The Honorable Orrin G. Hatch
United States Senate
104 Hart Senate Office Building
Washington, DC 20510
The Honorable F. James Sensenbrenner Jr.
U.S. House of Representatives
2332 Rayburn House Office Building
Washington, DC 20515-4909
Re: Conference Report on S. 151
Dear Chairman Hatch and Chairman Sensenbrenner:
We urge you to reject various portions of S. 151 in conference committee because they are ill-advised and, in some cases, counter-productive. We do not oppose Title III of the bill which expands the Amber Alert and improves the National Coordination of Amber Alert Communications -- communications that occur in the wake of child abduction. This portion of the bill sets minimum standards for states and provides for grant money. The remainder of the bill, however, contains many problematic criminal justice provisions, detailed below. Additionally, the ACLU does have significant objections to the proposed Biden amendment to amend the ""crack-house"" statute, making it easier to prosecute raves.
Problems in S. 151 in its current form include:
- Expanding the Death Penalty: Section 102 expands the type of homicide that can be punished by the death penalty. The ACLU opposes the death penalty in all circumstances and opposes creating new death-eligible offenses. The increasing numbers of innocent people released from death row illustrate the fallibility of the system.
- Increasing Mandatory Sentences: Sections 103 (b) and 104 (b) increase certain mandatory minimum sentences for a number of sexual abuse crimes. The ACLU opposes mandatory sentencing because it eliminates judicial discretion and can lead to unfair punishments. We oppose increasing mandatory sentences. We do not oppose section 103 (a) that increases the maximum penalty, because this section maintains judicial discretion. It allows harsh punishments when appropriate, but allows the judge to deviate from that punishment if appropriate. However, we recommend that Congress refer this matter to the United States Sentencing Commission with directions to increase the sentences if appropriate. The Federal judiciary opposes mandatory sentencing and has repeatedly urged Congress to refrain from expanding mandatory sentencing.
- Criminalizing Traveling With a Criminal Intent: Section 105 (b) creates a new crime of "traveling with intent to engage in illicit sexual conduct." This would apply to United States citizens or aliens who moved and travel abroad, or in interstate commerce, to engage in sexual behavior that is illegal under federal law, but not necessarily in that jurisdiction. It also applies to people entering the United States that engage in illicit sex. Because there is no requirement that the person actually engage in an illegal sexual act, there is a real danger that the government may prosecute innocent behavior and/or thought. While the government may have a legitimate interest in prosecuting sexual conduct in foreign places (section c), it is dangerous for the government to prosecute a person for traveling with intent to engage in a sexual act. Furthermore, a person's sexual conduct is highly private and the government will of necessity have to intrude on private matters to prove this crime -- telephone conversations, e-mail exchanges, and travel-related purchases. Another concern is that sub-section (e) requires punishing an attempt or a conspiracy to travel with the intent to engage in illicit sexual conduct to the same degree as the underlying offense. Again, the danger here is that the government will be turning wholly innocent behavior into a crime. For example, behavior such as contacting a travel agent to make travel plans could be either attempt to travel with intent or conspiracy to travel with intent to engage in illicit sexual conduct.
- Two Strikes and You're Out: Section 106 again, creates a mandatory life sentence for certain sexual offenses. We oppose this section because we oppose mandatory sentencing. Some situations may merit a life sentence to punish serial sexual offenders, and judges already have the authority to impose life penalties for these crimes if appropriate. However, removing judicial discretion may create unduly harsh sentences.
- Expanding Wiretap Authority: Section 201 expands the federal wiretap law to include several new offenses. We are concerned about expanding federal wiretap authority in general, because wiretap authority is supposed to be used sparingly for the most serious crimes. We understand the government's desire to expand wiretap authority in some sex crimes, but think there should be differentiation between sexual offenses that involve actual children and offenses that involve transporting pornographic materials, not children. Two of the sections, 18 U.S.C. sections 2252 and 2252A involve transportation of materials and we oppose expanding wiretap authority to cover these two sections. This section should be limited to sexual offenses that involve actual children.
- Eliminating the Statute of Limitations: Section 202 eliminates the statute of limitation for ANY sexual abuse case (Chapter 109A offenses) even those against adults. Many of these offenses are not among the most serious felony offenses and do not justify the extreme measure of eliminating the statute of limitations. If this section were truly to be limited to only child abduction cases, it would be much less troubling.
- Eliminating Pre-Trial Release: Section 221 eliminates the presumption of bail for persons charged with certain crimes against children. The ACLU opposes eliminating the constitutional right to bail for persons accused of crimes, at a time when they are still presumed to be innocent. There may be times when, for public safety reasons, a judge believes that certain offenders should be detained pre-trial. In those cases, a judge can set a high bail, making it impossible for an accused person to be released from jail. However, as with sentencing decisions, the judge should exercise discretion over bail decisions, not Congress.
- The Misleading Domain Names Section (Section 108) chills protected speech and is counter-productive: The term ""misleading"" is inherently vague, which tends to chill protected speech on the Internet.[1] The provision attempts to circumvent this problem by stating that the term ""porn"" or ""sex"" contained in the domain name will not be considered ""misleading."" The result is that in order to avoid liability for a misleading domain name for a domain containing sexually explicit material, the domain owner will be forced to incorporate either ""porn"" or ""sex"" in the domain name. While this is a form of ""compelled speech"" upon which the First Amendment generally frowns, the additional problem is that it now becomes even easier for both children and adults to find sexually explicit material on the Internet. All they need do is search for domain names with ""porn"" or ""sex"" in the title.
- Section 109, Guidelines Departures, essentially creates a system of mandatory minimum sentences: This provision removes judicial discretion to impose appropriate sentences. Currently, judges may depart from the Guidelines only if the case involves circumstances not adequately addressed by the Sentencing Commission, and the government may appeal any downward departure. This is recognition of the fact that one size does NOT fit all, and that no guideline can cover every circumstance. Without this discretion, the Sentencing Guidelines will essentially become a set of mandatory minimum sentences.
- Title V (Child Pornography Amendments) has no compelling justification and re-institutes the errors condemned by the Supreme Court: In Ashcroft v. Free Speech Coalition, the Supreme Court held that ""virtual"" child pornography in which no child was used to produce the material, and is not otherwise obscene, is protected speech under the First Amendment. This provision will punish those who possess and distribute virtual child pornography that is ""indistinguishable"" from material in which an actual child was used to produce it. The Supreme Court made it clear in Free Speech Coalition that the government may not prohibit constitutionally protected speech as a way to control speech that is NOT constitutionally protected. Yet, this provision continues to punish virtual child pornography (protected speech) as a means of addressing child pornography produced using actual children (unprotected speech), which the Supreme Court held unconstitutional. Additionally, there is no compelling justification[2] for punishing virtual child pornography. While supporters of the amendment may claim that prosecution of child pornography becomes a futile exercise if the government must prove an actual child was used, statistical evidence presented to the House Judiciary Subcommittee on Crime proved that acquittals in child pornography cases occur in less than 1% of all cases. Fewer still resulted in acquittals because of the ""virtual"" child pornography defense. With such enviable conviction rates, the government is certainly not faced with a tidal wave of acquittals in child pornography cases, and there is thus no compelling justification to enact this provision.
In addition to the above problems, Senator Biden has proposed his ""crack-house statute amendments"" as an addition to this bill. We strongly urge you to reject this proposal.[3]
- The provision will punish innocent business owners: The amendment makes legitimate, innocent businesses into potential targets for felony charges if the nature of their business makes it impossible to guarantee that no drug use will occur on their property.
- The provision targets a particular genre of music for federal prosecution: While Senator Biden has re-named the bill (formerly known as the RAVE Act) and taken out the inflammatory findings about raves, introductory comments made for the current version of the bill make it clear that raves are the intended target. In light of current Drug Enforcement Administration enforcement strategies, using the Crack House Statute to target innocent rave promoters, it is particularly troubling that this provision provides no protection for legitimate rave events. Whether intentional or not, this provision allows the government to decimate electronic music and dance, one of the most popular and vibrant forms of popular culture today.
- The provision will drive raves underground and endanger the health of rave participants: The provision will not eliminate drug use or raves - it will just drive them underground and discourage basic health precautions. It will have the perverse effect of making raves even more dangerous.
The State Palace Theater in New Orleans illustrates the problems. The proprietors held approximately 50 raves. They did not condone or encourage drug use during the raves, nor did the prosecution ever allege they engaged in any drug related activity. On the contrary, State Palace had a zero-tolerance policy that absolutely forbid possessing, selling or using drugs on the premises. Signs throughout the venue announced this policy, as well as an offer that free tickets were to be given to anyone who turned in a person with drugs. Security guards refused to admit patrons who appeared to be intoxicated. Over the years, the proprietors arranged for many arrests due to their zero-tolerance policy, including security guards found to be selling drugs. The proprietors invited the DEA into the theater, helping them dress as undercover ""ravers"" and allowing them to pose as security guards. Anyone caught with drugs would be detained, and the DEA and New Orleans Police Department (NOPD) notified and asked to arrest the detainee. Often, the DEA and NOPD ignored the notification, and detainees would have to be released after their drugs were destroyed, because no one came to arrest them. On multiple occasions, the proprietors requested the NOPD assist them in the prevention of drug use at their rave concerts, but their requests were denied.
It is difficult to imagine what else the proprietors could have done to discourage drug use at their events. Nonetheless, the DEA decided to conduct a prolonged investigation of electronic music concerts at the State Palace Theater. DEA agents purchased what purported to be drugs from 82 individuals over the course of four or five events. Almost half of the purchases did not test positive for controlled substances. Rather than prosecuting the individuals who sold the substances, the DEA pursued the businessmen who provided the music that some drug users and non-drug users alike find entertaining.
The DEA has characterized the prosecution of the State Palace Theater as a response to a ""dire crisis,"" in which ""400 to 500 teenagers and young adults"" had suffered overdoses at State Palace raves. In actuality, the Department of Justice has stipulated that, over the course of some 50 rave events, only 30-40 individuals needed medical attention because of possible drug use. While even a single event is not trivial, the actual facts do not support the extraordinary move of pursuing a felony conviction against entertainment providers who are not themselves involved in drug activity.
The owner of any venue where a concert takes place knows a concert involves some risk of injury from overheating, exhaustion or fights, as well as some risk that some members of the audience may suffer the effects of drugs or alcohol. For these reasons, the State Palace ensured that medical personnel were on hand to assist or transport anyone in need. It hired the City's own ambulance service and followed a protocol common for any large entertainment event. Yet, prosecutors maintained that these reasonable precautions revealed connivance in running a drug operation. Finally, the government pointed to the fact that the proprietors sold bottled water (at the same $3 price as the nearby SuperDome) and provided an air-conditioned cooling-off room at an event involving thousands of energetic dancers as evidence of a crime.
In short, a businessman who had never been charged with any crime in his life and who was following standard business practices for his industry was suddenly faced with the prospect of up to 20 years in prison. While this occurred under the current crack-house statute, Senator Biden intends to broaden that law, encouraging even more such prosecutions. Innocent business owners will be targeted, and sensible health and safety precautions will not be taken because to implement them means they will be used as evidence of ""knowledge"" that a crime is occurring on their premises. At a time when we already have over 2 million people in our jails and prisons, it makes no sense to imprison innocent business owners who hold concerts where patrons may use drugs.
The goal of improving the Amber alert system is a laudable one. Unfortunately, however, it has become littered with many provisions and proposed amendments that are ill-advised and constitutionally questionable. For that reason, we ask that you strip out these provisions and pass a standalone Amber alert bill out of the conference committee.
Sincerely,
Laura W. Murphy
Director
Marvin J. Johnson
Legislative Counsel
cc. Members of the Conference Committee
ENDNOTES
[1] While obscenity is not protected speech, only a court or jury may deem the material obscene. Additionally, the proposed amendment covers material ""harmful to minors."" Such material may not be protected speech for minors, but is protected speech as to adults. Since there are no reliable age indicators for users of the Internet, material placed on the Internet is available to anyone. Because a domain owner may not know what will be considered misleading, particularly as to minors, she may be deterred from selecting the domain name she prefers, a right generally protected under the First Amendment.
[2] Because the First Amendment is implicated, the Supreme Court has required that the government have a compelling interest in regulating this speech. Absent a compelling interest, regulation is unconstitutional.
[3] More complete coverage of the problems with this provision are contained in the testimony of Graham Boyd, Director of the ACLU Drug Policy Litigation Project, Before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security on October 10, 2002. That testimony is found at: http://www.house.gov/judiciary/boyd101002.pdf