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

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

Dear Representative:

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

CongressShould Not Expand The Federal Death Penalty Until It Ensures Innocent People AreNot On Death Row.

• The death penalty is in need of reform, not expansion. Accordingto the Death Penalty Information Center, 123 prisoners on death row have nowbeen exonerated. Chronic problems, including inadequate defense counsel andracial disparities, plague the death penalty system in the United States. Theexpansion of the death penalty for gang and other crimes creates an opportunityfor more arbitrary application of the death penalty.
• In addition to expanding the number of federal death penaltycrimes, this bill also expands venue in capital cases, making any location eventangentially related to the crime a possible site for the trial. This raises constitutional as well aspublic policy concerns. The U.S. Constitution states that "the Trial of allCrimes . . . shall be by Jury; and shall be held in the State where the saidCrimes shall have been committed."[1] This concept isimportant in order to prevent undue hardship and partiality when an accusedperson is prosecuted in a place that has no significant connection to theoffense with which he is charged. This proposed change in H.R.4472 wouldincrease the inequities that already exist in the federal death penalty system,giving prosecutors tremendous discretion to "forum shop" for the mostdeath-friendly jurisdiction in which to try their case.
• Incarjacking cases, this legislation would effectively relieve the government fromhaving to prove that a person intended to cause the death of a person beforebeing subject to the death penalty.This provision is likely unconstitutional in the context of capitalcases.[2] In addition, the bill would allow the death penaltyfor attempt and conspiracy in carjacking cases, which we believe isunconstitutional.[3]

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

• This legislation would create 29new mandatory minimum sentences that would result in unfair and discriminatoryprison terms. Many of the criminal penalties in thisbill are increased to mandatory minimum sentences,[4] including thesentence for second-degree murder that would be a mandatory sentence of 30years. Although, in theory,mandatory minimums were created to address disparate sentences that resultedfrom indeterminate sentencing systems, in reality they shift discretion from thejudge to the prosecutor. Prosecutors hold all the power over whether a defendantgets a plea bargain in order for that defendant to avoid the mandatorysentence. This creates unfair and inequitable sentences for people whocommit similar crimes, thus contributing to the very problem mandatory minimumswere created to address.

People Could BeConvicted Of A "Gang" Crime Even If They Are Not Members Of AGang.

• Thislegislation would impose severe penalties for a collective group of three ormore people who commit "gang" crimes. This bill amends the already broaddefinition of "criminal street gang" to an even more ambiguous standard of aformal or informal group or association of three (3) or more people who committwo (2) or more "gang" crimes. The number of people required to form a gangdecreases from five (5) people in an ongoing group under current law to three(3) people who could just be associates or casual acquaintances under thisproposed legislation. Under current law it is essential to establish that a ganghad 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 thathas some type of connection to a tight knit group of people that exists for theof purpose engaging in illegal activities.

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

• Innocentpeople could be convicted of crimes they did not commit if the statute oflimitations is extended as proposed in this legislation. The Omnibus Crime billproposes to extend the statute of limitations for non-capital crimes ofviolence. Generally, the statute of limitations for non-capital federal crimesis five (5) years after the offense is committed. [5] Fifteen yearsafter a crime is committed, alibi witnesses could have disappeared or died,other witnesses' memories could have faded and evidence may be unreliable. Theuse of questionable evidence could affect a person's ability to defend him orherself against charges and to receive a fair trial.
• Thislegislation would also preclude defense attorneys in child pornography casesfrom obtaining possession of the alleged child pornography, possibly deprivingthe defendant of a fair trial. Thisprovision is entirely unnecessary, since federal courts routinely issueextremely restrictive protective orders regarding alleged child pornography.These protective orders preclude duplication or review of the alleged childpornography except as necessary for the preparation of the defense. Giving thegovernment sole possession of the material may well harm the defendant's case.Forensic analysis is often critical in determining whether the material is, infact, child pornography.

TitleVI Infringes Upon Constitutionally Protected Speech Under The FirstAmendment.

• Thelegislation would require record keeping for simulated sexual conduct. Simulated sexual conduct that is notobscene is protected under the First Amendment.[6]"Lawsthat burden material protected by the First Amendment must be approached from askeptical point of view and must be given strict scrutiny."[7] The fact that those laws only burdenrather than prohibit protected material does not save them constitutionally.[8]
• Thisprovision of the bill infringes upon protected speech and is not narrowlytailored to solve the problems of child pornography. Understandably, mainstream producerswill comply with the law, but those who are intent on making child pornographyare unlikely to do so. Thisprovision is therefore constitutionally suspect.

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

• Mosthabeas corpus petitions that challenge a person's death or criminal sentence arebrought to federal court based on a constitutional error that under the law isconsidered "harmless" or "non-prejudicial." These types of legal errors do notinvolve substantial rights and do not necessarily result in a person beingreleased from custody.[9] H.R. 4472 would prevent federal courtsfrom hearing claims in death penalty cases that involve claims of cruel andunusual punishment under the Eighth Amendment or whether a defendant's lawyerwas ineffective during the sentencing phase of a capital case.
• Thisprovision of the bill has serious implications for the independence of thefederal judiciary. Congress' attempt to strip Article III courts of theirconstitutional habeas corpus jurisdiction[10] isunconstitutional under the doctrine of Separation of Powers. Removing jurisdiction over many habeas claims from federal courtsignores theseparation of powers doctrine by eliminating the role of the courts in upholdingconstitutional rights of prisoners.

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

• The"Violence Against Women Act of 2005" (VAWA) wassigned into law on January 5, 2006, (P.L. No: 109-162) and dramaticallyexpands the government's authority to collect and permanently retain DNAsamples. Under this law, personswho are merely arrested or detained by federal authorities wouldbe forced to have their DNA collected and stored alongside those of convictedfelons in the federal DNA database. However, under currently law DNA samplesthat are voluntarily submitted to law enforcement authorities are not includedin the Combined DNA Indexing System (CODIS). In addition, DNA profiles ofindividuals arrested but not convicted of crimes can be expunged from CODIS uponreceipt of a "certified copy of a final court order establishing that suchcharge has been dismissed or has resulted in an acquittal."[11]
• However,H.R. 4472 would permit voluntarily submitted samples to be included in CODIS andwould eliminate the expungement provision for people whose DNA was incorporatedin 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 automaticsuspect for any future crime. Thisis problematic for any category of tested persons, but especially for those whohave been arrested but not convicted of a crime.
• Inaddition, the Omnibus Crime bill would allow states to upload to CODIS DNAsamples submitted voluntarily in order to eliminate people as suspects of acrime. This will increase the useby law enforcement of DNA "sweeps" and reducing the willingness of citizens tocooperate with the police.

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

• Theproposed legislation requires sex offenders to update registry informationwithin 5 days of a change in residence, employment or student status. This requirement is unrealistic and works against the goalof being able to monitor sex offenders. If theregistration requirements are unrealistic, offenders will fail to register andend up underground, which is contrary to the goal of tracking and locating them.Under the Omnibus Crime bill, states will be required to verify sexoffender registry information in person possibly as frequently as once everythree months and required to verify their residences as often once every monthdepending on the class of offender.This will be an enormous burden on the states to create and implementsystems to track sex offenders on a monthly basis.
• Thebill will also require the work addresses of sex offenders to be available onthe Internet. Publicizing information about employers and their addresses on theInternet could ultimately lead to employers refusing to hire former sexoffenders. Research has shown that significant supervision upon release andinvolvement in productive activities are critical to preventing sex offendersfrom reoffending. Limiting theopportunities of sex offenders to maintain gainful employment iscounter-productive to their rehabilitation as well as to keeping communitiessafe.

ChildrenWould Be Put In Federal Prison With Little Opportunity For Education OrRehabilitation.

• Underthe Omnibus Crime bill, more children will become hardened criminals after beingtried in federal court and incarcerated in adult prisons. H.R.4472 would giveprosecutors the discretion to determine when to try a young person in federalcourt as an adult, if the juvenile is 16 years of age or older and commits acrime of violence. The decision by a prosecutor to try a juvenile as an adultcannot be reviewed by a judge under this legislation. This unreviewable processof transferring youth to adult federal court is particularly troubling whenjuveniles are not routinely prosecuted in the federal system and there are noresources or facilities to address the needs of youth.

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

Sincerely,

CarolineFredrickson
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 thatimposing the death penalty on petitioner who did notkill nor intend to kill is inconsistent with the Eighth and FourteenthAmendments); See also Tison v. Arizona, 481 U.S. 137, 107, 107S.Ct 1676, 95 L.Ed 127(1987) (Court held the defendant who played a major rolein a felony murder and exhibited recklessindifference 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.2d982 (1977)(Courtheld that a sentence of death for the crime of rapeof adult woman was grossly disproportionate and excessive punishment forbiddenby Eighth Amendment).
[4] 18 U.S.C. Sec. 115Influencing, Impeding, or Retaliating Against Judges and other Officials byThreatening or Injuring a Family Member; 18 U.S.C. 1111; 18 U.S.C. Sec. 1503Influencing or Injuring Officer or Juror Generally; 18 U.S.C. 1512 Tamperingwith a Witness, Victim, or an Informant; and 18 U.S.C. Sec. 1513 Retaliatingagainst a Witness, Victim, or an Informant.
[5] 18 U.S.C. 3282 (See the exception forChapter 109A offenses involving DNA evidence).
[6] New York v.Ferber, 458 U.S. 747 at 764-765 (1982). Ferber specifically recognizedsimulation as a legally permissible alternative to using children in sexuallyexplicit scenes. "[I]f it werenecessary for literary or artistic value, a person over the statutory age whoperhaps looked younger could be utilized.Simulation outside of the prohibition of the statute could provideanother alternative." Id. at763.
[7] AmericanLibrary Association v. Thornburgh, 713 F.Supp. 469, 476 (D.C. Cir.1989).
[8]Id.
[9] Id.
[10] US ConstitutionArticle I Section 9 states " [t]he Privilege of Writ of Habeas Corpus shall notbe suspended, unless when Cases of Rebellion or Invasion the public safety mayrequire it.
[11] The House billproposes to completely eliminate any requirement forexpungement.