Re: H.R. 1104, the Child Abduction Prevention Act
Dear Congressman:
We urge you to vote against H. R. 1104, the Child Abduction Prevention Act when it comes to the floor for a vote on March 27, 2003. 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 ill-advised criminal justice provisions, detailed below. Additionally, several proposed amendments are problematic.
Problems in H.R. 1104 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) increased 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. Again, 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.
Several proposed amendments to H.R. 1104 create additional problems:
- The Pence Amendment on Misleading Domain Names: The term ""misleading"" is inherently vague, which tends to chill protected speech on the Internet.[1] The proposed amendment 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.
- The Feeney Amendment on Guidelines Departures: This amendment would remove 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.
- The Smith Amendment on Child Pornography: 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. The Smith amendment 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. Additionally, 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.
The goal of the Amber alert bill 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 vote against H.R. 1104.
Sincerely,
Laura W. Murphy
Director
Marvin J. Johnson
Legislative Counsel
ENDNOTE
[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.