ACLU Letter to the House of Representatives Asking Members to Oppose H.R. 4472, the Children’s Safety and Violent Crime Reduction Act of 2005

March 7, 2006

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

Dear Representative:

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

Congress Should Not Expand The Federal Death Penalty Until It Ensures Innocent People Are Not On Death Row.

The death penalty is in need of reform, not expansion. According to the Death Penalty Information Center, 123 prisoners on death row have now been exonerated. Chronic problems, including inadequate defense counsel and racial disparities, plague the death penalty system in the United States. The expansion of the death penalty for gang and other crimes creates an opportunity for more arbitrary application of the death penalty.
In addition to expanding the number of federal death penalty crimes, this bill also expands venue in capital cases, making any location even tangentially related to the crime a possible site for the trial. This raises constitutional as well as public policy concerns. The U.S. Constitution states that "the Trial of all Crimes . . . shall be by Jury; and shall be held in the State where the said Crimes shall have been committed."[1] This concept is important in order to prevent undue hardship and partiality when an accused person is prosecuted in a place that has no significant connection to the offense with which he is charged. This proposed change in H.R.4472 would increase the inequities that already exist in the federal death penalty system, giving prosecutors tremendous discretion to "forum shop" for the most death-friendly jurisdiction in which to try their case.
In carjacking cases, this legislation would effectively relieve the government from having to prove that a person intended to cause the death of a person before being subject to the death penalty. This provision is likely unconstitutional in the context of capital cases.[2] In addition, the bill would allow the death penalty for attempt and conspiracy in carjacking cases, which we believe is unconstitutional.[3]

H.R. 4472 Erodes Federal Judges' Sentencing Discretion By Proposing Harsher Mandatory Minimum Sentences.

This legislation would create 29 new mandatory minimum sentences that would result in unfair and discriminatory prison terms. Many of the criminal penalties in this bill are increased to mandatory minimum sentences,[4] including the sentence for second-degree murder that would be a mandatory sentence of 30 years. Although, in theory, mandatory minimums were created to address disparate sentences that resulted from indeterminate sentencing systems, in reality they shift discretion from the judge to the prosecutor. Prosecutors hold all the power over whether a defendant gets a plea bargain in order for that defendant to avoid the mandatory sentence. This creates unfair and inequitable sentences for people who commit similar crimes, thus contributing to the very problem mandatory minimums were created to address.

People Could Be Convicted Of A "Gang" Crime Even If They Are Not Members Of A Gang.

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

H.R. 4472 Jeopardizes A Person's Right To A Fair Trial.

Innocent people could be convicted of crimes they did not commit if the statute of limitations is extended as proposed in this legislation. The Omnibus Crime bill proposes to extend the statute of limitations for non-capital crimes of violence. Generally, the statute of limitations for non-capital federal crimes is five (5) years after the offense is committed. [5] Fifteen years after a crime is committed, alibi witnesses could have disappeared or died, other witnesses' memories could have faded and evidence may be unreliable. The use of questionable evidence could affect a person's ability to defend him or herself against charges and to receive a fair trial.
This legislation would also preclude defense attorneys in child pornography cases from obtaining possession of the alleged child pornography, possibly depriving the defendant of a fair trial. This provision is entirely unnecessary, since federal courts routinely issue extremely restrictive protective orders regarding alleged child pornography. These protective orders preclude duplication or review of the alleged child pornography except as necessary for the preparation of the defense. Giving the government sole possession of the material may well harm the defendant's case. Forensic analysis is often critical in determining whether the material is, in fact, child pornography.

Title VI Infringes Upon Constitutionally Protected Speech Under The First Amendment.

The legislation would require record keeping for simulated sexual conduct. Simulated sexual conduct that is not obscene is protected under the First Amendment.[6]
"Laws that burden material protected by the First Amendment must be approached from a skeptical point of view and must be given strict scrutiny."[7] The fact that those laws only burden rather than prohibit protected material does not save them constitutionally.[8]
This provision of the bill infringes upon protected speech and is not narrowly tailored to solve the problems of child pornography. Understandably, mainstream producers will comply with the law, but those who are intent on making child pornography are unlikely to do so. This provision is therefore constitutionally suspect.

Federal Courts Would Essentially Be Unable To Release Some People on Death Row Who Were Wrongfully Convicted.

Most habeas corpus petitions that challenge a person's death or criminal sentence are brought to federal court based on a constitutional error that under the law is considered "harmless" or "non-prejudicial." These types of legal errors do not involve substantial rights and do not necessarily result in a person being released from custody.[9] H.R. 4472 would prevent federal courts from hearing claims in death penalty cases that involve claims of cruel and unusual punishment under the Eighth Amendment or whether a defendant's lawyer was ineffective during the sentencing phase of a capital case.
This provision of the bill has serious implications for the independence of the federal judiciary. Congress' attempt to strip Article III courts of their constitutional habeas corpus jurisdiction[10] is unconstitutional under the doctrine of Separation of Powers. Removing jurisdiction over many habeas claims from federal courts ignores the separation of powers doctrine by eliminating the role of the courts in upholding constitutional rights of prisoners.

H.R. 4472 Would Result In The Routine Collection And Permanent Retention Of DNA Samples And Profiles From Innocent People.

The "Violence Against Women Act of 2005" (VAWA) was signed into law on January 5, 2006, (P.L. No: 109-162) and dramatically expands the government's authority to collect and permanently retain DNA samples. Under this law, persons who are merely arrested or detained by federal authorities would be forced to have their DNA collected and stored alongside those of convicted felons in the federal DNA database. However, under currently law DNA samples that are voluntarily submitted to law enforcement authorities are not included in the Combined DNA Indexing System (CODIS). In addition, DNA profiles of individuals arrested but not convicted of crimes can be expunged from CODIS upon receipt of a "certified copy of a final court order establishing that such charge has been dismissed or has resulted in an acquittal."[11]
However, H.R. 4472 would permit voluntarily submitted samples to be included in CODIS and would eliminate the expungement provision for people whose DNA was incorporated in the federal database based on an arrest that never resulted in a conviction. Retaining a person's DNA in a criminal database renders him or her an automatic suspect for any future crime. This is problematic for any category of tested persons, but especially for those who have been arrested but not convicted of a crime.
In addition, the Omnibus Crime bill would allow states to upload to CODIS DNA samples submitted voluntarily in order to eliminate people as suspects of a crime. This will increase the use by law enforcement of DNA "sweeps" and reducing the willingness of citizens to cooperate with the police.

H.R. 4472 Will Make It More Difficult To Monitor Sex Offenders By Simply Forcing Offenders Underground.

The proposed legislation requires sex offenders to update registry information within 5 days of a change in residence, employment or student status. This requirement is unrealistic and works against the goal of being able to monitor sex offenders. If the registration requirements are unrealistic, offenders will fail to register and end up underground, which is contrary to the goal of tracking and locating them. Under the Omnibus Crime bill, states will be required to verify sex offender registry information in person possibly as frequently as once every three months and required to verify their residences as often once every month depending on the class of offender. This will be an enormous burden on the states to create and implement systems to track sex offenders on a monthly basis.
The bill will also require the work addresses of sex offenders to be available on the Internet. Publicizing information about employers and their addresses on the Internet could ultimately lead to employers refusing to hire former sex offenders. Research has shown that significant supervision upon release and involvement in productive activities are critical to preventing sex offenders from reoffending. Limiting the opportunities of sex offenders to maintain gainful employment is counter-productive to their rehabilitation as well as to keeping communities safe.

Children Would Be Put In Federal Prison With Little Opportunity For Education Or Rehabilitation.

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

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

Sincerely,

Caroline Fredrickson
Director
Jesselyn McCurdy
Legislative Counsel

cc: House Members

[1] U.S. Constitution, Article III Section 2.
[2] See Enmunds v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (Court held that imposing the death penalty on petitioner who did not kill nor intend to kill is inconsistent with the Eighth and Fourteenth Amendments); See also Tison v. Arizona, 481 U.S. 137, 107, 107 S.Ct 1676, 95 L.Ed 127(1987) (Court held the defendant who played a major role in a felony murder and exhibited reckless indifference for life could be subject to the death penalty).
[3] See Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (Court held that a sentence of death for the crime of rape of adult woman was grossly disproportionate and excessive punishment forbidden by Eighth Amendment).
[4] 18 U.S.C. Sec. 115 Influencing, Impeding, or Retaliating Against Judges and other Officials by Threatening or Injuring a Family Member; 18 U.S.C. 1111; 18 U.S.C. Sec. 1503 Influencing or Injuring Officer or Juror Generally; 18 U.S.C. 1512 Tampering with a Witness, Victim, or an Informant; and 18 U.S.C. Sec. 1513 Retaliating against a Witness, Victim, or an Informant.
[5] 18 U.S.C. 3282 (See the exception for Chapter 109A offenses involving DNA evidence).
[6] New York v. Ferber, 458 U.S. 747 at 764-765 (1982). Ferber specifically recognized simulation as a legally permissible alternative to using children in sexually explicit scenes. "[I]f it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition of the statute could provide another alternative." Id. at 763.
[7] American Library Association v. Thornburgh, 713 F.Supp. 469, 476 (D.C. Cir. 1989).
[8] Id.
[9] Id.
[10] US Constitution Article I Section 9 states " [t]he Privilege of Writ of Habeas Corpus shall not be suspended, unless when Cases of Rebellion or Invasion the public safety may require it.
[11] The House bill proposes to completely eliminate any requirement for expungement.