in the district courts and the court of appeals as
to whether Booker and Fanfan should also be applied to sex
offenses and, in those cases, whether the guidelines should be
advisory.
Even with the guidelines being advisory following the
Booker and Fanfan decisions, I believe the impact of the Feeney
amendment is still being felt and is being effective in Federal
sentencing.
Mr. Feeney. If I can, I appreciate that, and maybe you will
have time to elaborate in the second round, but, Ms. Parsky,
Mr. Scott, I think, is correct on two points. Number one, we
don't know whether or not there is real deterrence in this type
of crime. One of the reasons people don't underreport their
income to the IRS is that they are deterred. But to the extent
that these are crimes that people really cannot help
themselves, deterrence may not work. But separation from
society works, and society, in my view, has a right to
retribution. So there are at least three reasons for minimum
mandatories, especially if the guidelines don't work.
And with respect to Mr. Rehnquist and the Judicial
Conference position that minimum mandatories defy common sense,
can you tell us your opinion whether or not some of the lenient
decisions handed out by our Federal judges and the effect that
they have on repeat perpetrators that Attorney General Crist
and Mrs. Fornoff referred to, does it make common sense to have
judges be the ultimate arbiter of whether or not a pedophile
should be given a second chance in society in each and every
case?
Ms. Parsky. I think there may have been a few questions in
there, but I'll address a couple of points quickly. The first,
with respect to what kind of impact mandatory----
Mr. Feeney. When the clock turns yellow, you get as many
questions in as possible.
Ms. Parsky. With respect to what effect mandatory minimums
have in the Federal system, I can tell you that there are many
areas where, when a particular Federal district starts taking
cases and making them Federal, you hear about the impact on the
community, because there can be very stiff penalties because
there is truth in sentencing, because there have been these
sentencing guidelines that provide for determinant sentencing.
And that's something that's been a very important tool in order
for us to really bring down crime rates to one of the lowest
points in, I think, 20 years. And mandatory minimums are a big
part of that because we need a way to assure that consistency.
Mr. Feeney. Mr. Chairman, with unanimous consent, does that
lowest crime rate in 20 years relate to offenses against
children?
Ms. Parsky. I don't know exactly what the breakdown is, but
I can get that for you. I think it's a general crime rate.
Mr. Green. The gentleman's time has expired.
Mr. Keller.
Mr. Keller. Thank you, Mr. Chairman. I had a question for
the Attorney General, who is out of the room right now, but I
will direct my question to Mrs. Fornoff, and I'll just boil it
all down for you.
We have a fork in the road here in Congress. The issue is
what to do about child sex-offenders who repeatedly molest
children. Do we protect other kids by locking these child
predators away in a prison cell for at least 30 years? Or do we
coddle these criminals by providing them with more money for
rehabilitation and treatment and allow a judge to have the
discretion to let them out of prison after 6 months or a year?
Some of those in the lock-them-up camp, such as myself,
believe that that is the only way to protect children. Under
existing law, if you are convicted of aggravated sexual abuse
for children, you can be sentenced from zero years to life.
Under this bill, there would be a 30-year mandatory minimum.
Under the new Florida law, there would be a 25-year mandatory
minimum.
The other side, as articulated by Mr. Scott and one of the
panelists, is that philosophically divergent scholars and
liberal Berkeley law professors disagree with us.
Let me ask you: Do you have a position as to what camp you
are in, as someone who has been through this tragedy?
Mrs. Fornoff. Yes. Yes, I do.
Mr. Keller. What is your position?
Mrs. Fornoff. I do not believe that pedophiles can be back
on our streets. I believe they need to be locked up. Because I
do not believe that it has been proven that you can help them.
Mr. Keller. Thank you.
Ms. Parsky, let me direct that question to you. I know
Justice isn't taking a formal position on this. Do you have any
reason to believe that, if we only spent more money on
rehabilitation and treatment, that we would have repeated child
molesters get out of prison and go on to lead a perfectly
normal life without any risk to our young people?
Ms. Parsky. What our approach to this problem has been is
that we need to apply every available tool to try to prevent
the problem. In some appropriate circumstances, preventive and
rehabilitative services may be appropriate, but you also need
to have very stiff penalties. And you need to have the ability
to put people behind bars for long periods of time when they
clearly pose a risk to the community.
So we have tried to approach this from all different angles
so that we are providing the most for our communities in terms
of protection, in terms of punishment, and in terms of
deterrence.
Mr. Keller. As you look at this bill and decide, as the
Justice Department looks at this bill and decides what they
think of the merits, do you understand the concern that
Congress has that under the current penalty for aggravated
sexual abuse, the crime can be sentenced at zero to life; that
we're a little uncomfortable with that discretion for a judge?
Ms. Parsky. As I've said, we are taking the entire bill
into consideration, but I certainly understand the need in this
area for consistency and fair but harsh punishments.
Mr. Keller. Right.
Mr. Rhodes, you have the hardest job here today, and I am
not going to get up here and prance around with any hard
questions, but one of the things you mentioned is you cite some
sort of recidivism statistic. And I just have to tell you, as
someone from Florida who has lived through this tragedy in the
past few months, I don't think those statistics are going to
give any comfort to the parents of Jessica Lunsford or Sarah
Lunde, who just had their children abducted, raped, and killed
by people who had done it before.
Can you understand the frustration Congress has with that
position?
Mr. Rhodes. Certainly. That is why I mentioned at the
beginning of my testimony I used to be the guardian for teenage
rape victims, girls who were typically groomed by their
stepfathers for sexual relations. So I know that side of the
situation.
But I also know that I have many clients who are convicted
sex offenders who are living successfully in the community. To
me, it doesn't make sense for them or the communities to lock
them up forever, because that doesn't seem to be justice. And
it doesn't do them any favors, and I don't believe it does the
community any favors.
And I, again, emphasize the aggravated sexual abuse and the
aggravated sexual contact cases come off of reservations
overwhelmingly. And I think it is imperative that Congress
consult the tribes and the communities to see what they think
is best.
Mr. Keller. If you had a three-time child molester live
next door to you, who had had the appropriate rehabilitation
and treatment, would you be comfortable leaving your little
girl alone with him?
Mr. Rhodes. I can honestly say one of my clients, who was
convicted of child pornography, just got out of prison. My wife
is pregnant, if he moved next door to us, that would be fine by
me.
I would also add, I mentioned in response to some earlier
questions that the PROTECT Act provisions, many of them still
are very effective in Federal sentencing, in particular the
two-strikes-you're-out provision at 18 USC 3559(e). Also, in
the guidelines, there is a variation of the two-strikes-you're-
out-provision at section 4(b)1.5.
Mr. Keller. Mr. Chairman, can I ask unanimous consent just
to ask one question to Mr. Crist, who was not here for my
questioning?
Mr. Green. Without objection.
Mr. Keller. Mr. Crist, the issue before us is, what do we
do with these repeated child sex offenders? Do we lock them up
in a prison, or do we instead give them more money for
treatment and rehabilitation and allow a judge to have the
discretion to let them out after 6 months or 1 year?
You outlined in your testimony the tragedy of the killings
of the 9-year-old girl, Jessica Lunsford, and the 13-year-old,
Sarah Lunde. Can you elaborate on the criminal histories and
sex offender status of the two men charged with those heinous
crimes?
Mr. Crist. Yes. In both of those cases, the perpetrator or
alleged perpetrator had a history of violence. It seems to me,
and what we have tried to propose in Florida, and certainly
would be encouraged to do here, is along the lines of what I
know both you and Congressman Feeney believe in; that is we
need to do first things first, and that is to protect our
citizens.
I mean, they had violent histories. They had served their
time. They had, in essence, paid their debt to society and
gotten out and been placed on probation, but then they violated
the privilege of probation. Some would argue that it was minor,
but nevertheless violated. At that point, we knew that
something was going wrong. They went before the judge. The
judge had the opportunity to make one of two decisions: Let
them continue on that privilege and roam the neighborhoods of
our State, or have the opportunity to have them reincarcerated
to protect the citizens of our State.
Unfortunately, they chose the former. They decided to let
them stay out. We in the Attorney General's Office this year
proposed legislation that in essence would have said they had
to go back to jail if they violated the second chance given to
them by our criminal justice system, in order to do the first
thing that is in the first line of the Constitution: To insure
domestic tranquility--to protect people, to make sure that law-
abiding citizens are afforded the protection that they deserve
and expect. And that really is the whole purpose to have
Government in the first place.
I think their backgrounds coupled with what the solutions
can be in addition to the Feeney amendment, to what
Congresswoman Ginny Brown-Waite has done, Congresswoman
Katherine Harris and Mark Foley and so many others from
Florida--because of the Florida experience, if you will, I
think we have probably a heightened interest and concern about
what has happened.
I appreciate the question.
Mr. Green. I thank the gentleman.
Ms. Waters has joined us. Questions, please.
Ms. Waters. Thank you very much. I am sorry I could not be
here earlier, but I do commend you for having this hearing.
This is a problem that I think most Americans are absolutely
pained about, what appears to be the growing abuse of children.
And even though I am opposed to mandatory minimum sentencing,
and I think we are taking all discretion away from judges to
make decisions and to know all the circumstances and to take
them into consideration. If I ever was to support mandatory
minimum sentencing, it would be in this area.
But I want to raise a question of Ms. Parsky, and this is
going to be a very sensitive question. I am concerned about
those people who know about crimes against children, these
sexual abuse cases, who do not seem to have a responsibility to
report what they know, particularly concerned about the
organized church and the fact that we are hearing over and over
again that the hierarchy in the Catholic Church. For example,
have known about abuses, and they have transferred priests from
one parish to another parish, and this has been going on for
years.
This is a subject that people don't like to touch. They
don't like to talk about it, but I do. I want to talk about it.
What is the responsibility of the head of the organized
religion in a supervisory or managerial role, who knows about
the abuse, sexual abuse of children, and they do not report it
to the authorities, they do not report it to the justice system
at all, they simply transfer the abuser to another location?
What do we have in law to protect young children that are in
these situations?
Ms. Parsky. Well, I appreciate your question, because I
think part of what brings us here today is a sense of community
responsibility; that it's a Federal responsibility; that it's a
State responsibility; and that those who are in religious
organizations or any other type of organization also have a
responsibility to protect our children.
I can't speak to the different State laws that might apply
to that kind of situation. I can point you to 18 U.S.C. Section
2258, which penalizes a failure to report a child abuse crime
if there is someone who is engaged in a professional capacity
or activity, be it on Federal lands or in a federally-operated
facility. But in addition, I would assume that there are many
States that have many other types of reporting requirements for
those who are in some sort of professional capacity where they
have an additional responsibility.
Ms. Waters. So does this not cover--this law does not cover
the church?
We have another case that was just revealed to us that you
may know about, just a few days ago, about an operation that's
been going on for some time in a church where children are
being sexually abused. It was just revealed last week. I
believe it was in the national media. Are you familiar with
that?
Ms. Parsky. I'm afraid I'm not familiar with that.
Ms. Waters. Okay. Well, let me just say that the law you
pointed to does not in any way cover what I am attempting to
describe. The law does not cover the cases that we all heard
about in the Catholic Church.
Ms. Parsky. Since I'm not familiar with the circumstances
you are describing--this is a particular Federal statute. But I
would also urge you to look to State law for some of those
circumstances.
Ms. Waters. Let me ask, in addition to all of the concerns
that we have, as we look at creating mandatory minimums, is
there anyone else concerned about sexual abuse of children by
organized religion or any other organizations that people in
supervisory or managerial positions keep secret and do not
report to the law? Anyone else concerned about that?
Mrs. Fornoff. Excuse me, I am.
I'm Carol Fornoff, and I'm a parent and a grandparent. And
in our State of Arizona, we have had so many of these cases.
And the laws weren't written, I guess, then. But now, I know,
as far as the church, the Catholic Church, they have really
stepped up to the plate, and I believe that it will not happen
again. But it is a sorrowful thing that it did.
Ms. Waters. You mean that there is something that happened
inside the church where they are taking responsibility. But you
don't know of anything in your State? Have they produced any
new State laws?
Mrs. Fornoff. I believe they have, because our bishop was
just taken out of the bishopric because of ignoring the priest
that had done these things.
Ms. Waters. Did he go to jail?
Mrs. Fornoff. He did not. He is not in jail.
Ms. Waters. Just stripped of the title.
Mrs. Fornoff. Yes.
Ms. Waters. Okay. Thank you very much.
Mr. Green. I thank the gentlewoman.
Again, I thank all the witnesses for coming and testifying
today, as well as all those who have attended the hearing.
Thank you very much.
Mr. Scott. Mr. Chairman?
Mr. Green. Yes.
Mr. Scott. Mr. Chairman, I understand you are not going to
have another round of questions, but I would like to alert Ms.
Parsky that we'll be asking for a prison impact statement on
the legislation, pursuant to the code section that allows us to
get a prison impact statement, and would appreciate it if she
would try to conduct a cost-benefit analysis comparing the cost
and benefit of the cost and benefit to the rehabilitation
programs that they have at one prison on dealing with child
sexual offenders.
Mr. Green. And to that end, let me say, in order to ensure
a full record and out of consideration of the important issues
that have been testified to today, the record will be left open
for additional submissions for 7 days. Also, any written
questions that a Member wants to submit, should be submitted
within that same 7-day period.
This concludes the legislative hearing on H.R. 2318, the
``Protection Against Sexual Exploitation of Children Act of
2005,'' and also H.R. 2388, the ``Prevention and Deterrence of
Crimes Against Children Act of 2005.''
Again, I thank everyone for their cooperation and
attention, and the Subcommittee stands adjourned.
[Whereupon, at 3:28 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of Congressman Robert C. ``Bobby'' Scott, Ranking
Member Subcommittee on Crime, Terrorism and Homeland Security Hearing
Thank you, Mr. Chairman. As usual, every two years, we pontificate
about crimes against children and dramatically increasing federal
sentences. We are doing so despite the fact that crimes against
children prosecuted in federal court constitute a very small percentage
of such crimes and represent none of the horrendous crimes against
children that have been in the media in recent months. There is no
evidence that federal prosecutions of crimes against children has a
significant impact on these horrendous state crimes against children,
nor that either state or federal laws for crimes against children are
too lenient. Indeed, we recently dramatically increased federal
sentences for crimes against children in the PROTECT Act. We have not
had time for enough cases to be sentenced under these increases to even
evaluate their effect, if any, before we are back again proposes more
draconian increases in federal sentences.
We are moving forward in dramatically increasing federal sentences
in the worst possible way - through greatly increased mandatory minimum
sentences. Mandatory minimum sentences only affect those whose offense
or role in an offense warrant a less severe sentence, since those who
warrant more already get more under the sentencing guidelines. I call
attention to the recommendations released today by a group of bi-
partisan, philosophically diverse scholars and high level current and
former public policy makers, led by former Attorney General Edwin Meese
and former Deputy Attorney General Phillip Heymann, indicating that
sentencing policies should provide for proportionality and sufficient
flexibility to reflect differences in role and background of offenders.
And these increases are occurring at a time when the evidence from
the Department of Justice is that sex offenders recidivate at a lower
rate than other offenders, in general, with a 5% recidivism rate for a
new sex offense and a 3.3% rate for child molesters recidivating with a
new offense of that nature. I will ask that this study and 4 others
from other sources, be made a part of the record. Also, the evidence
reveals that this low recidivism rate is cut in half with sexual abuse
treatment. While any recidivism is bad, 5% and 3% rates with the
prospect of being cut in half certainly does not suggest the situation
is hopeless. Yet, there is nothing in this bill to ensure treatment for
those offenders who seek treatment or who are already serving sentences
and will be leaving prison soon. The bills before us suggest that it is
better to wait for the victimization to occur and then apply draconian
penalties.
One of our speakers at an earlier hearing on this subject,
Criminologist and professor of Law Frank Zimmer of the Berkeley School
of Law, pointed out that treating all offenses and offenders the same
and mandating life sentences for repeat offenders, regardless of the
crime, may actually endanger more children than it helps. He expressed
the concern that putting an offender in the position of concluding that
once a crime is completed or attempted, he is facing a minimum of a
life sentence, will likely cause him to conclude that his best chance
of avoiding detection and a witness against him is to kill the victim.
Certainly this question should be considered against the conventional
justification for harsh mandatory minimums of forcing co-defendants to
testify against their partners in crime, since these crimes are more
often carried out by lone offenders.
We also know that greatly increasing federal sentences will
disproportionally affect Native Americans simply because they are more
likely to fall under federal jurisdiction, whereas those who are
committing the horrendous crimes giving rise to this federal sentencing
frenzy actually fall under state court jurisdiction. And we are doing
so with no consultation with Native American tribal authorities as we
have in the past when we have dramatically increased sentencing, such
as we did with the ``3 strikes you're out'' law and the death penalties
in the 1994 Crime Bill. There is certainly no evidence that Native
Americans have asked that offenders on tribal lands be treated more
harshly than offenders in the state courts right next to them. It
simply appears that having politicians able to prove how tough they are
on crime in an election year is more important than plain fairness to
Native Americans and respect for their tribal sovereignty.
Finally the provisions of the bills before us exacerbate an already
horrendous federal sentencing scheme. For example, under PROTECT Act
provisions, we provided a 5-year mandatory sentence to transport a
minor, or to travel, across state or international lines, to commit any
criminal sex offense involving a minor. This bill increases that
mandatory minimum sentence to 30 years. That means that an 18 year old
high school student who transports or causes a minor to travel, from DC
to Virginia to engage in consensual sex, thereby committing the crime
of contributing to the delinquency of a minor, would be subject to a
30-year mandatory minimum sentence. One can only imagine how many times
this law is violated in this area during prom season. What possible
sense does it make to mandate 30 years for this type case?
Under H.R. 2388, it appears that mere fist fights between
teenagers, if one is under 18 and is even slightly injured, require a
mandatory minimum sentence, even if the younger teen is the instigator.
And the provision limiting habeas jurisdiction will only increase
litigation and delays and increase the risk that innocent people will
be put to death. Several of the 159 people who were exonerated of their
crimes over the past 10 years, including some on death row, received
that exoneration after more than 20 years.
So, Mr. Chairman, I look forward to the testimony and enlightenment
of our witnesses on the bills before us. Thank you.
----------
Prepared Statement of Congresswoman Sheila Jackson Lee
The problem of violence against children and sexual exploitation of
children has been highlighted by recent events involving brutal acts of
violence against children. Recent examples include: (1) the abduction,
rape and killing of 9 year old Jessica Lunford (who was buried alive);
(2) the slaying of 13 year old Sarah Lunde, both of whom were killed in
Florida by career criminals and sex offenders. In Philadelphia, four
defendants were charged with the stabbing and killing of a 15 year old
girl, who they then threw into the Schuykill River. All of these tragic
events have underscored the continuing epidemic of violence against
children.
In addition, 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 the incidents 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.
Department of Justice statistics underscore the staggering toll
that violence takes on our youth (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). Data from 12 States during the period
of 1991 to 1996 show that 67 percent of the all victims of sexual
assaults 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.
While I strongly support the idea of protecting our children for
being sexually exploited, I am not in favor of mandatory minimums. Both
H.R. 2318 and H.R. 2388 impose unnecessary mandatory minimals and for
this reason I can not support either bill.
----------
Center for Sex Offender Management, ``Recidivism of Sex Offenders,''
May 2001, available ar http://www.csom.org/pubs/recidsexof.pdf
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__________
Dennise Orlando, `Sex Offenders,'' Special Needs Bullentin No. 3,
September 1998
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__________
Department of Rehabilitation and Correction, State of Ohio, ``Ten-Year
Recidivism Follow-up of 1989 Sex Offender Releases,'' April 2001,
available at http://www.drc.state.oh.us/web/Reports/Ten--Year--
Recidivism.pdf
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__________
U.S. Department of Justice, 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
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
__________
U.S. Sentencing Commission, ``Report of the Native American Advisory
Group,'' November 4, 2003, available at http://www.ussc.gov/NAAG/
NativeAmer.pdf
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__________
Jan Looman, Jeffrey Abracen, and Terry P. Nicholaichuk, ``Recidivism
Among Treated Sexual Offenders and Matched Controls,'' Journal of
Interpersonal Violence, Vol. 15 No. 3, March 2000
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__________
Letter from the Honorable Jon Kyl to the Honorable F. James
Sensenbrenner, Jr. (June 9, 2005)
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__________
Senator Jon Kyl, Introduction of the Streamlined Procedures Act,
Congressional Record, pages S5540-S5543
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__________
The Streamlined Procedures Act Section-by-Section Analysis, submitted
by the Honorable Jon Senator Jon Kyl
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S. 1088, the ``Streamlined Procedures Act of 2005,'' submitted by the
Honorable Jon Kyl, a U.S. Senator from the State of Arizona
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U.S. Department of Justice, Bureau of Statistics, ``Criminal Offenders
Statistics,'' available at http://www.ojp.usdoj.gov/bjs/crimoff.htm
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__________
Letter from John Rhodes, Assistant Federal Defender to Bobby Vasser,
Minority Counsel, Subcommittee on Crime, Terrorism, and Homeland
Security
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