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ALDERSON REPORTING COMPANY GREGORY ALTHAM HJU192000

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MARKUP OF H.R. 3796, THE ADAM WALSH REAUTHORIZATION ACT OF 2012; H.R. 4362, THE STOPPING TAX OFFENDERS AND PROSECUTING IDENTITY THEFT ACT OF 2012; H.R. 6063, THE CHILD PROTECTION ACT OF 2012; H.R. 6029, THE FOREIGN AND ECONOMIC ESPIONAGE PENALTY ENHANCEMENT ACT OF 2012; H.R. ____, THE INTELLECTUAL PROPERTY ATTACHE ACT; H.R. 6062, THE EDWARD BYRNE MEMORIAL JUSTICE ASSISTANCE GRANT PROGRAM REAUTHORIZATION ACT OF 2012; H.R. 1950, TO ENACT TITLE 54, UNITED STATES CODE, NATIONAL PARK SYSTEM, AS POSITIVE LAW; H.R. 6080, TO MAKE IMPROVEMENTS IN THE ENACTMENT OF TITLE 41, UNITED STATES CODE, INTO A POSITIVE LAW TITLE AND TO IMPROVE THE CODE; AND H.R. 3803, THE DISTRICT OF COLUMBIA PAIN-CAPABLE UNBORN CHILD PROTECTION ACT

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Tuesday, July 10, 2012 House of Representatives Committee on the Judiciary Washington, D.C.

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The committee met, pursuant to call, at 10:01 a.m., in Room 2141, Rayburn House Office Building, Hon. Lamar Smith [chairman of the committee] presiding. Present: Representatives Smith, Sensenbrenner, Coble,

Gallegly, Goodlatte, Lungren, Chabot, Issa, Forbes, King, Franks, Gohmert, Jordan, Poe, Chaffetz, Griffin, Marino, Gowdy, Ross, Adams, Amodei, Conyers, Berman, Nadler, Scott, Watt, Lofgren, Jackson Lee, Waters, Johnson, Quigley, Chu, Sanchez, and Polis. Staff Present: Richard Hertling, Majority Staff

Director and Chief Counsel; Travis Norton, Majority Parliamentarian; Sarah Kish, Clerk; Caroline Lynch, Majority Counsel; Sam Ramer, Majority Counsel; Sarah Allen, Majority Counsel; Perry Apelbaum, Minority Staff Director; Danielle

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Brown, Minority Parliamentarian; Ron LeGrand, Minority Counsel; Ashley McDonald, Minority Counsel; and Joe Graupensperger, Minority Counsel.

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Chairman Smith.

The Judiciary Committee will come to

order, and the clerk will call the roll. Ms. Kish. Mr. Smith? Present.

Chairman Smith. Ms. Kish. Mr. Coble? Mr. Gallegly? Mr. Goodlatte? Mr. Lungren? Mr. Chabot? Mr. Issa? Mr. Pence? Mr. Forbes? Mr. King? Mr. Franks? Mr. Gohmert? Mr. Jordan? Mr. Poe? Mr. Chaffetz? Mr. Griffin? Mr. Marino?

Mr. Sensenbrenner?

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Mr. Gowdy? Mr. Ross? Mrs. Adams? Mrs. Adams. Ms. Kish. Mr. Amodei? Mr. Conyers? Mr. Berman? Mr. Nadler? Mr. Scott? Mr. Watt? Ms. Lofgren? Ms. Jackson Lee? Ms. Waters? Mr. Cohen? Mr. Johnson? Mr. Pierluisi? Mr. Quigley? Ms. Chu? Mr. Deutch? Ms. Sanchez? Present. Mr. Quayle?

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Mr. Polis? [Pause.] Chairman Smith. The gentlewoman from California, before Oh, gone. We will get her back

she leaves the room maybe? in a minute. [Pause.] Chairman Smith. Ms. Kish.

The gentleman from Michigan?

Mr. Conyers? Present.

Mr. Conyers. [Pause.]

Chairman Smith. Ms. Kish.

The gentlewoman from California?

Ms. Lofgren? Present. Okay. And the gentleman from Virginia,

Ms. Lofgren.

Chairman Smith. Mr. Scott? Mr. Scott. [Pause.] Chairman Smith. Mr. Chaffetz. [Pause.] Chairman Smith.

Present.

The gentleman from Utah? Present.

The gentleman from Iowa?

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Mr. King. [Pause.]

Present.

Chairman Smith. proceed.

The Judiciary Committee is going to

Without objection, the chair is authorized to

declare recesses of the committee at any time. And with the concurrence of the ranking member, we are going to take up the first two bills, after which we will pause and make sure that we have the requisite number of Members who are present. And pursuant to notice, I now call up H.R. 1950 and H.R. 6080 for purposes of markup, and I ask unanimous consent that the bills be considered en bloc. Without objection, so ordered, and the clerk will report the bills. Ms. Kish. H.R. 1950, to enact Title 54, United States

Code, National Park System, as positive law -Chairman Smith. Without objection, the bills are

considered as read and open for amendment at any point. [The information follows:]

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Chairman Smith.

I recognize myself for a manager's

amendment to H.R. 1950, and the clerk will report the amendment. Ms. Kish. H.R. 1950, to enact Title 54, United States

Code, National Park System, as positive law. Chairman Smith. Without objection, the amendment is

considered as read and will be considered as base text for purposes of amendment. [The amendment of Chairman Smith follows:]

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Chairman Smith.

And I will recognize myself and then

the ranking member for opening statements. The Rules of the House entrust to the Judiciary Committee the responsibilities of revision and codification of the statutes of the United States. This power does not

give our committee substantive legislative jurisdiction over all areas of law. It merely confers the authority to

organize duly enacted laws into an efficient codification system. The nonpartisan Office of Law Revision Counsel is responsible for properly codifying public laws and the titles and sections of the United States Code. From time to

time, that office provides the Judiciary Committee advice as to how to enact a more user-friendly and cohesive statutory system. Over the past several months, Republican and Democratic committee staff have worked cooperatively with the Office of Law Revision Counsel to develop the two bills under consideration. H.R. 6080 makes technical changes to Title

41, the title that contains public contracts law, and H.R. 1950 creates a new title of positive law, Title 54, to

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compile all of the laws that relate to national parks. Codification bills do not make any substantive changes to existing law and, therefore, attract bipartisan support. My manager's amendment makes minor changes to H.R. 1950 that further ensure that no substantive law will be altered by its enactment. I encourage my colleagues to support the manager's amendment and the two bills. I now recognize the ranking member, the gentleman from Michigan, Mr. Conyers, for his opening statement. Mr. Conyers. Thank you, Chairman Smith.

And my Judiciary colleagues, I am pleased to welcome everyone back. And I think it is very easy for us to consider both of these bills together. They work on the same premise as

improving the compilation, restatement, and revision of the laws, and we have a method now of doing this to see that corrections will avoid interruption or confusion in the statutory text. I am very pleased to have joined with Chairman Smith in this endeavor. We think that it will make for a much easier

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understanding of the many laws that we are enacting.

And I

will submit my statement for the record for both these measures, Mr. Chairman, and return the balance of my time. [The information follows:]

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Chairman Smith.

Thank you, Mr. Conyers.

The question is on the manager's amendment to H.R. 1950. Those in favor, say aye. Opposed, no. In the opinion of the chair, the ayes have it, and the amendment is agreed to. A reporting quorum being present, the question is on reporting the bills favorably, as amended, to the House. Those in favor, say aye. Opposed, nay. The ayes have it, and the bills, as amended, are ordered reported favorably. Without objection, staff is authorized to make technical and conforming changes. their views. Pursuant to notice, I now call up H.R. 6029, to amend Title 18, United States Code, to provide for increased penalties for foreign and economic espionage, and for other purposes, for purposes of markup. And the clerk will report the bill. Ms. Kish. H.R. 6029, to amend Title 18, United States Members will have 2 days to submit

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Code, to provide for increased penalties for foreign an d economic -Chairman Smith. considered as read. [The information follows:] Without objection, the bill will be

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Chairman Smith.

And I will recognize myself and then

the ranking member for opening statements. In 1975, tangible assets, such as real estate and equipment, made up 83 percent of the market value of Standard & Poor's 500 companies. Intangible assets, which

include trade secrets, proprietary data, source code, business processes, and marketing plans, attributed only 17 percent of these companies' market value. By 2009, these percentages were nearly reversed. Tangible assets accounted for 19 percent of these companies' market value while intangible assets accounted for 81 percent. In a dynamic and globally connected information

economy, intangible assets are important to the success of individual enterprises and to the future of entire industries, economies, and nations. A global study released last year by McAfee, the world's largest security technology company, and Science Applications International Corporation concluded that corporate trade secrets and other sensitive intellectual capital are the newest currency of cyber criminals. The study found that the motivations of criminals in the

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cyber underground are almost always financial.

There h as

been a shift from a focus on the theft of personal information, such as credit cards and Social Security numbers, to the theft of corporate intellectual capital. Corporate intellectual capital is frequently vulnerable, of great value to competitors and foreign governments, and its theft is not always immediately or easily detected by victims. The intelligence community warns us that foreign

interests place a high priority on acquiring sensitive U.S. economic information and technologies. Targets include information and communications technologies, business information, military technologies, and rapidly growing civilian and dual-use technologies, such as those that relate to clean energy, healthcare, and pharmaceuticals. The most recent report from the Office of the National Counterintelligence Executive identifies Chinese actors as the world's most active and persistent perpetrators of economic espionage. Also, it describes Russia's

intelligence services as responsible for conducting a range of activities to collect economic information and technology

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from U.S. targets. Of seven economic espionage act cases resolved in fiscal year 2010, six involved links to China. More recently, five

companies were accused of the theft of trade secrets from DuPont. Four of these companies are Chinese state-owned

enterprises or subsidiaries. In the U.S., the EEA serves as the primary tool the Federal Government uses to protect secret valuable commercial information from theft. types of trade secret theft. Section 1831 punishes the theft of a trade secret to benefit a foreign entity, and Section 1832 punishes the commercial theft of trade secrets carried out for economic advantage, whether or not the theft benefits a foreign entity. Since enacting the EEA in 1996, Congress hasn't adjusted the penalties to reflect the increasing importance of intellectual property to the economic and national security of the U.S. and to our businesses. H.R. 6029, the Foreign The EEA addresses two

and Economic Espionage Penalty Enhancement Act of 2012, focuses on this aspect of the EEA.

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It increases the maximum penalties for an individual convicted of committing espionage on behalf of a foreign entity. Currently, the maximum penalty for someone

convicted under Section 1831 of the EEA is up to 15 years imprisonment and a fine of only up to $500,000. This bill increases the maximum penalty to up to 20 years imprisonment and a fine up to $5 million. It also

provides a new means of calculating the maximum fine for a convicted organization. Earlier this year, the FBI estimated that companies had lost $13 billion to trade secret theft in just over 6 months. In several cases over the past 6 years, losses to

individual U.S. companies were reported up to $1 billion. Our intelligence community has recognized the significant and growing threat of our Nation's prosperity and security posed by criminals, both inside and outside the U.S., who commit espionage. We should also recognize this

increasing threat by enhancing deterrence and more aggressively punishing those criminals who target U.S. companies for espionage. So I urge my colleagues to support H.R. 6029.

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The gentleman from Michigan, the ranking member, is recognized. Mr. Conyers. Thank you again, Chairman Smith.

This is a measure that you and I and the gentleman from North Carolina, Mel Watt, have produced, the Foreign and Economic Espionage Penalty Enhancement Act. It is

consistent with our longstanding efforts to protect intellectual property and competitive strengths of American business. And there has been new evidence that sometimes even governments are working to lessen the protection that we afford our intellectual property endeavors. So it is an

appropriate subject matter for the House Judiciary Committee. Now, as reported by the Intellectual Property Enforcement Coordinator, economic espionage is a serious threat to American businesses by foreign governments. And

so, this makes this a measure that I think an overwhelming majority, if not the entire committee, can support. The pace of foreign economic collection of information and industrial espionage activities against American

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corporations seems to be accelerating.

Foreign competitors

with ties to companies owned by foreign governments have increased their efforts to steal trade secret information and intellectual property. The loss of this information and

property can have serious repercussions for the companies, American companies and our economy. Finally, the increase in the capabilities of foreign governments to infiltrate our computer networks has increased the risks and instances of economic espionage. The Department of Justice and the Federal Bureau of Investigation have seen a 29 percent increase in economic espionage and trade secret theft investigation compared to the fiscal year 2010. And so, I am not trying to be an alarmist or to overstimulate our reactions to foreign economic collection of information, but I think it is serious. It is on the

increase, and I am proud to join with the sponsors of this measure, and I ask unanimous consent to put my entire statement into the record and return the balance of my time. Chairman Smith. Without objection.

[The information follows:]

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Chairman Smith.

And thank you, Mr. Conyers, for that.

Are there any amendments to this bill? [No response.] Chairman Smith. If not, a reporting quorum being

present, the question is on reporting the bill favorably to the House. Those in favor, say aye. Opposed, no. The ayes have it, and the bill is ordered reported favorably. Members will have 2 days to submit views.

Pursuant to notice, I now call up H.R. 6063, to amend Title 18, United States Code, with respect to child pornography and child exploitation offenses, for purposes of markup. And the clerk will report the bill. Ms. Kish. H.R. 6063, to amend Title 18, United States

Code, with respect to child pornography and child exploitation -Chairman Smith. considered as read. [The information follows:] Without objection, the bill will be

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Chairman Smith.

And I will recognize myself and the

ranking member for opening statements. Trafficking of child pornography images was almost completely eradicated in America by the mid 1980s. Purchasing or trading these images was risky and almost impossible to do anonymously, but the advent of the Internet reversed this accomplishment. Today, Internet child pornography may be the fastestgrowing crime in America, increasing an average of 150 percent per year. The National Center for Missing and

Exploited Children's Child Victim Identification Program has reviewed more than 51 million child pornography images and videos in the hopes of identifying the victims in them. These images of children being sexually assaulted are crime scene photos, and each face represents a child in desperate need of help. Every day, these online criminals And according

prey on our children with virtual anonymity.

to recent estimates, there are as many as 100,000 sex offenders in the U.S. whose whereabouts are still unknown. I and Representative Debbie Wasserman Schultz introduced H.R. 6063, the Child Protection Act of 2012, to provide law

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enforcement officials with important tools and additional resources to combat the growing threat of child pornography and exploitation. H.R. 6063 increases the maximum penalties from 10 to 20 years for child pornography offenses that involve children or children under the age of 12, and it strengthens protections for child witnesses and victims who are often subjected to harassment and intimidation throughout the trial process. The bill allows a Federal court to issue a protective order if it determines that a child victim or witness is being harassed or intimidated and imposes criminal penalties for violation of a protective order. This bill ensures that

paperwork does not stand in the way of protecting our kids. It gives the U.S. marshals, the Federal agency tasked by Congress under the Adam Walsh Act with apprehending fugitive sex offenders, administrative subpoena authority. We must

ensure that investigators have every available resource to track down these predators and protect the weakest among us. The Internet Crimes Against Children Task Force Program is a national network of 61 coordinated task forces that

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represent over 3,000 Federal, State, and local law enforcement and prosecutorial agencies dedicated to child exploitation investigations. The ICAC task forces were

launched in 1998 and officially authorized by Congress in the Protect Our Children Act of 2008. Since 1998, the ICAC task forces have reviewed more than 280,000 complaints of alleged child sexual abuse and have arrested more than 30,000 individuals. In fiscal year 2011,

the ICAC program trained over 31,000 law enforcement personnel, over 2,800 prosecutors, and more than 11,000 other professionals that work in the ICAC field. The Child Protection Act extends the authorization of the task forces for 5 years and increases the cap on grant funds for training programs. The bill also makes several

additional clarifications to provisions enacted as part of the Protect Our Children Act and requests a report from the Justice Department on implementation of the National Internet Crimes Against Children Data System. The bill has broad bipartisan support in Congress and is supported by a number of outside organizations, which include the National Center for Missing and Exploited

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Children, the Major City Chiefs of Police, Futures Without Violence, the Fraternal Order of Police, the International Association of Chiefs of Police, the National Alliance to End Sexual Violence, the National District Attorneys Association, the National White Collar Crime Center, the National Sheriffs Association, the Surviving Parents Coalition, the Rape, Abuse, Incest National Network, and Protect. Without objection, letters of support from these organizations will be made a part of the record. [The information follows:]

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Chairman Smith. support of this bill.

I urge my colleagues to join me in And again, I want to thank my

colleagues on the committee, so many of them on both sides, for cosponsoring this legislation. With that, I will recognize the gentleman from Michigan, the ranking member of the Judiciary Committee, to make his statement. Mr. Conyers. Thank you, Chairman Smith.

This measure has been worked on and reworked considerably, and I want to commend you for the rather important and large revisions that have been made in the course of bringing the measure before us today. There are two points here that I would like to make, and I am certainly glad that Bobby Scott, the ranking member of the Subcommittee on Crime, has a number of amendments that he is going to bring forward that will, I think, help make the measure even more acceptable. But the two points I make is, one, that we are creating a criminal penalty for the violation of a civil restraining order for which there is already existing law against. is already a violation. So we are piling something that It

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could go to 5-year maximum onto this measure through this bill. I would hope that the Members would think very carefully with me about this because I don't think it is an appropriate way for the Committee on the Judiciary to legislate. And the second thing, it validates administrative subpoenas. What is an administrative subpoena? Well, that

is a subpoena that the Government does not have to go to court to effectuate. subpoena. I think my opposition to administrative subpoenas is probably pretty complete, in and of itself. But certainly, It is sent out from the office as a

in this circumstance, I don't find it acceptable or necessary at all. And so, Mr. Chairman, with those reservations, I would like to submit my full statement and yield back the remainder of my time. [The information follows:]

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Chairman Smith.

Okay.

Thank you, Mr. Conyers.

The gentleman from Virginia, Mr. Scott, the ranking member of the Crime Subcommittee, is recognized for an opening statement. Mr. Scott. Thank you, Mr. Chairman.

I appreciate the apparent intent of H.R. 6063 to better protect children who are victims of sexual abuse, but I am not sure of the extent to which it accomplishes that goal. And so, I am not able to support all of its provisions. There is already a comprehensive statutory scheme to assist judges and law enforcement officials in protecting witnesses in Federal criminal proceedings. In addition,

there are Federal criminal provisions with heavy penalties and all the authority for judges to enter protective orders for the protection of all witnesses, including children. Judges have immense contempt powers and other powers to accomplish this goal. Certainly not been any showing to

suggest that Federal judges are shy or hampered in their ability to protect child witnesses. So it is not clear that

anyone -- it is not clear that any one assistance is necessary or helpful in this area.

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Accordingly, I am opposed to the additional Federal criminal provision with fines and up to 5 years of imprisonment for any violation of a court order protecting a child witness. Indeed, such a provision moves the

protection responsibility from a judge in a case to the prosecutor, who decides when there is a violation or whether to bring such charges. And given the fact that many proceedings involving child witnesses also involve family members of the child witness in emotionally charged situations, in those cases adding more criminal provisions to the mix is clearly not a helpful step. There is also no need to give prosecutors and judges extra weight in such situations against defendants who may be innocent of the underlying charges by providing presumptions of guilty motives, as this bill does, with respect to violation proceedings. Minor activities not

intended to cause any harm or distress, such as a phone call or an email, can result in a Federal criminal charge not as a violation of existing laws protecting witnesses from harassment or intimidation, but as a technical violation of

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a civil order. Judges already have the ability to enforce the orders even with jail time. So criminal proceedings at the

discretion of prosecutors with presumptions of guilt are not necessary, productive, or fair in this context, and such a provision is certainly not just geared at protecting children because the way it is written, it applies to all protective orders whether it involves children or not. I am also not convinced that extending the extraordinary order of the ex parte judicial authority through administrative subpoena power to an agency that is appropriate -- I am not sure that is appropriate in the case of registered sex offenders. The existing statutory scheme for administrative subpoenas for law enforcement focuses on special circumstances such as a presidential threat protection administrative subpoena that we approved a few years ago when the Director of the Secret Service has determined that there is an imminent threat against the President of the United States. He certifies the same to the Secretary of I am not sure we need

the Treasury or the Attorney General.

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to extend that in cases of child exploitation. The subpoena authorized in this bill has none of the oversight protections against abuse or misuse. So it is

actually more powerful than the administrative subpoena available to the Secret Service in the case of an imminent threat to the President of the United States. The research has clearly shown, and we have had hearings to show this, that registered sex offenders who may be noncompliant are no more apt to commit a criminal offense than those who are compliant with all of the regulations. And I say may be noncompliant because a high number of those charged with a criminal offense of violating registration requirements are found not guilty as charged. So there is no imminent threat context with rounding up allegedly noncompliant registered sex offenders who, by evidence we heard at the hearings, are no more likely to commit an offense than those who are compliant, and there is no additional protection provided against abuse to children. Again, I want to point out that this administrative subpoena is not just focused on children because it is for any case. Some States require registration for very

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questionable situations, such as urinating in public, and for offenses between consenting adults. So using the

extraordinary powers chasing down those who may be in technical violation of reporting requirements when they are no more likely to commit offense than those who are in compliance is not a productive use of our criminal justice system. Mr. Chairman, I will be offering amendments to address some of these problems, and I hope that they are adopted. And I yield back. Chairman Smith. Yes. Thank you, Mr. Scott.

The gentleman will now be recognized for the purposes of offering an amendment. Mr. Scott. Amendment Number 2. The clerk will report the amendment.

Chairman Smith. Ms. Kish.

Amendment to H.R. 6063, offered by Mr. Scott.

Page 4, strike lines 14 through 19 and redesignate provisions accordingly. [The amendment of Mr. Scott follows:]

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Chairman Smith. his amendment. Mr. Scott.

The gentleman is recognized to explain

Thank you, Mr. Chairman.

Mr. Chairman, this will strike the provision in H.R. 1981 -- wait a minute. Yes, okay. 6063, creating a new

criminal offense for violations or attempts to violate a civil restraining order. There are already felony criminal provisions protecting Federal witnesses from harassment and intimidation, already provisions for a protective order including children. courts already have tremendous authority and power to enforce those orders through contempt, which can carry jail time, or other means. Yet this bill takes the enforcement authority away from the judge and gives it to prosecutors by authorizing a charge of a felony offense up to 5 years imprisonment for violations of a civil order by a person who may be a family member or even a child who may be innocent of the underlying charge. Mr. Chairman, we remember the case a few years ago, Morgan v. Foretich, a child custody case where the mother And

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accused the father of child sexual abuse in a heated custody dispute. The case against the father was never established,

but this is the kind of case where the protective order could be applied. Moreover, the violation could be something very minor, such as a phone call in violation of a court order that does not involve witness intimidation or harassment or any effect upon the protected person. The provision, while well-

meaning, is totally unnecessary and has too many pitfalls to allow the imposition of a Federal felony and up to 5 years in prison for violation. Although the section -- although placed in a section of the bill that purports to deal with protection of child witnesses, the law as written is not limited to child victim cases. It applies to any protective order under the section It seems overly

addressing witness protection orders.

broad, overly harsh, and unnecessary, and I hope that w e will adopt this amendment. I yield back. Chairman Smith. Thank you, Mr. Scott.

I will recognize myself in opposition to the amendment.

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This amendment eliminates the criminal penalty for violating a protective order that prohibits the harassment or intimidation of a victim or witness. The protective

order is issued to prevent harassment or intimidation of a Federal witness or when the conduct in question is likely to affect the willingness of a minor from testifying at a trial or participating in a Federal investigation. Current fines and contempt citations are inadequate to protect minor witnesses and victims, especially in child sex abuse cases. This bill provides Federal courts with the

means to control intimidation through effective protective orders and strengthens the deterrent effect of a restraining order with criminal penalties for knowing and intentional violation. The penalty in this case is not a mandatory minimum sentence. It is left to the discretion of the court to fine

the violator, impose a prison sentence of not more than 5 years, or both. Removal of this penalty from the bill significantly weakens our ability to protect child witnesses and works to the advantage of those who would sexually exploit minors.

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This provision was passed by the House under the suspension last Congress as part of the Domestic Minor Sex Trafficking Deterrence and Victims Support Act of 2010. And the gentleman from Virginia knows what I am going to say next, and that is that this bill passed with the support of my colleagues on the other side of the aisle, including Mr. Scott, who happened to have managed the bill. Mr. Scott. Will the gentleman yield? So I urge my colleagues to oppose the

Chairman Smith.

amendment, and I will yield to the gentleman from Virginia. Mr. Scott. Mr. Chairman, we reviewed that bill, and And

that bill was so bad that we improved it a lot.

apparently, we didn't get everything out of it, but we are still trying. Chairman Smith. But the gentleman is not quibbling with

my description of his managing the bill and it passing under suspension when his party was in control, is he? Mr. Scott. No. The bill was real bad when it started. Okay. Okay.

Chairman Smith. [Laughter.] Mr. Scott.

We got the mandatory minimums out and a lot

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of other things out. Chairman Smith. Okay. Thank you, Mr. Scott.

Are there other Members who wish to be heard on this amendment? [No response.] Chairman Smith. say aye. All opposed, no. In the opinion of the chair, the nays have it, and the amendment is not agreed to. Are there other amendments? The gentleman from If not, all in favor of the amendment,

Virginia, Mr. Scott, is recognized. Mr. Scott. Number 3. The clerk will report the amendment

Chairman Smith. Number 3 Ms. Kish.

Amendment to H.R. 6063, offered by Mr. Scott.

Page 6, strike lines 3 through 14 and redesignate provisions accordingly. [The amendment of Mr. Scott follows:]

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Chairman Smith.

The gentleman from Virginia is

recognized to explain his amendment. Mr. Scott. Thank you, Mr. Chairman.

Mr. Chairman, this amendment would strike the provision that creates the rebuttable presumption that was just referred to in that if an individual posts a photograph or personal identifying information about a person subject to a protective order, that the rebuttable presumption is that it serves no legitimate purpose. Now I am certain that I speak for all Members when I say that we want to protect children, especially those who are victims of crime. But with this new criminal penalty

created in this section, this penalty is not limited to just child witnesses or victims. Moreover, this rebuttable presumption would shift the burden of proof in harassment or intimidation cases from the accuser to the accused by requiring that the accused prove the posting of the photograph about the accuser was for a legitimate purpose. Under the current law, the burden is on

the accuser to establish this element of defense, not the defendant, and in fact, that is normal case with the

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presumption of innocence. Given that this charge is coupled with the creation of a felony criminal liability of up to 5 years, it would essentially make it easier to prove a case of harassment against an individual that could subject them to a felony conviction. Now think about all the various ways of posting a photograph or information about a person over the Internet would serve a legitimate purpose. To presume and make an

accused person prove that it was unnecessary or unfair, what is wrong with the accuser having to show the harassment or intimidation -- to prove the intimidation or harassment, given the fact that if it is proven, there is 5 years at the end of it. I would hope that posting -- I mean, a lot of people have photo albums where the album may be, in fact, posted on the Internet, along with all your other family photos. If

the victim is in that mix, all of a sudden, you are looking at a presumption that you are guilty of a 5-year felony. I would hope that we would adopt the amendment and at least keep criminal law the way it traditionally is, that

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you don't have a rebuttable presumption of guilt. Yield back. Chairman Smith. The gentleman yields back.

I will recognize myself in opposition to the amendment. This amendment strikes language intended to prevent the distribution of a witness's personal information on the Internet. Current law authorizes Federal courts to issue

protective orders to prevent the intimidation or harassment of Federal witnesses. Section 3 of H.R. 6063 expands this law to allow a Federal court to issue a protective order for harassment or intimidation of a child witness if the intimidation might affect the willingness of the witness to testify in an ongoing investigation or Federal criminal matter. This section also permits a court to issue a protective order to restrict the distribution of a witness's restricted personal information on the Internet. It creates a

presumption that the distribution on the Internet of a witness's photograph or personal information serves no legitimate purpose. So this is a privacy issue.

Information can be distributed via the Internet, one,

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with the person's permission; two, for news reporting purposes; three, to locate a missing person; and four, to apprehend a fugitive. And the presumption that the

distribution of this personal information serves no other legitimate purpose can be rebutted with evidence presented by those who distributed it. There is generally no legitimate purpose for distributing the picture or identifying information of a victim or witness. intimidate. Under this bill, such postings would be considered to be witness intimidation under Section 1514 of the Criminal Code unless the person in question can overcome the presumption. The presumption does not apply to news gatherers and law enforcement agencies, institutions that may have a legitimate purpose in publishing information to the public about the victim or a witness of the crime. This provision -- this will sound familiar to the gentleman from Virginia. This provision was passed by the And such actions are generally done to

House under suspension last Congress as part of the Domestic Minor Sex Trafficking Deterrence and Victims Support Act of

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2010.

It passed with the support of my colleagues on the

other side of the aisle, including Mr. Scott, who managed the bill. So I urge my colleagues to join me in opposition to this amendment. Are there other Members who wish to be heard on the amendment? Mr. Conyers. Mr. Chairman? The gentleman from Michigan, Mr.

Chairman Smith.

Chairman, is recognized. Mr. Conyers. Well, thank you, Mr. Chairman.

The purpose of the hearing this morning, though, is not that we passed this already and that it is over and done with. We are doing some fine-tuning in here.

So I don't think that the fact that it passed before and that Ranking Member Scott may have been involved in it doesn't mean that we can't come back and clean it up. Now I observe that this is not a privacy issue. There

are laws in the Criminal Code that already punish this kind of activity. And finally, and most importantly, here we

have the law-making committee of the Congress reversing the

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burden of proof without even commenting on it. incredible.

This is

We cannot -- the burden of proof shouldn't be on the person that did -- the burden of proof here is being reversed in I think a very thoughtless way and a kind of careless way that I would urge all the Members that now that we are examining this in detail that is allowed in a committee, to examine this and ask ourselves if we really want to do that? I don't think most of us want to reverse the burden of proof in this or any other case without some very, very careful examination. crime. And so, we want to protect victims of

But we have to do it in, I think, a thoughtful and

deliberative way. And for the reasons that I have advanced, I urge that you support the Scott amendment, and I yield back my time. Chairman Smith. Okay. Thank you, Mr. Conyers.

The gentleman from North Carolina, Mr. Watt, is recognized. Mr. Watt. Thank you, Mr. Chairman.

Every once in a while, the Senate will save us from

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ourselves when we make a mistake.

And it seems to me that So the

they did in this case by failing to pass the bill. fact that we voted for it.

It didn't pass the entire

process should tell us something that when it comes back, we ought to be more careful about it. I am wondering whether there are any other precedents that the chair or the ranking member or the ranking member of the subcommittee are aware of where the burden of proof is shifted in a criminal case from the prosecution to the defense side. Are there other similar circumstances that we

might be able to consider? Mr. Conyers. Mr. Watt. If the gentleman would yield?

I would be happy to. We have looked for some, but we have not

Mr. Conyers. found any. Mr. Watt.

Perhaps the chair of the full committee could

enlighten us about whether there are any other precedents for what he is asking us to do here? through telling him. Chairman Smith. If the gentleman was addressing a We will get back to you. After his staff gets

question to me, we are checking.

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I don't know off the top of my head whether there are other examples. But if I may continue, though? As far as the point of

needing to fine-tune, we are, frankly, following the example of the majority when -- of the minority today when they were the majority in the last Congress -Mr. Watt. Mr. Chairman. Chairman Smith. Mr. Watt. that speech. Chairman Smith. point about -Mr. Watt. Okay. Well, go ahead. -- fine-tuning. The individuals who Well, I was going to make one more It is. You already gave Well, let me reclaim my time. It is my time,

I appreciate your speech.

Chairman Smith.

seem to be resisting at least this part of the bill and proposing this amendment had ample opportunity in the last Congress to fine-tune the bill if they wanted to do so, and they chose not to do so. Mr. Watt. But I guess the relevant question there would

be whether the Senate passed what we sent over there to

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them. Chairman Smith. Wyden in the Senate. I think the bill originated by Senator We had an opportunity on this side to

change it if we wanted to, and so -- and chose not to change the bill. Mr. Watt. So are we changing current law, or are we

passing a new law now? Chairman Smith. Mr. Watt. We are amending current law.

This is a new law, right? Yes, but it follows the precedent set That is correct.

Chairman Smith.

in the last Congress by the then-majority. Mr. Watt. saying.

Well, I don't understand what the chairman is It

Why are we doing this if it is already law?

obviously didn't go through the entire process, and you are saying just because we were irresponsible in the last Congress, we should continue to be irresponsible in this Congress. Chairman Smith. Mr. Watt. Well, I understand that --

I don't follow that logic very well. Would the gentleman yield?

Chairman Smith. Mr. Watt.

Yes, sir.

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Chairman Smith.

I understand that the bill that we

passed in the House that was not fine-tuned was actually not signed by the President. Mr. Watt. Okay. Well, then somebody saved us from

ourselves, and either the Senate saved us from ourselves or the President saved us from ourselves. Chairman Smith. Who knows?

Mr. Watt. Somebody was enlightened enough to know that the burden of proof in criminal cases -Chairman Smith. Mr. Watt. Well, if the gentleman will yield? The burden of

-- is not on the defendant.

proof is on the person who is bringing the charges. Chairman Smith. If the gentleman is yielding? The

gentleman is making a presumption that that was the reason the bill was not signed. run out of time. Mr. Watt. I can make whatever presumption that you can If we are making presumptions -But I have a basis for mine. We don't know that. We could have

make, Mr. Chairman. Chairman Smith. Mr. Watt. to presume.

On my time, I can presume whatever I choose

On your time, you can choose whatever you

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presume -- you choose to presume. But if this was not made law, it is not justification for the fact that it was not made law that we should be doing the same thing again. ditch and continuing to dig. Somebody saved us from ourselves the last time. That is I mean, that is like being in a

not a justification for doing something that is irrational and indefensible this time. Unless there is some other

precedent where the burden of proof in a criminal case shifts from the prosecution to the defense, I don't know why we would be doing this. Whether I voted for it 2 years ago or last year or yesterday, if it was stupid when I did it, I want to correct that mistake. Chairman Smith. want to -Mr. Watt. I am happy to yield to the chairman. -- set the record straight on something I am now informed that the Okay. If the gentleman will yield? I

Chairman Smith.

the gentleman said a while ago.

reason that it was not signed by the President is because the Senate objected to administrative subpoenas being taken

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out of the bill. Mr. Watt. Well, but -And --

Chairman Smith. Mr. Watt.

But we now have the right, the opportunity to It seems to me the relevant question

revisit this issue.

here is, is there any other precedent in criminal law for shifting the burden of proof from the prosecution to the defendant? Chairman Smith. The gentleman's time has expired, but I

will yield 10 seconds to myself to -Mr. Watt. Well, I will yield to you. I will ask for 10

seconds and yield to you. Chairman Smith. Mr. Watt. Okay. Okay. The answer is yes.

Well -I am told by counsel that there are --

Chairman Smith. Mr. Watt.

I ask for unanimous consent for 1 additional

minute so that you can enlighten us so that our -Chairman Smith. Without objection. Without objection,

there are a number of instances, particularly in affirmative defenses and self defenses, and we will get you those examples.

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Mr. Nadler. Mr. Watt.

Mr. Chairman, would you yield? If the chairman would tell me what those are,

I think I could compare them and make some rational judgment about this. Chairman Smith. Mr. Watt. Yes. Well, we will get them to --

But in the absence of that -We will get them to you --

Chairman Smith.

We will get them to you expeditiously. Mr. Watt. I should trust the chair as we continue this That is what you

debate and pass it out of this committee. are saying? Chairman Smith. Mr. Watt. Chairman. Okay. That is correct.

Well, I can't trust the chair, Mr.

I think this is irrational to shift the burden of And if I voted for it the last I probably just

proof in a criminal case.

time, I think it was irrational then.

didn't catch it, but that is not a justification for me doing something irrational a second time. Chairman Smith. Mr. Watt. first time. Okay. All right.

Just because I did something irrational the

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Chairman Smith. Mr. Watt.

Fair enough.

I yield back. The gentleman yields back.

Chairman Smith.

The gentleman from New York, Mr. Nadler? Mr. Nadler. Thank you, Mr. Chairman.

I want to continue this line of questioning because I think it is important. It seems a startling thing to do to It seems an

shift the burden of proof in a criminal case.

unprecedented thing to do, and yet I heard the chairman say a moment ago that we have done it before. I would like to hear now an example and a justification for the way we have shifted the burden of proof and, frankly, why we should shift the burden of proof now. we should ever shift the burden of proof. Why

The whole idea of

our system of justice is that you are innocent until proven guilty. Chairman Smith. Mr. Nadler. that. Chairman Smith. If the gentleman will yield? I am told Right.

And shifting the burden of proof reverses

that the three general areas where we have done so

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repeatedly before are in the areas of self defense, insanity, and duress. Now we can get you the details, but -Mr. Nadler. of them -Chairman Smith. said. No, no. I will repeat what I just We will get you the No, no. Wait a minute. So let us take one

Those are the general areas.

details, but those are the general areas where there has been precedent set. Mr. Watt. Mr. Nadler. Mr. Watt. Will the gentleman yield? I will yield. All of those cases you have cited would be There wouldn't be a shifting of the

affirmative defenses. burden of proof -Mr. Nadler. Mr. Watt. case. Mr. Nadler. Mr. Watt.

Ah, correct. -- on the basic underlying merits of the

I will -- reclaiming my -I don't understand how those things are

analogous at all. Mr. Nadler. Reclaiming my time. The gentleman is

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correct.

You can't compare shifting a burden on an

affirmative defense where the defendant has the burden to start with. That is the point of an affirmative defense.

The defendant has the burden. Chairman Smith. Mr. Nadler. That is correct.

The defendant has the burden of So you are not really

establishing affirmative defense. shifting the burden.

It is shifted to start with.

Here, you are talking about shifting the burden of proof on the case in chief. You are accused of something.

Normally, the State must prove that you did it to the satisfaction of the jury beyond a reasonable doubt. we are saying, no, it mustn't. contrary. I think that is unprecedented. I think it violates the You have to prove the And now

Fifth Amendment, and it would be a highly obnoxious thing for this committee to sanction. And if we have done it

before, it was through inadvertence that some of us, somehow it escaped us. And using as a precedent an affirmative defense is not a precedent at all because an affirmative defense is just

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that, affirmative.

The burden of proof to start with is on I don't

-- to prove the defense is on the defendant.

believe there is any precedent for shifting the burden of proof for the underlying crime. To say that the State doesn't have to prove you committed the crime, you have to prove you didn't. seems to me unconstitutional as well as obnoxious. Mr. Conyers. Mr. Nadler. Michigan. Mr. Conyers. Thank you, Mr. Nadler. Would the gentleman yield? I will yield to the gentleman from And that

Might I add to this conversation the fact that since we were not able to find any reversals of the burden of proof, it doesn't mean that if some exists, they may be justifiabl e in their own right. We don't know that or not.

And so, it isn't a question of whether we found any instances where there have been a reversal of the burden of proof. The real point is, in this case, do we want to agree And regardless of who

to a reversal of the burden of proof?

was the majority or the minority when it passed, this is what we are here for today, to be --

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Mr. Nadler. chairman.

Reclaiming my time, I would like to ask the

I would like to ask the distinguished chairman I mean, stepping

what possible justification is there?

back, this is a serious subject, obviously. But what possible justification is there for making -for shifting the burden of proof on a criminal offense and saying you are guilty until proven innocent rather than the reverse even in this case? I will yield. Chairman Smith. Well, if the gentleman will yield? I

can re-read my opening statement for you.

But the idea here

is to protect the children and protect the victims, and -Mr. Nadler. Reclaiming my time. Saying that the idea

is to protect somebody.

The whole point of criminal law is We are protecting somebody from We are

always to protect somebody. theft.

We are protecting somebody from murder.

protecting somebody from whatever. Saying that something is a serious danger -- murder, theft, robbery, whatever -- by itself does not justify shifting the burden of proof. The question in the criminal

law is not how -- well, one question is how serious a crime

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is.

Obviously, the more serious, the more you worry about

it and the heavier the penalty. But secondly, how do you prove it? If murder is

serious, it doesn't mean that Smith should be sent away unless Smith is proven to have committed the crime. So what justification? And seriousness is not a You would

justification for shifting the burden of proof.

have to show some reason to believe that the normal procedure, which is that you must prove the person guilty, not that the person must prove his innocence. something wrong with that here. here? I will yield. Chairman Smith. The gentleman's time has expired. There is

Why doesn't that operate

But very briefly, I am going to restate what I had before. If you go back to what I said in my opening

statement, I would rather come down on the side of the victims and the children and have that rebuttable presumption, which I think protects them. I clearly put a

greater emphasis on that than maybe the gentleman does. I am not saying he doesn't want to protect the children

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or the victims.

But I am willing to put them first and

ahead of the presumption. The gentleman's time has expired. from Pennsylvania seek recognition? Mr. Marino. Yes. The gentleman from Pennsylvania, Mr. Does the gentleman

Chairman Smith.

Marino, is recognized. Mr. Marino. Thank you.

My colleagues on the other side are confusing the terms, confusing the terms. responsibility. Clearly, it is the prosecution's

It is the State, it is the government's

responsibility to prove guilt beyond a reasonable doubt. However, and it has happened to me several times in cases at the State and Federal level, if there is a shift in a defense, the defense has to come up with a standard or a basis to establish that. They just can't say he is insane, There

and you would have to prove that he is not insane. has to be a basis for that. So you are using apples and oranges.

You are using a

term to establish something that doesn't exist in the criminal essence. Now I think this legislation we are

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talking about has a civil penalty involved with it.

That

prevents the victim from being harassed by the perpetrator, and that individual can be held in civil contempt and also criminal contempt, pursuant to the civil contempt, if he doesn't follow the court. So you can't say that we are reversing and the defendant has to prove that he is innocent. That is not the case.

Clearly, government has to prove beyond a reasonable doubt. But the defendant switches standards or switches a defense has to come forward and lay a basis for that defense. I yield. Chairman Smith. Mr. Scott. Thank you, Mr. Marino. I am sorry.

Would the gentleman yield?

What we are talking about is posting a photograph that serves no legitimate purpose. When you get a presumption on

the no legitimate purpose, that covers a lot of things that could be innocent. If you take a lot of pictures and put them on your Web, and a lot of photo albums are on the Web, you probably have pictures of people, including the person protected by a protective order.

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How do you get past the idea that it is a criminal offense to have that picture up there without showing some intent to harass, intimidate? The picture is just up there.

And all of a sudden, you get a presumption that it serves no legitimate purpose. And so, the elements in a case are already proven by this presumption. The defendant now has to come forward to Why is that -- I mean, when did you

prove his innocence.

ever have to prove your innocence? Mr. Marino. I think you are conflicting terms there.

Because if there is -- if the legislation is designed to prevent the harassment, and there is -Mr. Scott. Mr. Marino. Mr. Scott. Just would the gentleman yield again? Yes, sir. There are already criminal statutes against This is a new thing we are And

harassing Federal witnesses.

doing here, a new 5-year penalty under a court order.

if you have got a photo album with somebody's picture in it, in addition to the normal criminal penalties and other things the judge can do to you, this is a separate. And by

virtue of having that picture and the little presumption,

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you are set up with a criminal 5-year penalty. Mr. Marino. Reclaiming my time. But it does apply to

physical, physical violence, harassment, and it is just an addition to what protections are already there in the Federal system. Mr. Scott. order. No, no. We are talking about violating the You already have the We know

This is already on the books.

criminal laws on the book, harassing a witness. this is extra.

You get a protective order, and you find that you have got a picture on the Internet of the person who is protected by the order. intimidating. You are guilty, 5 years, by presumption of Just by virtue of the fact that you have the No

photo album with the picture in it, you are guilty. intent, no nothing. Claiming all those elements -Mr. Marino. Reclaiming my time.

Still, at the end of

the proceedings, by the end of the proceedings, the commonwealth or the government has to prove that there was harassment or -Mr. Scott. No. No. That is what we are trying to get

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out.

That is what we want you to prove.

That is what we

want you to prove.

If my amendment passes, that is what you If the amendment doesn't pass, You just show -- you

are going to have to prove.

you don't have to bother to prove it. put a picture on the Internet. dissemination. Mr. Marino. legislation. Mr. Scott.

He is guilty of harassment,

You are violating the order. That is where we disagree on the

Well, you don't have to prove anything. You had a picture.

That is what -- you violate an order. Chairman Smith. his time? Mr. Scott. Yes. Okay.

Does the gentleman yield back

Chairman Smith.

The gentleman yields back his time.

The gentleman from Georgia, Mr. Johnson, is recognized. Mr. Johnson. Yes, I would like to cite the case of And Sandstrom is a

Sandstrom v. Montana at 442 U.S. 510.

U.S. Supreme Court case, Sandstrom v. Montana. The facts were that a jury instruction that the law presumed that a person intends the ordinary consequences of his voluntary acts, is that jury instruction proper in a

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criminal case?

In other words, is a law that presumes that

a person intends the ordinary consequences of his voluntary acts, is that proper in a criminal case? The Supreme Court of the United States ruled no. A jury

instruction that presumes that a person intends the ord inary consequences of his voluntary acts is not proper in a criminal case. And here, we have this section which st ates

that a court shall presume, subject to the rebuttal by the person, that the distribution or publication using the Internet of a photograph of or restricted personal information regarding a specific person serves no legitimate interest or no legitimate purpose unless that use is authorized by that specific person. So, in other words, when you impose a presumption, then you are automatically shifting the burden to the defendant to prove something that should not be placed on him. In

other words, that is a presumption that the defendant must overcome. And I think if Sandstrom is still current law, because that is a case, '79, 1979 case -Mr. Marino. Would my colleague yield for a moment?

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Mr. Johnson. Mr. Marino.

Yes, I will. Thank you, sir.

There are many presumptions in the criminal law proceedings. Drugs in a car, one person in there. That

individual owns the car.

There can be a presumption that

that person owns the drugs. There is a presumption in a murder. intention. For example, for

Six shots, nine shots into the body, as opposed There is a presumption there.

to one and it was accidental.

There are many presumptions in the criminal law procedures. I yield back. Mr. Johnson. Well, this is a presumption subject to And so, I am just -- I recall the It is a burden shift in this

rebuttal by the person.

case of Sandstrom v. Montana. case, and I don't know -Mr. Marino. Mr. Johnson. presumption. Mr. Marino.

If my friend would yield once more? I don't know if it is a permissible

I understand what you are saying.

But

there always is the ability to rebut the presumption.

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Mr. Johnson.

Well, on a central issue, though.

On the

central issue involving the case, I think a presumption has to be looked at with great care. You are correct that there are some presumptions in law. And yes, so on the central issue of the case, a presumption would, I think, be subject to Sandstrom v. Montana. And if

staff would look to see if that is -- if we would look at Sandstrom, I think we could be guided. If Sandstrom is

still the law of the land, which I do believe it is, I think this proposal, this amendment would be proper. Now I will yield back. Chairman Smith. The gentleman yields back his time.

The question is on the Scott amendment. All in favor, say aye. All opposed, no. In the opinion of the chair, the nays have it, and the amendment is not agreed to. Does the gentleman have -- the gentleman has requested a recorded vote, and the clerk will call the roll. Ms. Kish. Mr. Smith? No.

Chairman Smith.

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Ms. Kish.

Mr. Smith votes no.

Mr. Sensenbrenner? [No response.] Ms. Kish. Mr. Coble. Ms. Kish. Mr. Coble? No. Mr. Coble votes no.

Mr. Gallegly? [No response.] Ms. Kish. Mr. Goodlatte?

[No response.] Ms. Kish. Mr. Lungren? No.

Mr. Lungren. Ms. Kish. Mr. Chabot? [No response.] Ms. Kish.

Mr. Lungren votes no.

Mr. Issa?

[No response.] Ms. Kish. Mr. Pence?

[No response.] Ms. Kish. Mr. Forbes. Mr. Forbes? No.

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Ms. Kish. Mr. King? Mr. King. Ms. Kish. Mr. Franks? Mr. Franks. Ms. Kish.

Mr. Forbes votes no.

No. Mr. King votes no.

No. Mr. Franks votes no.

Mr. Gohmert? [No response.] Ms. Kish. Mr. Jordan. Ms. Kish. Mr. Poe? Mr. Poe. Ms. Kish. Yes. Mr. Poe votes yes. Mr. Jordan? No. Mr. Jordan votes no.

Mr. Chaffetz? [No response.] Ms. Kish. Mr. Griffin?

[No response.] Ms. Kish. Mr. Marino. Mr. Marino? No.

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Ms. Kish. Mr. Gowdy?

Mr. Marino votes no.

[No response.] Ms. Kish. Mr. Ross. Ms. Kish. Mrs. Adams? Mrs. Adams. Ms. Kish. Mr. Quayle? [No response.] Ms. Kish. Mr. Amodei. Ms. Kish. Mr. Amodei? No. Mr. Amodei votes no. No. Mrs. Adams votes no. Mr. Ross? No. Mr. Ross votes no.

Mr. Conyers? Mr. Conyers. Ms. Kish. Mr. Berman? [No response.] Ms. Kish. Mr. Nadler. Mr. Nadler? Aye. Aye.

Mr. Conyers votes aye.

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Ms. Kish. Mr. Scott? Mr. Scott. Ms. Kish. Mr. Watt? Mr. Watt. Ms. Kish.

Mr. Nadler votes aye.

Aye. Mr. Scott votes aye.

Aye. Mr. Watt votes aye.

Ms. Lofgren? Ms. Lofgren. Ms. Kish. Aye.

Ms. Lofgren votes aye.

Ms. Jackson Lee? [No response.] Ms. Kish. Ms. Waters?

[No response.] Ms. Kish. Mr. Cohen?

[No response.] Ms. Kish. Mr. Johnson? Aye.

Mr. Johnson. Ms. Kish.

Mr. Johnson votes aye.

Mr. Pierluisi? [No response.]

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Ms. Kish.

Mr. Quigley?

[No response.] Ms. Kish. Ms. Chu. Ms. Kish. Mr. Deutch? [No response.] Ms. Kish. Ms. Sanchez? Aye. Ms. Chu? Aye. Ms. Chu votes aye.

Ms. Sanchez. Ms. Kish. Mr. Polis? Mr. Polis. Ms. Kish.

Ms. Sanchez votes aye.

Aye. Mr. Polis votes aye. The gentleman from Virginia? No.

Chairman Smith. Mr. Goodlatte. Ms. Kish.

Mr. Goodlatte votes no. The gentleman from Ohio?

Chairman Smith. Mr. Chabot. Ms. Kish. No.

Mr. Chabot votes no. And the gentleman from California?

Chairman Smith. Mr. Berman. Aye.

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Ms. Kish.

Mr. Berman votes aye. Mr. Chairman? The gentlewoman from California is

Ms. Lofgren.

Chairman Smith. recognized. Ms. Lofgren. Ms. Kish.

How am I recorded?

Am I recorded?

Ms. Lofgren is voted aye. Thank you. The gentlewoman from Texas, Ms. Jackson

Ms. Lofgren.

Chairman Smith.

Ms. Jackson Lee. Ms. Kish.

Aye.

Ms. Jackson Lee votes aye. The clerk will report.

Chairman Smith. Ms. Kish.

Mr. Chairman, 12 Members voted aye; 13

Members voted nay. Chairman Smith. A majority having voted against the

amendment, the amendment is not agreed to. Does the gentleman from Virginia have any other amendments? Okay. Number 1, Mr. Chairman. The clerk will report Amendment Number

Mr. Scott.

Chairman Smith.

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Ms. Kish.

Amendment to H.R. 6063, offered by Mr. Scott.

Beginning on page 7, line 12, strike Subsection (a) and redesignate provisions accordingly. [The amendment of Mr. Scott follows:]

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Chairman Smith. his amendment. Mr. Scott.

The gentleman is recognized to explain

Mr. Chairman -- thank you, Mr. Chairman.

This amendment strikes the section of the bill that gives the U.S. marshals authority to issue administrative subpoenas to investigate unregistered sex offenders. Mr. Chairman, the U.S. Marshals Service already arrests tens of thousands of people each year. So it is clear that

they can make arrests without taking away from the court's extraordinary authority of issuing its own subpoenas by doing it on an ex parte basis with no notice or other information to the person to whom the information sought applies. To the extent that there is such authority, it should be conferred on all executive branch -- to the extent that such authority should be conferred on all executive branch officials, it should be narrowly defined and only available to the highest level of officials. Existing administrative subpoena authority for law enforcement officials is bestowed upon the U.S. Attorney General in the case of a Federal health offense or a child

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exploitation or abuse and in the Secretary of Treasury in the case of an event of a threat to the President of the United States or other protectees of the U.S. Secret Service, both such officials being Cabinet-level officials. Now I think we have to consider the testimony before this committee, as well as research and evidence, regarding sex offender registration and requirements tell us that there is no difference in the recidivism rate between sex offenders who are compliant with their registration requirements as far as those who are not. We are already arresting tens of thousands of people for noncompliance without any indication that they may propose any enhanced danger to society over those who are in compliance. Now given that there is no compelling reason

shown for conferring such extraordinary power to the U.S. Marshals Service for sex offender registration, I urge my colleagues to take this from the bill. Mr. Chairman, every year, tens of thousands of people are rounded up on these things already, locked up at great expense without any indication that it makes any difference at all. And to extend this extraordinary power, which, in

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this case, the way it is written is a more powerful subpoena than the one available in the case of a threat to the President of the United States, an imminent threat to the President of the United States, makes no sense at all. I yield back. Chairman Smith. Thank you, Mr. Scott.

I recognize myself in opposition. This amendment strikes Section 4 of H.R. 6063, which provides the U.S. Marshals Service with administrative subpoena authority to apprehend unregistered sex offenders. The Adam Walsh Act mandated that the U.S. marshals apprehend both State and Federal fugitive sex offenders. U.S. marshals have aggressively undertaken this important function that are at the heart of the Adam Walsh Act. Despite this hard work, there remains a lot for the It is estimated that at least 100,000

marshals to do.

fugitive sex offenders now roam the country in violation of their registration and notification requirements. There are over 300 instances where Congress has granted other Federal agencies administrative subpoena power in one form or another. And this committee has voted several times

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to approve administrative subpoena authority for other agencies. In 1996, this committee approved 18 U.S.C. Section 3486 to authorize the use of administrative subpoenas to investigate Federal sexual exploitation or child abuse offenses and threats to the President and other protectees. This statute has been expanded by this committee several times since then, including as part of the PROTECT Act of 2003. Most recently, my colleagues on the other side of the aisle approved administrative subpoena authority as part of Obamacare for the Inspector General of the Department of Health and Human Services to investigate Medicare and Medicaid fraud. Unlike these and other Federal

administrative subpoena powers which are used at the beginning of a criminal investigation, the marshals' use of administrative subpoenas would occur only afterwards. And the administrative subpoena would occur after the fugitive is arrested, pursuant to a judge-issued warrant, indicted for committing a sex offense, convicted by proof beyond a reasonable doubt, and sentenced in a court of law.

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The fugitive is required to register as a sex offender. fugitive flees or otherwise violates their registration requirements, and a State or Federal arrest warrant is issued for violation of their registration requirements.

The

H.R. 6063 gives the U.S. marshals limited administrative subpoena authority to locate and apprehend only fugitive sex offenders. Without administrative subpoena authority, the

marshals must request the U.S. attorney's office seek an all writs act order from a judge before they can receive records relevant to a fugitive apprehension. The all writs act process is burdensome and time consuming and can delay the marshals' ability to locate and apprehend fugitive sex offenders, particularly those that have fled to another State. critical for this reason. The Adam Walsh Act sex offender registry provisions were intended to keep our children safe from heinous crimes and limit sex offenders' ability to move around the country unnoticed. The administrative subpoena provision of H.R. Administrative subpoenas are

6063 provides a crucial tool in this fight. The committee approved this authority last year, and the

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Senate Judiciary Committee has cleared similar language that is awaiting consideration on the Senate floor today. I urge my colleagues to oppose this amendment and yield back the balance of my time. Mr. Conyers. Mr. Chairman? The gentleman from Michigan, Mr.

Chairman Smith.

Conyers, is recognized. Mr. Conyers. Could you restate for us the numbers of

people that are violating these orders so that we can research them? Chairman Smith. Mr. Conyers. If the gentleman will yield?

I will. It is estimated that at least 100,000

Chairman Smith.

fugitive sex offenders now roam the country in violation of their registration and notification requirements. Mr. Conyers. Right. I would like to just be able to

afterward check that statistic, and I note that just commonly making these administrative subpoenas more available is something that we ought to really start thinking about. I don't like them, especially when there is no cause

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being demonstrated why the U.S. marshal can't go to court and get it from the judge the same way everybody else does. And so, for that reason, I am in strong support of the Scott amendment. Mr. Scott. Mr. Conyers. Mr. Scott. Will the gentleman yield? I yield. And I would ask the chairman to respond.

Did I understand him to say that 100,000 people are being picked up on these already without this extraordinary power when the testimony before our committee was it didn't make any difference in terms of recidivism whether they were in compliance or not. We are spending all this money and

effort chasing down people and locking them up when they are posing no more danger to society than those who are in compliance. Is that my understanding? Chairman Smith. he mentioned 100,000. If the gentleman will yield? I think

One hundred thousand are those I think the

individuals who have not yet been apprehended. figure that the gentleman probably meant -Mr. Scott.

And posed no more, according to the

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testimony -Chairman Smith. picked up. Mr. Scott. Okay. And that is the figure you are talking I think about 30,000 may have been

Chairman Smith. about. Mr. Scott.

But they pose no more danger to society

measured by recidivism rate than those who are in compliance. Chairman Smith. All I know is that sex offenders have a Now how that compares, I

25 to 30 percent recidivism rate. don't know. something -Mr. Scott.

But that is still too high, and it is still

The testimony before the committee, when

asked if there is any difference, they could not testify that there was any difference at all in recidivism rate from those who are in compliance and those who are not in compliance. Chairman Smith. Right. Okay. If we can reduce If we can reduce

recidivism -- if the gentleman will yield?

the recidivism rates, why wouldn't we want to try to do

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that? Mr. Scott. Well, no, no, no. You have targeted a

group, those not in compliance, whose recidivism rate is the same as those who are in compliance. Chairman Smith. Mr. Scott. effort. Oh, I see.

And we are spending all that money, all that

When you catch them, you have got to lock them up, And now you want extraordinary powers

spend all that money.

to do more of it without any indication that the group that you are targeting is any more dangerous than the group that you haven't targeted. And I guess the question is does that make any sense at all? Mr. Conyers. Well, I think that the Scott analysis is

right on, and I am just for reducing whenever we can, if it doesn't endanger safety, the number of administrative subpoenas because it is too easy to throw these into bills just to facilitate some reason or no good reason at all. And so, I again urge support of this Scott amendment and yield back. Oh, yes?

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Mr. Scott.

How does the recidivism rate for sex

offenders compare to recidivism rates for robbers, burglars, drug offenders? Isn't the recidivism rate for sex offenders So if we are going to go chasing down

much lower anyway?

people, wouldn't it make it -- wouldn't it be more productive to go after drug offenders, burglars, and robbers because they are more likely to offend anyway? Mr. Conyers. If that is directed to me, I would say

Mrs. Adams. Mr. Scott. Mr. Conyers. gentlelady. Mrs. Adams.

Will the gentleman yield? I yield. I have the time, and I would yield to the

So is it your argument today that people

who take advantage of our children should not be treated a little bit differently? Because this is to protect our

children, and they have to live with this for the rest of their lives if they survive this attack. Mr. Scott. Well, will the gentleman yield? The gentleman's time has expired.

Chairman Smith. Mr. Conyers.

I ask for unanimous consent for 1

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additional minute. Chairman Smith. Without objection, the gentleman is

recognized for an additional minute. Mr. Conyers. Mr. Scott. I yield. Well, I would admit that offenses against

children are included in the universe of people for whom these administrative subpoenas could be used, as well as those committing consensual acts, urinating in public, and those kinds of things also. And we are going to be spending

administrative subpoena money going after them, too. Chairman Smith. Mr. Scott. If the gentleman will yield?

There is no -- there is no -- these

administrative subpoenas -Mrs. Adams. Mr. Conyers. Will the gentleman yield? I yield. The gentleman from Michigan has the

Chairman Smith. time. Mr. Conyers. Mrs. Adams.

I yield. This particular case is referencing -- or

bill, rather, references child pornography and child exploitation offenses.

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Mr. Scott. provision. Mrs. Adams. Mr. Watt. Mr. Scott. Mr. Conyers.

That is the title of the bill.

Read the

It is still protecting our children. You might try reading the bill. Who does it apply to? Reclaiming my time. Chairman, I --

Chairman Smith. Mr. Conyers.

The gentleman's time has expired.

Yes. And the gentlewoman from Texas, Ms.

Chairman Smith.

Jackson Lee, is recognized. Ms. Jackson Lee. I appreciate the dilemma that we are But I

facing on the utilization of the U.S. marshals.

adhere to the position that if a grown man can go into a nursing home and attack a priest because of the impact that child sexual abuse has had, if there are eons of stories that still exist among victims of child abuse by certain institutions, if the case of Mr. Sandusky in Pennsylvania is any reflection or repeated acts, even though he remained in his same jurisdiction, and if the U.S. marshals can be used in a case that was upheld -- legislation that was upheld by the Supreme Court, although premised on the utilization of

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U.S. marshals, I frankly believe that the finding of unregistered sex offenders is an important task and one that we need to utilize in the protection of our children. And I would argue that this is a valid part of the legislation and would support this language remaining in the legislation and the utilization of the U.S. marshals for that reason. children. We have to step up the game for protecting our

And I do believe, though I am not citing

statistics, and I think we need to do that research. But from the general public everyday public opinion analysis, what is in the public arena articles, sex offenders are repeaters. isolated in prisons. treatment. There is recidivism. They are

It may be a sickness.

They may need

I welcome all of that.

But I think the use of

the U.S. marshals is an appropriate and valid use in this legislation. And I would yield back, Mr. Chairman. Would the gentlelady yield? I will yield to the gentleman. The gentlelady from Florida

Mr. Scott.

Ms. Jackson Lee. Mr. Scott.

Thank you.

pointed out that the title of the bill speaks to child exploitation offenses. The administrative procedure section

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on page 7 talks about an unregistered sex offender, and it defines those on page 8, meaning anybody required to register under the Sex Offender Registration and Notification Act, which includes in some States things like urinating in public. Ms. Jackson Lee. time. I yield back. I thank the gentleman. Reclaiming my

Mr. Chairman, I would just indicate that I know that

as this bill makes it way to the floor, whether there are any inconsistencies, we will have the opportunity to do so. But I do think the role of the United States marshals is a valid and important role in this legislation. back. Chairman Smith. Mr. Watt. Thank you, Ms. Jackson. I would yield

Will the gentlelady yield? If I had more time, I would be happy

Ms. Jackson Lee. to yield. Mr. Watt. gentlelady -Ms. Jackson Lee. Mr. Watt. Okay.

Well, you have got more time.

Will the

I would be happy to yield. So the role of this committee is to While we are doing it between here

correct these problems.

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and the floor, this is the place to correct the statute.

If

we are going to correct it, there is nothing going to happen to this bill between now and the floor. You know it as we are sitting here. So if there is going to be any limitation on this provision, we need to do it in this committee and quit appealing to the public as if this is all about sex offenders who are predators and preying on children. This And we know that.

is about a much, much broader category of people than that. And it is our responsibility in this committee, I think, to correct the bill, not to just to pass it on and make a political sound bite. Ms. Jackson Lee. I yield back to the gentlelady. I thank the gentleman. And let me

just say, now we are in the process of offering amendments. I happen to believe the U.S. marshals component is important. And let me just inquire of the chairman, Mr. Chairman, in the drafting of this legislation, is your focus on sex offenders or do you perceive it to be a broader reach? Chairman Smith. If the gentleman will yield, let me

summarize some of the last arguments by saying I do not mind

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spending extra money and effort to put child molesters in jail. Ms. Jackson Lee. But you are narrowing this legislation

to child molesters, am I understanding? Chairman Smith. legislation. That is the purpose of this

And the administrative subpoena powers, if the

gentlewoman will continue to yield -Ms. Jackson Lee. Chairman Smith. following occurs: I will continue to yield. Once again, are used only after the

the fugitive is arrested pursuant to a

judge-issued warrant, indicated for committing a sex offense, convicted by proof beyond a reasonable doubt, sentenced in a court of law. register as a sex offender. fugitive. directed. The fugitive is required to Again the emphasis is on the

That is where the administrative subpoena is The fugitive flees or otherwise violates their

registration requirements, and a State or Federal arrest is issued for a violation of the registration requirements. That all has to happen. This is not an administrative

subpoena used at the beginning of a criminal investigation as is so often the case. It is after all those actions have

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occurred.

So the process protects individuals and is going

to be directed towards the fugitives. Ms. Jackson Lee. I yield by just commenting, Mr.

Chairman, that the narrow focus of this legislation, as articulated by the criteria, speaks to, I think, an effective and appropriate use of the U.S. marshals. back. Chairman Smith. Thank you, Ms. Jackson Lee. I yield

The question is on the amendment -Mr. Watt. Mr. Chairman. Mr. Chairman. The gentleman from California, Mr.

Mr. Lungren.

Chairman Smith.

Lungren, is recognized. Mr. Lungren. Mr. Chairman, this debate does remind me

somewhat of similar debates we had going back 25 years ago or so before this committee when I recall John Walsh appearing before a subcommittee of this committee asking that the Federal government be involved in the question of missing and exploited children. At that time, there was an

argument that the Federal government ought not to be involved in it. This was purely a local or State concern.

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And I recall the debate that raised at time with respect to whether we ought to use Federal resources for such a purpose. And eventually, this committee decided that, in

fact, there was an important purpose to be served, and that the Federal government, in fact, could utilize its resources in an effective way to, in a sense, supplement or complement that what was happening on the State level. We then went into a period of time in which there was a big argument about whether or not registered sex offenders' registration would be made available to the public. And

that was a debate that raged in many States, including mine of California. And I recall how we carefully looked at that and attempted to move into that field, and put a lot of restrictions around that information because there was concern about whether the public could be trusted with that information, and that this in some way, shape, or form violated the privacy rights of registered sex offenders. And, of course, that was a misnomer to begin with because as a product of their prior action, their conviction required them to register as sex offenders.

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And we passed laws on the State level, and we passed laws on the Federal level which work with those State laws to allow the public to know the identity of people who are registered sex offenders so that they might take -- that is, members of the public -- appropriate action to protect themselves, and particularly their children, against known sex offenders. Now the argument that some sex offenders are not registered, and, therefore, it does not protect us against all has been raised. But it is not received the kind of

credence that would allow us to dismantle the registration. What we are asking for here is administrative subpoenas for the purpose of affecting the apprehension of those who are violating the various laws around the country with respect to registered sex offenders. It is not limited to But the

just those who are child molesters, that is true.

fact of the matter is we do not limit that with respect to the various laws that we have passed in the various States. It is registered sex offenders. The gentleman from Virginia keeps bringing up the idea about urination in public and so forth. No system is

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perfect.

There are anomalies to every system whatsoever.

But that is no reason to essentially dismantle the system that we have if, in fact, we think registered sex offender registries serve a useful purpose. do. Mr. Conyers. Mr. Lungren. Mr. Conyers. Mr. Lungren. Would the gentleman yield? I will yield in just a moment. Thank you. And if, in fact, you believe that sex And I do believe they

offender registries serve a purpose, the question before us is whether or not that purpose will be enhanced by allowing for administrative subpoenas in these cases. Now administrative subpoenas, as I understand, do not go to the content, for instance, of telephone conversations. They are the kind of subpoenas that allow a marshal to go and find the motel records, for instance if you are try ing to find out where someone is living. Why is that important?

Because, in fact, if they have not registered as to where they are living, we are trying to find out where they are. There are consequences to that. My State, for instance,

has laws against registered sex offenders living within

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1,000 feet or 2,000 feet of a school or a park. do that?

Why do we

Because we believe that on balance, that achieves In most cases, those

a protection of those most vulnerable. would be children.

In some cases, those are folks who have

a mental disability and are taken advantage of by sex offenders. Yes, the ambit is larger than those who already are registered for sex offenses against youth, but we have found in legislature after legislature, State after State, that this serves a good purpose. So the question before us is a simple one. Do we think

administrative subpoenas, which go to the question such as where someone is living, motel records, that kind of thing, should be allowed for Federal marshals to complement or supplement the efforts being made by the 50 States of the Union with respect to fighting against sexual exploitation, sexual assault. While the title of the bill does deal with juvenile or children and this deals with all sex offenders, those are the facts before us. That is the question before us.

I would be happy to yield to my friend from Michigan.

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Mr. Conyers.

Thank you.

Thank you very much.

Do you

believe or understand -Chairman Smith. The gentleman's time has expired, and

without objection, be granted and yielded an additional minute. Mr. Conyers. Thank you. Do you think that taking out

administrative subpoenas, my friend from California, that we would dismantle the system embodied in this bill? Mr. Lungren. I think we would lessen the effectiveness

of the programs within this bill because oftentimes timeliness is of the essence with respect to attempting to track down a sex offender who is not properly registered. That is, you are trying to find their most recent residence, and oftentimes, as I say, it is very difficult to determine that. You needed to get your administrative subpoena

immediately so you can gather that information, which may not be kept for historical purposes by the business concern to which it is directed. Chairman Smith. I yield back the rest off --

The gentleman's time has expired.

The question is on the amendment. All in favor, say aye?

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Opposed, no? In the opinion of the chair, the noes have it, and the amendment is not agreed to. Mr. Scott. Mr. Chairman? The gentleman from Virginia.

Chairman Smith. Mr. Scott.

I have another amendment. Does the gentleman have another

Chairman Smith. amendment? Mr. Scott.

Yes, Mr. Chairman. Okay. The clerk will report the

Chairman Smith. amendment. Mr. Scott.

It is apparently on the way to the desk.

They have it, Mr. Chairman. Chairman Smith. Ms. Kish. The clerk will report the amendment.

Amendment to H.R. 6063, offered by Mr. Scott,

page 7, beginning on line 23, strike "the director of the United States Marshal Service," and insert the following: "at the request of the director of the United States Marshal Service, the Attorney General." Page 8, line 11, insert after the Sex Offender Registration and Notification Act, 42 U.S.C., 16901, the

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following:

"by reason of having been convicted of a

specified offense against a minor as such term is defined in Section 111(a) of the Sex Offender Registration and Notification Act." [The amendment of Mr. Scott follows:]

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Chairman Smith.

The gentleman from Virginia recognized

to explain his amendment. Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, I

apologize for the late notice on this.

I did not think this

would be necessary because I thought the last amendment would pass. But this amendment would replace the section of

the bill giving the administrative subpoena authority, the U.S. Marshal authority, and conform that authority to the same kind of authority that the Secret Service has when faced with a threat to the President of the United States. It keeps the authority at the Cabinet level, which the Secret Service has to get a Cabinet-level official to authorize the subpoena. It also it turns out that it

conforms the amendment is in conformity with what the criticism of the last amendment was, that it did not cover offenses against children. defenses against children. Mr. Chairman, we have testimony that the Marshal Service is rounding up tens of thousands of people without any apparent just because they are not in technical compliance with the reporting requirements under SORNA. They are able This limits the application to

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to do this without this extraordinary power.

If they in

appropriate cases need this extraordinary power, they cannot possibly need this power any more than the Secret Service does when faced with an imminent threat to the President of the United States. They do not need this power for chasing down people who might have gotten caught with a prostitute or caught urinating in public. If we are going to do it for cases

that involve an offense against children, then let us have it for offenses against children. I would hope, Mr. Chairman, that we would adopt this amendment. It conforms to all that the people have said in And, Mr. Chairman, I think

criticism of the last amendment.

it is more in compliance with last year's bill. Chairman Smith. Mr. Scott. Does the gentleman yield back his time?

I yield. Okay. I am going to rise in opposition

Chairman Smith.

to the amendment for a couple of reasons. First of all, as the gentleman says, this allows or makes it impossible for the director of the United States Marshal Service to approve the administrative subpoenas.

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Instead the Attorney General has to approve them. think that will slow down the process.

I tend to

That will make it a

little bit more difficult to get the administrative subpoenas, and perhaps unnecessarily burden the Attorney General. The second provision, the second paragraph of the amendment limits the application to sex offenders against minors, but it omits the instance where sex offenders m ight molest or tape an adult. And that is not a category I think So I

we ought to exclude from the provisions of the bill. oppose the amendment. Mr. Scott. Would the gentleman yield?

Chairman Smith. Mr. Scott.

And I will yield to the gentleman.

Is the chairman saying that in cases like

this, the administrative procedures need to be more streamlined in these cases than the case of an actual imminent threat against the President of the United States? Chairman Smith. My guess is that there are far more

instances of sex offenders than there are threats against the President. And I can understand why that would be

elevated to the Attorney General, but in this case where we

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are talking about administrative procedures, it is the director of the United States Marshal Service that has historically been the one to approve those and who does, in fact, approve those and all the other categories. So I do

not know why we would, again, take it out of his hands in this one instance. Are there any other members who wish to be heard on this amendment? [No response.] Chairman Smith. amendment. All in favor, say aye? All opposed, nay? In the opinion of the chair, the noes have it, and the amendment is not agreed to. The gentleman from Virginia requests a roll call vote, and the clerk will call the role. Chairman Smith. Ms. Kish. No. If not, the question is on the

Mr. Smith votes no.

Mr. Sensenbrenner? [No response.]

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Ms. Kish.

Mr. Coble?

[No response.] Ms. Kish. Mr. Gallegly?

[No response.] Ms. Kish. Mr. Goodlatte?

[No response.] Ms. Kish. Mr. Lungren? No.

Mr. Lungren. Ms. Kish. Mr. Chabot? Mr. Chabot. Ms. Kish. Mr. Issa? [No response.] Ms. Kish.

Mr. Lungren votes no.

No. Mr. Chabot votes no.

Mr. Pence?

[No response.] Ms. Kish. Mr. Forbes. Ms. Kish. Mr. King? Mr. King. No. Mr. Forbes? No. Mr. Forbes votes no.

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Ms. Kish. Mr. Franks? Mr. Franks. Ms. Kish.

Mr. King votes no.

No. Mr. Franks votes no.

Mr. Gohmert? [No response.] Ms. Kish. Mr. Jordan. Ms. Kish. Mr. Poe? [No response.] Ms. Kish. Mr. Chaffetz? Mr. Jordan? No. Mr. Jordan votes no.

[No response.] Ms. Kish. Mr. Griffin?

[No response.] Ms. Kish. Mr. Marino. Ms. Kish. Mr. Gowdy? [No response.] Ms. Kish. Mr. Ross? Mr. Marino? No. Mr. Marino votes no.

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Mr. Ross. Ms. Kish. Mrs. Adams? Mrs. Adams. Ms. Kish. Mr. Quayle?

No. Mr. Ross votes no.

No. Mrs. Adams votes no.

[No response.] Ms. Kish. Mr. Amodei. Ms. Kish. Mr. Amodei? No. Mr. Amodei votes no.

Mr. Conyers? Mr. Conyers. Ms. Kish. Mr. Berman? [No response.] Ms. Kish. Mr. Nadler. Ms. Kish. Mr. Scott? Mr. Scott. Ms. Kish. Aye. Mr. Scott votes aye. Mr. Nadler? Aye. Mr. Nadler votes aye. Aye.

Mr. Conyers votes aye.

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Mr. Watt? Mr. Watt. Ms. Kish. Aye. Mr. Watt votes aye.

Ms. Lofgren? Ms. Lofgren. Ms. Kish. Aye.

Ms. Lofgren votes aye.

Ms. Jackson Lee? Ms. Jackson Lee. Ms. Kish. Ms. Waters? Ms. Waters. Ms. Kish. Mr. Cohen? [No response.] Ms. Kish. Mr. Johnson? Aye. No. Ms. Waters votes no. No.

Ms. Jackson Lee votes no.

Mr. Johnson. Ms. Kish.

Mr. Johnson votes aye.

Mr. Pierluisi? [No response.] Ms. Kish. Mr. Quigley? No.

Mr. Quigley.

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Ms. Kish. Ms. Chu? Ms. Chu. Ms. Kish. Mr. Deutch?

Mr. Quigley votes no.

Aye. Ms. Chu votes aye.

[No response.] Ms. Kish. Ms. Sanchez? Aye.

Ms. Sanchez. Ms. Kish. Mr. Polis? Mr. Polis. Ms. Kish.

Ms. Sanchez votes aye.

Aye. Mr. Polis votes aye. The gentleman from California?

Chairman Smith. Mr. Berman. Ms. Kish. Aye.

Mr. Berman votes aye. The other gentleman from California,

Chairman Smith. Mr. Issa. Mr. Issa. Ms. Kish. No.

Mr. Issa votes no. The gentleman from Texas.

Chairman Smith. Mr. Gohmert. No.

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Ms. Kish.

Mr. Gohmert votes no. The gentleman from North Carolina.

Chairman Smith. Mr. Coble. Ms. Kish. No.

Mr. Coble votes no. The gentleman from Arkansas.

Chairman Smith. Mr. Griffin. Ms. Kish. No.

Mr. Griffin votes no. The gentleman from Ohio, if he has not And the clerk will report.

Chairman Smith. already voted. Ms. Kish.

Very good.

Mr. Chairman, 10 members voted aye, 18

members voted nay. Chairman Smith. A majority having against the

amendment, the amendment is not agreed to. A reporting quorum being present, the question is on reporting the bill favorably to the House. Those in favor, say aye? Opposed, no? The ayes have it, and the bill is order reported favorably. Members will have 2 days to submit their views.

Pursuant to notice, I now call up H.R. 4362 for purposes of markup.

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And the clerk will report the bill. suspend.

But the clerk will

I just want to notify members that we do not

expect to take up today the Adam Walsh Reauthorization Act. So at this point, we will proceed with H.R. 4362, then H.R. 6062. And without objection, the bill will be considered as read and open for amendment at any point. [The information follows:]

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Chairman Smith.

I will recognize myself and then the This is 4362.

ranking member for opening statements.

Tax fraud through identity theft is a rapidly-growing problem in the United States. In stealing identity

information, social security numbers, and their corresponding names and birth dates, criminals have electronically filed thousands of false tax returns and have received hundreds of millions of dollars in wrongful refunds. Is this mic on? Okay.

The criminals deceive the Internal Revenue Service and file a return before the legitimate taxpayer files. The

criminals then receive the refund, sometimes by check, but often through a convenient, but hard to trace, pre-paid debt card. The criminals then wait for the mail to deliver the

cards and checks at abandoned addresses. According to media reports, postal workers have been harassed, robbed, and, in one case, murdered as they have made their rounds with mail trucks full of debit cards and master keys to mailboxes. Tax thieves victimize innocent taxpayers in a number of

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ways.

They often file fake returns under a false name or

claim someone who is no longer living as a dependent on their own forms. Often the fraud is not detected until an

individual files a tax return that is rejected by the IRS because someone else has already falsely filed and claimed their return. J. Russell J George, the Treasury Inspector General for Tax Administration, testified before Congress that the IRS detected 940,000 fake returns for 2010 in which identity thieves would have received $6.5 billion in refunds, and those were just the ones they caught early. The IRS

estimated that they missed an additional 1.5 million returns with possible fraudulent refunds worth more than $5.2 billion. The number of these cases has increased by

approximately 300 percent every year since 2008. Tax fraud is a very real problem, and Congress should do all it can to protect all citizens from this costly crime. I am proud to be an original co-sponsor of H.R. 4362, the Stop Identity Theft Act of 2012, with Congresswoman Debbie Wasserman Schultz. This is a bipartisan bill that

strengthens criminal penalties for tax return identity

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thieves. H.R. 4362 adds tax return fraud to the list of predicate offenses for aggravated identity theft and expands the definition of an identity theft victim to include businesses in charitable organizations. H.R. 4362 also improves

coordination between the Justice Department and State and local law enforcement officials in order to better protect groups that are most vulnerable to tax fraud so they are not future victims. The changes to Federal law proposed by H.R. 4362 are important to keep pace with this ever-increasing crime. Tax

identity theft cost American families and taxpayers billions of dollars each year. It is critical that we take further

steps to reduce the number of people who are victimized by this crime. of H.R. 4362. I will yield back the balance of my time and recognize the gentleman from Michigan, Mr. Conyers, for his opening statement. Mr. Conyers. Thank you, Chairman Smith. I commend our former member, So I urge my colleagues to join me in support

This is a good bill.

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Debbie Wasserman Schultz, the chairman, and the ranking member on the subcommittee on crime, Bobby Scott, for all supporting this measure. And as I do, there is one provision in here that creates a problem that I need to discuss with the members of this committee. And that is the imposition of a mandatory

minimum sentence on the crime of tax fraud, which as a statute, aggravated identity theft already has a mandatory minimum. And as has been discussed here, mandatory minimum

sentencing laws require automatic prison terms for those convicted of certain crimes without allowing the judge to take facts and circumstances of the crime, or circumstances surrounding the defendant into particular account in each case. And so identity theft crimes need stiff punishments, even increased punishments. But mandatory sentences are

extremely problematic, and that is why I will, with Bobby Scott of Virginia, introduce an amendment that will increase the statutory maximum for tax fraud, but will delete the mandatory minimums. And I will talk about that when my

amendment is brought forward.

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And for now, I will ask unanimous consent to put my entire statement into the record, and return the balance of my time. [The information follows:]

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Chairman Smith. amendments?

Thank you, Mr. Conyers.

Are there any

The gentleman from Virginia, Mr. Scott. Mr. Chairman, I have an amendment at the

Mr. Scott. desk.

Chairman Smith. Ms. Kish.

The clerk will report the amendment.

Amendment to H.R. 4362, offered by Mr.

Conyers and Mr. Scott, page 3, line 3, insert A in general before "section." following: Page 3, after line 10, insert the

"(b) increased penalty."

Section 1028(a) of Title 18, United States Code, is amended, (1) in paragraph 1 by inserting "except for an offense described in Section (c)(12), the term of imprisonment may be any term up to 4 years" before the period at the end, and (2) in paragraph 2, by inserting "except for an offense described in Section (c)(12) for which the term of imprisonment may be any term up to 10 years" before the period at the end. [The amendment of Mr. Conyers and Mr. Scott follows:]

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Chairman Smith. his amendment. Mr. Scott.

The gentleman is recognized to explain

Thank you, Mr. Chairman.

Mr. Chairman, fraud and identity theft is a serious and growing problem. We just heard last week from the victim of

a tax repair fraud at a hearing before the subcommittee, and we know how disruptive such fraud can be to a person's life . But when we address problems of fraud and identity, our response should be effective and measured. And while I

appreciate the sentiments and efforts behind H.R. 4362, I cannot support the effort that seeks to stop one injustice by imposing another. H.R. 4362 adds fraud as a predicate aggravated identity theft to the Code section, and the penalty for that is a mandatory prison terms of 2 years for an offense related to terrorism, 5 years. Because the mandatory minimum sentences

are included in H.R. 4362, this bill is not an intelligent solution to the problem of identity theft. I am not saying that somebody who commits these crimes should not be sentenced to 2 or 5 years or even more. But

to require any sentence to be imposed before the facts or

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circumstances of a case or the characteristics or involvement of the defendant are taken into account, it is an unnecessary wrong and unjust. Mandatory minimums have been studied extensively and have been found to distort the rational sentencing systems to discriminate against minorities, to waste taxpayers' money, and often violate common sense. Even if everyone on

the case, from the arresting officer, the prosecutor, judge, and the victim, believe that the mandatory minimum would be an unjust sentence for a particular defendant in a particular case, it still must be imposed. Mandatory minimum sentences based merely on the name of the crime removes sentencing discretion from the judge. Regardless of the role of the offender in the particular case, the offender's record or lack thereof, or the facts and circumstances of the case, the judge has no discretion but to impose the mandatory minimum set by legislators long before the crime has been committed. This would bring about results such as the recent case of Marisa Alexander, the mother of 3, a graduate student who was sentenced to a mandatory minimum sentence of 20 years

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for discharging a firearm to warn off an abusive husband during a dispute. Discharging a firearm to warn off an

abusive husband during a dispute, mandatory minimum 20 years. Ironically, if she has just shot and killed him, the

maximum penalty for voluntary manslaughter in Florida, 15 years. Two- and 5-year mandatory sentences in H.R. 4362 are, therefore, problematic although I do support the intent of the sponsors to do more to address identity theft. For

these reasons, Mr. Chairman, we have offered this amendment to replace the mandatory minimums in the bill with an increased penalty. Instead of 2 to 5, make it 4 to 10, but Working with the

make it discretionary to the judge.

sentencing commission, the just can impose a more severe penalty in appropriate cases. But we should not require the

judge to impose a sentence that violates common sense. I would hope that we would adopt the amendment and deal with the situation where we are trying to eliminate mandatory minimums. Mr. Chairman, I would point out, this is the third mandatory minimum we have considered this month alone. We

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keep hearing that this not a new mandatory minimum. just adding a crime to the statute that already has a mandatory minimum, or just one more.

We are

And if we do not

accept the mandatory minimum, a good bill might not pass. We added mandatory minimums in the synthetic drug bill, and violence against women. Now it is identity theft.

If we are going to get rid of the mandatory minimums on the books, the first thing we have to do is stop passing new ones. This would be a new one. We should not pass it.

Identity theft is a serious problem, but mandatory minimums should not be the solution. amendment. Chairman Smith. myself in opposition. The gentleman is correct. We have debated this issue of Thank you, Mr. Scott. I will recognize I would hope we would adopt the

mandatory minimums many times over, but there is a justification for them. This amendment defeats the main purpose of this bipartisan bill, which is to increase penalties on those who victimize people and fraudulently steal their income tax refunds. This bill properly places tax return fraud where

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it belongs, within the aggravated identity theft statute in Section 1028(a). This means that a person prosecuted and

convicted for stealing someone's identity in order to commit felony tax fraud will, in fact, face mandatory punishment. Media reports have shown that this type of fraud is on the rise. The billions of dollars in fraudulent tax returns

that are paid each year harm not just the individual victims, but taxpayers as a whole because in many cases the IRS pays 2 refunds, one to the scam artist and one to the actual taxpayer. Tax fraud through identity theft also can

be devastating to the individual victim, who must prove their own identity to the IRS. These victims often wait

months or years to receive refunded money that is rightfully owed to them and to reestablish their identity. So I oppose this amendment and urge my colleagues to oppose it as well. Ms. Waters. Mr. Chairman? The gentlewoman from California, Ms.

Chairman Smith.

Waters, is recognized. Ms. Waters. amendment. I would like to rise in support of this

We have worked too long and too hard dealing

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with the unfairness of mandatory minimums to start reversing what we already concluded was taking away discretion, all discretion, from judges. Every judge that we have talked to, the courts, everybody recognizes that mandatory minimums simply is unfair, that we should not be trying to sit here and make decisions for judges. Let them hear the case. Let them

understand what took place. the crime.

Let them make decisions about

But let us not revert to creating more mandatory

minimums when we know that they have not served us well. So I would simply ask this committee to support this amendment. Mr. Conyers. Ms. Waters. Mr. Conyers. Would the gentlelady yield? Yes, I yield to the gentleman. I want to thank her for her statement, and

to point out that the Conyers-Scott amendment actually increases the amount of time a guilty defendant may be incarcerated for. We are going from 2 to 5 years, and in

our amendment, the term sentence could go from 4 to 10 years. So let everyone understand that what we are doing is

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giving the court, the judge, greater discretion to sentence longer than the mandatory for which you have so excellently stated. It is generally recognized that mandatory sentences And it is for that reason that we bring

are discriminatory.

the term change, extending it forward. We are not trying to make it easier for anybody, but we are making it more discretionary to the court rather than having this term loosely and now continually applied in our legislation before the house Judiciary Committee. Ms. Waters. I thank the gentleman for clarifying and

making that point so that all of the members could understand what you are doing. You are saying that we want

the judge to be as tough as a judge can be within the guidelines that you are creating, giving up to 10 years if, in the judge's discretion, they decide that the crime that has been committed deserves that kind of sentencing. So I think that is a great point that you are increasing the possibility of this sentencing. And I would hope this

would be enough for the members of this committee to understand, we do not have to revert to mandatory minimums, which are discriminatory and which have not served the

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courts or this country well. Chairman Smith.

I yield back.

The gentlewoman yields back her time.

Are there any other members who wish to be heard? [No response.] Chairman Smith. amendment. All in favor, say aye? Opposed, no? Chairman Smith. In the opinion of the chair, the noes If not, the question is on the

have it, and the amendment is not agreed to. Ms. Lofgren. Mr. Chairman? I thought you were not going to get a The gentlewoman from

Chairman Smith. recorded vote. California. Ms. Lofgren.

Who seeks recognition?

I move to strike the last word. The gentlewoman is recognized for 5

Chairman Smith. minutes. Ms. Lofgren.

I have a concern about the bill, and I

wanted to explore the reasons why. As members may recall, several years ago, there was an incident in Iowa where immigrants who were working at a

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packing plant were arrested, herded into cattle holding pens, and charged with aggravated identity theft with a penalty of 2 years. To make a long short, the case went all

the way to the Supreme Court, Flores-Figueroa v. United States. And the Court basically decided that you cannot be, as an immigrant who uses a social security number that is not your own just to get a job, you cannot be charged with aggravated ID theft unless you knew that the social security number belonged to another person. I think in a sort of backdoor way this bill overturns Flores-Figueroa v. the Unites States, and here is my thinking, and I would love if someone can tell me I am wrong, I would love to know it. Under this bill, filing a

W-4, which is a willful filing of information, would be transformed into aggravated identity theft. And so the

immigrant, who is the bus boy, who has a social security number, is now transformed, despite Flores-Figueroa v. the United States, into an aggravated identity theft felon facing a 2-year penalty. And I have a concern about that. I think the Supreme

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Court got it right, but there has been no discussion of this. Chairman Smith. Ms. Lofgren. Will the gentlewoman yield?

I certainly would yield. It is neither the intent of the

Chairman Smith.

legislation, nor do I believe there is any provision in the legislation that would overturn or impact that Supreme Court case. At one point, we considered offering an amendment to do just what the gentlewoman is concerned about, but decided not to offer it. founded. Ms. Lofgren. So let me, if I may, Mr. Chairman, I The provision in the section -- I So I do not think her concerns are well-

appreciate that guidance.

am looking for it here -- thank you very much -- on line 9 on page 3. That would not, in fact, relate to the

circumstances that I have just outlined, overturning the Flores case? Chairman Smith. Let us take a look, but we are

convinced that it does not. Ms. Waters. Will the gentleman yield? Will the lady?

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Ms. Lofgren. Ms. Waters.

Certainly. What harm could be done by making sure that I think the

it does not overturn the court decision? gentlelady makes a good case.

And if the chair, in fact,

did not intend that it would impact immigrants who are simply guilty of seeking a job with minor security violations, then why not either strike or amend the provision to clarify that, and let us move forward on the bill? We have bipartisan support on this bill because we all understand what is happening with identity theft, particularly in South Florida, where it is way out of control. And we all want to support it, but then we are

concerned that we do not want to go overboard and do exactly what was attempted as was described by the gentlelady from California. So, Mr. Chairman, why do we not just clear this up and strike that, or if the gentlelady has simple language that would exclude that, let us do it so we can get this done and move it out of here? Ms. Lofgren. Reclaiming my time, we did ask the staff

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of the Ways and Means Committee, and did pose this scenario. And it was their guess -- I do not want to put more to it -that if you submitted a W-4 form and signed it, which you have to do, then, in fact, you would be guilty, and that we would, they think, be overturning the Flores case. And I thank the gentlelady. that I would like to know. I think that is something

We have not had hearings on

this, and if it is not the intent of the majority to do that, I think it would be nice to get some more guidance on this, if I could, Mr. Chair. Chairman Smith. If the gentlewoman will yield, we will I am convinced by counsel

be happy to get more guidance.

that that, again, was not the intent, and there is nothing in this bill that would allow to occur. As I say, we did

consider it, but decided at the request of the lead sponsor, Debbie Wasserman Schultz, not to put in the bill at her request. So let me just assure you, if there is any way or need to clarify that, we will do so. Ms. Lofgren. Pardon me? I did not hear you.

Chairman Smith.

I said let me assure the gentlewoman

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that if there is any need to clarify what we have been discussing, we will be happy to do so. Ms. Lofgren. I appreciate that, Mr. Chairman. And with

that understanding, we will yield back. Chairman Smith. Okay, thank the gentlewoman.

A reporting quorum being present, the question is on reporting the bill favorably to the House. Those in favor, say aye? Those opposed, no? In the opinion of the chair, the ayes have it, and the bill is ordered reported favorably. days to submit their views. Pursuant to notice, I now call up H.R. 6062 for purposes of markup. And the clerk will report the bill. H.R. 6062, to reauthorize the Edward Byrne Members will have 2

Ms. Kish.

Memorial Justice Assistance Grant Program through Fiscal Year -Chairman Smith. Without objection, the bill will be

considered as read and open for amendment at any point. [The information follows:]

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Chairman Smith.

I will recognize myself for an opening

statement, then the ranking member. The Edward Byrne Memorial Justice Assistance Grant Program was established in 2005 when two existing Federal grant programs were combined to create one streamlined grant program at the Justice Department for State and local criminal justice programs. Byrne JAG is the cornerstone of the Federal government's assistance to State and local law enforcement agencies and other criminal justice entities. Byrne JAG provides funds

to States through a formula that is based on each State's population and crime rate. A portion of the money is kept

by the States themselves, but much of it is required by statute to be distributed to localities. The Byrne JAG program has several broadly-written purpose areas, which include support for law enforcement entities, the courts, prevention and education, and drug treatment and enforcement. States and localities know their unique law enforcement needs better than we here in Washington do. Byrne JAG is

intended to allow State and local governments the

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flexibility to decide how this money is best spent to address their specific criminal justice challenges. Byrne JAG is currently authorized at approximately $1.1 billion a year through the end of the current Fiscal Year. In Fiscal Year 2012, Congress appropriated $470 million for the Byrne JAG program, although $100 million of these funds are a one-time set aside for this year's presidential nomination conventions. H.R. 6062 introduced by Mr. Marino

reauthorizes Byrne JAG at $800 million a year for 5 years. Byrne JAG is a bipartisan program, and H.R. 6062 is a bipartisan bill. I urge my colleagues to join me and Mr.

Marino in support of this legislation. I yield back the balance of my time, and the gentleman from Michigan is recognized for his statement. Mr. Conyers. Thank you, Mr. Chairman.

I think most here support the Edward Byrne Memorial Justice Assistance program emanating from the Department of Justice. What I would like to leave with my colleagues here

is that we need to do more for prevention with this billion plus dollars. And I am hoping that those that dispense the

program will take this discussion into serious

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consideration. Now Byrne JAG grants are vital when budgets are being cut at the municipal, county, State levels, which is very, very important. And so we want to make sure that this

program continues. And we need to support the full range of programs that assist State and local public safety initiatives, including the COPS program, which has funded the hiring of over 123,000 local police officers and sheriffs deputies in communities across this country. And so with these thoughts in mind, I urge this bill be adopted, and I yield back the balance of my time. Chairman Smith. Thank you, Mr. Conyers.

In the absence of the chairman of the Crime Subcommittee, Mr. Sensenbrenner, the gentleman from Pennsylvania, Mr. Marino, will be recognized to speak on his bill. Mr. Marino. Thank you, Chairman. The Edward Byrne

Memorial JAG program is the primary provider of Federal criminal justice funding to State and local jurisdictions, and has been referred to by the district attorneys as the

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federal crime fighting program with teeth and proven results. The JAG program provides State and local governments with critically-needed resources to support a wide range of law enforcement activities, including prosecution, prevention, education, planning, corrections, treatment, evaluations, and technology. As a former district attorney, I understand the tremendous value of JAG-funded projects in fighting crime by improving the processes, procedures, and operations of criminal justice systems. And just as a side bar, I would

like to express to my friend and the ranking member that as part of that program, we use some of those funds for education in schools as young as kindergarten. My legislation being considered today reauthorizes the JAG program for 5 years through Fiscal Year 2017. The

legislation is supported by the National Criminal Justice Association, the International Association of Chiefs of Police, the Major Cities Chiefs Association, the National Sheriffs Association, the National District Attorneys Association, and many more law enforcement organizations.

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Mr. Chairman, I would ask unanimous consent that these letters of support be inserted into the record. Chairman Smith. Without objection.

[The information follows:]

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Mr. Marino.

Again, I would like to thank the chairman

for considering this important legislation today, and I would like to thank the bipartisan group of co-sponsors from this committee for their support. I urge all of my colleagues to join in the support of our State and local law enforcement agencies by voting in favor of H.R. 6062. Thank you, Mr. Chairman, and I yield back the balance of my time. Chairman Smith. Thank you, Mr. Marino.

The gentleman from Virginia, Mr. Scott, ranking member of the Crime Subcommittee, is recognized. Mr. Scott. Thank you, Mr. Chairman. I join in support

of the bill as an important part of the comprehensive effort to fund crime-fighting programs at the State and local level. The Edward Byrne Memorial Justice Assistance Grant program was created in 2005 as a combination of other existing programs. Funding under the Byrne JAG program is

awarded to State and local governments based on statutorily defined formula. Each state's allocation is based on his

proportion of the country's population and the State support

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for the average number of total reported violent crimes in the past 3 years. After a State's allocation is calculated, 60 percent goes directly to the State government, and 40 percent is awarded directly to units of local governments within the State. State and local governments can use their Byrne JAG

funding for programs or projects in 7 purpose areas, such as law enforcement, prosecution, prevention, corrections, drug treatment planning and evaluation, and victim assistance. While I support all of these categories, I note that placing so many eggs in one basket has not always served all of the purpose areas adequately. Specifically, it is a

simple fact that we have not funded crime prevention programs anywhere near the level that would be commensurate with the importance of preventing crime. We have

traditionally engaged in and focused on crime strategies, such as over incarceration, which are not as effective at preventing crime as other initiatives, and which are very expensive. I do support this bill because there is no doubt that State and local governments need and deserve assistance and

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the types of programs that the Byrne JAG is designed to fund. But I also support other programs designed to target

more funding for types of initiatives which have been proven to prevent crime, such as putting more officers on the streets through the COPS programs and the community development crime prevention programs that will be funded under the Youth Promise Act that I have introduced. Finally, I note that while we have recently conducted an oversight hearing of the Office of Justice Programs, we should have a hearing about the administration and distribution of the funds under the Byrne JAG program. This

is a large and important program which in the past has been subject to criticism for abuses. We need to examine how the

money is now being spent and allocated to ensure that we are getting the best use of Federal resources. I commend my colleague, the gentleman from Pennsylvania, Mr. Marino, for introducing the bill. I urge my colleagues

to support it and ask my colleagues to work with me in additional efforts to fund other cost-effective crime prevention measures. Chairman Smith. I yield back. Thank you, Mr. Scott.

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Are there any amendments? Nadler, is recognized. Mr. Nadler.

The gentleman New York, Mr.

Thank you, Mr. Chairman.

I have an

amendment at the desk. Chairman Smith. amendment. Ms. Kish. Amendment to H.R. 6062, offered by Mr. Nadler And the clerk will report the

of New York, at the end of the bill add the following: "Section 3, incentive funds under the Byrne grant program for States and units of local government that provide certain services to victims of sexual assault. 505 -Mr. Nadler. Mr. Chairman, I would ask unanimous consent Section

that the reading of the amendment will be -Chairman Smith. Without the objection, the amendment

will be considered as read. [The amendment of Mr. Nadler follows:]

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Chairman Smith.

And the gentleman is recognized to

explain his amendment. Mr. Nadler. Thank you. Mr. Chairman, my amendment

would provide an incentive for States and localities to increase Byrne JAG funding to improve the treatment of rape victims and reduce the rape kit backlog. It is based on a

bill I have introduced, H.R. 2197, the Justice for Rape Victims and Improving Use of DNA Evidence Act. Sexual crimes of violence continue to harm women in alarmingly high numbers. Over 200,000 people in the United

States reported being the victim of a rape or sexual assault in 2008, which comes out to 1 person every 2 and one-half minutes. Over 80 percent of these victims were women with

past studies showing almost 20 percent of American women have experienced rape or attempted rape in their lifetimes. This is simply unconscionable, and we are not doing all we can to properly deal with this scourge. It starts when victims are first treated in hospital emergency rooms. The lack of concern, the failure to be

treated in a timely manner, and the absence of basic information often make women who have just been sexually

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assaulted or raped to feel victimized all over again. Certain personnel -- a sexual assault nurse examiner or SANE nurses, are trained specifically to treat and obtain evidence in these cases. Even though studies suggest that

treatment by SANE nurses improves the experience of victims and the collection of evidence making catching the perpetrators more likely, not all injured women receive such care. We heard testimony about the importance of SANE nurses last Congress at a Crime Subcommittee hearing on the rape kit backlog. We then fail to use evidence collected in what

is commonly called a rape kit to find and punish those who commit sexual assaults and rapes. These kits often contain

DNA evidence, an incredible tool in our fight against crime, particularly crimes of rape and sexual assault. If DNA evidence is left at a crime scene and we can find the person whose DNA matches that evidence, we can know with near certainty that we have the guilty party. Taking that

guilty party off the streets protects others from being harmed and provides a measure of justice for those already victimized. And as groups like the Innocence Project has so

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powerfully demonstrated, it can help set innocent men and women free. The power of DNA evidence can only be utilized, however, if such evidence is collected, tested, analyzed, and compared with other DNA samples. Unfortunately, because of

a variety of factors, including resources and the increasing number of samples, the DNA evidence from rape kits is not always tested in a timely manner or, in some tragic cases, ever tested at all. Rape kits are too often not tested,

misplaced, or ignored with thousands simply collecting dust in some jurisdictions. For example, the National Institute of Justice published a report last year showing that 18 percent of unsolved or alleged sexual assaults that occurred from 2002 to 2007 contained forensic evidence that had not been submitted to a crime lab for analysis. Even when a rape kit is sent to a

lab to be tested, there can be long delays before its DNA evidence is examined, analyzed, and compared to other DNA profiles. Such untested evidence represents opportunities

lost to provide justice for victims and to catch dangerous criminals.

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My amendment would target these shortcomings and improve how we respond to rape and sexual assault. It would provide

to States and localities an extra 10 percent of Federal funding under the Byrne JAG program if a jurisdiction, one, establishes a process by which each victim of sexual assault or rape has access to a SANE nurse, two, establishes a process by which each victim of sexual assault or rape can have their rape kits tested within 180 days, and, three, creates an online database showing its rape kits and the status of their testing in order to help keep track of and make sure rape kits are tested. The amendment does not force States or localities to do anything, and it would not cost any jurisdiction any Byrne JAG funding. right thing. It would simply provide an incentive to do the It would encourage jurisdictions to treat

victims with sensitivity, law enforcement to see that rape kits are tested in a timely manner, and empower victims and advocates to keep the pressure on police departments by allowing them to monitor what is happening with sexual assault and rape kit evidence via the online database. And

it would assure that a much greater number of rape kits were

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tested and analyzed appropriately, and, therefore, a much greater number of rapists were caught and brought to justice, and a larger number of innocent people who are now convicted in the absence of a proper analysis of DNA evidence would not be wrongfully convicted. I encourage all members to support my amendment, and I yield back the balance of my time. Chairman Smith. Thank you, Mr. Nadler.

The gentleman from Pennsylvania, Mr. Marino. Mr. Marino. last word. Chairman Smith. minutes. I oppose this amendment offered by Mr. Nadler. But The gentleman is recognized for 5 Thank you, Chairman. I move to strike the

before I get into the details, I want to state for the record that I take no backseat to any prosecutor for aggressively going after rapists, sexual abusers, child abusers, women abusers. I put many, many of those in prison

for years and some for life. This amendment creates yet another bureaucratic hurdle for law enforcement without substantive benefits.

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Flexibility in using Byrne JAG funding to meet specific and evolving local needs has always been a hallmark of this program. Unfortunately, this amendment would take the

program in exactly the wrong direction by making it less flexible and more Washington focused. This amendment will divert State and local Byrne JAG resources away from specific local needs in a community originally funding the use of sexual assault nurse examiner nurses, testing of rape kits, and creating an Internet rape kit database of rape kits. Instead of this rigid approach,

State and local law enforcement should make these decisions and set these priorities based on the needs of their communities. There are already many Federal DNA programs in existence, including the DNA Analysis Backlog Elimination Act of 2000, and the Debbie Smith Act of 2004. The House-

passed the Violence Against Women Act reauthorization bill requires 75 percent of DNA analysis backlogged funds to actually go to testing. In addition to Byrne JAG, it is a formula grant, giving formula money to States as an incentive. Grant means taking

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money away from other States and likely smaller States that are not in a position to comply with the mandates of this amendment. This leads us away from the priorities of crime

fighting and places one purpose, rape kit testing, above all other law enforcement issues. Funding cops on the beat as

well as DNA testing in all murder cases and other law enforcement needs also require significant attention. As a former county district attorney and United States attorney, I know that law enforcement agents choose what to submit to the labs based on sound, professional judgments. And, again, as a side bar, I have come to understand and realize, and actually viewed many rape test kits in labs or in storage because when a crime is committed, particularly a homicide, we do not know if there is any sexual assault, so automatically rape test kits will be administered. But many

times there is other evidence indicating that there was no rape, so there is no reason to further test that rape kit. In nearly all cases, law enforcement's choice to not submit a kit to a lab is not a result of incompetence or negligence. They do not want to bog down an already Creating a

overburdened lab system with unnecessary work.

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system that tests rape kits according to a pre-determined schedule rather than the needs of the investigation is a cookie cutter philosophy that will lead to inefficiency and ineffectiveness. Unfortunately, this situation has often been exaggerated by media reports. Instances of crime labs sitting on kits And I have

are tremendously rare and are the exception.

never had a situation where in 19 years in prosecuting rapists and abusers where I have not made a phone call and had, in fact, the rape kit expedited. While case processing times can always be improved upon, many crime labs do not have the serious backlog crisis with sexual assault evidence that is sometimes portrayed. Creating a database of rape kit processing as if it were a product is fraught with risk. Defendants and journalists

might be able to gain access to the system and thereby learn where their law enforcement has begun an investigation, and what status it has reached. Rape investigations are very sensitive processes, and we should hesitate before putting any progress measures on the Internet. These requirements would not solve the backlog

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problem, and it could actually make problems worse by spending money on counting evidence kits rather than testing them. In fact, the Subcommittee on Crime will hold a

hearing this fall on this issue, and we expect to delve more deeply into this subject. A similar amendment was offered during the markup of Violence Against Women Act, and it was defeated. For these

reasons, I strongly oppose this amendment and urge my colleagues to oppose it as well. I yield back my time. Mr. Conyers. Thank you.

Mr. Chairman. Thank you, Mr. Marino.

Chairman Smith.

The gentleman from Michigan, Mr. Conyers. Mr. Conyers. Thank you. I would like to clear up a few

issues that I consider to be good faith errors on the part of one of our experienced district attorneys. First of all, this bill does not slow down the use of rape kits, it increases and incentivizes it, and adds more finances with a few conditions. jurisdictions to take this. It does not force any

If a jurisdiction is satisfied And it does not place

with the way they are working, fine.

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these rape kits above all others. prioritize them.

It does, however, sir,

And I think that is just a part of the

process for us to get more people to use it. Now for me, to hear you announce that sitting on rape kits does not occur and has never occurred in your experience, I will be able to help you understand what is going on. Mr. Marino. Mr. Conyers. Will the gentleman yield? In a minute. I will help you to

understand what is going on in the criminal systems around the country. And now I will yield. First of all, I think you may have I said I personally --

Mr. Marino.

misunderstood my statement. Mr. Conyers. Mr. Marino. that. Mr. Conyers. Mr. Marino. Mr. Conyers. All right. Oh, okay.

-- as a prosecutor have never experienced

And I have never heard a prosecutor -It is okay if it is personal. I still

want to bring this to your attention, not just to you personally --

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Mr. Marino. Mr. Conyers.

I appreciate that. But to the entire committee. And I yield

back the balance of my time, and I hope that this amendment will be supported. Chairman Smith. The question is on the amendment, and

the Judiciary Committee will stand in recess subject to a call of the chair. We have a vote going on the floor. I do

not anticipate resuming the markup today. the markup tomorrow. Mr. Nadler.

We might resume

Can we vote on the amendment? Is the gentleman going to request a

Chairman Smith. recorded vote? Mr. Nadler. Yes.

Yes. Then we will stand in recess ,subject Members will have adequate notice

Chairman Smith.

to the call of the chair.

before we resume the markup, as I say, that may be tomorrow. We stand in recess. [Whereupon, at 12:41 p.m., the committee adjourned subject to the call of the Chair.]