PROTECTION AGAINST SEXUAL EXPLOITATION OF

CHILDREN ACT OF 2005, AND THE PREVENTION AND DETERRENCE OF CRIMES AGAINST

CHILDREN ACT OF 2005

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

H.R. 2318 and H.R. 2388

JUNE 7, 2005

Serial No. 109–33

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

PROTECTION AGAINST SEXUAL EXPLOITATION OF CHILDREN ACT OF 2005, AND

THE PREVENTION AND DETERRENCE OF CRIMES AGAINST CHILDREN ACT OF 2005

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21–652 PDF 2005

PROTECTION AGAINST SEXUAL EXPLOITATION OF

CHILDREN ACT OF 2005, AND THE PREVENTION AND DETERRENCE OF CRIMES AGAINST

CHILDREN ACT OF 2005

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

H.R. 2318 and H.R. 2388

JUNE 7, 2005

Serial No. 109–33

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

ADAM SMITH, Washington 

CHRIS VAN HOLLEN, Maryland

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California 

MARK GREEN, Wisconsin 

TOM FEENEY, Florida 

STEVE CHABOT, Ohio 

RIC KELLER, Florida 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

ROBERT C. SCOTT, Virginia 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

JAY APPERSON, Chief Counsel 

ELIZABETH SOKUL, Special Counsel for Intelligence 

and Homeland Security 

JASON CERVENAK, Full Committee Counsel 

MICHAEL VOLKOV, Deputy Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III)

C O N T E N T S 

JUNE 7, 2005

OPENING STATEMENT 

Page 

The Honorable Mark Green, a Representative in Congress from the State 

of Wisconsin and Member of the Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 1

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 3

WITNESSES 

Ms. Laura Parsky, Deputy Assistant Attorney General, Criminal Division, 

Oral Testimony ..................................................................................................... 6

Prepared Statement ............................................................................................. 8

The Honorable Charlie Crist, Attorney General, State of Florida 

Oral Testimony ..................................................................................................... 11

Prepared Statement ............................................................................................. 13

Mrs. Carol Fornoff, Mesa, Arizona, mother of a murdered child 

Oral Testimony ..................................................................................................... 16

Prepared Statement ............................................................................................. 19

Mr. John Rhodes, Assistant Federal Defender, Federal Defenders of Montana 

Oral Testimony ..................................................................................................... 38

Prepared Statement ............................................................................................. 40

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Robert C. Scott, a Representative in 

Congress from the State of Virginia, and Ranking Member, Subcommittee 

on Crime, Terrorism, and Homeland Security ................................................... 67

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas .................................................................. 69

Center for Sex Offender Management, ‘‘Recidivism of Sex Offenders,’’ May 

2001, available ar http://www.csom.org/pubs/recidsexof.pdf ............................. 70

Dennise Orlando, ‘Sex Offenders,’’ Special Needs Bullentin No. 3, September 

1998 ....................................................................................................................... 90

Department of Rehabilitation and Correction, State of Ohio, ‘‘Ten-Year Recidivism Follow-Up of 1989 Sex Offender Releases,’’ April 2001, available at 

http://www.drc.state.oh.us/web/Reports/Ten—Year—Recidivism.pdf .............. 110

U.S. Department of Justice, Bureau of Justice Statistics, ‘‘Recidivism of Sex 

Offenders Released from Prison in 1994,’’ November 2003, available at 

http://www.ojp.usdoj.gov/bjs/pub/pdf/rsorp94.pdf ............................................... 140

U.S. Sentencing Commission, ‘‘Report of the Native American Advisory 

Group,’’ November 4, 2003, available at http://www.ussc.gov/NAAG/

NativeAmer.pdf .................................................................................................... 188

Jan Looman, Jeffrey Abracen, and Terry P. Nicholaichuk, ‘‘Recidivism Among 

Treated Sexual Offenders and Matched Controls,’’ Journal of Interpersonal 

Violence, Vol. 15 No. 3, March 2000 ................................................................... 237

Letter from the Honorable Jon Kyl to the Honorable F. James Sensenbrenner, 

Jr. (June 9, 2005) ................................................................................................. 249

Page

IV

Senator Jon Kyl, Introduction of the Streamlined Procedures Act, Congressional Record, pages S5540-S5543 ...................................................................... 257

The Streamlined Procedures Act Section-by-Section Analysis, submitted by 

the Honorable Senator Jon Kyl ........................................................................... 262

S.1088 the ‘‘Streamlined Procedures Act of 2005,’’ submitted by the Honorable 

Senator Jon Kyl .................................................................................................... 272

U.S. Department of Justice, Bureau of Statistics, ‘‘Criminal Offenders Statistics,’’ available at http://www.ojp.usdoj.gov/bjs/crimoff.htm ............................. 290

Letter from John Rhodes, Assistant Federal Defender to Bobby Vasser, Minority Counsel, Subcommittee on Crime, Terrorism, and Homeland Security ......................................................................................................................... 301

(1)

PROTECTION AGAINST SEXUAL EXPLOITATION OF CHILDREN ACT OF 2005, AND 

THE PREVENTION AND DETERRENCE OF 

CRIMES AGAINST CHILDREN ACT OF 2005

TUESDAY, JUNE 7, 2005

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to call, at 2:05 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Mark Green 

(acting Chair of the Subcommittee) presiding. 

Mr. GREEN. Good afternoon, everyone. I want to welcome everyone to this important hearing to examine the national epidemic of 

crimes against our Nation’s children. In recent months, our country 

has been shocked and outraged by a series of brutal attacks 

against our children. Two of these recent brutal attacks were committed by criminals in Florida. Nine-year-old Jessica Lunsford was 

abducted, raped and buried alive and eventually died. And 13-yearold Sarah Lunde was brutally murdered. Both of these young girls 

were murdered by convicted sex offenders. 

Just 2 weeks ago, also in Florida, a missing 8-year-old girl was 

found buried under rocks inside a trash bin. A 17-year-old was 

later charged with attempted murder and sexual battery of the 

young child. These tragic events in Florida occurred after a disturbing series of events in other parts of the country. 

In Iowa, Jetsetta Gage, a 10-year-old girl, was abducted from her 

Cedar Rapids home last March and raped and murdered by a sex 

offender convicted of prior lascivious acts with a child. In Los Angeles, a 58-year-old suspect was charged this past April with child 

molestation charges and is accused of victimizing numerous young 

boys over a 25-year period. In that same month in California, three 

men were convicted of sexually assaulting an unconscious teenage 

girl as they videotaped the brutal sexual attack on a pool table at 

the home of the millionaire father of one of the offenders. 

Last month, an Oregon judge sentenced a sex offender to eight 

additional years in prison for sexually abusing a woman when she 

was 4 and 5 years old. The offender was already in prison for molesting a 3-year-old boy after abducting the 3-year-old and his 1-

year-old brother. The record shows that he has a history of rape, 

molestation and torture going back to the age of 7, attacking family 

members, school teachers, setting fires, and torturing animals. 

2

Or take the case of infamous child molester, Larry Don McQuay, 

who was released from prison in Texas. He claimed to have molested more than 200 children and vowed to kill the next child he 

molested. McQuay served 8 years of a 25-year sentence when his 

release was mandated under Texas law, and he is now back in the 

community. 

Sadly, these are just a few examples of the brutal acts of violence 

and exploitation of our children occurring each and every day. Consider these facts: Statistics show that one in five girls and one in 

10 boys are sexually exploited before they reach adulthood, yet less 

than 35 percent of the incidents are actually reported to the authorities. According to the Department of Justice, one in five children receive unwanted sexual solicitations online, 67 percent of all 

victims of sexual assault were juveniles, and 34 percent were under 

the age of 12. One of every 7 victims of sexual assault was under 

the age of 6. 

I have introduced two bills, which are the subject of today’s hearing, H.R. 2318 and H.R. 2388, each of which addresses the problems of sexual exploitation of children and crimes of violence 

against children respectively. These measures include mandatory 

minimum penalties which reflect the seriousness of the violent 

crimes and sexual exploitation of children. 

Mr. GREEN. Under H.R. 2388, for Federal crimes of kidnapping, 

maiming, or aggravated sexual abuse, a sex offender will be subject 

to a 30-year mandatory minimum. For assaults resulting in serious 

bodily injury, that is nearly killing or permanently disabling a 

child, sexual offenders will face a mandatory minimum of 20 years. 

And for all other crimes of violence against a child, offenders will 

face a 10-year mandatory minimum penalty. Similarly for sexual 

exploitation crimes, offenders will face increased mandatory minimum penalties depending on the severity of the crime, the age of 

the victim, and the circumstances of the offense. 

In 2003, Congress enacted the PROTECT Act, which sought to 

restrict the ability of Federal judges to grant downward departures 

in cases involving sex crimes and exploitation of our children. The 

data shows that while in effect, the law was working and the number of unwarranted downward departures was falling. Since the 

Supreme Court’s decision in United States versus Booker, which 

rendered the Federal sentencing guidelines advisory, the need for 

mandatory minimum penalties in certain areas has become even 

more critical. Congress has an institutional right to prescribe the 

sentencing of criminal defendants to reflect the will of the people. 

Mandatory minimum penalties are favored overwhelmingly by 

the American public because they are not willing to entrust Federal 

judges to act in a consistent manner when sentencing sexual predators for sexual abuse and exploitation of our children. Some on the 

bench will be attempted to coddle sex offenders, to ignore the rights 

of the law-abiding public to live free from crime in the neighborhoods and seek to deviate from sentencing guidelines with what 

they feel is reasonable. 

In the absence of the mandatory sentencing guideline scheme, 

mandatory minimum penalties are the only way in which Congress 

can ensure that fair and consistent sentences to these dangerous 

sexual predators are handed out at the Federal level. Congress 

3

must act now and must do so to protect our Nation’s youth from 

sexual predators in our communities and online on the Internet. 

We simply have no greater resource than our children. It has been 

said that the benevolence of a society can be judged on how well 

it treats its old people and how well it treats its young. Our children represent our Nation’s future. I am anxious to hear from our 

distinguished panel of witnesses and now yield to the Ranking Minority Member of this Subcommittee, the gentleman from Virginia, 

Mr. Bobby Scott. 

Mr. SCOTT. Thank you, Mr. Chairman and I appreciate you convening this hearing. But as usual, every 2 years we are pontificating about child crimes and dramatically increasing Federal sentences, and we are doing so despite the fact that crimes against 

children prosecuted in Federal Court constitute a miniscule percentage of such crimes and represent none of the horrendous 

crimes against children that have been in the media in recent 

months. There is no evidence that Federal prosecutions of crimes 

against children has any significant impact on these horrendous 

State crimes against children, nor do we have any evidence that either State or Federal law for crimes against children are too lenient. Indeed, we recently dramatically increased Federal sentences for crimes against children in the PROTECT Act. We have 

not had enough time or enough cases to determine whether or not 

these draconian increases in Federal sentences has had any effect 

on crime. 

We are moving forward dramatically increasing Federal sentences, also in the worst possible way, through increased mandatory minimum sentences. Mandatory minimum sentences only affect those offenses or those offenses or those who have a role in an 

offense which would warrant a less severe sentence, since those 

who warrant the mandatory minimum or even a more serious sentence get those under the sentencing guidelines. I call attention to 

the recommendations released today by a group of bipartisan philosophically diverse scholars and high level current and former public policy makers, including former Attorney General Ed Meese, 

and former Deputy General Phil Hayman indicating that sentencing policies should provide for proportionality and sufficient 

flexibility to reflect differences in the role and background of the 

offenders. 

These increases are occurring at a time when the evidence from 

the Department of Justice is that for sex offenders the recidivism 

rate is lower than other offenders in general with a 5 percent recidivism rate for new sex offenses and a 3.3 percent recidivism rate 

for child molesters recidivating with a new offense of that nature. 

I will ask this study and four others from other sources be made 

part of the record. 

[The information referred to follows in the Appendix] 

Mr. SCOTT. Also the evidence reveals that the low recidivism rate 

is cut in half with sexual abuse treatment. While recidivism is bad, 

3 to 5 percent rates with the prospect of that being cut in half do 

not suggest that the situation is hopeless, yet there is nothing in 

any of these bills to ensure treatment for these offenders who seek 

treatment or are already receiving sentences and will be leaving 

4

prison soon. The bills before us suggest that it is better to wait for 

the victimization to occur and then apply draconian penalties. 

One of our speakers at an earlier hearing on the subject, criminologist and law professor Frank Zimmer of the Berkeley School of 

Law pointed out that treating all offenses and offenders the same 

and mandating life sentences for repeat offenders regardless of the 

crime, may actually endanger more children than it helps. He expressed the concern that putting the offender in the position of concluding that once a crime is completed or attempted, he is facing 

a minimum of a life sentence, he will more likely conclude that the 

best chance of avoiding detection would be to kill the victim and 

the witness. 

Certainly, this question should be considered against the conventional justification for harsh mandatory minimum sentences of forcing co-defendants to testify against their partners in crime since 

these crimes are more often than not carried out by lone offenders. 

We also know that greatly increasing Federal sentences would disproportionately affect Native Americans simply because they are 

more likely to fall under Federal jurisdiction whereas those who 

are committing the horrendous crimes giving rise to this Federal 

sentencing frenzy actually fall under State jurisdiction. 

We are also doing so without consulting the Native American 

tribal authorities as we have in the past, when we dramatically increase sentencing, such as we did with three strikes and you are 

out and the death penalty and the 1994 crime bill. There is no evidence that Native Americans have asked that offenders on tribal 

lands be treated more harshly than offenders in State courts now 

right next to them, and it simply appears that having politicians 

being able to prove how tough they are on crime in an election year 

is more important than giving plain fairness to Native Americans 

and respecting their tribal sovereignty. 

Finally, Mr. Chairman, the provisions of the bill before us exacerbate the already horrendous Federal sentencing scheme. For example, under the PROTECT Act, we provided a 5-year mandatory 

minimum sentence to transport a minor across State lines or international lines to commit any criminal sex offense involving a 

minor. This bill increases that mandatory minimum to 30 years. 

This means that an 18-year-old high school student who transports 

a minor or causes a minor to travel from Washington D.C. to Virginia to engage in consensual sex, thereby committing the crime of 

contributing to the delinquency of a minor would be subject to a 

30-year mandatory minimum sentence. One can only imagine how 

many times this law was violated in this area during prom season 

and what possible sense does it make to mandate a 30-year sentence? And if our goal, Mr. Chairman, is to reduce incidents of 

child abuse, we have to look at the cost effectiveness of these initiatives. If we are going to sentence somebody to a mandatory minimum of 30 years in prison, we have to look at the cost and what 

we could have done with that similar amount of money in child 

abuse prevention programs. 

Under H.R. 2388 it appears that a mere fist fight between teenagers if one is under 18 and is even slightly injured would require 

a mandatory minimum sentence, even if the younger teen was the 

instigator. The provision limiting habeas corpus jurisdiction will 

5

only increase litigation and delays and increase the risk that innocent people will be put to death. 

Several of the 159 people that were exonerated of their crimes 

in the last 10 years, including some on death row, received exoneration more than 20 years after their conviction. I look forward to 

the testimony and enlightenment of our witnesses on the bills before us and thank you for convening the hearing. 

Mr. GREEN. Thank you, Mr. Scott. It is the practice of the Subcommittee to swear in all witnesses appearing before it. I would 

ask the witnesses to stand and raise their right hands. 

[Witnesses sworn.] 

Mr. GREEN. Let the record show that each of the witnesses answered in the affirmative, please be seated. We have four distinguished witnesses with us today. I will introduce three of the witnesses and then turn to Mr. Keller of Florida for an introduction 

of our fourth. Our first witness is Laura Parsky, the deputy assistant attorney general of the criminal division at the United States 

Department of Justice. In addition to serving at the Department of 

Justice, Ms. Parsky has served as director of the international justice and contingency planning at the National Security Council. 

She graduated from Yale University and obtained her law degree 

from Bolt Hall School of Law at the University of California at 

Berkeley. Following law school, Ms. Parsky clerked for the Honorable D. Lowell Jenson of the United States District Court for the 

northern district of California. 

Our second witness is Carol Fornoff. Mrs. Fornoff is a mother of 

seven in Mesa, Arizona. In 1984, Mrs. Fornoff’s 13-year-old daughter Christy Ann was brutally murdered by a criminal who is still 

on death row awaiting another round of habeas review. We look 

forward to Mrs. Fornoff’s testimony regarding this horrible tragedy 

before the Subcommittee today. 

Our third witness will be Mr. John Rhodes, assistant Federal defender and branch chief of the Missoula branch office in Montana. 

Mr. Rhodes previously served a temporary duty assignment with 

the defender services division of the Administrative Office of the 

United States Courts. Prior to working at the defender services division, he served 6 months as special counsel and visiting Federal 

defender at the United States Sentencing Commission. 

Previously, Mr. Rhodes worked as a State public defender and as 

an associate with Dorsey and Whitney. Mr. Rhodes is a graduate 

of DePauw University and Harvard Law School. 

Mr. Keller. 

Mr. KELLER. Thank you, Mr. Chairman. I am very pleased today 

to introduce to the Crime Subcommittee, my friend, Charlie Crist, 

the Attorney General for the State of Florida. Attorney General 

Crist has been a real champion in Florida when it comes to cracking down against child molesters by making sure they serve longer 

sentences and by using innovative technology to track their whereabouts. As a State Senator from ’92 to ’98, Mr. Crist sponsored the 

stop-turning-out-prisoners legislation, which requires criminals to 

serve at least 85 percent of their criminal sentence. 

In November of 2002, Mr. Crist was elected Florida’s first Republican Attorney General. For the past 21⁄2 years, Attorney General 

Crist has led the fight to establish longer prison sentences for 

6

criminals who sexually molest children and to require tracking devices once they do get out. Attorney General Crist understands that 

the best way to protect young children is to keep child predators 

locked up in the first place, because someone who has molested a 

child will do it again and again and again. 

For example, earlier this year, two young Florida girls, 9-yearold Jessica Lunsford and 13-year-old Sarah Lunde were abducted, 

raped and killed. Both men who confessed to these horrific crimes 

were convicted sex offenders and career criminals. Mr. Crist takes 

these crimes personally and has traveled here to Washington today 

to help do something about this nationwide problem. Mr. Attorney 

General, we are honored to have you with us today. We applaud 

your efforts to protect the young people of Florida and we look forward to your testimony today. 

Mr. GREEN. Thank you, Mr. Keller. We do have written testimony from each of our witnesses. We would ask if possible to limit 

their testimony to 5 minutes. And we will begin with Ms. Parsky. 

Welcome. 

TESTIMONY OF LAURA PARSKY, DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE 

Ms. PARSKY. Thank you. Mr. Chairman, Ranking Member Scott, 

and distinguished Members of the Subcommittee. Thank you for inviting me to testify before you today on sexual crimes against children and two legislative proposals to address this critical topic. As 

we all know, crimes against children are terrible and reprehensible 

acts. In addition to the tragedy of violent crimes against children, 

the sexual abuse and exploitation of children is particularly horrific, and this horror is often exacerbated by child molesters who 

memorialize their repugnant crimes in photographs and videos. 

We, as a Nation, must stand together to fight against these 

crimes and must explore every avenue for strengthening Federal 

laws in this area. Therefore, I commend you for holding this hearing today. One of the most prevalent manifestations of the growing 

problem of child exploitation and sexual abuse crimes is the escalating presence of child pornography. There has been explosive 

growth in the trade of child pornography due to the ease and speed 

of distribution and the relative anonymity afforded by the Internet. 

The distribution of child pornography has progressed beyond exchanges between individuals and now includes commercial ventures. We should be ever mindful that each image of what we call 

child pornography graphically depicts the sexual abuse of an innocent child. 

Further, once on the Internet, the images are passed endlessly 

from offender to offender and are perhaps used to whet the appetite of a pedophile to act out the deviant fantasies of the image on 

yet another child thereby continuing the cycle of abuse. Child pornography offenses as well as other child exploitation offenses involving enticement of minors to engage in illegal sexual activity, 

travel to engage in illegal sexual activity with a minor, or transportation of a minor to engage in illegal sexual activity often implicate 

interstate or foreign commerce, and, therefore, are often prosecuted 

under Federal law. While sexual abuse of children is typically prosVerDate 0ct 09 2002 10:05 Aug 11, 2005 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\060705\21652.000 HJUD1 PsN: 21652
7

ecuted under State law, child sexual abuse on Federal lands such 

as a military base or an Indian territory may be prosecuted under 

Federal law. Accordingly, Federal laws prohibiting sexual abuse 

has an important role in combating these crimes. 

Sexual crimes against children are a growing problem. For example, the number of Federal child pornography cases has more than 

tripled from fiscal year 1997 to fiscal year 2004. Child abuse and 

neglect cases are also increasing. Accordingly, a Federal legislative 

response is warranted and important. The Department of Justice 

is working hard to combat child exploitation and sexual abuse 

crimes. For example, the criminal division’s child exploitation and 

obscenity’s section already has generated more than a 445 percent 

increase in its caseload over the past 2 years. The Department has 

also made great strides in responding to the misuse of advancing 

technologies in child exploitation offenses. In August 2002, the Department created the high tech investigative unit comprised of 

computer forensic specialists equipped to ensure the Department’s 

capacity to prosecute the most complex and advanced offenses 

against children committed online. In addition, the Department focuses its efforts on investigations that have the maximum deterrent impact, including nationwide child pornography operations 

that involve hundreds or thousands of offenders. 

The Department also targets advancing Internet technologies to 

keep pace with the criminal exploitation of technology in the realm 

of crimes against children and works toward the critical goal of 

identifying the victims depicted in images depicted in child pornography. Several examples of these efforts are detailed in my written 

statement. A chilling example of the important work the Department is doing to fight child exploitation is the case of United States 

versus Mariscal prosecuted in the southern district of Florida. In 

that case, defendant Angel Mariscal was sentenced last September 

to a 100-year prison term following his conviction on seven counts 

involving the production of child pornography and related offenses. 

Mariscal traveled repeatedly over a 7-year period to Cuba and Ecuador where he produced and manufactured child pornography including videotapes of himself sexually abusing minors, some of 

them under the age of 12. 

More than 100 victims were filmed exposing their genitals and/

or engaging in sexual activity with the defendant and at least two 

adult female co-conspirators. Mariscal further endangered these 

minors by being HIV positive. Thankfully none of the identified victims has yet tested positive for HIV. 

After videotaping the children using a camcorder, the defendant 

imported the tapes, reproduced them onto CD ROMS or VHS in 

Miami and distributed the CD ROMS and VHS tapes throughout 

the United States by mail or Federal Express. Mariscal’s arrest has 

led to the prosecution of many of his U.S. customers through the 

coordinated efforts of the U.S. Postal Inspection Service. The Department of Justice deeply appreciates recent legislation that Congress has passed to combat child exploitation crimes such as the 

PROTECT Act. This extremely useful legislation includes provisions that imposes mandatory life imprisonment for defendants 

who commit two or more sex offenses against minors, permits supervised release for up to life for child exploitation crimes, and 

8

makes it a crime to travel in foreign commerce and engage in illicit 

sexual conduct with a minor regardless of whether that was the 

purpose of the travel. 

The Department is still reviewing the bills that are being discussed in today’s hearing. We are grateful to the Committee for 

pursuing additional legislation to combat these terrible crimes and 

look forward to working with you on this and any other legislation 

that will help protect our children from violence and sexual exploitation. I thank you and the Subcommittee for the opportunity to 

speak to you today. And I would be happy to answer any questions. 

Mr. GREEN. Thank you. 

[The prepared statement of Ms. Parsky follows:]

PREPARED STATEMENT OF LAURA H. PARSKY

INTRODUCTION

Mr. Chairman, Ranking Member Scott, and distinguished Members of the Subcommittee, thank you for inviting me to testify before you today on sexual crimes 

against children and two legislative proposals to address this critical topic, H.R. 

2388, the ‘‘Prevention and Deterrence of Crimes Against Children Act of 2005,’’ and 

H.R. 2318, the ‘‘Protection Against Sexual Exploitation of Children Act of 2005.’’ Generally, H.R. 2388 would mandate minimum sentences in all cases involving violent crimes against children, while H.R. 2318 would mandate minimum sentences 

in cases involving the sexual abuse and sexual exploitation of children. 

As we all know, such crimes against children are terrible and reprehensible acts. 

In addition to the tragedy of violent crimes against children, the sexual abuse and 

exploitation of children is particularly horrific, and this horror is often exacerbated 

by child molesters who memorialize their repugnant crimes in photographs and videos. We all, as a nation, must stand together to fight against these crimes and must 

explore every avenue for strengthening federal laws in this area; therefore, I commend you for holding this hearing. 

One of the most prevalent manifestations of the growing problem of child exploitation and sexual abuse crimes is the escalating presence of child pornography. 

There has been explosive growth in the trade of child pornography due to the ease 

and speed of distribution, and the relative anonymity, afforded by the Internet. The 

distribution of child pornography has progressed beyond exchanges between individuals and now includes commercial ventures. We should be ever mindful that each 

image of what we call child pornography graphically depicts the sexual abuse of an 

innocent child. Further, once on the Internet, the images are passed endlessly from 

offender to offender and perhaps used to whet the appetite of a pedophile to act out 

the deviant fantasies of the image on yet another child, thereby continuing the cycle 

of abuse. Child pornography offenses, as well as other child exploitation offenses involving enticement of minors to engage in illegal sexual activity, travel to engage 

in illegal sexual activity with a minor, or transportation of a minor to engage in illegal sexual activity often implicate interstate or foreign commerce. Accordingly, these 

offenses are often prosecuted under federal law. On the other hand, sexual abuse 

of children is typically prosecuted under state law. When a child is sexually abused 

on federal land such as a military base or in Indian territory, depending on the circumstances, the offense may be prosecuted under federal law. Accordingly, federal 

laws prohibiting sexual abuse have an important role in combating these devastating crimes, even though most sexual abuse cases are prosecuted under state 

statutes. 

CRIMES AGAINST CHILDREN ARE A GROWING PROBLEM

Crimes against children such as child exploitation and sexual abuse are unfortunately a growing problem. For example, according to the Executive Office for United 

States Attorneys, in Fiscal Year 1997, 352 cases were filed by the Department of 

Justice charging child pornography crimes (18 U.S.C. Sections 2251–2260), and 299 

convictions were obtained. In Fiscal Year 2004, child pornography charges were filed 

against approximately 1,486 defendants, and approximately 1,066 convictions on 

such charges were obtained. 

Nationwide, according to the Department of Health and Human Services’ 2003 report on child maltreatment, an estimated 906,000 children were victims of child 

abuse or neglect. Approximately 20 percent of these victims were physically abused, 

9

and approximately 10 percent were sexually abused. Moreover, according to that report, Pacific Islander children and American Indian or Alaska Native children are 

among those experiencing the highest rates of victimization. As the special maritime 

and territorial jurisdiction of the United States may cover many of these children, 

a federal legislative response to violence against children and child sexual abuse is 

warranted and important. 

THE DEPARTMENT OF JUSTICE IS AGGRESSIVELY FIGHTING CRIMES AGAINST CHILDREN

The Department of Justice is working hard to combat child exploitation and sexual abuse crimes. For example, the Criminal Division’s Child Exploitation and Obscenity Section (CEOS) already has generated a more than 445% increase in its 

caseload, including child pornography cases and investigations, handled in the past 

two years. In addition to increasing the sheer number of investigations and prosecutions brought by our attorneys, the quality and import of the cases has increased 

substantially, with a focus on producers and commercial distributors. 

The Department of Justice has also made great strides in responding to the misuse of advancing technologies in child exploitation offenses. In August 2002, the Department created within CEOS the High Tech Investigative Unit (HTIU), which 

consists of computer forensic specialists equipped to ensure the Department’s capacity to prosecute the most complex and advanced offenses against children committed 

online. The HTIU renders expert forensic assistance and testimony in districts 

across the country in the most complex child pornography prosecutions conducted 

by the Department. Additionally, the HTIU currently receives and reviews an average of more than 200 tips per month from citizens and non-governmental organizations, such as the National Center for Missing and Exploited Children, and initiates 

investigations from these tips. 

The Department focuses its efforts on investigations that have the maximum deterrent impact. For example, CEOS is currently coordinating 17 nationwide operations involving child pornography offenders. These are significant investigations of 

national impact. Nearly each one of the 17 involves hundreds or thousands, and in 

a few cases tens of thousands, of offenders. The coordination of these operations is 

complex, but the results can be tremendous. By way of example, the FBI is currently investigating the distribution of child pornography on various ‘‘member-only’’

online bulletin boards. As of March 19, 2005, the investigation had yielded 180 

search warrants, 75 arrests, 130 indictments, and 61 convictions. 

Quickly advancing Internet technologies present many challenges to investigators, 

and the Department is determined to keep pace with the criminal exploitation of 

technology in the realm of crimes against children. As child pornographers have 

started using peer-to-peer file sharing networks to distribute their images, national 

enforcement initiatives against peer-to-peer offenses have been launched. These initiatives encompass operations by the Federal Bureau of Investigation, the Department of Homeland Security, Immigration and Customs Enforcement (ICE), and 

state and local Internet Crimes Against Children task forces. Since the fall of 2003, 

these initiatives collectively have resulted in more than 1000 investigations, 350 

searches, and at least 65 arrests. 

The Department also works toward the critical goal of identifying the victims depicted in images of child pornography, so that they can be rescued and protected 

from further abuse. One method for achieving this goal is already underway. The 

FBI Endangered Child Alert Program (ECAP) was launched on February 21, 2004, 

by the FBI’s Innocent Images Unit and is conducted in partnership with CEOS. The 

purpose of ECAP is to proactively identify unknown subjects depicted in images of 

child pornography engaging in the sexual exploitation of children. Since ECAP’s inception, seven ‘‘John Doe’’ subjects have been profiled by America’s Most Wanted,

and with the assistance of tips from viewers, five have been identified. More importantly, 31 victims (so far) in Indiana, Montana, Texas, and Colorado have been identified as a result of this initiative. All of the victims had been sexually abused over 

a period of years, some since infancy. CEOS is working with the field to identify 

suitable targets for this program, and we will continue to ensure that this program 

is utilized to its maximum potential. 

A chilling example of the important work the Department is doing to fight child 

exploitation is the case of United States v. Mariscal, prosecuted in the Southern District of Florida. In that case, defendant Angel Mariscal was sentenced last September to a 100-year prison term, following his conviction on seven counts relating 

to the production of child pornography and related offenses. Mariscal had traveled 

repeatedly over a seven-year period to Cuba and Ecuador, where he produced and 

manufactured child pornography, including videotapes of himself sexually abusing 

minors, some under the age of 12. More than 100 victims were filmed exposing their 

10

genitals and/or engaging in sexual activity with the defendant and at least two 

adult female co-conspirators. Mariscal further endangered these minors, because he 

is HIV-positive; thankfully, none of the identified victims has yet tested positive for 

HIV. After videotaping the children using a camcorder, the defendant imported the 

tapes, reproduced them onto CD-ROMS or VHS tapes in Miami, and distributed the 

CD-ROMs and VHS tapes throughout the United States by mail or Federal Express. 

Mariscal would advertise these items by mail, and in 2002, the child pornography 

sold for anywhere from $595.00 to $995.00 per item. Customers were also given the 

option of writing their own fantasy script. Mariscal’s arrest has led to the prosecution of many of his customers across the country due to the coordinated efforts of 

the U.S. Postal Inspection Service and CEOS. 

RECENT LEGISLATION HAS BEEN INSTRUMENTAL IN THE DEPARTMENT’S FIGHT AGAINST

CHILD EXPLOITATION CRIMES

The Department of Justice deeply appreciates recent legislation that Congress has 

passed to combat child abuse and child exploitation crimes, such as the PROTECT 

Act. We have found that legislation extremely useful and have used it effectively, 

as shown by the following examples. 

Section 106 of the PROTECT Act, codified at 18 U.S.C. § 3559(e), imposes mandatory life imprisonment for a defendant convicted of a federal sex offense in which 

the victim is a minor, if the defendant has a prior sex conviction in which a minor 

was the victim, unless the sentence of death is imposed. In United States v. Albert 

J. Kappell, prosecuted in the Western District of Michigan, the defendant was sentenced in March 2004 to life imprisonment for his conviction on nine counts of sexual abuse of two young girls, ages six and three. The victims, who are Native Americans, are enrolled members of the Keweenaw Bay Indian Community (KBIC) in 

Michigan’s Upper Peninsula. Kappell, a non-Indian, repeatedly abused the young 

girls, including with acts of penile and digital penetration, during a four-month period in which he lived with the girls’ mother. Because Kappell had been previously 

convicted of sexual abuse against a minor in 1982, he was sentenced to a mandatory 

life term of imprisonment pursuant to this new sentencing provision of the PROTECT Act. 

Section 101 of the PROTECT Act, codified at 18 U.S.C. § 3583(k), permits a term 

of supervised release of any number of years up to the life of the defendant for child 

exploitation crimes. In United States v. Larry N. Cole, prosecuted in the Southern 

District of Texas, the defendant was sentenced in January 2004 to more than six 

years in prison and court supervision for the rest of his life for possessing over 300 

images of child pornography on several computers. A life term of supervised release 

was imposed under the PROTECT Act in recognition of the recidivist nature of 

Cole’s conduct. 

Section 105 of the PROTECT Act, codified at 18 U.S.C. § 2423(c), makes it a crime 

to travel in foreign commerce and engage in illicit sexual conduct with a minor, regardless of whether that was the purpose of the travel. This is a critical improvement over the previous law, under which the government had to prove that the perpetrator traveled for the purpose of engaging in a sexual act with a minor. The maximum penalty for this new offense is 30 years’ imprisonment. In United States v. 

Michael Lewis Clark, prosecuted in the Western District of Washington, United 

States citizen Michael Lewis Clark was arrested in June 2003 in Cambodia for sexually abusing two Cambodian boys, ages 10 and 13. Clark was charged with engaging 

in illicit sexual conduct after travel in foreign commerce. The case was the first such 

prosecution under the new provision of the PROTECT Act. Clark had flown to Cambodia in May 2003, but he had also spent considerable time in Cambodia over the 

previous five years. The investigation revealed that Clark targeted boys ranging 

from 10 to 18 years of age along the river front area of Phnom Penh, Cambodia, 

and would pay the boys for engaging in sexual contact with him. Clark pled guilty 

and was sentenced to 97 months of imprisonment. He currently has an appeal pending. 

H.R. 2388 AND H.R. 2318

Both H.R. 2388 and H.R. 2318 would impose additional mandatory minimum sentences for child exploitation and sexual abuse crimes. The Department of Justice 

supports mandatory minimum sentences in appropriate circumstances. In a way 

sentencing guidelines cannot, mandatory minimum statutes provide a level of uniformity and predictability in sentencing. They deter certain types of criminal behavior, determined by Congress to be sufficiently egregious as to merit these penalties, 

by clearly forewarning the potential offender and the public at large of the minimum potential consequences of committing such offenses. Moreover, mandatory 

11

minimum sentences can also incapacitate dangerous offenders for long periods of 

time, thereby increasing public safety. In the context of sexual abuse crimes against 

children, this can be particularly important. Finally, in cases involving multiple offenders, mandatory minimum sentences provide an indispensable tool for prosecutors, because they provide the strongest incentive for defendants to cooperate 

against the others who were involved in their criminal activity. 

In addition, H.R. 2318 effectively would restrict the jurisdiction of federal courts 

to entertain a first petition for federal habeas corpus review, in cases involving the 

murder of a child, to the same grounds that now govern their ability to consider 

second or successive petitions for federal habeas corpus review filed by any state 

prisoner. Thus, in state cases involving the murder of a child, federal habeas courts 

would no longer be able to review any exhausted federal constitutional claim; rather, federal courts would only have jurisdiction to consider habeas claims based on 

(1) new rules of constitutional law that have been made retroactively applicable by 

the Supreme Court, or (2) newly discovered evidence that clearly and convincingly 

establishes that, but for the existence of a constitutional error, no reasonable fact 

finder would have found the petitioner guilty of the underlying offense. Although 

we are currently analyzing this provision, we have two preliminary concerns. 

First, while we agree that those who murder children should be punished without 

undue delay, we note that other murderers would not be covered by this provision. 

We ask the Subcommittee to consider whether other categories of condemned murderers should be subject to accelerated federal habeas review as well. We also ask 

the Subcommittee to consider whether the laudable goal of accelerating habeas corpus review for child-killers would run the risk of diverting judicial resources so that 

the already-long delays in providing federal habeas review for other murderers, particularly those under sentences of death, may be inadvertently lengthened. 

Second, we note that this provision would only cover habeas claims under Section 

2254 and not claims for post-conviction relief under Section 2255. We ask the Subcommittee to consider whether it would be appropriate to consider applying the 

same procedures for child killers in federal custody. 

CONCLUSION

In sum, the Department of Justice shares your goals of protecting children from 

violence and sexual exploitation and looks forward to working with you on H.R. 

2388 and H.R. 2318. We deeply appreciate the legislative tools that Congress has 

already provided law enforcement in our fight against these awful crimes and your 

commitment to consider additional measures that would aid us in our efforts. 

Mr. Chairman, I again thank you and the Subcommittee for the opportunity to 

speak to you today, and I would be pleased to answer any questions the Subcommittee might have.

Mr. GREEN. Attorney General Crist. 

TESTIMONY OF THE HONORABLE CHARLIE CRIST, ATTORNEY 

GENERAL, STATE OF FLORIDA 

Mr. CRIST. Thank you, Mr. Chairman and Ranking Member 

Scott. I want to thank Congressman Keller for his kind introduction and I want to say hello to my friend Congressman Feeney. On 

behalf of the State of Florida and the many State Attorneys General, I thank you for the opportunity to address a problem that is 

as horrific as it is pervasive. The problem of sex crimes against 

children has been a blight on society for far too long, but it seems 

to have exploded onto the national consciousness as a result of a 

series of recent high profile cases. 

Sadly, several of these cases have occurred in my own State. I 

believe this is more a consequence of our State’s appeal to newcomers than it is an indication of any systemic problem unique to 

Florida, but it has made us acutely aware of the complexities of the 

issue. Florida is home to some 34,000 registered sex offenders, approximately 5,000 of whom are classified as sexual predators. The 

odds are that in every neighborhood in every city, there is a sex 

offender living down the street. It is highly likely that every FloVerDate 0ct 09 2002 10:05 Aug 11, 2005 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\060705\21652.000 HJUD1 PsN: 21652
12

ridian, and probably every American, drives past the home of a sex 

offender on a regular basis without even knowing it. 

I believe it is no accident that our founding fathers stressed the 

importance of safety and security by placing in the very first line 

of the United States Constitution the mandate that the very purpose of our Government is to, ‘‘ensure domestic tranquility.’’ Little 

we do as public servants will really matter if we do not do something to prevent our most innocent citizens from falling victim to 

the unspeakable horrors committed by sex offenders and sex predators. The experts tell us that someone who has molested a child 

will do it again and again. 

Child molesters are dangerous, and they will remain dangerous 

as long as they can roam unimpeded in our neighborhoods, our 

schools, our churches, our synagogues, and our playgrounds. To 

make a meaningful difference, I believe we will have to employ a 

multi-faceted strategy embracing a wide range of approaches, including prevention, education, tracking, and enforcement. Beginning with the tragic abduction and murder of 11-year-old Carlie 

Brucia in Sarasota only 16 months ago, Florida has taken numerous steps to protect children from the monsters who would prey 

upon them. 

There is still much work to be done, but I believe these initiatives represent an important first start. The best way to eliminate 

sex crimes against children, of course, is to prevent them from happening in the first place. We may never be able to totally eliminate 

the predators who commit these deviant acts, so we must do what 

we can to keep young boys and girls from becoming their victims. 

In Florida, we have directed our prevention and education initiatives at both parents and children. One of our most important steps 

was taken 3 weeks ago with the help of an outstanding corporate 

citizen, Pitney Bowes. On May 17, Pitney Bowes’ chairman and 

CEO Michael Critelli and I unveiled an enhanced State website 

that for the first time, it lets parents and other Floridians zero in 

on registered sex offenders who live nearby. The Florida Department of Law Enforcement maintains a database of 34,000 registered sex offenders and sexual predators, one of the largest of its 

kind in the Nation. For the past 10 years, a website maintained by 

that agency has allowed Floridians to search for sex offenders as 

well as predators. This has been an extremely useful service, but 

it was limited. Parents could find out which sex offender were registered to live in the same town or zipcode, but unless a parent was 

familiar with every street in that zipcode, it was not always possible to know just how close the offender might live. 

Now thanks to user-friendly software developed by Pitney Bowes 

and donated to the State of Florida, parents can find that out. 

When we announced the new system, we did a sample search to 

see if any registered sexual offenders lived near our State Capitol. 

We found out that within 3 miles, 96 sexual offenders resided. 

Thanks to our new website search parents and others throughout 

Florida will be able to pinpoint the addresses of these registered 

sex offenders. Our other program for children was launched last 

October when we introduced the Escape School program to Florida. 

At hour-long programs conducted at public schools throughout the 

State, we have had the opportunity to better empower children as 

13

to how to escape the possibility. As I said earlier, the case of Carlie 

Brucia which occurred in Sarasota 16 months ago, an 11-year-old 

girl being abducted from a carwash parking lot was played over 

and over again on national television. That was followed by a case 

that occurred including the Jessica Lunsford case where Congresswoman Ginny Brown-Waite has led the effort, along with Congressman Mark Foley, to try to stop those kinds of things from happening on a national level and I applaud their effort. 

There was another case that got a lot less play. This occurred in 

Deltona, Florida, Volusia County. It affected 6 innocent Floridians 

who were beaten to death with baseball bats in the wee hours on 

August 6 of last year. Those cases involving Carlie Brucia, Jessica 

Lunsford, Sarah Lunde in the Tampa Bay area where my family 

resides, and the 6 innocent Floridians in Deltona, Volusia County, 

Florida, all had a common theme and a common thread. The common thread was that each and every one of these cases had somebody who had already been in prison in Florida. They had served 

their time and gotten out, they had been placed on probation, given 

a second chance, been on the privilege of probation—it is a privilege that our criminal justice extends. They all violated probation. 

At the time they violated, they go before a judge, and the judge has 

to make a determination of whether or not that person should go 

back to jail or stay free. 

Regrettably, in each and every one of those cases, the judges decided to let them stay out. And in Sarasota, he saw Carlie Brucia, 

in Citrus County, Jessica Lunsford, in Hillsborough County, Sarah 

Lunde, and in Deltona, Volusia County, those six innocent Floridians. We must do more to make sure we lock these bad people up 

and protect the citizens of our State and our country. 

Mr. GREEN. Thank you, General Crist. 

[The prepared statement of Mr. Crist follows:]

PREPARED STATEMENT OF CHARLIE CRIST

Good afternoon Chairman Coble, Ranking Member Scott, and distinguished members of the Subcommittee. 

On behalf of the State of Florida and the many state attorneys general, I thank 

you for this opportunity to address a problem that is as horrific as it is pervasive. 

The problem of sex crimes against children has been a blight on society for far 

too long, but it seems to have exploded onto the national consciousness as a result 

of a series of recent high-profile cases. Sadly, several of these cases have occurred 

in my own state. I believe this is more a consequence of our state’s appeal to newcomers than it is an indication of any systemic problem unique to Florida, but it 

has made us acutely aware of the complexities of this issue. 

Florida is home to some 34,000 registered sex offenders, approximately 5,000 of 

whom are classified as sexual predators. The odds are that in every neighborhood, 

in every city, there is a sex offender living down the street. It is highly likely that 

every Floridian—and probably every American—drives past the home of a sex offender on a regular basis without even knowing it. 

I believe it was no accident that the Founding Fathers stressed the importance 

of safety and security by placing in the very first line of the U.S. Constitution the 

mandate that the very purpose of our government is ‘‘to insure domestic tranquility.’’ Little we do as public servants will really matter if we do not do something 

to prevent our most innocent citizens from falling victim to the unspeakable horrors 

committed by sex offenders and predators. 

The experts tells us that someone who has molested a child will do it again and 

again. Child molesters are dangerous, and they will remain dangerous as long as 

they can roam unimpeded in our neighborhoods, our schools, our churches, our playgrounds. 

14

To make a meaningful difference, I believe we will have to employ a multi-faceted 

strategy embracing a wide range of approaches including prevention and education, 

tracking and enforcement. 

Beginning with the tragic abduction and murder of 11-year-old Carlie Brucia in 

Sarasota 16 months ago, Florida has taken numerous steps to protect children from 

the monsters who would prey on them. There is still much work to be done, but 

I believe these initiatives represent an important start. 

PREVENTION AND EDUCATION

The best way to eliminate sex crimes against children, of course, is to prevent 

them from happening in the first place. We may never be able to totally eliminate 

the predators who commit these deviant acts, so we must do what we can to keep 

young boys and girls from becoming their victims. 

In Florida, we have directed our prevention and education initiatives at both parents and children. 

One of our most important steps forward was taken three weeks ago with the help 

of an outstanding corporate citizen, Pitney Bowes. On May 17, Pitney Bowes Chairman and CEO Michael Critelli and I unveiled an enhanced state website that for 

the first time lets parents and other Floridians zero in on registered sex offenders 

who live nearby. 

The Florida Department of Law Enforcement maintains a database of 34,000 registered sex offenders and sexual predators, one of the largest of its kind in the nation. For the past 10 years, a website maintained by that agency has allowed Floridians to search for sex offenders and predators. 

This has been an extremely useful service, but it was limited. Parents could find 

out which sex offenders were registered to live in the same town or zip code. But 

unless a parent was familiar with every street in the zip code, it was not always 

possible to know just how close the offender lived. 

Now, thanks to user-friendly software developed by Pitney Bowes and donated to 

the State of Florida, parents can type in their home address—or, if they prefer, their 

child’s school address, church or any other place they choose—and see how many 

sex offenders live within one mile. If they wish, they can expand the search up to 

five miles. 

The new system crosses zip code and city or county lines, so it lets you know if 

sex offenders or sexual predators live close by, even if they live in a different zip 

code or county. It will tell how far away the sex offender lives, and can even produce 

a map so parents can figure out alternate routes for their children to travel safely. 

With a few more clicks, an internet user can visit our state Department of Corrections web site and pull up a mug shot, prison history and other information about 

any sex offender they find in their neighborhood. 

When we announced the new system, we did a sample search to see whether any 

registered sex offenders lived near the State Capitol in Tallahassee. Much to our 

surprise, we found that there are 96 sex offenders living within three miles of the 

Capitol—with the nearest one just three-tenths of a mile away. 

Thanks to our new search website, parents and others throughout Florida will be 

able to pinpoint the addresses of registered sex offenders and predators, virtually 

anywhere in our state. 

Two other important elements of our prevention efforts are aimed at the children 

themselves. 

Last year our office placed a link on our home page for NetSmartz, an interactive 

educational safety resource that teaches kids and teens how to stay safer on the 

Internet. NetSmartz was put together by the National Center for Missing and Exploited Children and the Boys & Girls Clubs of America, and is aimed at children 

ages 5 to 17. 

As adults, we all immediately recognize the risks to children associated with the 

Internet. But the harsh reality is that, despite our best efforts, children will explore 

the online world without an adult to supervise them. That is why it is especially 

important that children learn that people they first ‘‘meet’’ on the Internet should 

never be considered a friend. They must learn what kinds of questions and pictures 

are inappropriate, and to tell a trusted adult if they are ever approached online with 

such information. 

NetSmartz offers helpful information through age-appropriate interactive lessons. 

It can reach children in a way most adults cannot. This makes it another valued 

facet of our efforts to use a combination of prevention and education, tracking and 

enforcement to stop sex offenders from threatening our children. 

Our other program for children was launched last October when we introduced 

the Escape School program to Florida. At hour-long programs conducted at public 

15

schools throughout the state, experts teach children how to make smart, safe choices 

in potentially dangerous situations. We want children to know how to do whatever 

it takes to get away from someone who might harm them. 

To date, our office has conducted 25 Escape School programs attended by some 

4,669 Florida children and parents. We hope no Florida child is ever forced to rely 

on the skills taught at Escape School. But it is comforting to know that so many 

children have had the opportunity to learn the techniques, just in case. 

TRACKING

The February 2004 murder of Carlie Brucia shocked the nation. Millions of Americans saw the horrifying security camera video of this precious 11-year-old girl being 

abducted from a parking lot, and all of Florida mourned when it was learned that 

Carlie had been killed. 

That sadness turned to anger when it was learned that her accused killer was 

a man whose history showed a propensity for violent crimes. He had violated terms 

of his probation—but had not been reincarcerated for these violations. 

The months that followed Carlie’s murder brought reports of more terrible crimes 

against young Floridians by perpetrators who had histories of criminal violence. 

These awful incidents came to a head with the murders earlier this year of 9-yearold Jessica Lunsford and 13-year-old Sarah Lunde. The men who confessed to abducting, raping and killing each girl were convicted sex offenders. The man who said 

he killed Jessica was a probation violator who registered with local authorities as 

required by law—but then moved to a mobile home 150 yards from Jessica’s home 

without telling anyone. 

Jessica’s father, Mark Lunsford, is a true American hero. Just weeks after his beloved daughter was ripped from his life forever, this quiet, unassuming man was 

in Tallahassee promoting legislation to make sure no other Florida father had to 

endure the anguish he was still experiencing. The result was the Jessica Lunsford 

Act, which establishes longer prison sentences for criminals who sexually molest 

children and requires tracking devices once they do get out. 

This measure could not have become law without the extraordinary efforts of 

Mark Lunsford, as well as ‘‘America’s Most Wanted’’ host John Walsh—himself a 

Floridian whose son was abducted, sexually assaulted and murdered. Governor Jeb 

Bush also deserves praise for quickly signing this bill into law. 

As helpful as the Jessica Lunsford Act may be, I believe it does not go far enough 

to stop sex offenders from violating probation and victimizing more young children. 

Using ankle bracelets with GPS technology to track sex offenders will let us know 

where they are, but it will not prevent them from committing more crimes. The only 

way to make sure they do not ruin the lives of more young children is to keep them 

locked up in the first place. 

We know the people who are committing these horrible crimes. They are people 

who already committed crimes. They are people who, at least in Carlie and Jessica’s 

cases, violated the terms of their probation. To stop these people, I will continue 

pushing the Florida Legislature to change the law in order to require that violent 

felons who violate probation be returned directly to jail unless a judge holds a hearing and determines that the offender does not pose a danger to the community. 

Tracking bracelets are good—but prison bars are better. 

ENFORCEMENT

All indications are that Jessica Lunsford and Sarah Lunde were careful, intelligent girls, yet they were still abducted from their own homes. There are some 

things that education programs simply will not prevent. Ultimately, our ability to 

limit the activities of sex offenders who prey on children will depend on enforcement 

and prosecution. 

Just last week, my office won a conviction against a 52-year-old man who tried 

to use an Internet chat room to lure a 13-year-old boy to his home to engage in sexual activity and to view child pornography. Unfortunately for the man, the 13-yearold boy turned out to be an undercover officer, and now this sex offender faces up 

to 75 years in prison. 

Local law enforcement throughout Florida, and I am sure throughout the nation, 

has done a remarkable job responding in the wake of so many terrible incidents. 

Allow me to give you an example from the small North Florida town of Green Cove 

Springs, population about 5,600. 

Police Chief Gail Russell made a decision that sex crimes against children would 

be a priority. In the past 18 months, the police department has arrested 14 ‘travelers’ in cases where a child has left home or been targeted by an adult, via the 

Internet, to leave home. The police department has identified and referred 10 cases 

16

to other jurisdictions, one of which involved 20 potential child victims in other 

states. One computer seized through the department’s efforts contained 3,000 pornographic images of children and 1,000 videos. 

This is a clear example of what even a small police department can do when it 

makes sex crimes against children a priority. But they cannot do it alone. I am 

pleased that last month, the Florida Legislature agreed to establish a Cyber Crime 

Unit within the Attorney General’s Office. This small but dedicated unit will target 

internet crimes against children and will work closely with local law enforcement 

agencies throughout the state. 

We at the state level will do whatever we can to support these efforts. But in today’s mobile and electronic society, sex crimes know no political boundaries. That 

is why we are so encouraged to see your subcommittee, and the entire Congress, 

giving serious consideration to national legislation to address this issue. 

In the aftermath of Carlie Brucia’s death, Congresswoman Katherine Harris offered a significant proposal to create a national sex offenders registry. I enthusiastically support establishment of such a system, and offer the full assistance of my office to bring this to fruition. For a state like Florida, which attracts so many from 

other areas, a national registry would make it much easier for local law enforcement 

agencies to learn when sex offenders from other places move into our state. 

I am also gratified by the strong commitment shown by other members of Florida’s Congressional Delegation, especially Representatives Mark Foley and Ginny 

Brown-Waite, to finding workable solutions to this most difficult problem. 

We also support the Department of Justice’s work coordinating efforts to link various state offender databases. Short of a full-fledged nationwide registry, such a system of inter-connected state databases would be a meaningful help to local and state 

agencies. The Department’s participation in joint local-state-federal operations, including two Internet Crimes Against Children (ICAC) task forces in Florida, has 

been indispensable in bringing offenders to justice. 

As I said earlier, we cannot rely on one single approach, or one single level of government, to successfully target sex crimes against children. We must maintain and 

expand prevention initiatives, tracking activities and enforcement efforts. We must 

fight the battle at the local level and the state level. 

But in the end, the success of these efforts will depend on the overall coordination 

and resources that can come only through a nationwide commitment to wiping out 

this blight. 

With the well-being of American youth at stake, no amount of commitment can 

be considered too much. 

I commend this subcommittee for its interest in this important issue, and I look 

forward to working with you as we craft meaningful national legislation to protect 

America’s children. 

Again, Mr. Chairman, I am grateful for the opportunity to contribute to this hearing and to help ensure that the legacies of Carlie Brucia, Jessica Lunsford, Sarah 

Lunde and so many other innocent victims of sexual predators will serve to prevent 

other such tragedies in the future. 

Thank you.

Mr. GREEN. Mrs. Fornoff, welcome. 

TESTIMONY OF CAROL FORNOFF, MESA, ARIZONA, MOTHER 

OF A MURDERED CHILD 

Mrs. FORNOFF. Thank you for inviting me to testify. My husband 

Roger and I are here today to tell you about our daughter Christy 

Ann Fornoff. Christy was our youngest daughter. She was a loving 

child, very gentle. She often seemed to make friends with the kids 

at school who weren’t so popular. She was very dear to us. In 1984, 

our family was living in Tempe, Arizona, and Christy was 13-yearsold. Christy Ann and her brother Jason both held jobs as news carriers for the Phoenix Gazette, a local newspaper. Roger and I believed that jobs like this would teach our children responsibility 

while also helping them earn a little money. 

After dinner on Wednesday evening, May 9, 1984, both Christy 

Ann and Jason had been invited to go jumping on the trampoline. 

Jason went but Christy had just had a cast removed from her 

ankle. So instead, she went to collect on her newspaper’s route at 

17

the apartment complex near our home. Christy delivered papers at 

the complex everyday. It was two, just two short blocks from our 

house. Nevertheless, it was getting dusk, so I went with her. She 

rode her brother’s bike while I walked alongside with our little dog. 

At the first apartment that Christy visited, I was stopped by a 

neighbor who wanted to talk about our cute dog. 

Christy went on to the next apartment alone, and I followed a 

few minutes later. When I got there, the bike was outside, but 

there was no Christy. I started calling her name, but there was no 

answer. Our dog started to get so nervous. After a few minutes I 

ran home and came back with my daughter’s boyfriend. We went 

to the apartment and asked. They said Christy had been here, but 

she had left about 10 minutes ago. While I knew that Christy 

wouldn’t leave her brother’s bike, I ran home again. My husband 

had just arrived at home and I told him that Christy was missing. 

He immediately called the police and then went to the apartment 

complex and began knocking on doors. Outside of one apartment, 

people standing nearby told him, don’t bother knocking on that 

door, that is the maintenance man and he is looking for Christy. 

Shortly after, the maintenance man joined Roger in the search 

for Christy. That night, police helicopters with search lights examined every corner of our neighborhood. Our son drove up and down 

everywhere in the area on his motorcycle. Christy’s newspaper collection book was found over a fence by the apartment complex but 

no one found Christy. Two days later, a policeman knocked on our 

door. Christy’s body had been discovered wrapped in a sheet lying 

behind a trash dumpster in that apartment complex. We were absolutely devastated. We had began hoping against hope and 

couldn’t believe that our beautiful daughter was dead. Christy’s 

body was taken to a morgue so an autopsy could be performed. 

On Sunday, which was Mother’s Day, we were able to view 

Christy’s body. Mother’s Day has never been the same since. 10 

days after Christy’s body was found, the maintenance man at the 

apartment complex, the same man who had been looking for her 

that night, was arrested for her murder. Christy had been sexually 

assaulted and suffocated. There was blood, semen and hair on 

Christy’s body that was consistent with that of the maintenance 

man. Vomit on Christy’s face matched vomit in the maintenance 

man’s closet. Fibers on Christy’s body matched the carpet and a 

blanket in the man’s apartment. And police found Christy’s hair inside of the apartment. We knew who had killed our daughter. In 

1985, the maintenance man was convicted of Christy’s murder and 

sentenced to death. 

The conviction was upheld in a lengthy opinion by the Arizona 

Supreme Court. The killer raised many more challenges but his 

last State appeals were finally rejected in 1992. By that time, we 

already felt that the case had been going on for a long time. It had 

been 7 years. We couldn’t imagine that the killer would have any 

more challenges to argue. But in 1992, the killer filed another challenge to his conviction in the United States district court. That 

challenge then remained in that one court for over 7 years. Finally 

in November 1999, the district court dismissed the case. 

Few years later the Federal Court of appeals for the Ninth Circuit sent the case back to the district court for more hearings. 

18

Today, the case remains before that same Federal district court. It 

has now been over 21 years since Christy was murdered. By this 

fall the case will have been in the Federal courts for longer than 

Christy was ever alive. I cannot describe to you how painful our experience with the court system has been. I cannot believe that just 

one court took over 7 years to decide our case. We want to know 

will his conviction be thrown out? Will there be another trial? I 

cannot imagine testifying at a trial again. And would they even be 

able to convict this man again? 

It has been 21 years. How many witnesses are still here. Is all 

the evidence even still available. Could this man one day be released? Could I run into him on the street, a free man, the man 

who assaulted and killed our daughter. The court has turned this 

case into an open wound for our family, a wound that has not been 

allowed to heal for 21 years. Why would we want a system that 

forces someone like me to relive my daughter’s murder again and 

again and again. 

My daughter’s killer already litigated all of the challenges to his 

case in the State courts. Why should we let him bring all the same 

legal claims again for another round of lawsuits in the Federal 

courts? Why should this killer get a second chance? My daughter 

never had a second chance. 

When you and your colleagues are writing laws, Mr. Chairman, 

please think about people like me. Please think about the fact that 

every time there is another appeal, another ruling, another hearing, I am forced to think about my daughter’s death. Every time 

I am forced to wonder if only Christy hadn’t had the cast on her 

ankle. If only she could have gone on the trampoline that evening, 

she would still be alive today. Every time I hear a helicopter, I am 

terrified. I think of the police helicopters searching for Christy on 

the night that she disappeared. Every time I hear a motorcycle, I 

think of my son searching for Christy. Every time that the courts 

reopen this case, I am forced to wonder, why didn’t I go with 

Christy to that second apartment. Why did I let that neighbor stop 

me to talk? 

Every time I am forced to think about how scared my little girl 

must have been when she died. I urge you Mr. Chairman, to do 

what you can to fix this system. And my family and I have forgiven 

our daughter’s murderer, but we cannot forgive a justice system 

that would treat us this way. 

Mr. GREEN. Thank you, Mrs. Fornoff. I appreciate you coming 

here and the courage it took for you to tell your story. 

[The prepared statement of Mrs. Fornoff follows:]

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PREPARED STATEMENT OF CAROL FORNOFF


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Mr. GREEN. Mr. Rhodes, welcome. 

TESTIMONY OF JOHN RHODES, ASSISTANT FEDERAL 

DEFENDER, FEDERAL DEFENDERS OF MONTANA 

Mr. RHODES. Mr. Chairman, Ranking Member Scott, Members of 

the Subcommittee, thank you for inviting me to testify today. I 

have been a Federal public defender in the District of Montana for 

over 7 years. Before that I was a State public defender where I specialized in serving as a guardian for teenage rape victims. In my 

current job as a Federal defender, I have defended hundreds and 

hundreds of individuals accused of Federal crimes, including Indians from six of Montana’s seven Indian reservations. I represent 

my clients from their initial appearances before United States magistrate judges through the conclusion of their cases, including appeals. 

The Major Crimes Act brings reservation offenses normally prosecuted in State courts into Federal courts, including crimes of violence such as homicide, arson, assault, and sex offenses. My practice includes defending Indians in Major Crimes Act cases, particularly in assault and reservation sex offenses. First and most importantly, I want to emphasize that although Native Americans are 

not named in these bills, the bills will have the greatest impact on 

reservation communities. At least half of the Federal sex abuse 

cases arise on reservations. Indian communities believe that disparate punishment results from Federal prosecution of reservation 

offenses. The statistics show that they are right. Compared to punishment for the same crimes prosecuted in State courts, Indians 

prosecuted in Federal Court receive longer sentences. The Native 

American advisory group convened by the Sentencing Commission 

to look into the impact of the guidelines in Federal sentencing on 

reservations concluded that Federal sentences for sexual abuse and 

assault are longer than those for offenses in State court. 

H.R. 2388 would impose long, mandatory minimum sentences 

that the affected tribal communities, including the victims, may not 

support. For instance, under the bill, if two teenage boys got in a 

fight and one of them was under 18, the person who was over 18 

could end up doing at least 10 years in prison. Many of the reservation offenses are committed within the family and all of them are 

committed in small towns and rural areas. 

The tribal communities are well aware of the offenses that happen on their reservations and the resulting Federal prosecutions. 

The tribes should be consulted regarding the appropriate punishment for these crimes, particularly because of the tribal emphasis 

on rehabilitation and community healing. I thus recommend that 

the Congress convene hearings in Indian country and apply what 

is learned from the tribes that are going to be impacted by this legislation to deter sex offenses and crimes of violence. My personal 

experience teaches that the current penalties and guideline calculations achieve the severe punishment that is appropriate for the 

most culpable defendants. 

In April 2003, Congress enacted the PROTECT Act, which dramatically increased the punishment for sex offenders by imposing 

mandatory minimums, a two-strikes-you-are-out provision, enhancing the guidelines and limiting judicial discretion. In October 2003 

39

the Sentencing Commission increased sex offense punishments in 

the guidelines consistent with the PROTECT Act. In November 

2004, the Commission again dramatically increased punishment for 

sex offenses. These laws direct and require harsh sentences when 

appropriate. Even before the PROTECT Act, one of my reservation 

clients received a 33-year sentence in a sex offense case. Under current guidelines, his sentence would likely be longer. 

At the other extreme, a child pornography client of mine prosecuted before the PROTECT Act has successfully his term—has 

completed his term of supervised release, graduated from sex offender treatment, and is living with his wife and two children and 

working. Under current law, he would still be serving a 5-year 

mandatory minimum sentence. Under the proposed bill, he would 

be serving a 25-year mandatory minimum sentence. Unnecessarily 

imprisoning such citizens punishes their families, their communities, and the taxpayers and erodes the respect that anchors our 

criminal justice system. That is the unintended consequence of otherwise well intentioned mandatory minimums. 

Such measures are not necessary when severe punishments already exist. We have attached to our written testimony excerpts 

from five studies. The first study dated November 2003 is a report 

from the Bureau of Justice statistics. It studied over 270,000 prisoners released by 15 States in 1994. The study found that, compared to non-sex offenders, sex offenders had a lower overall re-arrest rate. The other four studies document that sex offender treatment reduces recidivism by more than half. We request that you 

direct the Bureau of Prisons to establish more than just one sex offender treatment program. 

As you may know, currently, there is only one program for sex 

offenders in the entire Bureau of Prison system and that is in 

Butner, North Carolina. That is particularly problemmatic for my 

clients who are from small towns or rural ranch areas and certainly have not been very far from their home, let alone across the 

country. There is a demand for treatment that brings us here today 

and that is why the Bureau of Prisons should be directed by yourselves to meet that demand and establish more treatment programs. Finally, the availability of habeas corpus review exonerated 

159 wrongly convicted individuals as documented by the Innocence 

Project. Many of those exonerated spent decades in prison. 

Their life was at issue. Finality, while important, must never 

come at the price of certainty. Taking someone’s life is a hollow virtue without certainty. That is what the great writ protects. Thank 

you for this opportunity to address the Committee. I and the Federal public and community defenders have a wealth of experience 

in Federal sentencing generally and in the sentencing of Native 

Americans particularly. We would be happy to answer any questions or respond to any requests for further information. 

[The prepared statement of Mr. Rhodes follows:]

40

PREPARED STATEMENT OF JOHN RHODES


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Mr. GREEN. Thank you, Mr. Rhodes, and thanks to all of our witnesses for coming here and testifying today. I will begin the questioning. Ms. Parsky, you note that mandatory minimum penalties 

can be an appropriate tool. Can you elaborate this in the context 

of child exploitation and sex abuse crimes. 

Ms. PARSKY. Certainly. One of the things that is particularly useful about mandatory minimum sentences is that they serve the important purpose of deterrence and they send a very strong message 

not only to potential offenders, but also to the public at large that 

the community takes these crimes really seriously and that, if they 

are caught and if they commit this conduct, that they will be 

spending a very long time in jail. And, in addition, one other element that is important to keep in mind about mandatory minimums that is particularly pertinent to the sexual abuse crimes is 

that they incapacitate particularly dangerous individuals and protect our communities from those individuals being on the streets. 

And that is important to keep in mind when you are looking at 

mandatory minimums in this context. 

Mr. GREEN. General Crist, can you describe how the Florida Sex 

Offender Registry works and what the role is that you see in coordinating in these areas with Federal law enforcement? 

Mr. CRIST. I wanted to make a correction. I think when I was 

describing the four cases that I did I wanted to make sure I said 

that the perpetrator or alleged perpetrator of each of those crimes 

was a probation violator. The way the registry works, people have 

to register, and have their names attached once they are found 

guilty. Let me give you a more precise description. To be a subject 

of a Florida sexual offender registry, a person must qualify and be 

designated as such. There are three ways to be designated a sex 

offender in Florida. The first is to commit a qualified crime in the 

State, two, commit a crime in another jurisdiction that meets Florida sex offender criteria, or three, be designated a sex offender in 

another jurisdiction. Someone designated as a sex offender must 

register with the State within 48 hours of establishing residence. 

When registering, the offender must provide his or her name, Social Security number, physical characteristics, residence, employment or school information, and fingerprints. 

Within 48 hours of registering, sex offenders must also register 

with the driver’s license office, identify himself as a sex offender, 

and obtain a license or identification card. They must maintain this 

registration for life unless they receive a full pardon or the conviction is set aside. 

Mr. GREEN. Mrs. Fornoff, in your written testimony, you give an 

interesting statistic: Nearly 100 of the death row inmates in California have been there for over 20 years. Have you been in touch 

with any of the families of the victims of those cases? And if so, 

can you tell us what you have learned from them? 

Ms. FORNOFF. I have not been in touch with any of those particular victims. In fact, I wrote a letter to support the family of Jessica. I happened to be in Florida at the time and of course it knocks 

us out when some other little girl has been taken. And I try to 

write a letter to the family and tell them we have gotten through, 

we will never get over the death of our child. And we work with 

55

parents of murdered children in Arizona. And so I have been supportive of them in that way. 

Mr. GREEN. Ms. Parsky, you heard Mr. Rhodes’ testimony, his 

position that these laws have a disparate impact on offenders, Native American offenders. Do you have any response to that in terms 

of the percentage of crimes or victims that might come from those 

areas? 

Ms. PARSKY. I don’t have particular numbers with me today, but 

there are a couple of points that are important to keep in mind 

with respect to some of his arguments. The first is that I think we 

need to keep in mind that the victims on Indian reservations need 

the same amount of protection as the victims anywhere else. And 

the Federal Government in its enforcement of its laws and the Federal legislature in its creation of laws sends a powerful message to 

the Nation about what conduct we find reprehensible. We at the 

Department of Justice deal with a lot of different Federal laws that 

protect children. 

I mentioned child pornography, but also travel for the purpose of 

engaging in sexual acts with children, sex tourism, other laws that 

involve interstate or foreign commerce or Federal property. So all 

of those laws are something we are looking to enforce and enforce 

in a way that is going to send a strong deterrent message to the 

community. 

Mr. GREEN. Mr. Scott, questions? 

Mr. SCOTT. Ms. Parsky, in H.R. 2388, it talks about Federal 

crime of violence. What is that? What is a Federal crime of violence. Page 2, line 3 of the bill. 

Ms. PARSKY. As I indicated in my written testimony, the Department is still taking a look at the legislation that has been tabled 

here today, and we don’t have a position. This is not an Administration bill, so I can’t tell you what was intended by the language 

that is in the bill here. 

Mr. SCOTT. You are not testifying in support of H.R. 2388? 

Ms. PARSKY. Our position is we are still reviewing it and we are 

anxious to work with the Committee to provide legislation that is 

going to have an important effect in this area. 

Mr. SCOTT. Are you testifying in favor of H.R. 2388? 

Ms. PARSKY. We don’t have a position yet. 

Mr. SCOTT. Federal crime of violence is not a term of art for 

which you know the definition? 

Ms. PARSKY. I am not in a position to testify here today to as to 

what was the intent of the definition in the bill. 

Mr. SCOTT. If it included fist fights under line 23, fist fights involving school yard fist fights in which there are no injuries, 10 

years mandatory minimum isn’t the kind of thing you are testifying 

on behalf of today? 

Ms. PARSKY. The purpose of my testimony today is to let you 

know that we are very supportive of strong legislation in this area, 

that we do support mandatory minimums in appropriate circumstances, and that we are anxious to work with this Committee 

to craft appropriate legislation here. 

Mr. SCOTT. You indicated that mandatory minimums create a deterrence? 

Ms. PARSKY. That’s correct. 

56

Mr. SCOTT. Do you have any studies to support that statement? 

Ms. PARSKY. I don’t have studies with me, but I can tell you we 

would be happy to go back and look for some that would address 

that issue. 

Mr. SCOTT. You’re aware that the Judicial Conference categorizes 

mandatory minimums as a violation of common sense? 

Ms. PARSKY. I’m not aware of that quotation. 

Mr. SCOTT. Every time we consider a bill that has a mandatory 

minimum in it, the Federal Judicial Conference, Chief Justice 

Rehnquist presiding, writes us a letter to remind us that mandatory minimums—because if it is the appropriate sentence—it can 

be imposed, and if it doesn’t make any sense at all, then it has to 

be imposed anyway, and, therefore, mandatory minimums often 

violate common sense. 

Mr. GREEN. Is that a question? 

Mr. SCOTT. It’s a quote from the letter of the Judicial Conference. 

How does the child pornography part of the other bill—H.R. 2318 

doesn’t change substantive law, it just changes the penalties, is 

that right? 

Ms. PARSKY. That’s how I read it. 

Mr. SCOTT. Mr. Crist, for these cases that you mentioned, do you 

have any indication that State laws are not sufficient to deal with 

the cases that you have recited? 

Mr. CRIST. Simply by the fact that they have happened, I would 

answer in the affirmative. 

Mr. SCOTT. Sorry. 

Mr. CRIST. I said simply by the fact that they occurred, I would 

answer yes. They are insufficient. I think they are getting better. 

Mr. SCOTT. How much more time would they get under the bill 

than under your Florida law? 

Mr. CRIST. Under your bill? 

Mr. SCOTT. Under the bill. 

Mr. CRIST. I don’t know what the time frame would be that 

would be different. We are trying to encourage even more severe 

legislation, more appropriate legislation in Florida and would encourage you to do the same in Washington. 

Mr. SCOTT. Could you remind me what penalties were imposed 

on the cases that you mentioned. 

Mr. CRIST. In each of those cases, the individuals that were 

charged with the crime were out on probation at the time. They 

were free. 

Mr. SCOTT. And what do they get under Florida law and what 

would they get under the bill? 

Mr. CRIST. The new Jessica Lunsford Act that we just passed 

does have a minimum mandatory, and that would be 25 to 50 

years. 

Mr. SCOTT. How many of those cases that you recited would be 

in Federal jurisdiction? 

Mr. CRIST. I don’t know that any of them. 

Mr. SCOTT. So this bill wouldn’t make any difference at all? 

Mr. CRIST. I didn’t say that either. They might. 

Mr. SCOTT. Ms. Parsky, if there is Federal jurisdiction on these 

cases, is there concurrent State jurisdiction for prosecution in these 

57

cases, in any cases for which there would only be Federal jurisdiction? 

Ms. PARSKY. I think it is hard to answer that question, because 

it really is quite fact-specific. It depends on the particular statute. 

These two bills address a number of Federal statutes, some of 

which might involve conduct that crosses over State line. There 

would be some conduct in each State that potentially could be prosecuted by the State but there would also be an interstate travel aspect that would bring it under Federal law. 

Mr. SCOTT. Does that mean that there is State jurisdiction in 

just about every one of those cases? 

Ms. PARSKY. It is hard to say. There are several different statutes implicated. And some of the statutes may involve both State 

violations and Federal violations and some statutes it may be limited to Federal. 

Mr. GREEN. Mr. Lungren, questions. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. I would like 

to focus on the habeas corpus aspect of this. Mr. Rhodes, you made 

a statement that the report you talked about exonerated a number 

of people. I would like to correct the record, it didn’t exonerate 

them, which means innocence. For whatever reason, including finding technicalities in those particular situations, their particular 

sentences or convictions were overturned. 

And I appreciate your testimony, but I am tired for the last 25 

years of hearing people talk about exoneration or innocence when 

that is not the case. When I was attorney general of the State of 

California, we probably handled more habeas cases than any office 

in the country. Not only because we are the largest attorney general’s office, but because we happen to be in the Ninth Circuit 

Court of Appeals, which is famous for its judicial activity and its 

reversal. 

For one term, I remember the Supreme Court reversed 21 out of 

22 cases from the Ninth Circuit. Ms. Fornoff, when we usually 

focus on these things, we as lawyers focus on the fact that there 

are specific bases that will allow the Federal Court to come in and 

so forth. And you heard some mention that some people were exonerated 20 years thereafter. You have brought to us the testimony 

of the other side of the fact, which are the family members who sit 

there and wait and wait and wait and wait. 

In 1992, I was at San Quentin when we had the first execution 

in 26 years of Robert Alton Harris, who had murdered two teenagers. Wasn’t sexual. It was just plain meanness. He laughed as 

he killed them. He told one kid to stand like a man and take it 

and then later on, ate their half eaten hamburgers and laughed at 

his brother who wasn’t able to do it. Robert Alton Harris, who had 

gotten a short-term sentence for an earlier killing, who had raped 

in prison and had been out a short period of time when he murdered these individuals. 

And that night, the Ninth Circuit seriatim had habeas after habeas after habeas granted for stays of execution four times, the 

only time in the history of the United States. It so offended the 

idea of justice that the United States Supreme Court withdrew jurisdiction in that case for all Federal courts except themselves. 

58

That has only happened one time in the history of the Nation 

and that was that night. And the reason we have tried to reform 

habeas corpus is because as Mr. Rehnquist has said, the jury in our 

system is supposed to be the main event, not a second chance Monday morning quarterbacking by Federal courts 20 years thereafter 

who didn’t have an opportunity to see the witnesses testify. And, 

if you believe in our jury system where you have juries who actually have the opportunity to see witnesses and be able to see them 

as they testify and make a judgment as to whether they are saying 

something that is honest or not, you understand what we are talking about when we have a distortion of the system. 

With habeas corpus, which assumes that the Federal courts 

somehow have greater wisdom than the State courts. I can never 

understand it. We had a Federal judge in California who became 

the chief justice of the California Supreme Court and suddenly because he no longer had the Federal robes but had the State robes, 

he wasn’t as wise as these Federal judges who 20 years thereafter 

loved to have these hearings. 

I have been there and seen these evidentiary hearings when they 

bring psychiatrists on 20 years after the event to give us an idea 

of what they think the person was thinking about 20 years before 

when the person performed the terrible act. Let’s be serious about 

what we’re talking about here in terms of habeas reform. I’ll grant 

you Mr. Rhodes when a case is set aside it is set aside for a reason, 

but that does not equal innocence. And frankly, it is in my judgment misleading to suggest that we have saved people from dire 

straits because they weren’t guilty, when, in fact, it was set aside 

for various reasons. 

I would just ask you, Ms. Parsky, you have raised some concern 

in your written statement about the habeas provisions that are 

contained in the bill before us, suggesting that by limiting it to 

those who murder children, it might run the risk of diverting judicial resources in a way that Federal habeas review for other murders might inadvertently be lengthened. 

To me, that is not a criticism of the bill so much as a suggestion 

that maybe we ought to look at broader habeas reform. Is that the 

position of the Justice Department? 

Ms. PARSKY. Well, as I indicated, we are still in the process of 

reviewing the bill, but we had hoped to at least provide some suggestions for things that the Committee might want to consider, and 

that was one of the points we thought should be considered; is that 

we certainly acknowledge that child murderers are particularly heinous offenders and that they should be looked at carefully, but that 

there are also other heinous offenders that are currently in custody. 

And so the only point of that comment was to bring it to the attention of the Committee so that you may consider that. Likewise, 

with the second point that we made, was just to bring the issue to 

the attention of the Committee, if that in fact was—— Mr. LUNGREN. The concern I have—— Mr. GREEN. The gentleman’s time has expired. He may finish his 

point. 

Mr. LUNGREN. The concern I have is this: When my office worked 

with the Congress a decade ago to get the reforms of habeas corVerDate 0ct 09 2002 10:05 Aug 11, 2005 Jkt 000000 PO 00000 Frm 00064 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\060705\21652.000 HJUD1 PsN: 21652
59

pus, we got little, very little, support from the Justice Department 

at that time. In part because it really is a problem affecting State 

court convictions, and we didn’t get the attention from the Justice 

Department at that time because that was not in their bailiwick. 

All I am asking, does this Justice Department understand that 

even though these are not cases from Federal Court, these are 

cases originating in State court convictions, we need the assistance 

of the Justice Department in understanding the concerns people 

like Mr. Crist have when we are dealing with these cases? That is 

my only point. 

Mr. GREEN. Mr. Feeney. 

Mr. FEENEY. Thank you, Mr. Chairman, and I appreciate all the 

witnesses’ testimony. The gentleman from California focused on habeas. I’d like to focus on minimum mandatories and sentencing 

guidelines. 

I think my Attorney General put it very good, that convicted 

pedophiles that are a danger to their community are well covered 

by ankle bracelets, but we are better off if they are behind bars. 

In his testimony, he says that. 

Mr. Rhodes talked about the guidelines as part of the PROTECT 

Act, and you refer, on page 7 and 8 of your testimony, to what has 

been referred to by Senator Kennedy and others as the Feeney 

amendment that talks about making it more difficult to depart 

downwards and give out lenient sentences for people preying on 

children in Federal offenses. 

And by the way, I’m glad that Feeney is finally known as a noun, 

other than referring to a human being. I look forward to it one day 

being a verb, you know, like he or she got Feenied. 

But the problem with Feeney is that after Fanfan and Booker, 

which were some of the most nonsensical opinions I have ever read 

by our Supreme Court, nobody knows what the status of the guidelines are. And as you point out on page 8 of your testimony, the 

downward departures under Feeney are limited and have to be 

spelled out in the guidelines. We don’t know if the guidelines are 

anything other than mere suggestions, and we have got some 

courts deviating downwards on a 2 percent basis; in other courts, 

some Federal crimes, deviating downward as much as 62 percent 

of the time. So there is little or no uniformity from one jurisdiction 

to another, often from one court to another, and it is a big problem. 

After Booker and Fanfan, where, by the way, only two of the nine 

Justices said the guidelines themselves were unconstitutional per 

se, the five justices that threw out the guidelines only had a majority because of the situation where greater sentences are given without jury involvement. Scalia and Thomas, for example, think the 

guidelines themselves are constitutional. 

But then the court went on in the remedial phase with a different five-member majority and totally threw out the guidelines as 

being anything other than mere suggestions to Federal courts. 

So, Mr. Rhodes, much of your argument, matter of fact the whole 

basis of your argument in point three, the sentencing guidelines reflect the seriousness of the crimes. To the extent that we don’t 

know what the status of the guidelines are, how can they be a deterrence in any way, shape, or form, let alone protect people, if the 

Supreme Court has now said that the guidelines, specifically the 

60

Feeney amendment, designed to protect children, are not mandatory in any way, shape, or form? 

Mr. RHODES. First—— Mr. FEENEY. You don’t like minimum mandatories. You like the 

guidelines, other defense lawyers didn’t. The guidelines are now almost meaningless. 

Mr. RHODES. First, the Booker and Fanfan decisions did not address the Feeney amendment or the PROTECT Act. In fact, conspicuous by its absence is there was no reference in any of the 

opinions to 18 USC 3553(b)2. 

Mr. FEENEY. Well, that’s true, but they addressed the whole 

issue of guidelines, which is largely what your testimony regarding 

the PROTECT Act and Feeney relates to, the guidelines. And the 

guidelines are in a state of real limbo. I think everybody would acknowledge that right now. 

Mr. RHODES. The decisions addressed the guidelines for all offenses other than sex offenses. Now, there is an issue playing out 

in the district courts and the court of appeals as to whether Booker

and Fanfan should also be applied to sex offenses and, in those 

cases, whether the guidelines should be advisory. 

Even with the guidelines being advisory following the Booker and 

Fanfan decisions, I believe the impact of the Feeney amendment is 

still being felt and is being effective in Federal sentencing. 

Mr. FEENEY. If I can, I appreciate that, and maybe you will have 

time to elaborate in the second round, but, Ms. Parsky, Mr. Scott, 

I think, is correct on two points. Number one, we don’t know 

whether or not there is real deterrence in this type of crime. One 

of the reasons people don’t underreport their income to the IRS is 

that they are deterred. But to the extent that these are crimes that 

people really cannot help themselves, deterrence may not work. 

But separation from society works, and society, in my view, has a 

right to retribution. So there are at least three reasons for minimum mandatories, especially if the guidelines don’t work. 

And with respect to Mr. Rehnquist and the Judicial Conference 

position that minimum mandatories defy common sense, can you 

tell us your opinion whether or not some of the lenient decisions 

handed out by our Federal judges and the effect that they have on 

repeat perpetrators that Attorney General Crist and Mrs. Fornoff 

referred to, does it make common sense to have judges be the ultimate arbiter of whether or not a pedophile should be given a second chance in society in each and every case? 

Ms. PARSKY. I think there may have been a few questions in 

there, but I’ll address a couple of points quickly. The first, with respect to what kind of impact mandatory——

Mr. FEENEY. When the clock turns yellow, you get as many questions in as possible. 

Ms. PARSKY. With respect to what effect mandatory minimums 

have in the Federal system, I can tell you that there are many 

areas where, when a particular Federal district starts taking cases 

and making them Federal, you hear about the impact on the community, because there can be very stiff penalties because there is 

truth in sentencing, because there have been these sentencing 

guidelines that provide for determinant sentencing. And that’s 

something that’s been a very important tool in order for us to really 

61

bring down crime rates to one of the lowest points in, I think, 20 

years. And mandatory minimums are a big part of that because we 

need a way to assure that consistency. 

Mr. FEENEY. Mr. Chairman, with unanimous consent, does that 

lowest crime rate in 20 years relate to offenses against children? 

Ms. PARSKY. I don’t know exactly what the breakdown is, but I 

can get that for you. I think it’s a general crime rate. 

Mr. GREEN. The gentleman’s time has expired. 

Mr. Keller. 

Mr. KELLER. Thank you, Mr. Chairman. I had a question for the 

Attorney General, who is out of the room right now, but I will direct my question to Mrs. Fornoff, and I’ll just boil it all down for 

you. 

We have a fork in the road here in Congress. The issue is what 

to do about child sex-offenders who repeatedly molest children. Do 

we protect other kids by locking these child predators away in a 

prison cell for at least 30 years? Or do we coddle these criminals 

by providing them with more money for rehabilitation and treatment and allow a judge to have the discretion to let them out of 

prison after 6 months or a year? 

Some of those in the lock-them-up camp, such as myself, believe 

that that is the only way to protect children. Under existing law, 

if you are convicted of aggravated sexual abuse for children, you 

can be sentenced from zero years to life. Under this bill, there 

would be a 30-year mandatory minimum. Under the new Florida 

law, there would be a 25-year mandatory minimum. 

The other side, as articulated by Mr. Scott and one of the panelists, is that philosophically divergent scholars and liberal Berkeley 

law professors disagree with us. 

Let me ask you: Do you have a position as to what camp you are 

in, as someone who has been through this tragedy? 

Mrs. FORNOFF. Yes. Yes, I do. 

Mr. KELLER. What is your position? 

Mrs. FORNOFF. I do not believe that pedophiles can be back on 

our streets. I believe they need to be locked up. Because I do not 

believe that it has been proven that you can help them. 

Mr. KELLER. Thank you. 

Ms. Parsky, let me direct that question to you. I know Justice 

isn’t taking a formal position on this. Do you have any reason to 

believe that, if we only spent more money on rehabilitation and 

treatment, that we would have repeated child molesters get out of 

prison and go on to lead a perfectly normal life without any risk 

to our young people? 

Ms. PARSKY. What our approach to this problem has been is that 

we need to apply every available tool to try to prevent the problem. 

In some appropriate circumstances, preventive and rehabilitative 

services may be appropriate, but you also need to have very stiff 

penalties. And you need to have the ability to put people behind 

bars for long periods of time when they clearly pose a risk to the 

community. 

So we have tried to approach this from all different angles so 

that we are providing the most for our communities in terms of 

protection, in terms of punishment, and in terms of deterrence. 

62

Mr. KELLER. As you look at this bill and decide, as the Justice 

Department looks at this bill and decides what they think of the 

merits, do you understand the concern that Congress has that 

under the current penalty for aggravated sexual abuse, the crime 

can be sentenced at zero to life; that we’re a little uncomfortable 

with that discretion for a judge? 

Ms. PARSKY. As I’ve said, we are taking the entire bill into consideration, but I certainly understand the need in this area for consistency and fair but harsh punishments. 

Mr. KELLER. Right. 

Mr. Rhodes, you have the hardest job here today, and I am not 

going to get up here and prance around with any hard questions, 

but one of the things you mentioned is you cite some sort of recidivism statistic. And I just have to tell you, as someone from Florida 

who has lived through this tragedy in the past few months, I don’t 

think those statistics are going to give any comfort to the parents 

of Jessica Lunsford or Sarah Lunde, who just had their children 

abducted, raped, and killed by people who had done it before. 

Can you understand the frustration Congress has with that position? 

Mr. RHODES. Certainly. That is why I mentioned at the beginning of my testimony I used to be the guardian for teenage rape 

victims, girls who were typically groomed by their stepfathers for 

sexual relations. So I know that side of the situation. 

But I also know that I have many clients who are convicted sex 

offenders who are living successfully in the community. To me, it 

doesn’t make sense for them or the communities to lock them up 

forever, because that doesn’t seem to be justice. And it doesn’t do 

them any favors, and I don’t believe it does the community any favors. 

And I, again, emphasize the aggravated sexual abuse and the aggravated sexual contact cases come off of reservations overwhelmingly. And I think it is imperative that Congress consult the tribes 

and the communities to see what they think is best. 

Mr. KELLER. If you had a three-time child molester live next door 

to you, who had had the appropriate rehabilitation and treatment, 

would you be comfortable leaving your little girl alone with him? 

Mr. RHODES. I can honestly say one of my clients, who was convicted of child pornography, just got out of prison. My wife is pregnant, if he moved next door to us, that would be fine by me. 

I would also add, I mentioned in response to some earlier questions that the PROTECT Act provisions, many of them still are 

very effective in Federal sentencing, in particular the two-strikesyou’re-out provision at 18 USC 3559(e). Also, in the guidelines, 

there is a variation of the two-strikes-you’re-out-provision at section 4(b)1.5. 

Mr. KELLER. Mr. Chairman, can I ask unanimous consent just to 

ask one question to Mr. Crist, who was not here for my questioning? 

Mr. GREEN. Without objection. 

Mr. KELLER. Mr. Crist, the issue before us is, what do we do with 

these repeated child sex offenders? Do we lock them up in a prison, 

or do we instead give them more money for treatment and rehabiliVerDate 0ct 09 2002 10:05 Aug 11, 2005 Jkt 000000 PO 00000 Frm 00068 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\060705\21652.000 HJUD1 PsN: 21652
63

tation and allow a judge to have the discretion to let them out after 

6 months or 1 year? 

You outlined in your testimony the tragedy of the killings of the 

9-year-old girl, Jessica Lunsford, and the 13-year-old, Sarah Lunde. 

Can you elaborate on the criminal histories and sex offender status 

of the two men charged with those heinous crimes? 

Mr. CRIST. Yes. In both of those cases, the perpetrator or alleged 

perpetrator had a history of violence. It seems to me, and what we 

have tried to propose in Florida, and certainly would be encouraged 

to do here, is along the lines of what I know both you and Congressman Feeney believe in; that is we need to do first things first, 

and that is to protect our citizens. 

I mean, they had violent histories. They had served their time. 

They had, in essence, paid their debt to society and gotten out and 

been placed on probation, but then they violated the privilege of 

probation. Some would argue that it was minor, but nevertheless 

violated. At that point, we knew that something was going wrong. 

They went before the judge. The judge had the opportunity to make 

one of two decisions: Let them continue on that privilege and roam 

the neighborhoods of our State, or have the opportunity to have 

them reincarcerated to protect the citizens of our State. 

Unfortunately, they chose the former. They decided to let them 

stay out. We in the Attorney General’s Office this year proposed 

legislation that in essence would have said they had to go back to 

jail if they violated the second chance given to them by our criminal justice system, in order to do the first thing that is in the first 

line of the Constitution: To insure domestic tranquility—to protect 

people, to make sure that law-abiding citizens are afforded the protection that they deserve and expect. And that really is the whole 

purpose to have Government in the first place. 

I think their backgrounds coupled with what the solutions can be 

in addition to the Feeney amendment, to what Congresswoman 

Ginny Brown-Waite has done, Congresswoman Katherine Harris 

and Mark Foley and so many others from Florida—because of the 

Florida experience, if you will, I think we have probably a heightened interest and concern about what has happened. 

I appreciate the question. 

Mr. GREEN. I thank the gentleman. 

Ms. Waters has joined us. Questions, please. 

Ms. WATERS. Thank you very much. I am sorry I could not be 

here earlier, but I do commend you for having this hearing. This 

is a problem that I think most Americans are absolutely pained 

about, what appears to be the growing abuse of children. And even 

though I am opposed to mandatory minimum sentencing, and I 

think we are taking all discretion away from judges to make decisions and to know all the circumstances and to take them into consideration. If I ever was to support mandatory minimum sentencing, it would be in this area. 

But I want to raise a question of Ms. Parsky, and this is going 

to be a very sensitive question. I am concerned about those people 

who know about crimes against children, these sexual abuse cases, 

who do not seem to have a responsibility to report what they know, 

particularly concerned about the organized church and the fact that 

we are hearing over and over again that the hierarchy in the 

64

Catholic Church. For example, have known about abuses, and they 

have transferred priests from one parish to another parish, and 

this has been going on for years. 

This is a subject that people don’t like to touch. They don’t like 

to talk about it, but I do. I want to talk about it. What is the responsibility of the head of the organized religion in a supervisory 

or managerial role, who knows about the abuse, sexual abuse of 

children, and they do not report it to the authorities, they do not 

report it to the justice system at all, they simply transfer the 

abuser to another location? What do we have in law to protect 

young children that are in these situations? 

Ms. PARSKY. Well, I appreciate your question, because I think 

part of what brings us here today is a sense of community responsibility; that it’s a Federal responsibility; that it’s a State responsibility; and that those who are in religious organizations or any 

other type of organization also have a responsibility to protect our 

children. 

I can’t speak to the different State laws that might apply to that 

kind of situation. I can point you to 18 U.S.C. Section 2258, which 

penalizes a failure to report a child abuse crime if there is someone 

who is engaged in a professional capacity or activity, be it on Federal lands or in a federally-operated facility. But in addition, I 

would assume that there are many States that have many other 

types of reporting requirements for those who are in some sort of 

professional capacity where they have an additional responsibility. 

Ms. WATERS. So does this not cover—this law does not cover the 

church? 

We have another case that was just revealed to us that you may 

know about, just a few days ago, about an operation that’s been 

going on for some time in a church where children are being sexually abused. It was just revealed last week. I believe it was in the 

national media. Are you familiar with that? 

Ms. PARSKY. I’m afraid I’m not familiar with that. 

Ms. WATERS. Okay. Well, let me just say that the law you pointed to does not in any way cover what I am attempting to describe. 

The law does not cover the cases that we all heard about in the 

Catholic Church. 

Ms. PARSKY. Since I’m not familiar with the circumstances you 

are describing—this is a particular Federal statute. But I would 

also urge you to look to State law for some of those circumstances. 

Ms. WATERS. Let me ask, in addition to all of the concerns that 

we have, as we look at creating mandatory minimums, is there 

anyone else concerned about sexual abuse of children by organized 

religion or any other organizations that people in supervisory or 

managerial positions keep secret and do not report to the law? Anyone else concerned about that? 

Mrs. FORNOFF. Excuse me, I am. 

I’m Carol Fornoff, and I’m a parent and a grandparent. And in 

our State of Arizona, we have had so many of these cases. And the 

laws weren’t written, I guess, then. But now, I know, as far as the 

church, the Catholic Church, they have really stepped up to the 

plate, and I believe that it will not happen again. But it is a sorrowful thing that it did. 

65

Ms. WATERS. You mean that there is something that happened 

inside the church where they are taking responsibility. But you 

don’t know of anything in your State? Have they produced any new 

State laws? 

Mrs. FORNOFF. I believe they have, because our bishop was just 

taken out of the bishopric because of ignoring the priest that had 

done these things. 

Ms. WATERS. Did he go to jail? 

Mrs. FORNOFF. He did not. He is not in jail. 

Ms. WATERS. Just stripped of the title. 

Mrs. FORNOFF. Yes. 

Ms. WATERS. Okay. Thank you very much. 

Mr. GREEN. I thank the gentlewoman. 

Again, I thank all the witnesses for coming and testifying today, 

as well as all those who have attended the hearing. Thank you very 

much. 

Mr. SCOTT. Mr. Chairman? 

Mr. GREEN. Yes. 

Mr. SCOTT. Mr. Chairman, I understand you are not going to 

have another round of questions, but I would like to alert Ms. 

Parsky that we’ll be asking for a prison impact statement on the 

legislation, pursuant to the code section that allows us to get a 

prison impact statement, and would appreciate it if she would try 

to conduct a cost-benefit analysis comparing the cost and benefit of 

the cost and benefit to the rehabilitation programs that they have 

at one prison on dealing with child sexual offenders. 

Mr. GREEN. And to that end, let me say, in order to ensure a full 

record and out of consideration of the important issues that have 

been testified to today, the record will be left open for additional 

submissions for 7 days. Also, any written questions that a Member 

wants to submit, should be submitted within that same 7-day period. 

This concludes the legislative hearing on H.R. 2318, the ‘‘Protection Against Sexual Exploitation of Children Act of 2005,’’ and also 

H.R. 2388, the ‘‘Prevention and Deterrence of Crimes Against Children Act of 2005.’’

Again, I thank everyone for their cooperation and attention, and 

the Subcommittee stands adjourned. 

[Whereupon, at 3:28 p.m., the Subcommittee was adjourned.] 

(67)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF CONGRESSMAN ROBERT C. ‘‘BOBBY’’ SCOTT, RANKING

MEMBER SUBCOMMITTEE ON CRIME, TERRORISM AND HOMELAND SECURITY HEARING

Thank you, Mr. Chairman. As usual, every two years, we pontificate about crimes 

against children and dramatically increasing federal sentences. We are doing so despite the fact that crimes against children prosecuted in federal court constitute a 

very small percentage of such crimes and represent none of the horrendous crimes 

against children that have been in the media in recent months. There is no evidence 

that federal prosecutions of crimes against children has a significant impact on 

these horrendous state crimes against children, nor that either state or federal laws 

for crimes against children are too lenient. Indeed, we recently dramatically increased federal sentences for crimes against children in the PROTECT Act. We have 

not had time for enough cases to be sentenced under these increases to even evaluate their effect, if any, before we are back again proposes more draconian increases 

in federal sentences. 

We are moving forward in dramatically increasing federal sentences in the worst 

possible way - through greatly increased mandatory minimum sentences. Mandatory 

minimum sentences only affect those whose offense or role in an offense warrant 

a less severe sentence, since those who warrant more already get more under the 

sentencing guidelines. I call attention to the recommendations released today by a 

group of bi-partisan, philosophically diverse scholars and high level current and 

former public policy makers, led by former Attorney General Edwin Meese and 

former Deputy Attorney General Phillip Heymann, indicating that sentencing policies should provide for proportionality and sufficient flexibility to reflect differences 

in role and background of offenders. 

And these increases are occurring at a time when the evidence from the Department of Justice is that sex offenders recidivate at a lower rate than other offenders, 

in general, with a 5% recidivism rate for a new sex offense and a 3.3% rate for child 

molesters recidivating with a new offense of that nature. I will ask that this study 

and 4 others from other sources, be made a part of the record. Also, the evidence 

reveals that this low recidivism rate is cut in half with sexual abuse treatment. 

While any recidivism is bad, 5% and 3% rates with the prospect of being cut in half 

certainly does not suggest the situation is hopeless. Yet, there is nothing in this bill 

to ensure treatment for those offenders who seek treatment or who are already serving sentences and will be leaving prison soon. The bills before us suggest that it 

is better to wait for the victimization to occur and then apply draconian penalties. 

One of our speakers at an earlier hearing on this subject, Criminologist and professor of Law Frank Zimmer of the Berkeley School of Law, pointed out that treating all offenses and offenders the same and mandating life sentences for repeat offenders, regardless of the crime, may actually endanger more children than it helps. 

He expressed the concern that putting an offender in the position of concluding that 

once a crime is completed or attempted, he is facing a minimum of a life sentence, 

will likely cause him to conclude that his best chance of avoiding detection and a 

witness against him is to kill the victim. Certainly this question should be considered against the conventional justification for harsh mandatory minimums of forcing 

co-defendants to testify against their partners in crime, since these crimes are more 

often carried out by lone offenders. 

We also know that greatly increasing federal sentences will disproportionally affect Native Americans simply because they are more likely to fall under federal jurisdiction, whereas those who are committing the horrendous crimes giving rise to 

this federal sentencing frenzy actually fall under state court jurisdiction. And we are 

doing so with no consultation with Native American tribal authorities as we have 

in the past when we have dramatically increased sentencing, such as we did with 

68

the ‘‘3 strikes you’re out’’ law and the death penalties in the 1994 Crime Bill. There 

is certainly no evidence that Native Americans have asked that offenders on tribal 

lands be treated more harshly than offenders in the state courts right next to them. 

It simply appears that having politicians able to prove how tough they are on crime 

in an election year is more important than plain fairness to Native Americans and 

respect for their tribal sovereignty. 

Finally the provisions of the bills before us exacerbate an already horrendous federal sentencing scheme. For example, under PROTECT Act provisions, we provided 

a 5-year mandatory sentence to transport a minor, or to travel, across state or international lines, to commit any criminal sex offense involving a minor. This bill increases that mandatory minimum sentence to 30 years. That means that an 18 year 

old high school student who transports or causes a minor to travel, from DC to Virginia to engage in consensual sex, thereby committing the crime of contributing to 

the delinquency of a minor, would be subject to a 30-year mandatory minimum sentence. One can only imagine how many times this law is violated in this area during 

prom season. What possible sense does it make to mandate 30 years for this type 

case? 

Under H.R. 2388, it appears that mere fist fights between teenagers, if one is 

under 18 and is even slightly injured, require a mandatory minimum sentence, even 

if the younger teen is the instigator. 

And the provision limiting habeas jurisdiction will only increase litigation and 

delays and increase the risk that innocent people will be put to death. Several of 

the 159 people who were exonerated of their crimes over the past 10 years, including some on death row, received that exoneration after more than 20 years. 

So, Mr. Chairman, I look forward to the testimony and enlightenment of our witnesses on the bills before us. Thank you.

69

PREPARED STATEMENT OF CONGRESSWOMAN SHEILA JACKSON LEE

The problem of violence against children and sexual exploitation of children has 

been highlighted by recent events involving brutal acts of violence against children. 

Recent examples include: (1) the abduction, rape and killing of 9 year old Jessica 

Lunford (who was buried alive); (2) the slaying of 13 year old Sarah Lunde, both 

of whom were killed in Florida by career criminals and sex offenders. In Philadelphia, four defendants were charged with the stabbing and killing of a 15 year old 

girl, who they then threw into the Schuykill River. All of these tragic events have 

underscored the continuing epidemic of violence against children. 

In addition, the sexual victimization of children is overwhelming in magnitude 

and largely unrecognized and underreported. Statistics show that 1 in 5 girls and 

1 in 10 boys are sexually exploited before they reach adulthood, yet less than 35 

percent of the incidents are reported to authorities. This problem is exacerbated by 

the number of children who are solicited online - according to the Department of 

Justice 1 in 5 children (10 to 17 years old) receive unwanted sexual solicitations online. 

Department of Justice statistics underscore the staggering toll that violence takes 

on our youth (DOJ national crime surveys do not account for victims under the age 

of 12, but even for 12 to 18 year olds, the figures are alarming). Data from 12 States 

during the period of 1991 to 1996 show that 67 percent of the all victims of sexual 

assaults were juveniles (under the age of 18), and 34 percent were under the age 

of 12. One of every seven victims of sexual assault was under the age of 6. 

While I strongly support the idea of protecting our children for being sexually exploited, I am not in favor of mandatory minimums. Both H.R. 2318 and H.R. 2388 

impose unnecessary mandatory minimals and for this reason I can not support either bill.

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CENTER FOR SEX OFFENDER MANAGEMENT, ‘‘RECIDIVISM OF SEX OFFENDERS,’’ MAY

2001, AVAILABLE AR HTTP://WWW.CSOM.ORG/PUBS/RECIDSEXOF.PDF


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DENNISE ORLANDO, ‘SEX OFFENDERS,’’ Special Needs Bullentin No. 3, September 

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DEPARTMENT OF REHABILITATION AND CORRECTION, STATE OF OHIO, ‘‘TEN-YEAR RECIDIVISM FOLLOW-UP OF 1989 SEX OFFENDER RELEASES,’’ APRIL 2001, AVAILABLE

AT HTTP://WWW.DRC.STATE.OH.US/WEB/REPORTS/TEN—YEAR—RECIDIVISM.PDF


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U.S. DEPARTMENT OF JUSTICE, BUREAU OF JUSTICE STATISTICS, ‘‘RECIDIVISM OF SEX

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U.S. SENTENCING COMMISSION, ‘‘REPORT OF THE NATIVE AMERICAN ADVISORY

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JAN LOOMAN, JEFFREY ABRACEN, AND TERRY P. NICHOLAICHUK, ‘‘RECIDIVISM AMONG

TREATED SEXUAL OFFENDERS AND MATCHED CONTROLS,’’ Journal of Interpersonal 

Violence, Vol. 15 No. 3, March 2000


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LETTER FROM THE HONORABLE JON KYL TO THE HONORABLE F. JAMES

SENSENBRENNER, JR. (JUNE 9, 2005)


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SENATOR JON KYL, INTRODUCTION OF THE STREAMLINED PROCEDURES ACT, 

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THE STREAMLINED PROCEDURES ACT SECTION-BY-SECTION ANALYSIS, SUBMITTED BY

THE HONORABLE JON SENATOR JON KYL


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S. 1088, THE ‘‘STREAMLINED PROCEDURES ACT OF 2005,’’ SUBMITTED BY THE

HONORABLE JON KYL, A U.S. SENATOR FROM THE STATE OF ARIZONA

II 

109TH CONGRESS 

1ST SESSION S. 1088 

To establish streamlined procedures for collateral review of mixed petitions, 

amendments, and defaulted claims, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 19, 2005 

Mr. KYL introduced the following bill; which was read twice and referred to 

the Committee on the Judiciary 

A BILL

To establish streamlined procedures for collateral review of 

mixed petitions, amendments, and defaulted claims, and 

for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Streamlined Procedures Act of 2005’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows:

Sec. 1. Short title; table of contents. 

Sec. 2. Mixed petitions. 

Sec. 3. Amendments to petitions. 

Sec. 4. Procedurally defaulted claims. 

Sec. 5. Tolling of limitation period. 


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Sec. 6. Harmless error in sentencing. 

Sec. 7. Unified review standard. 

Sec. 8. Appeals. 

Sec. 9. Capital cases. 

Sec. 10. Clemency and pardon decisions. 

Sec. 11. Ex parte funding requests. 

Sec. 12. Crime victims’ rights. 

Sec. 13. Technical corrections. 

Sec. 14. Application to pending cases.

1 SEC. 2. MIXED PETITIONS. 

2 Section 2254(b) of title 28, United States Code, is 

3 amended— 

4 (1) in paragraph (1), by striking subparagraphs 

5 (A) and (B) and inserting the following: 

6 ‘‘(A) the applicant— 

7 ‘‘(i) has exhausted the remedies available 

8 in the courts of the State by fairly presenting 

9 and arguing the specific Federal basis for each 

10 claim in the State courts; and 

11 ‘‘(ii) has described in the application how 

12 the applicant has exhausted each claim in the 

13 State courts; or 

14 ‘‘(B)(i) the application presents a claim for re15 lief that would qualify for consideration on the 

16 grounds described in subsection (e)(2); and 

17 ‘‘(ii) the denial of such relief is contrary to, or 

18 would entail an unreasonable application of, clearly 

19 established Federal law, as determined by the Su20 preme Court of the United States.’’; and 

21 (2) by adding at the end the following: 


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1 ‘‘(4) Any unexhausted claim that does not qualify for 

2 consideration on the grounds described in this subsection 

3 shall be dismissed with prejudice.’’. 

4 SEC. 3. AMENDMENTS TO PETITIONS. 

5 (a) IN GENERAL.—Section 2244 of title 28, United 

6 States Code, is amended by adding at the end the fol7 lowing: 

8 ‘‘(e)(1) An application for a writ of habeas corpus 

9 may be amended once as a matter of course before the 

10 earlier of the date on which an answer to the application 

11 is filed or the expiration of the 1-year period described 

12 in subsection (d). 

13 ‘‘(2) Except as provided under paragraph (1), an ap14 plication may not be amended to modify existing claims 

15 or to present additional claims, unless the modified or 

16 newly presented claims would qualify for consideration on 

17 the grounds described in subsection (b)(2).’’. 

18 (b) CONFORMING AMENDMENT.—Section 2242 of 

19 title 28, United States Code, is amended in the third un20 designated paragraph by striking ‘‘in the rules of proce21 dure applicable to civil actions’’ and inserting ‘‘under sec22 tion 2244(e)’’. 

23 SEC. 4. PROCEDURALLY DEFAULTED CLAIMS. 

24 (a) IN GENERAL.—Section 2254 of title 28, United 

25 States Code, is amended— 


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1 (1) by redesignating subsections (h) and (i) as 

2 subsections (i) and (j), respectively; and 

3 (2) by adding after subsection (g) the following: 

4 ‘‘(h)(1) A court, justice, or judge shall not have juris5 diction to consider an application for a writ of habeas cor6 pus on behalf of a person in custody pursuant to the judg7 ment of a State court with respect to any claim that was 

8 found by the State court to be procedurally barred, or any 

9 claim of ineffective assistance of counsel related to such 

10 claim, unless— 

11 ‘‘(A) the claim would qualify for consideration 

12 on the grounds described in subsection (e)(2); or 

13 ‘‘(B) the State, through counsel, expressly 

14 waives the provisions of this paragraph. 

15 ‘‘(2)(A) A court, justice, or judge shall not have juris16 diction to consider any claim that the State court denies 

17 on the merits and on the ground that the claim was not 

18 properly raised under State procedural law, or any claim 

19 of ineffective assistance of counsel related to such claim, 

20 unless the claim would qualify for consideration on the 

21 grounds described in subsection (e)(2). 

22 ‘‘(B) A court, justice, or judge shall not have jurisdic23 tion to consider any claim that is otherwise subject to 

24 paragraph (1) and that was reviewed by the State court 

25 for plain error, fundamental error, or under a similarly 


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1 heightened standard of review, unless the claim would 

2 qualify for consideration on the grounds described in sub3 section (e)(2). 

4 ‘‘(3) The State shall not be required to answer any 

5 claim described in paragraph (1) or (2) unless the court 

6 first determines that the claim would qualify for consider7 ation on the grounds described in subsection (e)(2). 

8 ‘‘(4) If a court determines that a State court order 

9 denying relief on procedural grounds is ambiguous as to 

10 which claims were found to be procedurally barred, the 

11 court shall resolve any perceived ambiguity, if necessary, 

12 by examining the full record in the State court. 

13 ‘‘(5) An application for a writ of habeas corpus on 

14 behalf of a person in custody pursuant to the judgment 

15 of a State court shall not be granted with respect to any 

16 claim under paragraph (1) or (2) unless the denial of such 

17 relief is contrary to, or would entail an unreasonable appli18 cation of, clearly established Federal law, as determined 

19 by the Supreme Court of the United States.’’. 

20 (b) LIMITATION.—Section 2244(d)(2) of title 28, 

21 United States Code, as amended by section 3, is amended 

22 by adding at the end the following: ‘‘An application that 

23 was otherwise improperly filed in State court shall not be 

24 deemed to have been properly filed because the State court 


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1 exercises discretion in applying a rule or recognizes excep2 tions to that rule.’’. 

3 SEC. 5. TOLLING OF LIMITATION PERIOD. 

4 Section 2244(d) of title 28, United States Code, is 

5 amended— 

6 (1) in paragraph (2), by striking ‘‘judgment 

7 or’’; and 

8 (2) by adding at the end the following: 

9 ‘‘(3) In this section, an application for State post10 conviction or other collateral review— 

11 ‘‘(A) is pending from the date on which the ap12 plication is filed with a State court until the date on 

13 which the same State court rules on that applica14 tion; and 

15 ‘‘(B) is not pending during any period of time 

16 between the date on which a State court rules on 

17 that application and the date on which the applica18 tion or a related application is filed, or is otherwise 

19 presented, for adjudication to such State court on 

20 rehearing authorized by State law or to a higher 

21 State court. 

22 ‘‘(4) The period of limitation under paragraph (1) 

23 may be tolled, suspended, or extended only as provided 

24 under this subsection.’’. 


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1 SEC. 6. HARMLESS ERROR IN SENTENCING. 

2 Section 2254 of title 28, United States Code, as 

3 amended by section 4, is amended by adding at the end 

4 the following: 

5 ‘‘(k) A court, justice, or judge shall not have jurisdic6 tion to consider an application with respect to an error 

7 relating to the applicant’s sentence or sentencing that has 

8 been found to be harmless or not prejudicial in State court 

9 proceedings, unless a determination that the error is not 

10 structural is contrary to clearly established Federal law, 

11 as determined by the Supreme Court of the United 

12 States.’’. 

13 SEC. 7. UNIFIED REVIEW STANDARD. 

14 Section 107(c) of the Antiterrorism and Effective 

15 Death Penalty Act of 1996 (28 U.S.C. 2261 note) is 

16 amended by striking ‘‘Chapter 154 of title 28, United 

17 States Code (as amended by subsection (a))’’ and insert18 ing ‘‘This title and the amendments made by this title’’. 

19 SEC. 8. APPEALS. 

20 (a) APPELLATE TIME LIMITS.—Section 2254 of title 

21 28, United States Code, as amended by sections 4 and 

22 6, is further amended by adding at the end the following: 

23 ‘‘(l) In review by a court of appeals of a district 

24 court’s determination of an application for a writ of ha25 beas corpus on behalf of a person in custody pursuant to 

26 the judgment of a State court, the following shall apply: 


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1 ‘‘(1) A timely filed notice of appeal from an 

2 order issuing a writ of habeas corpus shall operate 

3 as a stay of that order, pending final disposition of 

4 the appeal. 

5 ‘‘(2) A court of appeals shall decide the appeal 

6 from an order granting or denying a writ of habeas 

7 corpus— 

8 ‘‘(A) not later than 300 days after the date 

9 on which the brief of the appellee is filed or, if 

10 no timely brief is filed, the date on which such 

11 brief is due; or 

12 ‘‘(B) if a cross-appeal is filed, not later 

13 than 300 days after the date on which the ap14 pellant files a brief in response to the issues 

15 presented by the cross-appeal or, if no timely 

16 brief is filed, the date on which such brief is 

17 due. 

18 ‘‘(3)(A) If a petition is filed for a panel rehear19 ing or rehearing by the court of appeals en banc fol20 lowing a decision by a panel of a court of appeals 

21 under paragraph (2), the court of appeals shall de22 cide whether to grant the petition not later than 90 

23 days after the date on which the petition is filed, un24 less a response is required. 


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1 ‘‘(B) If a response to a petition is required 

2 under subparagraph (A), a court of appeals shall de3 cide whether to grant the petition not later than 90 

4 days after the date on which the response is filed or, 

5 if no timely response is filed, the date on which the 

6 response is due. 

7 ‘‘(C) If a panel rehearing is granted, the panel 

8 shall make a determination of the appeal on rehear9 ing not later than 120 days after the date on which 

10 the order granting a panel rehearing is entered. No 

11 second or successive petition for panel rehearing 

12 shall be allowed. 

13 ‘‘(D) If rehearing en banc is granted, the court 

14 of appeals shall make a final determination of the 

15 appeal not later than 180 days after the date on 

16 which the order granting rehearing en banc is en17 tered. 

18 ‘‘(4) If a court of appeals fails to comply with 

19 the requirements of this subsection, the State may 

20 petition the Supreme Court, or a justice thereof, for 

21 a writ of mandamus to enforce the requirements of 

22 this subsection. 

23 ‘‘(5) The time limitations in this subsection 

24 shall apply in all proceedings in a court of appeals 

25 on review of a district court’s determination of an 


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1 application for a writ of habeas corpus, including 

2 any such proceedings in a court of appeals following 

3 a remand by the Supreme Court for further pro4 ceedings. 

5 ‘‘(6) In proceedings following remand in a court 

6 of appeals, the time limit specified in paragraph (2) 

7 shall begin on the date the remand is ordered if fur8 ther briefing is not required in the court of appeals. 

9 If there is further briefing in the court of appeals, 

10 the time limit specified in paragraph (2) shall begin 

11 on the date on which a responsive brief is filed or, 

12 if no timely responsive brief is filed, from the date 

13 on which such brief is due. 

14 ‘‘(7) The failure of a court to meet or comply 

15 with a time limitation under this subsection shall not 

16 be a ground for granting relief from a judgment of 

17 conviction or sentence, nor shall the time limitations 

18 under this subsection be construed to entitle a cap19 ital applicant to a stay of execution, to which the ap20 plicant would otherwise not be entitled, for the pur21 pose of litigating any application or appeal.’’. 

22 (b) FINALITY OF DETERMINATION.—Section 

23 2244(b)(3)(E) of title 28, United States Code, is amended 

24 by striking ‘‘the subject of a petition’’ and all that follows 


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1 and inserting the following: ‘‘reheard in the court of ap2 peals or reviewed by writ of certiorari.’’. 

3 SEC. 9. CAPITAL CASES. 

4 (a) SCOPE OF REVIEW.—Chapter 154 of title 28, 

5 United States Code, is amended by striking section 2264 

6 and inserting the following: 

7 ‘‘§ 2264. Scope of Federal review 

8 ‘‘(a) IN GENERAL.—Except as provided in subsection 

9 (b), a court, justice, or judge shall not have jurisdiction 

10 to consider any claim relating to the judgment or sentence 

11 in an application covered under this chapter. 

12 ‘‘(b) EXCEPTION.—A court, justice, or judge has ju13 risdiction to consider an application under this chapter 

14 if— 

15 ‘‘(1) the applicant shows that the claim relies 

16 on a new rule of constitutional law, made retroactive 

17 to cases on collateral review by the Supreme Court, 

18 that was previously unavailable; or 

19 ‘‘(2) both— 

20 ‘‘(A) the factual predicate for the claim 

21 could not have been discovered previously 

22 through the exercise of due diligence; and 

23 ‘‘(B) the facts underlying the claim, if 

24 proven and viewed in light of the evidence as a 

25 whole, would be sufficient to establish by clear 


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1 and convincing evidence that, but for constitu2 tional error, no reasonable fact finder would 

3 have found the applicant guilty of the under4 lying offense.’’. 

5 (b) TIME LIMITS.—Section 2266(b)(1)(A) of title 28, 

6 United States Code, is amended by striking ‘‘180 days’’ 

7 and inserting ‘‘15 months’’. 

8 (c) REVIEW BY ATTORNEY GENERAL.— 

9 (1) IN GENERAL.—Section 2261(b) of title 28, 

10 United States Code, is amended— 

11 (A) by striking ‘‘(b) This chapter is appli12 cable if a State establishes’’ and inserting the 

13 following: 

14 ‘‘(b) This chapter is applicable if— 

15 ‘‘(1) the Attorney General of the United States 

16 certifies that a State has established’’; 

17 (B) in the first sentence, by striking the 

18 period at the end and inserting a semicolon; 

19 (C) by striking ‘‘The rule of court or stat20 ute must provide standards’’ and inserting the 

21 following: 

22 ‘‘(2) the court, statute, or other agency provides 

23 standards’’; 

24 (D) by striking the period at the end and 

25 inserting ‘‘; and’’; and 


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1 (E) by adding at the end the following: 

2 ‘‘(3) the order required under subsection (c) is 

3 entered on or after the effective date of the Attorney 

4 General’s certification under section 2267.’’. 

5 (2) TECHNICAL AND CONFORMING AMEND6 MENTS.—Section 2265(a) of title 28, United States 

7 Code, is amended— 

8 (A) by striking ‘‘(a) For purposes’’ and in9 serting the following: 

10 ‘‘(a)(1) For purposes’’; 

11 (B) by striking ‘‘This chapter shall apply, 

12 as provided in this section, in relation to a 

13 State unitary review procedure if the State es14 tablishes’’ and inserting the following: 

15 ‘‘(2) This chapter shall apply, as provided in this sec16 tion, in relation to a State unitary review procedure if— 

17 ‘‘(A) the Attorney General of the United States 

18 certifies that a State has established’’; 

19 (C) by striking ‘‘or by statute’’ and insert20 ing ‘‘, by statute, or by agency rule’’; 

21 (D) by striking the period after ‘‘pro22 ceedings’’ and inserting a semicolon; 

23 (E) by striking ‘‘The rule of court or stat24 ute must provide’’ and inserting the following: 


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1 ‘‘(B) the rule of the court, the statute, or the 

2 agency rule provides’’; 

3 (F) by striking the period at the end and 

4 inserting ‘‘; and’’; and 

5 (G) by adding at the end the following: 

6 ‘‘(C) the order required under subsection (b) is 

7 entered on or after the effective date of the Attorney 

8 General’s certification under section 2267.’’. 

9 (d) JUDICIAL REVIEW.—Chapter 154 of title 28, 

10 United States Code, is amended by adding at the end the 

11 following: 

12 ‘‘§ 2267. Judicial Review 

13 ‘‘(a) IN GENERAL.—If requested by the chief law en14 forcement officer of a State, the Attorney General of the 

15 United States shall determine whether the State has es16 tablished a qualifying mechanism for the purpose of sec17 tion 2261(b)(3) or 2265(a)(2)(C), and, if so, the date on 

18 which the mechanism was established. The date the mech19 anism was established shall be the effective date of the 

20 certification. 

21 ‘‘(b) REGULATIONS.—The Attorney General shall 

22 promulgate regulations to implement the certification pro23 cedure under subsection (a). 

24 ‘‘(c) REVIEW OF CERTIFICATION.— 


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1 ‘‘(1) IN GENERAL.—The Attorney General’s de2 termination of whether to certify a State under this 

3 section is subject to review exclusively as provided 

4 under chapter 158. 

5 ‘‘(2) VENUE.—The Court of Appeals for the 

6 District of Columbia Circuit shall have exclusive ju7 risdiction over matters under paragraph (1), subject 

8 to review by the Supreme Court under section 2350. 

9 ‘‘(3) STANDARD OF REVIEW.—The Attorney 

10 General’s determination of whether to certify a State 

11 under this section shall be conclusive unless mani12 festly contrary to the law and an abuse of discre13 tion.’’. 

14 (e) CLERICAL AMENDMENTS.—The table of sections 

15 for chapter 154 of title 28, United States Code, is amend16 ed— 

17 (1) by striking the item related to section 2264 

18 and inserting the following:

‘‘2264. Scope of Federal review.’’; 

19 and 

20 (2) by adding at the end the following:

‘‘2267. Judicial review.’’.

21 SEC. 10. CLEMENCY AND PARDON DECISIONS. 

22 (a) IN GENERAL.—Chapter 85 of title 28, United 

23 States Code, is amended by adding at the end the fol24 lowing: 


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1 ‘‘§ 1370. State clemency and pardon decisions 

2 ‘‘(a) IN GENERAL.—Except as provided under sub3 section (b), and notwithstanding any other provision of 

4 law, no Federal court shall have jurisdiction to hear any 

5 cause or claim arising from the exercise of a State’s execu6 tive clemency or pardon power, or the process or proce7 dures used under such power. 

8 ‘‘(b) EXCEPTION.—This section does not affect the 

9 jurisdiction of the Supreme Court to review any decision 

10 of the highest court of a State that involves a cause or 

11 claim arising from the exercise of a State’s executive clem12 ency or pardon power, or the process or procedures used 

13 under such power.’’. 

14 (b) CLERICAL AMENDMENT.—The table of sections 

15 for chapter 85 of title 28, United States Code, is amended 

16 by adding at the end the following:

‘‘1370. State clemency and pardon decisions.’’.

17 SEC. 11. EX PARTE FUNDING REQUESTS. 

18 Section 408(q)(9) of the Controlled Substances Act 

19 (21 U.S.C. 848(q)(9)) is amended— 

20 (1) by striking ‘‘(9) Upon’’ and inserting the 

21 following: ‘‘(9) (A) Upon’’; 

22 (2) by striking the last two sentences and in23 serting the following: ‘‘An application for services 

24 under this paragraph shall be decided by a judge 

25 other than the judge presiding over the post convicVerDate 0ct 09 2002 10:05 Aug 11, 2005 Jkt 000000 PO 00000 Frm 00293 Fmt 6601 Sfmt 6621 G:\WORK\CRIME\060705\21652.000 HJUD1 PsN: 21652

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1 tion proceeding under section 2254 or 2255 of Title 

2 28, United States Code, seeking to vacate or set 

3 aside a death sentence. Any amounts authorized to 

4 be paid under this paragraph shall be disclosed to 

5 the public immediately.’’; and 

6 (3) by adding at the end the following: 

7 ‘‘(B) No ex parte proceeding, communication, 

8 or request may be considered in a post-conviction ac9 tion pursuant to this section, except to the extent 

10 necessary to protect any confidential-communica11 tions privilege between the defendant and post-con12 viction counsel. The court shall not grant an applica13 tion for an ex parte proceeding, communication, or 

14 request unless the application has been served upon 

15 the respondent and the court has allowed the re16 spondent a reasonable opportunity to answer the ap17 plication. All proceedings, communications, or re18 quests conducted pursuant to this section shall be 

19 transcribed and made a part of the record available 

20 for appellate review.’’. 

21 SEC. 12. CRIME VICTIMS’ RIGHTS. 

22 Section 3771(b) of title 18, United States Code, is 

23 amended by adding at the end the following: ‘‘A crime vic24 tim shall also be afforded the rights established for crime 


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1 victims by this section in a Federal habeas corpus pro2 ceeding arising out of a State conviction.’’. 

3 SEC. 13. TECHNICAL CORRECTIONS. 

4 (a) APPEAL.—Section 2253(c)(1) of title 28, United 

5 States Code, is amended by striking ‘‘circuit justice or 

6 judge’’ and inserting ‘‘district or circuit judge’’. 

7 (b) FEDERAL CUSTODY.—Section 2255 of title 28, 

8 United States Code, is amended by designating the 8 un9 designated paragraphs as subsections (a) through (h), re10 spectively. 

11 SEC. 14. APPLICATION TO PENDING CASES. 

12 (a) IN GENERAL.—This Act and the amendments 

13 made by this Act shall apply to cases pending on and after 

14 the date of enactment of this Act. 

15 (b) TIME LIMITS.—In a case pending on the date of 

16 enactment of this Act, if the amendments made by this 

17 Act establish a time limit for taking certain action the pe18 riod of which began on the date of an event that occurred 

19 prior to the date of enactment of this Act, the period of 

20 such time limit shall instead begin on the date of enact21 ment of this Act.

Æ


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U.S. DEPARTMENT OF JUSTICE, BUREAU OF STATISTICS, ‘‘CRIMINAL OFFENDERS

STATISTICS,’’ AVAILABLE AT HTTP://WWW.OJP.USDOJ.GOV/BJS/CRIMOFF.HTM


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LETTER FROM JOHN RHODES, ASSISTANT FEDERAL DEFENDER TO BOBBY VASSER, MINORITY COUNSEL, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY


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Æ


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