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107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     107-373

======================================================================



 
            TWO STRIKES AND YOU'RE OUT CHILD PROTECTION ACT

                                _______
                                

 March 12, 2002.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2146]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 2146) to amend title 18 of the United States Code to 
provide life imprisonment for repeat offenders who commit sex 
offenses against children, having considered the same, reports 
favorably thereon with an amendment and recommends that the 
bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     3
Hearings.........................................................     3
Committee Consideration..........................................     3
Vote of the Committee............................................     4
Committee Oversight Findings.....................................     4
Performance Goals and Objectives.................................     4
New Budget Authority and Tax Expenditures........................     4
Congressional Budget Office Cost Estimate........................     4
Constitutional Authority Statement...............................     6
Section-by-Section Analysis and Discussion.......................     6
Changes in Existing Law Made by the Bill, as Reported............     6
Markup Transcript................................................     8
Dissenting Views.................................................    31
    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Two Strikes and You're Out Child 
Protection Act''.

SEC. 2. MANDATORY LIFE IMPRISONMENT FOR REPEAT SEX OFFENDERS AGAINST 
                    CHILDREN.

    Section 3559 of title 18, United States Code, is amended by adding 
at the end the following new subsection:
    ``(e) Mandatory Life Imprisonment for Repeated Sex Offenses Against 
Children.--
            ``(1) In general.--A person who is convicted of a Federal 
        sex offense in which a minor is the victim shall be sentenced 
        to life imprisonment if the person has a prior sex conviction 
        in which a minor was the victim, unless the sentence of death 
        is imposed.
            ``(2) Definitions.--For the purposes of this subsection--
                    ``(A) the term `Federal sex offense' means--
                            ``(i) an offense under section 2241 
                        (relating to aggravated sexual abuse), 2242 
                        (relating to sexual abuse), 2243(a) (relating 
                        to sexual abuse of a minor), 2244(a)(1) or (2) 
                        (relating to abusive sexual contact), 2245 
                        (relating to sexual abuse resulting in death), 
                        or 2251A (relating to selling or buying of 
                        children); or
                            ``(ii) an offense under section 2423(a) 
                        (relating to transportation of minors) 
                        involving prostitution or sexual activity 
                        constituting a State sex offense;
                    ``(B) the term `State sex offense' means an offense 
                under State law that consists of conduct that would be 
                a Federal sex offense if, to the extent or in the 
                manner specified in the applicable provision of this 
                title--
                            ``(i) the offense involved interstate or 
                        foreign commerce, or the use of the mails; or
                            ``(ii) the conduct occurred in any 
                        commonwealth, territory, or possession of the 
                        United States, within the special maritime and 
                        territorial jurisdiction of the United States, 
                        in a Federal prison, on any land or building 
                        owned by, leased to, or otherwise used by or 
                        under the control of the Government of the 
                        United States, or in the Indian country (as 
                        defined in section 1151);
                    ``(C) the term `prior sex conviction' means a 
                conviction for which the sentence was imposed before 
                the conduct occurred constituting the subsequent 
                Federal sex offense, and which was for a Federal sex 
                offense or a State sex offense;
                    ``(D) the term `minor' means an individual who has 
                not attained the age of 17 years; and
                    ``(E) the term `State' has the meaning given that 
                term in subsection (c)(2).''.

SEC. 3. CONFORMING AMENDMENT.

    Sections 2247 and 2426 of title 18, United States Code, are each 
amended by inserting ``, unless section 3559(e) applies'' before the 
final period.

                          Purpose and Summary

    H.R. 2146, the ``Two Strikes and You're Out Child 
Protection Act,'' would establish a mandatory sentence of life 
imprisonment for twice-convicted child sex offenders. H.R. 2146 
amends 18 U.S.C. Sec. 3559 of the Federal criminal code to 
provide for a mandatory minimum sentence of life imprisonment 
for any person convicted of a ``Federal sex offense'' if they 
had previously been convicted of a similar offense under either 
Federal or State law. The bill defines Federal sex offense to 
include offenses committed against a person under the age of 17 
and involving the crimes of sexual abuse, aggravated sexual 
abuse, sexual abuse of a minor, abusive sexual contact, and the 
interstate transportation of minors for sexual purposes.

                Background and Need for the Legislation

    According to the United States Department of Justice's 
Bureau of Justice Statistics, since 1980, the number of 
prisoners sentenced for violent sexual assault other than rape 
increased by an annual average of nearly 15 percent--faster 
than any other category of violent crime. Of the estimated 
95,000 sex offenders in State prisons today, well over 60,000 
most likely committed their crime against a child under 17.
    Compounding this growing problem is the high rate of 
recidivism among sex offenders. A review of frequently cited 
studies of sex offender recidivism indicates that offenders who 
molest young girls repeat their crimes at rates up to 25 
percent, and offenders who molest young boys, at rates up to 40 
percent. Moreover, the recidivism rates do not appreciably 
decline as offenders age.
    Another factor that makes these numbers disturbing is that 
many serious sex crimes are never even reported to authorities. 
National data and criminal justice experts indicate that sex 
offenders are apprehended for a fraction of the crimes they 
actually commit. By some estimates, only one in every three to 
five serious sex offenses are reported to authorities and only 
3 percent of such crimes ever result in the apprehension of an 
offender.
    Studies confirm that a single child molester can abuse 
hundreds of children. It goes without saying that any attack is 
devastatingly tragic for the victim and will leave a scar that 
will be carried throughout life. Victims experience severe 
mental and physical health problems as a result of these 
crimes. These problems include increased rates of depression 
and suicide, as well as reproductive problems. The effects of 
sexual abuse resonate from victim, to family, and continues to 
weave its way through the fabric of our communities.
    Children have the right to grow up protected from sexual 
predators and free from abuse. H. R. 2146 will protect 
America's children by permanently removing the worst offenders 
from our society--those who repeatedly victimize children.

                                Hearings

    The Committee's Subcommittee on Crime held a legislative 
hearing on H.R. 2146 on July 31, 2001. Testimony was received 
from four witnesses. The witnesses were: Marc Klaas, founder of 
Klaas Kids Foundation and advocate for victim's and children's 
rights; Mr. Robert Fusfeld, Probation and Parole Agent for the 
Wisconsin Department of Corrections Sex Offender Intensive 
Supervision Team; Ms. Polly Sweeney, mother of two victims of a 
sex offender; and Phyllis Turner Lawrence, J.D., a Victim 
Assistance and Restorative Justice Consultant.

                        Committee Consideration

    On August 2, 2001, the Subcommittee on Crime met in open 
session and ordered favorably reported the bill H.R. 2146 with 
amendment, by a voice vote, a quorum being present. On February 
27, 2002, the Committee held a markup on H.R. 2146 which was 
continued on March 6, 2002 when the Committee met in open 
session and ordered favorably reported the bill H.R. 2146 with 
amendment, by a voice vote, a quorum being present.

                         Vote of the Committee

    1. An amendment in the nature of a substitute was offered 
by Mr. Smith. The amendment removes references to 18 U.S.C. 
Sec. 2243(b) (Sexual abuse of a ward) and 18 U.S.C. 
Sec. Sec. 2244(a)(3) and (4) (Abusive sexual contact of a minor 
or ward) from the definition of ``Federal sex offense.'' The 
amendment also changes the definition of the term ``minor'' 
from ``an individual who has not attained the age of 18 years'' 
to ``an individual who has not attained the age of 17 years.'' 
The amendment in the nature of a substitute was agreed to by 
voice vote.
    2. An amendment was offered by Mr. Scott to amend 18 U.S.C. 
Sec. 3559(c)(6) so that no person subject to the criminal 
jurisdiction of an Indian tribal government would be subject to 
the provisions of H.R. 2146. The amendment was defeated by 
voice vote.
    3. An amendment was offered by Mr. Scott to strike the 
reference to 18 U.S.C. Sec. 2243(a) (Sexual abuse of a minor) 
from the definition of the term ``Federal sex offense.'' The 
amendment was defeated by voice vote.
    4. Final Passage. The motion to report favorably the bill, 
H.R. 2146, as amended by the amendment in the nature of a 
substitute, was agreed to by voice vote.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                    Performance Goals and Objectives

    H.R. 2146 does not authorize funding. Therefore, clause 
3(c) of rule XIII of the Rules of the House of Representatives 
is inapplicable.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 2146, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 12, 2002.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2146, the Two 
Strikes and You're Out Child Protection Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 2146--Two Strikes and You're Out Child Protection Act
    CBO estimates that enacting H.R. 2146 would result in 
additional costs to the Federal Government to accommodate 
prisoners for longer periods of time. CBO estimates that the 
cost to support these additional prisoners would be about $3 
million over the 2003-2007 period, subject to the availability 
of appropriations. Enacting H.R. 2146 could affect direct 
spending and receipts, so pay-as-you-go procedures would apply 
to the bill; however, CBO estimates that the amounts involved 
would be less than $500,000 annually. H.R. 2146 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would impose no costs on 
State, local, or tribal governments.
    H.R. 2146 would provide for mandatory life imprisonment for 
most Federal sex offenders whose victims are minors, if such 
offenders previously have been convicted of Federal or State 
sex crimes involving a minor. Under current law, such offenders 
typically serve prison sentences of about 3 years. According to 
the U.S. Sentencing Commission, the longer sentences required 
by H.R. 2146 would apply to no more than 50 cases in most 
years. At an annual cost per prisoner of about $8,000 (in 2002 
dollars), CBO estimates that the cost to support additional 
prisoners would be less than $500,000 a year for the next few 
years, but would total about $3 million over the 2003-2007 
period, subject to the availability of appropriated funds.
    Increasing prison sentences for offenders also would 
increase the maximum amount of fines that could be levied in 
some cases. Thus, enacting H.R. 2146 could increase 
governmental receipts through greater collections of criminal 
fines. However, CBO does not expect any such increase to exceed 
$500,000 a year. Criminal fines are recorded as receipts and 
deposited in the Crime Victims Fund, and later spent without 
further appropriation action.
    The CBO staff contact for this estimate is Mark Grabowicz, 
who can be reached at 226-2860. This estimate was approved by 
Peter H. Fontaine, Deputy Assistant Director for Budget 
Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, section 8 of the Constitution.

               Section-by-Section Analysis and Discussion

                         Section 1. Short Title

    The short title of the bill is the ``Two Strikes and You're 
Out Child Protection Act.''

Section 2. Mandatory Life Imprisonment for Repeat Sex Offenders Against 
                                Children

    Section 2 of the bill amends 18 U.S.C. Sec. 3559 to require 
a mandatory life sentence for a person who is convicted of a 
Federal sex offense in which a minor is the victim and the 
person has a prior sex conviction in which a minor was also the 
victim, unless a sentence of death is imposed.
    Defines ``Federal sex offense'' as an offense under section 
2241 (relating to aggravated sexual abuse), section 2242 
(relating to sexual abuse), section 2243(a) (relating to sexual 
abuse of a minor), section 2244(a)(1) or (2) (relating to 
abusive sexual contact), section 2245 (relating to sexual abuse 
resulting in death), section 2251A (relating to selling or 
buying of children), or an offense under section 2423(a) 
(relating to transportation of minors and involving 
prostitution or sexual activity).
    Defines ``State sex offense'' as an offense under State law 
that consists of conduct that would have been a Federal sex 
offense if it involved interstate or foreign commerce, the use 
of mail, or if the offense occurred in any commonwealth, 
territory, or possession of the U.S., within the special 
maritime and territorial jurisdiction of the U.S., in a Federal 
prison, on any land or building owned by, leased to, or 
otherwise used by or under the control of the Federal 
Government, or in the Indian country as defined in section 
1151.
    Defines ``prior sex conviction'' as a conviction for which 
the sentence was imposed before the conduct occurred 
constituting the subsequent Federal sex offense and was for a 
Federal sex offense or a State sex offense.
    Defines ``minor'' as an individual who has not attained the 
age of 17 years.

        Section 3. Title 18 Conforming and Technical Amendments

    Makes the necessary conforming and technical amendments to 
title 18.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

                     TITLE 18, UNITED STATES CODE

           *       *       *       *       *       *       *


                             PART I--CRIMES

           *       *       *       *       *       *       *


CHAPTER 109A--SEXUAL ABUSE

           *       *       *       *       *       *       *


Sec. 2247. Repeat offenders

    (a) * * *
    (b) Prior Sex Offense Conviction Defined.--In this section, 
the term ``prior sex offense conviction'' has the meaning given 
that term in section 2426(b), unless section 3559(e) applies.

           *       *       *       *       *       *       *


  CHAPTER 117--TRANSPORTATION FOR ILLEGAL SEXUAL ACTIVITY AND RELATED 
CRIMES

           *       *       *       *       *       *       *


Sec. 2426. Repeat offenders

    (a) * * *
    (b) Definitions.--In this section--
            (1) * * *
            (2) the term ``State'' means a State of the United 
        States, the District of Columbia, and any commonwealth, 
        territory, or possession of the United States, unless 
        section 3559(e) applies.

           *       *       *       *       *       *       *


                      PART II--CRIMINAL PROCEDURE

           *       *       *       *       *       *       *


                         CHAPTER 227--SENTENCES

SUBCHAPTER A--GENERAL PROVISIONS

           *       *       *       *       *       *       *


Sec. 3559. Sentencing classification of offenses

    (a) * * *

           *       *       *       *       *       *       *

    (e) Mandatory Life Imprisonment for Repeated Sex Offenses 
Against Children.--
            (1) In general.--A person who is convicted of a 
        Federal sex offense in which a minor is the victim 
        shall be sentenced to life imprisonment if the person 
        has a prior sex conviction in which a minor was the 
        victim, unless the sentence of death is imposed.
            (2) Definitions.--For the purposes of this 
        subsection--
                    (A) the term ``Federal sex offense'' 
                means--
                            (i) an offense under section 2241 
                        (relating to aggravated sexual abuse), 
                        2242 (relating to sexual abuse), 
                        2243(a) (relating to sexual abuse of a 
                        minor), 2244(a)(1) or (2) (relating to 
                        abusive sexual contact), 2245 (relating 
                        to sexual abuse resulting in death), or 
                        2251A (relating to selling or buying of 
                        children); or
                            (ii) an offense under section 
                        2423(a) (relating to transportation of 
                        minors) involving prostitution or 
                        sexual activity constituting a State 
                        sex offense;
                    (B) the term ``State sex offense'' means an 
                offense under State law that consists of 
                conduct that would be a Federal sex offense if, 
                to the extent or in the manner specified in the 
                applicable provision of this title--
                            (i) the offense involved interstate 
                        or foreign commerce, or the use of the 
                        mails; or
                            (ii) the conduct occurred in any 
                        commonwealth, territory, or possession 
                        of the United States, within the 
                        special maritime and territorial 
                        jurisdiction of the United States, in a 
                        Federal prison, on any land or building 
                        owned by, leased to, or otherwise used 
                        by or under the control of the 
                        Government of the United States, or in 
                        the Indian country (as defined in 
                        section 1151);
                    (C) the term ``prior sex conviction'' means 
                a conviction for which the sentence was imposed 
                before the conduct occurred constituting the 
                subsequent Federal sex offense, and which was 
                for a Federal sex offense or a State sex 
                offense;
                    (D) the term ``minor'' means an individual 
                who has not attained the age of 17 years; and
                    (E) the term ``State'' has the meaning 
                given that term in subsection (c)(2).

           *       *       *       *       *       *       *


                           Markup Transcript



                            BUSINESS MEETING

                      WEDNESDAY, FEBRUARY 27, 2002

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:44 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order.
    [Intervening business.]
    The next item on the agenda is H.R. 2146, the Two Strikes 
and You're Out Child Protection Act.
    The Chair recognizes the gentleman from Texas, Mr. Smith, 
the Chairman of the Subcommittee on Crime.
    Mr. Smith. Mr. Chairman, the Subcommittee on Crime reports 
favorably the bill H.R. 2146 with a single amendment in the 
nature of a substitute and moves its favorable recommendation 
to the full House.
    [The bill, H.R. 2146, follows:]
    
    
    Chairman Sensenbrenner. Without objection, the bill will be 
considered as read and open for amendment at any point. The 
Subcommittee amendment in the nature of a substitute, which the 
members have before them, will be considered as read as 
considered as the original text for purposes of amendment.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The Chair recognizes the gentleman 
from Texas to strike the last word.
    And before beginning, let me say that we're told by the 
floor that they expect a vote on the rule on Tauzin-Dingell 
about noon, and I think everybody would like to see if we can 
get done with this bill by then.
    The gentleman from Texas is recognized.
    Mr. Smith. Mr. Chairman, I ask unanimous consent to have my 
statement be made a part of the record.
    Chairman Sensenbrenner. Without objection.
    [The statement of Mr. Smith follows:]
 Prepared Statement of the Honorable Lamar Smith, a Representative in 
                    Congress From the State of Texas
    H.R. 2146, the ``Two Strikes and You're Out Child Protection Act'', 
introduced by Rep. Mark Green, would establish a mandatory sentence of 
life imprisonment for twice-convicted child sex offenders.
    Any person convicted of a ``Federal sex offense'' against a person 
under the age of 17 who has been previously convicted of a similar 
offense would be subject to a mandatory minimum sentence of life 
imprisonment.
    The term ``Federal sex offense,'' as defined in the bill, includes 
various crimes of sexual abuse committed against children, and the 
interstate transportation of minors for sexual purposes.
    According to the United States Department of Justice's Bureau of 
Justice Statistics, since 1980 the number of prisoners sentenced for 
violent sexual assault other than rape increased by an annual average 
of nearly 15 percent--faster than any other category of violent crime. 
Of the estimated 95,000 sex offenders in state prisons today, well over 
60,000 most likely committed their crime against a child under 17.
    Compounding this growing problem is the high rate of recidivism 
among sex offenders. A review of frequently cited studies of sex 
offender recidivism indicates that offenders who molest young girls 
repeat their crimes at rates up to 25 percent, and offenders who molest 
young boys, at rates up to 40 percent. Moreover, the recidivism rates 
do not appreciably decline as offenders age.
    Another factor that makes these numbers disturbing is that many 
serious sex crimes are never even reported to authorities. National 
data and criminal justice experts indicate that only a fraction of sex 
offenders are apprehended for the crimes they commit. By some 
estimates, only one in every three to five serious sex offenses are 
reported to authorities and only 3 percent of such crimes ever result 
in the apprehension of an offender.
    Children have the right to grow up protected from sexual predators 
and free from abuse. H. R. 2146 would protect America's children by 
permanently removing the worst offenders from our society--those who 
repeatedly victimize children.
    I would like to thank Mr. Green for sponsoring this legislation, 
and I urge my colleagues to support the bill.

    Mr. Smith. And I'll yield the rest of my time to the 
gentleman from Wisconsin, Mr. Green, to speak on behalf of his 
bill.
    Chairman Sensenbrenner. The gentleman from Wisconsin.
    Mr. Green. Let me begin by thanking both Chairman 
Sensenbrenner and Chairman Smith for help in bringing this bill 
forward to markup.
    The Two Strikes and You're Out Child Protection Act has 
already passed the House on a voice vote on two separate 
occasions, once as an amendment to last session's juvenile 
crime bill and a second time as a standalone bill on the 
suspension calendar. The co-sponsorship of this bill is clearly 
bipartisan.
    I think, Mr. Chairman, as we can all agree, sex crimes 
against children are among the most heinous and destructive 
crimes in our society. They're also different in another 
crucial respect: They have a much higher recidivism rate than 
most other types of crime. And that's what this bill focuses on 
squarely.
    The idea of this bill is to intervene and remove repeat 
child molesters before they can unleash an unending string of 
destruction. This legislation was developed in cooperation with 
Mark Klaas of the KlassKids foundation. A State version of this 
is already law in Wisconsin, and other States are considering 
similar legislation.
    Here's what the bill says, very simply: If a person is 
arrested, charged and convicted of one of seven serious sex 
crimes against kids, and then after he serves his time he 
sexually assaults yet another kid, another victim, then he has 
shown that he is unable or unwilling to stop. And he should, 
under this bill--or, he will, under this bill, go to prison for 
the rest of his life, so that he can't destroy any more 
families and any more lives.
    The seven crimes covered under this bill represent serious 
sex crimes against kids. All of these are felonies. Nearly 
every one of these is subject to a major penalty enhancer upon 
its second offense. Most are already covered by the Federal 
three strikes law. One of these is already subject to a two 
strikes law of sorts, thanks to the good work of Representative 
Martin Frost of Texas some years ago.
    Congressman Frost is a co-author, I'm quick to point out, 
of our legislation.
    Finally, let me briefly explain the substitute amendment. 
This substitute represents an effort to address a few of the 
concerns that were raised by my colleague and friend, 
Congressman Scott, and others, before the Subcommittee markup. 
It narrows and clarifies the original bill by deleting from its 
coverage certain lesser sex crimes, those that are 
misdemeanors.
    It also changes, for the purpose of this bill alone, the 
definition of a minor from 17 and younger, as it is in current 
law, to 16 and under, for the purposes of this bill.
    And we finally point out, it doesn't change the definition 
of a minor with respect to section 2243 sub (a), sexual abuse 
of a minor, because that law already provides that a minor is 
someone between the ages of 12 and 15.
    Mr. Chairman, this legislation is bipartisan. As has been 
shown by the previous voice votes, it's noncontroversial. I 
urge its passage.
    And I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Texas yield back 
his time?
    Mr. Smith. Yes.
    Chairman Sensenbrenner. Okay. The gentleman from Virginia, 
Mr. Scott, do you have an opening statement?
    Mr. Scott. Yes, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, thank you.
    While I want to acknowledge the effort of my colleagues, 
Mr. Green and Chairman Smith, it is--in greatly limiting the 
application of the bill from its original broad coverage, 
which, I may say, mandated life sentences for even misdemeanor 
convictions, I still remain unable to support the bill.
    The bill still provides for mandatory penalty of life in 
prison for offenses which would otherwise call for considerably 
less harsh results. For example, by including section 2243(a) 
of the criminal code, the bill requires that if a 19-year-old 
high school senior with a 15-year-old high school student 
girlfriend or boyfriend, regardless of their parents' position 
on the relationship, if the 19-year-old is convicted of a 
second sexual offense, which includes touching, the 19-year-old 
will be sentenced to life in prison--mandatory.
    Now, if they are married, of course, that would be a 
defense to the prosecution. We've heard of shotgun weddings, 
but this is the first time that we have had this kind of 
incentive for a marriage.
    I'm sure that we can all think of instances where we 
wouldn't want to hesitate to conclude that a life sentence is 
appropriate for a second sexual offense involving a minor. And, 
indeed, the Federal code already designates several such 
offenses for which--mandatory life sentence for a second 
offense.
    But a mandatory life sentence for any second offense, no 
matter the circumstances or the first or second, is not called 
for. This is not to say that offenses we're talking about don't 
already allow for harsh penalties.
    For consensual petting, in circumstances I've described 
above, the penalty right now is a maximum of 15 years in the 
penitentiary. The Sentencing Commission has already increased 
guidelines significantly, such that most average citizens--
sentences actually doubled.
    The problem is that if 15 years is not sufficient, then 
maybe we should look at the statutory maximum penalties so that 
the commission can differentiate such cases. But the answer is 
not to sweep minor as well as major offenses into one catchy 
sound bite, ``two strikes and you're out.'' That might be good 
politics, but it's not good sentencing policy.
    The problem with the bill is the problem with mandatory 
sentences in general. They eliminate reason and discretion to 
promote the politics of tough on crime. There's no study or 
data or other reasoned, rational basis for this bill, other 
than its tittle, the baseball phrase ``two strikes and you're 
out.''
    Now, that's not even good baseball policy, so we shouldn't 
include that as crime policy.
    The other problem with the mandatory minimum sentences is 
they're discriminatory in their application. The Sentencing 
Commission's data indicates that almost all of the people 
affected by this bill will be Native Americans.
    That's why, Mr. Chairman, I'll offer an amendment to allow 
tribal governments to opt out of the application of the bill in 
the same manner that they're allowed to opt out of the three 
strikes and you're out provision already in law.
    So, Mr. Chairman, while I commend the gentleman on the 
limitations he's put in the bill, I'm still unconvinced that 
there is any evidence of need or productive purpose of the bill 
and, therefore, will oppose it.
    And I will have amendments to address the concerns I have 
regarding consensual sexual activity between unmarried teens, 
who we would imprison for life.
    Thank you, Mr. Chairman.
    Mr. Coble. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from North Carolina.
    Mr. Coble. Mr. Chairman, I move to strike the last word. 
And I will not take the required 5 minutes.
    I probably will vote for this bill, but not unlike much 
legislation that comes before us, Mr. Chairman, it's flawed. 
And I don't disagree with a lot of what the gentleman Virginia 
said. I just am concerned about slamming the door with finality 
on that second offense.
    Is that to say that I'm promoting sexual predators? Indeed 
not. But I just have problems about this, keeping in mind I 
probably will end up voting for it. But I did want to air my 
concern.
    I yield back, Mr. Chairman.
    Ms. Lofgren. Mr. Chairman?
    Chairman Sensenbrenner. Without objection, further opening 
statements will be placed in the record.
    Are there any amendments?
    Ms. Lofgren. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman----
    Ms. Lofgren. I'd like to move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Lofgren. I do not have an amendment today to this bill. 
I did have a chance to talk briefly with Mr. Green about the 
concern I have relative to the age differential that I hope can 
be addressed at some point, either between here and the floor 
or, failing that, on the Senate side, because I do believe 
that, in the case of child sexual abuse, we do need to have 
mandatory sentencing.
    I'm someone who did not support California's three strike 
laws. It includes petty theft as a third strike. I'm someone 
who has some skepticism about mandatory sentencing.
    But in the case of the sexual abuse of children, I really 
do believe that there is some need to move in the mandatory 
direction.
    When I was in local government, I had occasion to review 
the sentencing of--by State judges, in this case, of child 
molesters. And I was shocked to see that the sentences for 
child molesters were considerably less than for property 
crimes. And the damage done to young people is simply immense.
    So I do think there is an issue that's going to deter and 
prevent this bill from becoming law, because--because of the 
age differential, you could have a relationship between a 19-
year-old and a 15-year-old that should not be sanctioned. And I 
think we just need to address that aspect of this bill.
    I'm not going to vote against it, because we have not yet 
addressed that issue, but I do hope that we, as we proceed, 
will be able to address that issue.
    And I thank the Chairman for recognizing me for these few 
comments. And I yield back the balance of my time.
    Chairman Sensenbrenner. Are there amendments?
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Mr. Scott. Amendment number 2. Number 2.
    Chairman Sensenbrenner. Number 2.
    Mr. Scott. Excuse me. Number 15. Thank you.
    The Clerk. Amendment offered by Mr. Scott to the amendment 
in the in the nature of a substitute to H.R. 2146. Page 3 after 
line----
    Chairman Sensenbrenner. Without objection, the amendment as 
considered as read and open for amendment at any point.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman from Virginia is 
recognized for 5 minutes.
    Mr. Scott. Mr. Chairman, this is one of the amendments I 
mentioned in my opening statement. Since a vast majority of 
cases affected by this bill would be Native Americans, to ease 
some the unintended racial impact of the bill, this amendment 
would allow tribal governments to opt out of coverage of the 
bill in the Administration of their systems of justice in 
exactly the same way that we allowed to opt out of the 
application of the three strikes and you're out law that we 
passed several years ago.
    I yield back.
    Chairman Sensenbrenner. The gentleman from Wisconsin, Mr. 
Green.
    Mr. Green. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Green. Thank you, Mr. Chairman. I rise in opposition to 
this amendment.
    Let me state up front, for the record, I have six Indian 
tribes in my district. I represent a large number of Native 
Americans and non-Native Americans.
    I believe this amendment is very bad public policy and, 
quite frankly, would send a terrible message to States like 
Wisconsin that have many tribes and many reservations.
    Child molesters do not abide by boundaries, be it State, 
local, or reservation boundaries. Carving out reservations 
would suggest that Native American children are somehow less 
deserving of protection than others. I think that's terrible.
    In the alternative, it suggests that reservations can be 
safe harbors for child molesters, that if they go to a 
reservation, if they carry someone, a victim, onto a 
reservation, that somehow they should be treated less harshly. 
I think that's terrible public policy.
    In a State like Wisconsin, I think it would be a disaster. 
It would send the wrong kind of message.
    Mr. Scott's statistics make the case for this bill, not 
watering it down or creating safe zones for molesters. The 
monsters who are covered by this bill are just that. And we 
should not look the other way if it's on a reservation.
    I think that sends a dangerous signal.
    I yield back.
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Massachusetts, 
Mr. Frank.
    Mr. Frank. Mr. Chairman, I want to support the amendment. 
And I want to differ very strongly with the argument just made 
that passage of this amendment would show that we don't value 
Native American children. Absolutely the contrary is the case.
    This amendment would show that we regard Native Americans 
as being equally capable of protecting either own children as 
are others. This does not in any way expose these children to 
risk. And I think that's a very poor argument to make.
    What it says is that the tribes, the societies in which 
these children have been raised and are being raised, are as 
protective of their interests as others in this society are.
    As to the notion that the reservations would then be safe 
haven, presumably there would be a kidnapping that would have 
occurred off reservation and there would still be a capacity in 
the State to enforce its laws.
    But I particularly want to take very vigorous exception to 
the suggestion that recognizing the capacity of the Native 
American tribes for self-government somehow devalues them.
    And I would yield now to the gentleman from Virginia.
    Mr. Scott. Thank you, Mr. Chairman.
    Actually, we're not carving out anything for Native 
Americans. What the--this is a Federal criminal law and it only 
applies on maritime and territorial jurisdiction of the United 
States. And so, in Wisconsin, it doesn't apply. In most of 
Wisconsin, it wouldn't apply, except on the reservations.
    And what we're saying is that, since Wisconsin can pass 
such a law, if it wants, the fact that it's a reservation means 
that the only thing they got is a Federal law, so we're 
actually acting not only as the Federal Government but as a 
city council for the Native Americans. And we're saying we're 
going to be tough on crime, and the way we're going to be tough 
on crime is to put Native Americans in jail for life.
    We're not going to do that--we're not going to impose that 
on other citizens in Wisconsin, unless they're on a military 
base or on a national park, but we're going to be tough on 
crime by locking up Native Americans.
    What this does is, if Native Americans don't want to be 
equal to everybody else, that they would have the opportunity 
to opt out of this particular provision just like we did under 
the three strikes law.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Virginia, Mr. Scott.
    Those in favor will say aye.
    Opposed, no.
    The noes appear to have it. The noes have it. The amendment 
is not agreed to.
    Are there further amendments?
    Mr. Scott. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Well, we will suspend consideration of this bill at this 
time. It will be the first bill up at the next markup.
    There being no further business coming before the 
Committee, the Committee stands adjourned.
    [Whereupon, at 11:53 a.m., the Committee was adjourned.]

           *         *         *         *         *

    The Committee met, pursuant to notice, at 10:54 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order.
    When the Committee adjourned last week, pending was the 
bill H.R. 2146, the Two Strikes and You're Out Child Protection 
Act, for which a motion to report the bill favorably had been 
made and amendments had been offered and disposed of.
    Are there further amendments?
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment offered by Mr. Scott to the amendment 
in the nature of a substitute to H.R. 2146. Page 2, beginning 
on line 5, strike 2243(a), relating to sexual abuse of a minor.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman from Virginia is 
recognized for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, this would remove section 2243(a) of title 18 
from the list of so-called Federal sex offenses under the bill, 
which would trigger a mandatory life sentence for a second 
offense. While we can imagine the kinds of cases for which life 
imprisonment may be appropriate for a second offense, we don't 
want to have a mandatory life sentence for cases which clearly 
do not warrant such treatment in order to get those that do.
    We could simply, for example, increase the maximum term for 
a second offense to life and leave it the Sentencing Commission 
and the courts to determine which ones are appropriate for life 
sentences.
    This section involves consensual sexual acts for minors, 
both of which could conceivably be in high school. It does 
not--it could involve touching, for example, as part of the 
offense under 2243(a).
    Now, the bill will have--already has an unintended racial 
impact, which affects overwhelmingly Native Americans, because 
those are the ones that have a disproportionate Federal 
jurisdiction.
    Under the bill, you have to have Federal jurisdiction 
before the bill even kicks in, and Native Americans, all of 
their offenses are tried in the Federal system.
    So not only will it have the impact there, where an 
overwhelming portion of the people affected will be Native 
Americans, it also has another adverse effect, and that is it 
may have a chilling effect on a victim who, in some cases--on 
the victim who, in some cases, may be reluctant to come forward 
if the perpetrator is an older brother, another relative, or a 
respected member of the community. Sometimes the victim would 
like the person dealt with, but not if it's going to require a 
mandated life imprisonment.
    If we believe that the purpose of the bill is to send a 
message to repeat child sex offenses, it's going to send the 
wrong message.
    At a hearing at the last Congress on a earlier version of 
the bill, a law professor and renowned criminologist testified 
that a repeat sex offender who knows that if caught he'll be 
sentenced to life in prison may be more disposed to kill his 
victim to eliminate the primary witness against him.
    Mr. Chairman, unfortunately, the bill is unfortunately 
aimed at Native Americans. We would not impose this kind of 
bill on the overall community. Otherwise, we would require 
States to set up such a sentencing scheme, so that everybody 
will be subject to life without parole, not just Native 
Americans. This amendment would at least require that the 
offense leading to life without parole will be a serious 
offense, not just the consensual touching which already has a 
15-year possible maximum sentence.
    Mr. Chairman, I yield back the balance of my time.
    Mr. Green. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Wisconsin, Mr. 
Green.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Green. Thank you, Mr. Chairman.
    I'll basically ignore what Mr. Scott has said about the 
racial implications of this. Quite frankly, I think that's 
borderline a slur.
    This is already in the State of Wisconsin, Mr. Scott, just 
so you remember that point.
    But let me focus on the substance of his amendment, which I 
oppose for three reasons.
    First off, do not forget, this bill changes the penalties 
for repeat offenders; it does not change the terms of the 
underlying criminal justice law. The section to which Mr. Scott 
refers is already a felony under Federal law. It is already 
considered to be very serious by this Congress. It is already 
subject to a 15-year imprisonment. It is already subject to 
doubling for a second offense. This is not merely the so-called 
casual statutory rape provision that Mr. Scott suggests.
    Secondly, those who would be caught up by this provision, 
as affected by Two Strikes, are not merely guilty of 
``statutory rape,'' as serious as I view that offense to be. 
The victim must be 12 to 15 years old and at least 4 years 
younger than the attacker. Furthermore, the attacker must have 
been arrested, tried, convicted, served his time, been 
released, and then do it yet again.
    Third, as a simple argument of logic and common sense--and 
I think we sometimes lose sight of logic and common sense 
here--it is nearly impossible for the so-called casual 
statutory rape scenario Mr. Scott raises to lead to two 
separate strikes. If the victim were 14 or 15 and the attacker 
18 or 19, as Mr. Scott points to, then by the time that 
attacker were arrested, tried, convicted, imprisoned, then 
released, basically there's no way that the casual statutory 
rape scenario could reoccur. Certainly, it couldn't reoccur 
with the same victim. That victim would be, at a minimum, an 
adult. So it's not possible for it to occur twice in that 
regard.
    This is a crime punishable by 15 years in prison. It is a 
felony. If in fact we have an attacker who, again, after 
serving his time for a very serous sex crime against kids, if 
he picks another victim, then I would argue that's the very 
type of person that we're trying to get at, a serial molester, 
someone with multiple victims. We do want the person to go to 
prison.
    And then, finally, the purpose of this bill is not, as Mr. 
Scott suggests, to send a message. I'm not here to send a 
message. I'm here to remove bad guys from the streets. These 
are people who, by all statistical studies, have shown an 
unwillingness or an inability to cure themselves of attacking 
children sexually. And if they are not put behind bars for the 
rest of their lives, statistics tell us they will do it yet 
again and again and again and again. It is time to break that 
cycle. It is time to put them behind bars. If they, after their 
release from doing one of these terrible sex crimes, if they 
don't get a message, if they are unwilling or unable to stop 
themselves, then, yes, I do believe they should go to prison 
for the rest of their lives.
    I yield back the balance of my time.
    Chairman Sensenbrenner. Further discussion on the Scott 
amendment?
    The gentleman from North Carolina, Mr. Watt.
    Mr. Watt. Mr. Chairman, I rise in support of Mr. Scott's 
amendment.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. I yield to Mr. Scott.
    Mr. Scott. Mr. Chairman, in reference to the so-called 
slur, I would just point out that the fact is that an 
overwhelming of the portion of the people who will be charged 
under this kind of sentence, according the Sentencing 
Commission, an overwhelming portion will be, in act, Native 
Americans. I mean, that's just arithmetic. That's not anything 
else.
    In terms of the kind of offenses that could be caught up in 
this, it says that it is a sexual act, and that is defined to 
include the intentional toughing, not through the clothing, of 
the genitalia of another person who has not obtained the age of 
16 with the intent to--and it includes gratify the sexual 
desire of any person.
    Touching. Consensual. And that would get you, if it's a 
second offense--and the first offense, you don't have to serve 
a long time in prison. You can get probation and you're talking 
about life imprisonment without parole. The sentence is already 
15 years. And there's serious question as to whether each and 
every case, mandatory, ought to be life in prison.
    I yield back.
    Mr. Watt. I yield back, Mr. Chairman.
    Chairman Sensenbrenner. The question is----
    Mr. Conyers. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Florida, Mr. Keller, seek recognition?
    Mr. Keller. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Keller. I yield to Mr. Green.
    Mr. Green. Mr. Chairman, very briefly, it sounds as though 
Mr. Scott is making an argument to change the underlying law of 
this section, Section 2243(a), and maybe that is something that 
the Committee would like to take up at a later date.
    But as a final point, I absolutely dispute that this would 
disproportionately hurt Native Americans. Again, I represent a 
number of Native American tribes. I believe just the opposite. 
If anything, it disproportionately benefits Native Americans. 
It says that reservations and Federal areas will not be safe 
harbors for child molesters.
    I yield back my time.
    Chairman Sensenbrenner. Further discussion on the Scott 
amendment?
    If not--the gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Mr. Chairman, I just rise----
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Conyers.--in support of the amendment.
    But didn't we--didn't the courts just knock out Three 
Strikes and You're Out in California? And now here we're back 
with Two Strikes.
    Mr. Scott. If the gentleman would yield?
    Mr. Conyers. I yield to Mr. Scott.
    Mr. Scott. Thank you. I appreciate the gentleman yielding.
    Three Strikes was thrown out because a third strike was 
considered an offense for which life without parole was 
inappropriate, totally inappropriate and woefully in excess of 
anything that was appropriate.
    In this case, you have a second strike, which could 
generate life without parole, for a consensual act between two 
young people. It seems to me that life without parole under 
those circumstances is--borders on unconstitutionality. But 
we'll let the courts decide that. The question is the 
appropriate punishment.
    That's why you have the Sentencing Commission. The 
Sentencing Commission right now has--can assign penalties up to 
15 years in prison for appropriate offenses. If that's not 
enough, we could increase the penalty so that they would have 
more flexibility, maybe even life as a possible sentence, but 
not mandatory life for all things that come under the 
legislation.
    I yield back.
    Mr. Conyers. Well, let me ask, has there been some findings 
that judges are not doing their jobs or that people are getting 
away with multiple offenses of this kind? I mean, is there 
something motivating this legislation that I've not studied 
carefully enough to know why we are here changing the law in 
such a drastic fashion?
    Mr. Scott. The evidence that we heard--well, I didn't hear 
any. I mean, we hear of sex abuses cases all over the country. 
This bill would not address most of those because they would 
tried in State court.
    Mr. Conyers. So these are for--these would be Federal 
offenses, and that's why the gentleman suggests that the Native 
Americans on the reservations would be more directly affected.
    Mr. Scott. Because all of their offenses are tried in the 
Federal system.
    Mr. Conyers. But the author of the bill suggests this is 
going to be good for the Indians. This is what they need. This 
will--what will it do? Punish them more or encourage their--to 
be more careful? Is there some wave of crime of this kind going 
on on Indian reservations?
    Mr. Scott. I'm not aware--if the gentleman would yield? I'm 
not aware of reports focusing on Native American reservations. 
I have heard reports in the news elsewhere.
    Mr. Conyers. Well, now, maybe there was some single 
outrageous case that offended every normal person's sensibility 
that gave rise to this kind of legislation. Could that have 
been the case?
    Mr. Scott. Such a case was not brought to our attention.
    Mr. Conyers. Well, could I ask the author, has he got any 
suggestions about any of these issues that I've raised?
    Mr. Green. Sure. First off, with respect to the cases, Mr. 
Scott must have left the room when Marc Klaas testified about 
his daughter, Polly Klaas, who was kidnapped from her home, 
brutally assaulted and murdered. And her body was discovered 6 
weeks later.
    She was attacked by someone who was a repeat child 
molester. That must have escaped some of the members who were 
there.
    Mr. Conyers. Does the gentleman----
    Mr. Green. Secondly----
    Mr. Conyers. Pardon for me interrupting----
    Mr. Green. Can I respond to your question?
    Mr. Conyers. Just a minute. Relax.
    Could I remind the gentleman there have been laws passed 
that cover that kind of situation? Or does he know about them?
    Mr. Green. I'm very much aware of them. I don't believe 
that they go far enough or they're adequate enough. That's why, 
in the State of Wisconsin, we did pass a Two Strikes law to 
cover the State. And here what we're tying to do----
    Mr. Conyers. Let me ask my friend----
    Mr. Green.--is cover the Federal land.
    Mr. Conyers. Let me ask my friend this: What is it about 
the laws that were passed to cover that crime additionally that 
doesn't go far enough?
    Mr. Green. As I indicated, I definitely supported what 
Congressman Martin Frost had authored and was passed a couple 
of sessions ago. But that only dealt with a single offense; it 
did not cover, in my view and in the view of people like Marc 
Klaas and many who have written in support of this legislation, 
did not cover other crimes that it should have.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Issa. Mr. Chairman? Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from California, Mr. Issa, seek recognition?
    Mr. Issa. I rise to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Issa. Mr. Chairman, I think I'm very confused, because, 
if I understand correctly, we're talking about making a 
decision in advance on somebody who has, in fact, been found to 
be a pedophile, not an innocent, accidental touching, but 
somebody who has gone through the process and been convicted, 
who then makes the same, if I understand the opposition to this 
bill, innocent mistake a second time. And I'm a little confused 
on, are we, in fact, if we oppose this, trying to defend a 
pedophile being given the option to have indiscriminate 
accidental sex with someone that they didn't know was 12 to 15? 
Because, to me, I'm trying to understand if this, in fact, is 
anything other than saying, if you've made this--and I won't 
call it a heinous act; I'll call it a Native American--and I 
have over seven tribes in my district--having this accident, 
are we then going to defend the ability for a tribal member to 
do, probably to another tribal member, the same thing a second 
time because it isn't serious enough to send an absolute 
lifetime message? I'm just--I'm surprised that the opposition 
can say that that's possible.
    Mr. Scott. Will the gentleman yield?
    Mr. Issa. No, actually, I have to yield the balance of my 
time to Mr. Green.
    Mr. Green. I thank the gentleman for yielding.
    I would just focus everybody once again that we are talking 
about someone who has committed one of seven very serious sex 
crimes against kids. They've committed this crime. They've been 
tried. They've been convicted. They've been sentenced. They've 
served their time. And after they're released, they do it yet 
again.
    So as Mr. Issa points out, the innocent--``innocent 
mistakes'' scenario is just not one that I can buy.
    And with that, I yield back my----
    Mr. Issa. I yield back.
    Chairman Sensenbrenner. The question is on the Scott 
amendment.
    Those in favor will say aye.
    Opposed, no.
    In the opinion of the Chair, the noes have it. The noes 
have it, and the amendment is not agreed to.
    Are there further amendments? If not, the question occurs 
on the amendment in the nature of a substitute.
    All those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the 
amendment in the nature of a substitute is agreed to.
    The question occurs on the motion to report the bill H.R. 
2146 as amended by the amendment in the nature of a substitute.
    All in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it, and the 
motion to report favorably is agreed to.
    Without objection, the Chair is authorized to move to go to 
conference pursuant to House rules. Without objection, the 
staff is directed to make any technical and conforming changes. 
And all members will be given 2 days as provided by the House 
rules in which to submit additional dissenting, supplemental, 
or minority views.
                            Dissenting Views

    These views dissent from the Committee Report on H.R. 2146 
The bill would mandate life imprisonment for a second sex crime 
involving a child. While it would include crimes committed by 
sexual predators who may deserve such harsh punishment, it 
would also include consensual ``petting'' between high school 
students who are 18 and 14 years old. Since the bill is limited 
to cases falling under Federal jurisdiction, which covers 
Native American reservations, national parks and forests, and 
U.S. territorial waters, it will apply primarily to Native 
Americans on reservations. Sentencing Commission data reflected 
that about 75% of the cases arising under sections of the U.S. 
Code covered by the bill involved Native Americans.

                               Background

    On March 7, 2002, the full Judiciary Committee marked up 
H.R. 2146, the ``Two Strikes and You're Out Child Protection 
Act'' and voted to report the bill. During the markup, Rep. 
Green, the sponsor of the bill, introduced an amendment in the 
nature of a substitute which had been adopted by the 
Subcommittee on Crime at its markup following a hearing on the 
bill on Tuesday, July 31, 2001. The substitute eliminated some 
of the more egregious sections of the bill as filed, such as 
those sections mandating a life sentence for a second 
misdemeanor offense. However, the substitute still mandates a 
life sentence for relatively minor offenses such as a second 
offense involving an attempted improper touching (under 18 
U.S.C. 2243(a)) of a 14 year old high school sophomore by her 
18 year old high school boyfriend, even though it was 
consensual. It is not unheard of for determined parents to 
institute charges in such a case and for a just as determined 
young couple to defy the parents by continuing to see each 
other. The current law provides for a sentence of up to 15 
years for even a first offense under 18 U.S.C. 2243(a), 
although a first offense of this nature, if prosecuted, would 
not likely provoke a long prison sentence, if any at all.
    Mr. Scott, Ranking Member on the Subcommittee on Crime, 
offered two amendments during both the Subcommittee and the 
full Committee markups. The first one would have eliminated the 
mandatory requirement of a life sentence for a second offense. 
The second Scott amendment would have allowed tribal 
governments to opt out of the application of the bill in the 
same manner as the ``three strikes, you're out'' law allows 
such opt out. Both amendments were defeated by voice votes at 
both markups, with several Democratic Members speaking in favor 
of the amendments.
    Prior marriage is a defense to prosecutions under 18 U.S.C. 
2243(a). In light of this, H.R. 2146 could be considered the 
ultimate ``shotgun wedding'' inducement. Interestingly, Under 
most state laws, parents are allowed to give their 15 year 
older, for example, consent to marry even a 40 year older, or 
any age person. However, this bill, regardless of the consent 
of parents or any other circumstances, mandates a life sentence 
if a 19 year old teen even attempts to engage in what teens 
consider ``petting'' with a 15 year old teen as a second such 
offense, if they are not married.
    Also, H.R. 2146 would have an unintended racial impact, 
since it would affect primarily Native Americans. It would have 
no effect on the type cases referred to as justification for 
the bill, such as the Polly Klaus case. That was a state case 
which this bill would not effect.
    In the 106th Congress, H.R. 4047, the ``Two Strikes and 
You're Out Child Protection Act of 2000'' was introduced by 
Rep. Mark Green. H.R. 2146, the ``Two Strikes and You're Out 
Child Protection Act'' was introduced in the 107th Congress 
also by Rep. Mark Green on June 13, 2001, and referred to the 
House Judiciary Committee's Crime Subcommittee. H.R. 4047 and 
H.R. 2146, as introduced, are virtually identical, although 
H.R. 4047 was slightly broader since it included additional 
items which constituted a ``Federal sex offense.'' H.R. 4047 
was considered by the Crime Subcommittee in a hearing held on 
May 11, 2000 and on July 25, 2000, passed the House by voice 
vote, under suspension of the rules. The bill also passed the 
House as an amendment added to H.R. 1501, the ill-fated 
Juvenile Justice Reform Act of 1999.

                      Concerns raised by H.R. 2146

1. Judicial Sentencing Flexibility Eliminated
    H.R. 2146 also raises concerns because it eliminates any 
flexibility in sentencing, even where flexibility may be 
needed. For example, in cases where family members are 
involved, treatment and counseling may effectively address the 
offending behavior in a family context, but H.R. 2146 
eliminates the prospect for treatment. Further, in close knit 
communities such as Indian Reservations, which are subject to 
U.S. Federal court jurisdiction, the prospect for treatments 
would be a significant choice that the bill eliminates..
2. Proportionality
    The Sentencing Commission has also raised serious 
proportionality concerns about ``two strikes'' legislation such 
as H.R. 2146, because it would require a mandatory life 
sentence for any person who is convicted of a Federal sex 
offense in which a minor is the victim if the person has a 
prior sex conviction in which a minor was the victim.\1\ 
According to the Sentencing Commission, a risk of this type of 
legislation is that a life sentence could be ``mandatory for 
two defendants convicted of vastly dissimilar crimes.'' \2\ The 
Sentencing Commission cites the example that a defendant 
convicted of raping a child under the age of 12 using force, 
who has a prior conviction for a similar offense, currently is 
subject to a mandatory life sentence under title 18, United 
States Code, Section 2241(c).\3\ However, under H.R. 2146, and 
similar ``two strikes'' legislation, ``a 19 year old defendant 
who engaged in consensual sex with a 15 year old would be 
subject to the same life imprisonment if he had a prior 
statutory rape conviction, or conviction for some other prior 
sex offense in which a minor was the victim,'' even though the 
``seriousness of these two offenses and the harm to the victims 
could be very different.'' \4\
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    \1\ Letter from Diana E. Murphy, Chair, United States Sentencing 
Commission, to the Hon. Bill McCollum, Chairman of the Crime 
Subcommittee and the Hon. Robert C. Scott, Ranking Member of the Crime 
Subcommittee (May 1, 2000).
    \2\ Id.
    \3\ Id.
    \4\ Id.
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3. H.R. 2146 Could Have a Chilling Effect on Victims Coming Forward
    H.R. 2146 could also have a chilling effect on victims 
coming forward to report crimes if the victim knows the result 
will be that the perpetrator will be sentenced to life in 
prison. For example, a family member may be reluctant to turn 
in another family member if they know that the offender faces a 
mandatory life sentence. In addition, fear of prosecution under 
H.R. 2146 could lead to the killing of more victims, since an 
offender may be aware that the prosecution for such act would 
result in a mandatory life sentence and since murder would 
carry a lesser penalty than even ``touching'' the victim.
    Professor Zimring, who testified before the Subcommittee 
last year in relation to H.R. 4047, pointed out in his 
testimony how detrimental the imposition of mandatory life 
sentences could be.\5\ Specifically, Professor Zimring stated 
(referring to H.R. 894, the ``No Second Chance For Murderers, 
Rapists, or Child Molesters Act of 1999,''): ``It [the bill] 
might also be dangerous. If the bill actually provoked life 
without parole penalties in the states, and if offenders are 
highly sensitive to deterrent threats at the margin, a rapist 
or child sex offender would have little further to lose by 
eliminating the victim who is often an important witness 
against the offender.'' \6\ Another related issue is that H.R. 
2146 might encourage false accusations against previously 
convicted child sex offenders. This issue was even raised in 
the Majority's Memorandum to Members of the Subcommittee on 
Crime in preparation for the hearing and mark-up of H.R. 
2146.\7\
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    \5\ Hearing on H.R. 894, the ``No Second Chance For Murderers, 
Rapists, or Child Molesters Act of 1999,'' H.R. 4047, the ``Two Strikes 
and You're Out Child Protection Act,'' and H.R. 4147, the ``Stop 
Material Unsuitable For Teens Act,'' May 11, 2000, Before the Committee 
on the Judiciary, Subcommittee on Crime, 106th Cong. (Statement 
submitted by Franklin E. Zimring, William G. Simon Professor of Law and 
Director, Earl Warren Legal Institute, University of California at 
Berkeley).
    \6\ Id.
    \7\  Memorandum to Members of the Subcommittee on Crime from Lamar 
Smith, Chairman, Subcommittee on Crime, dated June 26, 2001.
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4. H.R. 2146 Is Not Needed
    Federal and State courts are already handing down life 
sentences in certain cases involving sex offenses committed 
against minors, and title 18 United States Code Section 2241 
``Aggravated sexual abuse,'' already includes a mandatory life 
sentence if a defendant is convicted under 2241(c) (With 
children) for a crime against a minor, and the defendant has 
previously been convicted of another Federal offense under 
2241(c), or of a State offense that would qualify as a crime 
under 18 United States Code Section 2241. In addition, the 
Sentencing Commission's amendments, which took effect on 
November 1, 2001, make it clear that the sentencing guidelines 
are currently addressing the problem of sex offenses committed 
against minors, and sentences have increased dramatically for 
these types of crimes. In fact, according to the U.S. 
Sentencing Commission, the length of time for sentences 
currently given by courts for crimes which would fall under 
H.R. 2146, have almost doubled in recent years.
    In a letter from Timothy B. McGrath, Staff Director of the 
U.S. Sentencing Commission, dated June 26, 2001, written to 
Chairman Smith and Ranking Member Scott of the Crime 
Subcommittee, the U.S. Sentencing Commission raised several 
concerns about H.R. 2146.\8\ Specifically, the Sentencing 
Commission's main concern is that H.R. 2146 would create unfair 
disparities in sentences.\9\ The letter also reaffirmed the 
Sentencing Commission's concerns about the ``two strikes'' 
provision as articulated by Chair Murphy in her letter to 
Representatives McCollum and Scott dated May 1, 2000, 
concerning H.R. 4047 from the 106th Congress.\10\ The letter 
also served to update the Subcommittee regarding recent actions 
by the Sentencing Commission that may affect the Subcommittee's 
consideration of H.R. 2146.
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    \8\ Letter from Timothy B. McGrath, Staff Director, United States 
Sentencing Commission, to the Hon. Lamar Smith, Chairman of the Crime 
Subcommittee and the Hon. Robert C. Scott, Ranking Member of the Crime 
Subcommittee (June 26, 2001).
    \9\ Id.
    \10\ Letter from Diana E. Murphy, Chair, United States Sentencing 
Commission, to the Hon. Bill McCollum, Chairman of the Crime 
Subcommittee and the Hon. Robert C. Scott, Ranking Member of the Crime 
Subcommittee (May 1, 2000).
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    In 2000, the Commission passed a multi-part amendment to 
the sentencing guidelines covering sexual offenses that 
provided new sentencing enhancements in several sentencing 
guidelines.\11\ Specifically, the new sentencing guidelines 
provided sentencing enhancements for criminal sexual abuse, 
criminal sexual abuse of a minor (statutory rape), criminal 
sexual abuse of a ward, abusive sexual contact, promoting 
prostitution or prohibited sexual conduct, and sexually 
exploiting a minor by production of sexually explicit 
material.\12\ These newly enhanced sentencing guidelines each 
represent at least a 25% increase in guideline punishment 
levels.\13\ The amendments also increase the base offense 
levels in the sentencing guidelines for criminal sexual abuse 
of a minor if the offense involved the transportation of minors 
for illegal sexual activity.\14\
---------------------------------------------------------------------------
    \11\ Letter from Timothy B. McGrath, Staff Director, United States 
Sentencing Commission, to the Hon. Lamar Smith, Chairman of the Crime 
Subcommittee and the Hon. Robert C. Scott, Ranking Member of the Crime 
Subcommittee (June 26, 2001).
    \12\ Letter from Diana E. Murphy, Chair, United States Sentencing 
Commission, to the Hon. Bill McCollum, Chairman of the Crime 
Subcommittee and the Hon. Robert C. Scott, Ranking Member of the Crime 
Subcommittee (May 1, 2000).
    \13\ Id.
    \14\ Id.
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    The guidelines amendments discussed above completed the 
Sentencing Commission's response to the Protection of Children 
from Sexual Predators Act of 1998, Pub. L. 105-314.\15\ In 
addition, the Sentencing Commission formally submitted an 
additional amendment to Congress on May 1, 2001, which became 
effective on November 1, 2001.\16\ The new amendment creates a 
new guideline, Section 4B1.5, which specifically targets repeat 
sex offenders for significantly increased punishment in 
proportion to the sentencing guidelines.\17\
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    \15\ Letter from Timothy B. McGrath, Staff Director, United States 
Sentencing Commission, to the Hon. Lamar Smith, Chairman of the Crime 
Subcommittee and the Hon. Robert C. Scott, Ranking Member of the Crime 
Subcommittee (June 26, 2001).
    \16\ Id.
    \17\ Id.
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    The first tier of the new amendment, Section 4B1.5(a), is 
most closely analogous to H.R. 2146 in that it applies to child 
sex offenders who have an instant offense of conviction for 
sexual abuse of a minor and a prior felony conviction for 
sexual abuse of a minor.\18\ The Sentencing Commission expects 
that this new provision will increase sentences significantly 
for those defendants for whom it will apply.\19\ Commission 
data indicate that there were 24 defendants sentenced in fiscal 
year 1999 for whom this provision would have applied, and the 
average sentence of imprisonment will increase by 93.6 percent 
from 110 months to 213 months.\20\
---------------------------------------------------------------------------
    \18\ Id.
    \19\ Id.
    \20\ Id.
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    The new guideline also contains a ``second tier of 
punishment that in many ways applies more broadly than H.R. 
2146 would if it were enacted.'' \21\ Specifically, ``this 
second tier, Section 4B1.5(b) provides a five-level increase in 
the offense level and a minimum offense level of 22 for child 
sex offenders who engage in a `pattern of activity' involving 
prohibited sexual conduct with a minor.'' \22\ In addition, 
``this second tier is broader in applicability than H.R. 2146 
because a conviction for the prior prohibited sexual conduct is 
not needed to trigger these increased penalties.'' \23\ The 
Sentencing Commission expects that this new provision ``will 
increase sentences significantly for those defendants for whom 
it will apply.'' \24\ ``Commission data indicate that there 
were 57 defendants sentenced in fiscal year 1999 for whom this 
provision would have applied, and the average sentence of 
imprisonment will increase by 71.3 percent from 87 months to 
149 months.'' \25\
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    \21\ Id.
    \22\ Id.
    \23\ Id.
    \24\ Id.
    \25\ Id.
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    The Sentencing Commission's amendments from 2000 and 2001, 
taken together, significantly increase penalties for a variety 
of sex offenses. In addition, title 18, United States Code, 
Section 2241 ``Aggravated sexual abuse,'' already includes a 
mandatory life sentence if a defendant is convicted under 
2241(c) for a crime against a minor, and the defendant has 
previously been convicted of another Federal offense under 
2241(c), or of a State offense that would have been an offense 
under either such provision had the offense occurred under 
Federal law. Under these circumstances, the defendant shall 
receive a mandatory sentence of life in prison.
5. Mandatory Minimums
    The premise underlying H.R. 2146 is that tough Federal 
mandatory sentences will solve the problem of sex crimes 
against minors. The empirical evidence however does not support 
this premise. Professor Franklin Zimring testified last 
Congress regarding the evidence in this area and stated that 
there was none to even suggest that this was true, since 
Federal cases represent such an insignificantly small portion 
of the child sex crimes in the U.S.

                               Conclusion

    Unlike the ``Three Strikes'' Federal law, H.R. 2146 does 
not allow tribal governments to opt out of the provisions and 
apply their laws for handling such matters. This is true 
despite the fact that there has been no evidence of a failure 
of the tribes to address the problem appropriately on 
reservations or other tribal lands. Nor is there any evidence 
that the problem of sexual assaults against children is 
particularly rampant in Indian Country or that tribal 
governments have asked for such a provision as H.R. 2146. This 
bill is a reflection of a sentencing policy gone haywire. We 
have messed the policy up so badly with sound byte legislation 
such as ``Aimee's Law'' and ``Meagan's law'' that now we see 
nothing wrong with mandating a heavier penalty for consensual 
touching between teenagers than we mandate for killing a 
person.

                                   John Conyers, Jr.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.