107TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 107–306

ANTI-HOAX TERRORISM ACT OF 2001

NOVEMBER 29, 2001.—Committed to the Committee of the Whole House on the

State of the Union and ordered to be printed

Mr. SENSENBRENNER, from the Committee on the Judiciary,

submitted the following

R E P O R T

together with

ADDITIONAL VIEWS

[To accompany H.R. 3209]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill

(H.R. 3209) to amend title 18, United States Code, with respect to

false communications about certain criminal violations, and for

other purposes, having considered the same, reports favorably

thereon with an amendment and recommends that the bill as

amended do pass.

CONTENTS

Page

The Amendment ...................................................................................................... 1

Purpose and Summary ............................................................................................ 2

Background and Need for the Legislation ............................................................. 2

Hearings ................................................................................................................... 3

Committee Consideration ........................................................................................ 3

Vote of the Committee ............................................................................................. 3

Committee Oversight Findings ............................................................................... 3

Performance Goals and Objectives ......................................................................... 4

New Budget Authority and Tax Expenditures ...................................................... 4

Congressional Budget Office Cost Estimate .......................................................... 4

Constitutional Authority Statement ...................................................................... 5

Section-by-Section Analysis and Discussion .......................................................... 5

Changes in Existing Law Made by the Bill, as Reported ..................................... 6

Markup Transcript .................................................................................................. 7

Additional Views ...................................................................................................... 23

The amendment is as follows:

2

Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Anti-Hoax Terrorism Act of 2001’’.

SEC. 2. HOAXES AND RECOVERY COSTS.

(a) PROHIBITION ON HOAXES.—Chapter 47 of title 18, United States Code, is

amended by inserting after section 1036 the following:

‘‘§ 1037. False information and hoaxes

‘‘(a) CRIMINAL VIOLATION.—Whoever engages in any conduct, with intent to convey false or misleading information, under circumstances where such information

may reasonably be believed and where such information concerns an activity which

would constitute a violation of section 175, 229, 831, or 2332a, shall be fined under

this title or imprisoned not more than 5 years, or both.

‘‘(b) CIVIL ACTION.—Whoever engages in any conduct, with intent to convey

false or misleading information, under circumstances where such information concerns an activity which would constitute a violation of section 175, 229, 831, or

2332a, is liable in a civil action to any party incurring expenses incident to any

emergency or investigative response to that conduct, for those expenses.

‘‘(c) REIMBURSEMENT.—The court, in imposing a sentence on a defendant who

has been convicted of an offense under subsection (a), shall order the defendant to

reimburse any party incurring expenses incident to any emergency or investigative

response to that conduct, for those expenses. A person ordered to make reimbursement under this subsection shall be jointly and severally liable for such expenses

with each other person, if any, who is ordered to make reimbursement under this

subsection for the same expenses. An order of reimbursement under this subsection

shall, for the purposes of enforcement, be treated as a civil judgment.’’.

(b) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 47

of title 18, United States Code, is amended by adding after the item for section 1036

the following:

‘‘1037. False information and hoaxes.’’.

PURPOSE AND SUMMARY

H.R. 3209, the ‘‘Anti-Hoax Terrorism Act of 2001’’ creates criminal and civil penalties for whoever engages in any conduct, with intent to convey false or misleading information, under circumstances

where such information may reasonably be believed and where

such information concerns an activity which would constitute a violation of title 18 U.S.C. § 175 (relating to biological weapons attacks), § 229 (relating to chemical weapons attacks), § 831 (nuclear

attacks) or § 2232a (weapons of mass destruction attacks). This bill

will help protect the public and our nation’s security by deterring

and punishing those who perpetrate such hoaxes.

BACKGROUND AND NEED FOR THE LEGISLATION

Since the September 11, 2001 attacks and the ongoing anthrax

attacks against United States citizens on United States soil, the

nation has been engaged in a war at home and abroad. At home,

emergency responders, law enforcement and investigation officials

have been working overtime to prevent terrorist acts and investigate suspicious events and actual terrorist acts. The efforts on the

home front have understandably drained Federal, state and local

resources.

Because of these tragic attacks, the public is alarmed and appropriately reporting suspicious activity. Our nation is on high alert

and our law enforcement cannot afford to be distracted. Sadly,

while law enforcement and emergency responders work tirelessly to

prevent, respond, and investigate real cases of terrorism, some

have played upon the public’s apprehension with hoaxes.

3

H.R. 3209, ‘‘the Anti-Hoax Terrorism Act of 2001,’’ addresses this

growing phenomena of hoaxes that have further terrorized the

American public into falsely thinking biological attacks have occurred. A hoax of terrorism is terrorism. Such a hoax is designed

to instill fear into the public or its target. While such hoaxes may

not be designed to influence public policy or governments, they are

a serious threat to the public’s safety on many levels. First, such

a hoax distracts law enforcement from the actual threats or actual

emergencies and, in effect, assists terrorists. Second, these hoaxes

often cause buildings and businesses to be evacuated and closed. If

a hoax causes a hospital to be evacuated, for instance, people could

die.

The Department of Justice and the Federal Bureau of Investigation testified on November 7th, before the Subcommittee on Crime,

and made it clear that these types of hoaxes threaten the health

and safety of the American public and the national security of the

nation.

Under current law, it is a felony to perpetrate a hoax such as

falsely claiming there is a bomb on an airplane. It is also a felony

to communicate in interstate commerce threatening personal injury

to another. A gap exist, however, in the current law as it does not

address a hoax related to biological, chemical, or nuclear dangers

where there is no specific threat.

That gap needs to be closed. This legislation makes it a felony

to perpetrate a hoax related to biological, chemical, nuclear, and

weapons of mass destruction attacks.

HEARINGS

On November 7, 2001, the Subcommittee on Crime, held one

hearing on H.R. 3209, the ‘‘Anti- Hoax Terrorism Act of 2001.’’ Testimony was received from two witnesses. Invited witnesses included: Mr. James F. Jarboe, Section Chief, Counterterrorism Division, Domestic Terrorism, Federal Bureau of Investigation, and Mr.

James Reynolds, Chief, Terrorism and Violent Crime Section,

Criminal Division, U.S. Department of Justice.

COMMITTEE CONSIDERATION

On November 14, 2001, the Subcommittee on Crime met in open

session and ordered favorably reported the bill, H.R. 3209, as

amended, by a voice vote, a quorum being present. On November

15, 2001, the Committee met in open session and ordered favorably

reported the bill H.R. 3209, with an amendment by voice vote, a

quorum being present.

VOTE OF THE COMMITTEE

No recorded votes were held on H.R. 3209.

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the

House of Representatives, the Committee reports that the findings

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of RepVerDate 11-MAY-2000 03:11 Nov 30, 2001 Jkt 099006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6601 E:\HR\OC\HR306.XXX pfrm02 PsN: HR306
4

resentatives, are incorporated in the descriptive portions of this report.

PERFORMANCE GOALS AND OBJECTIVES

The bill is intended to impose civil and criminal penalties to

deter and punish a person or persons for perpetrating a hoax that

others could reasonable believe under the circumstance is or may

be a biological, chemical, nuclear or weapons of mass destruction

attack. Such hoaxes diminish Federal law enforcement resources

and divert Federal investigators attention away from actual threats

or cases of terrorism. This legislation is intended to prevent such

a drain and aberration of Federal resources that threaten the citizens and the national security of the United States.

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

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

expenditures. This bill does provide new budgetary authority.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the

House of Representatives, the Committee sets forth, with respect to

the bill, H.R. 2975, the following estimate and comparison prepared

by the Director of the Congressional Budget Office under section

402 of the Congressional Budget Act of 1974:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, November 21, 2001.

Hon. F. JAMES SENSENBRENNER, Jr., Chairman,

Committee on the Judiciary,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 3209, the Anti-Hoax Terrorism Act of 2001.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contact is Mark Grabowicz, who

can be reached at 226–2860.

Sincerely,

DAN L. CRIPPEN, Director.

Enclosure

cc: Honorable John Conyers, Jr.

Ranking Member

H.R. 3209—Anti-Hoax Terrorism Act of 2001.

CBO estimates that implementing H.R. 3209 would not result in

any significant cost to the Federal Government. Because enactment

of H.R. 3209 could affect direct spending and receipts, pay-as-yougo procedures would apply to the bill. However, CBO estimates

that any impact on direct spending and receipts would not be significant. H.R. 3209 contains no intergovernmental or private-sector

mandates as defined in the Unfunded Mandates Reform Act and

would impose no costs on State, local, or tribal governments.

5

H.R. 3209 would establish a new Federal crime for the perpetration of hoaxes involving the threat of biological agents or other

weapons of mass destruction. Offenders would be subject to imprisonment and criminal and civil fines.

Under the provisions of H.R. 3209, the government would be able

to pursue cases involving hoaxes that it otherwise would not be

able to prosecute. Because there are similar prohibitions on hoaxes

in current law, however, CBO expects that the bill’s provisions

would probably affect a small number of additional cases. Thus,

any increase in costs for law enforcement, court proceedings, or

prison operations would not be significant. Any such costs would be

subject to the availability of appropriated funds.

Because those prosecuted and convicted under H.R. 3209 could

be subject to fines, the Federal Government might collect additional fines if the legislation is enacted. Collections of civil fines are

recorded in the budget as governmental receipts (revenues). Criminal fines are deposited as receipts in the Crime Victims Fund and

later spent. CBO expects that any additional receipts and direct

spending would be negligible because of the small number of cases

involved.

The CBO staff contact for this estimate is Mark Grabowicz, who

can be reached at 226–2860. This estimate was approved by Robert

A. Sunshine, Assistant Director for Budget Analysis.

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House

of Representatives, the Committee finds the authority for this legislation in article I, section 8, of the Constitution.

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

Sec. 1. Short Title.

This Act may be cited as the ‘‘Anti-Hoax Terrorism Act of 2001.’’

Sec. 2. Hoaxes and Recovery Costs.

Section 2(a) of the bill adds new section 1037 to title 18. This

new code section provides for criminal and civil penalties.

New section 1037(a) of title 18 provides that whoever engages in

any conduct, with intent to convey false or misleading information,

under circumstances where such information may reasonably be

believed and where such information concerns an activity which

would constitute a violation of § 175 (biological attack), § 229 (chemical attack), § 831 (nuclear attack), or § 2332a (weapons of mass destruction attack), shall be fined up to $250,000 or imprisoned not

more than 5 years or both.

This new provision is consistent with current provisions in the

criminal code that treat hoaxes related to certain crimes as felonies. For example, 18 U.S.C. § 1365(c)(1) provides ‘‘whoever knowingly communicates false information that a consumer product has

been tainted . . . shall be fined under this title or imprisoned not

more than 5 years or both.’’

Similar to existing hoax provisions, the language of § 1037(a) includes a mens rea (intent) requirement. The language requires that

the perpetrator have ‘‘the intent’’ to convey false or misleading information. The Committee believes that this mens rea requirement

6

will protect innocent individuals who have acted inadvertently. As

an additional protection against prosecuting innocent or inadvertent behavior, the legislative language requires that the information be reasonably believable and concern activities that would

constitute a violation of criminal law relating to biological, chemical, nuclear or weapons of mass destruction.

Some have argued that the legislative language should include

the phrase ‘‘malicious intent’’ or similar language using the word

malicious. The Committee rejected this suggestion and believes the

inclusion of the term ‘‘malicious’’ or any derivative would render

the legislation useless. The term ‘‘malicious’’ means that a person

has the intent to harm another.

By its very nature, a hoax is not intended to physically harm or

injure a person. If the person had the intent to harm, they would,

use real weapons, such as anthrax instead of powdered sugar. By

using powdered sugar instead of anthrax, the person engaging in

the hoax can argue that it was a joke and no harm could come to

anyone. Furthermore, it is the view of the Committee that the

issue is whether the victims reasonably believed they were or could

be harmed, not whether the criminal, while intending to convey

false or misleading information about a biological, nuclear, or

chemical attack also intended to physically harm people. Accordingly, the Committee believes adding the word malicious or a derivation of the word would gut the bill.

Section 1037(b) provides that whoever engages in such a hoax,

may be liable in a civil action to any party incurring expenses incident to the emergency and investigative response.

Section 1037(c) requires any person convicted of a violation of

subsection (a) to reimburse any party for expenses incurred in responding to the hoax. A person ordered to reimburse under this

section would be jointly and severally liable for such expenses with

any other person ordered to reimburse under this section for the

same expenses. This section was amended to clarify that the reimbursement is a civil judgement.

Section 2(b) of the bill is a clerical amendment.

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

as reported, are shown as follows (new matter is printed in italics

and existing law in which no change is proposed is shown in

roman):

CHAPTER 47 OF TITLE 18, UNITED STATES CODE

* * * * * * *

CHAPTER 47—FRAUD AND FALSE STATEMENTS

Sec.

1001. Statements or entries generally.

* * * * * * *

1037. False information and hoaxes.

* * * * * * *

7

§ 1037. False information and hoaxes

(a) CRIMINAL VIOLATION.—Whoever engages in any conduct,

with intent to convey false or misleading information, under circumstances where such information may reasonably be believed and

where such information concerns an activity which would constitute

a violation of section 175, 229, 831, or 2332a, shall be fined under

this title or imprisoned not more than 5 years, or both.

(b) CIVIL ACTION.—Whoever engages in any conduct, with intent

to convey false or misleading information, under circumstances

where such information concerns an activity which would constitute

a violation of section 175, 229, 831, or 2332a, is liable in a civil action to any party incurring expenses incident to any emergency or

investigative response to that conduct, for those expenses.

(c) REIMBURSEMENT.—The court, in imposing a sentence on a

defendant who has been convicted of an offense under subsection

(a), shall order the defendant to reimburse any party incurring expenses incident to any emergency or investigative response to that

conduct, for those expenses. A person ordered to make reimbursement under this subsection shall be jointly and severally liable for

such expenses with each other person, if any, who is ordered to

make reimbursement under this subsection for the same expenses.

An order of reimbursement under this subsection shall, for the purposes of enforcement, be treated as a civil judgment.

MARKUP TRANSCRIPT

BUSINESS MEETING

THURSDAY, NOVEMBER 15, 2001

HOUSE OF REPRESENTATIVES,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The Committee met, pursuant to notice, at 10:10 a.m., in Room

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. (Chairman of the Committee) presiding.

Chairman SENSENBRENNER. The Committee will be in order.

The next item on the agenda is H.R. 3209, the Anti-Hoax Terrorism Act of 2001. The Chair recognizes the gentleman from

Texas, Mr. Smith, the Chairman of the Subcommittee on Crime.

[The bill, H.R. 3209, follows:]

8

I

107TH CONGRESS

1ST SESSION H. R. 3209

To amend title 18, United States Code, with respect to false communications

about certain criminal violations, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

NOVEMBER 1, 2001

Mr. SMITH of Texas (for himself, Mr. SENSENBRENNER, Mr. CONYERS, Mr.

WOLF, Mr. SCOTT, and Mr. FERGUSON) introduced the following bill;

which was referred to the Committee on the Judiciary

A BILL

To amend title 18, United States Code, with respect to

false communications about certain criminal violations,

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.

4 This Act may be cited as the ‘‘Anti-Hoax Terrorism

5 Act of 2001’’.

6 SEC. 2. HOAXES AND RECOVERY COSTS.

7 (a) PROHIBITION ON HOAXES.—Chapter 41 of title

8 18, United States Code, is amended by inserting after sec9 tion 880 the following:

9

2

•HR 3209 IH

1 ‘‘§ 881. False information and hoaxes

2 ‘‘(a) CRIMINAL VIOLATION.—Whoever engages in

3 any conduct—

4 ‘‘(1) knowing that the conduct is likely to im5 part the false impression that activity is or will take

6 place that violates section 175, 229, 831, or 2332a;

7 and

8 ‘‘(2) that causes an emergency response by gov9 ernmental agencies to that activity;

10 shall be fined under this title or imprisoned not more than

11 five years, or both.

12 ‘‘(b) CIVIL ACTION.—Whoever engages in any con13 duct, knowing that the conduct imparts the false impres14 sion that activity is or will take place that violates section

15 175, 229, 831, or 2332a, is liable in a civil action to any

16 party incurring expenses incident to the investigation of

17 the conduct, for those expenses, including the cost of any

18 response made by any military or civilian agency to protect

19 public health or safety.

20 ‘‘§ 882. Reimbursement of costs

21 ‘‘(a) CONVICTED DEFENDANT.—The court, in impos22 ing a sentence on a defendant who has been convicted of

23 an offense under section 881(a), shall order the defendant

24 to reimburse any party incurring expenses incident to the

25 investigation of the offense, for those expenses, including

10

3

•HR 3209 IH

1 the cost of any response made by any military or civilian

2 agency to protect public health or safety.

3 ‘‘(b) JOINTLY AND SEVERALLY LIABLE.—A person

4 ordered to make reimbursement under subsection (a) shall

5 be jointly and severally liable for such expenses with each

6 other person, if any, who is ordered to make reimburse7 ment under that subsection for the same expenses.’’.

8 (b) CLERICAL AMENDMENT.—The table of sections

9 at the beginning of chapter 41 of title 18, United States

10 Code, is amended by adding after the item for section 880

11 the following:

‘‘881. False information and hoaxes.

‘‘882. Reimbursement of costs.’’.

Æ

11

Mr. SMITH. Mr. Chairman, the Subcommittee on Crime reports

favorably the bill H.R. 3209 with a single amendment in the nature

of a substitute and moves its favorable recommendation to the full

House.

Chairman SENSENBRENNER. Without objection, the bill will be

considered as read and the Subcommittee amendment in the nature of a substitute, which the Members have before them, will be

considered as the original text for purposes of amendment and will

be considered as read and open for amendment at any point.

[The amendment follows:]

12

H.L.C.

SUBCOMMITTEE AMENDMENT IN THE NATURE OF

A SUBSTITUTE TO H.R. 3209

(Ordered Reported on 14 Novemer 2001)

1 Strike all after the enacting clause and insert the fol2 lowing:

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Anti-Hoax Terrorism

5 Act of 2001’’.

6 SEC. 2. HOAXES AND RECOVERY COSTS.

7 (a) PROHIBITION ON HOAXES.—Chapter 47 of title

8 18, United States Code, is amended by inserting after sec9 tion 1036 the following:

10 ‘‘§ 1037. False information and hoaxes

11 ‘‘(a) CRIMINAL VIOLATION.—Whoever engages in

12 any conduct, with intent to convey false or misleading in13 formation, under circumstances where such information

14 may reasonably be believed and where such information

15 concerns an activity which would constitute a violation of

16 section 175, 229, 831, or 2332a, shall be fined under this

17 title or imprisoned not more than 5 years, or both.

18 ‘‘(b) CIVIL ACTION.—Whoever engages in any con19 duct, with intent to convey false or misleading informa20 tion, under circumstances where such information conVerDate 11-MAY-2000 03:11 Nov 30, 2001 Jkt 099006 PO 00000 Frm 00012 Fmt 6659 Sfmt 6601 E:\HR\OC\HR306.XXX pfrm02 PsN: HR306
13

2

H.L.C.

1 cerns an activity which would constitute a violation of sec2 tion 175, 229, 831, or 2332a, is liable in a civil action

3 to any party incurring expenses incident to any emergency

4 or investigative response to that conduct, for those ex5 penses.

6 ‘‘(c) REIMBURSEMENT.—The court, in imposing a

7 sentence on a defendant who has been convicted of an of8 fense under subsection (a), shall order the defendant to

9 reimburse any party incurring expenses incident to any

10 emergency or investigative response to that conduct, for

11 those expenses. A person ordered to make reimbursement

12 under this subsection shall be jointly and severally liable

13 for such expenses with each other person, if any, who is

14 ordered to make reimbursement under this subsection for

15 the same expenses.’’.

16 (b) CLERICAL AMENDMENT.—The table of sections

17 at the beginning of chapter 47 of title 18, United States

18 Code, is amended by adding after the item for section

19 1036 the following:

‘‘1037. False information and hoaxes.’’.

Chairman SENSENBRENNER. The Chair recognizes the gentleman

from Texas to strike the last word.

Mr. SMITH. Thank you, Mr. Chairman. I do move to strike the

last word.

14

Mr. Chairman, H.R. 3209, the Anti-Hoax Terrorism Act of 2001,

addresses the hoaxes that have terrorized the American people into

believing biological attacks have occurred.

However, hoaxes related to anthrax, for example, don’t always

contain specific threats and are, therefore, not covered by current

law.

If someone places white powder on a computer with a note saying, ‘‘This is anthrax,’’ or sends harmless white powder through the

mail, such conduct may cause panic but violates no Federal law.

The Department of Justice and Federal Bureau of Investigation

testified last week before the Subcommittee on Crime and made it

clear that these types of hoaxes threaten public safety and health

and the national security of our country.

Such hoaxes also drain law enforcement and other resources

away from actual emergencies and terrorist threats.

If a hoax causes a hospital to be evacuated, people could die. If

a hoax causes a business to close, people could lose their jobs. And

if a hoax preoccupies law enforcement officials, the public could be

denied protection from other crimes.

This legislation creates criminal and civil penalties for whoever

engages in conduct with the intent to convey false or misleading information that may reasonably be believed to constitute a biological, chemical, or nuclear attack.

This bill makes it a felony to carry out such a hoax. Additionally,

whoever engages in this crime will be subject to a criminal fine of

up to $250,000 in civil penalties and will have to reimburse the victims of this crime for expenses incident to any emergency or investigative response.

Mr. Chairman, America is engaged in a war on terrorism. Those

who prey on fear should be held responsible for their actions.

This bill will help protect the public and our Nation’s security by

deterring and punishing those who perpetrate such hoaxes. So I

urge my colleagues to support this much-needed legislation and

yield back the balance of my time.

Chairman SENSENBRENNER. The gentleman from Virginia, Mr.

Scott.

Mr. SCOTT. Thank you, Mr. Chairman.

And I am pleased to join the gentleman from Texas, the Chairman of the Subcommittee, in joining as an original cosponsor of the

bill, because it addresses a real and serious problem.

In this climate of heightened alert and attention, necessitated by

the events of September 11th, local emergency and first response

operations are constantly overstrained. In a recent meeting with a

group of officials representing such operations, I was told that

enormous resources are already being expended to investigate suspected anthrax and other bio and chemical scares.

Officials in the City of Norfolk, a city of about 275,000 residents,

estimated that it had spent over $70,000 in tracking down scares,

all of which fortunately proved to be false alarms.

There are legitimate inquiries which are triaged between law enforcement, medical, and other appropriate personnel before committing investigatory resources, but with the limited resources available in most localities to conduct such investigations, even when

they are based on legitimate reasons for concerns, the last thing we

15

need to do is waste such valuable time and resources on pranks or

hoaxes.

It is my understanding that there are holes in our current ability

at the Federal level to prosecute terroristic hoaxes. I don’t know

what the situation is on State laws, but we should certainly have

the ability to go after such cases on the Federal level, and that’s

what the bill does.

There is one provision in the bill which I have a concern with,

and that is the lack of discretion on the judge in setting the

amount of the fine. I had an amendment that provided for such discretion. The amendment did not pass. However, the Chairman and

I agreed on an amendment, which will be offered, which makes it

clear that the reimbursement orders will be civil judgments in nature and, therefore, the defendant will not be subject to jail time

for nonpayment.

Thank you, Mr. Chairman. I look forward to consideration of the

legislation.

Chairman SENSENBRENNER. Without objection, the opening statements of all Members will be inserted into the record at this point.

[The statement of Mr. Conyers follows:]

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN

While I am an original cosponsor of this legislation and support the efforts the

Subcommittee Chair and Ranking Member have made to narrow and clarify it since

then, I do believe the bill should be narrowed in several respects.

It is unfortunate that some people have decided to take advantage of people’s

fears during this national crisis to perpetrate hoaxes regarding anthrax or other biological, chemical, or nuclear materials. It goes without saying that people who engage in such senseless behavior should be punished. While the bill before us accomplishes that goal, I believe it goes too far.

The climate we now live in has encouraged people to transmit warnings of every

potential attack they hear about, and they should not be criminally penalized for

their fears. Similarly, teenagers who have not learned better and engage in simple

pranks should not be targeted by this legislation. That is why I hope the bill can

be narrowed further so that only those who maliciously engage in such hoaxes are

punishable.

Moreover, the bill requires convicted defendants to reimburse the government for

any costs associated with investigations into the hoax. Cases should be decided on

their individual merits; as such, I believe the judiciary should have the discretion

to determine if and when a defendant should have to pay costs.

Thank you, Mr. Chairman.

[The statement of Ms. Jackson Lee follows:]

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS

I would like to thank Chairman Sensenbrenner and Ranking Member Conyers for

convening this markup on H.R. 3209, the ‘‘Anti-Hoax Terrorism Act of 2001.’’

In light of the exponentially increasing amounts of bioterrorism threats that have

occurred since September 11, a Federal anti-hoax provision is needed now more

than ever. We must provide the resources and expertise that States and localities

may not posses in order to respond to these hoaxes.

H.R. 3209 would make it a Federal crime for anyone who intentionally imparts

false information and hoaxes. The defendant shall be fined or imprisoned not more

than five years, or both.

Mr. Chairman, the purpose of this bill should not be to prosecute innocent mistakes or someone making a report concerning a suspected substance, but rather it

would apply to deliberate and malicious hoaxes reported by individuals who know

they are spreading false information. This legislation should ensure that a person

who executes a hoax intends that the hoax result in severe consequences such as

a response from emergency personnel.

16

The purpose of most common pranks is to embarrass, humiliate, frighten, or exploit without malicious intent. It is not intended to threaten mass destruction or

elicit an emergency response. For example, in Anne Arundel County, MD, two juveniles were arrested after they placed powder in an envelope and did not even mail

it, but the envelope was found by someone else and reported, causing an unintended

emergency response. The Chairman of the Subcommittee on Crime, Mr. Smith, has

reiterated that juveniles would not be prosecuted as adults under this bill. However,

a local prosecutor in Chicago recently placed an envelope containing sugar on a colleague’s desk. He was administratively punished by being forced to resign from his

job. The current language still does not protect those who carry out practical jokes.

I offer an amendment today that would allow the prosecution of persons who execute hoaxes with the malicious intent to deceive the victim. By requiring the defendant to have acted ‘‘maliciously,’’ juvenile pranks or the innocent spreading of rumors

will not be federalized.

The language in my amendment would give prosecutors a means to distinguish

between a person who is actually threatening to use anthrax on a victim on one

hand, and a person who never intends to use it, but truly wants the victim or police

to think they have done so. The latter is what we are trying to prevent.

Mr. Chairman, this legislation should punish hoaxes intending to cause a grave

ands serious consequence. Malicious acts deserve Federal felony prosecution; innocent bad judgment and juvenile bad behavior do not. Let us work together towards

that end.

Thank you.

Are there any amendments?

Ms. JACKSON LEE. Mr. Chairman?

Mr. SMITH. Mr. Scott has one, I know.

Ms. JACKSON LEE. I have an amendment at the desk.

Chairman SENSENBRENNER. The clerk will—— Ms. JACKSON LEE. For H.R. 3209.

Chairman SENSENBRENNER. The clerk will report the amendment.

The CLERK. Amendment to H.R. 3209, offered by Ms. Jackson

Lee of Texas. On page 1, line 12, insert ‘‘the malicious’’ after ‘‘with’’ and before ‘‘intent.’’ [The amendment follows:]

Chairman SENSENBRENNER. The gentlewoman from Texas is recognized for 5 minutes.

Ms. JACKSON LEE. Mr. Chairman, we turned a new page in history on September 11th, and I am well-aware of many of the important measures that this particular Committee has to address. And

we have done so with an effort to be bipartisan.

This legislation is one that draws a great deal of support on the

basis that these are serious times. And so I do not diminish that

level of seriousness.

But we also know that this is a country that is used to freedom

of expression, freedom of movement, and, as well, freedom of engagement. I want to make sure that as we prosecute those who

would do harm through hoaxes that we have a clear definition, and

so my amendment seeks to add the words ‘‘maliciously’’ and ‘‘knowVerDate 11-MAY-2000 03:11 Nov 30, 2001 Jkt 099006 PO 00000 Frm 00016 Fmt 6659 Sfmt 6601 E:\HR\OC\HR306.XXX pfrm02 PsN: HR306
17

ingly’’ so that we can avoid the wide fishnet to those jokesters who

have no mean intent.

This language has been supported by the Senate. It gives prosecutors the means to distinguish between a person who is actually

threatening to use anthrax or some other substance or some other

act on a victim on one hand, and a person who never intends to

use it but truly wants the victim or police to think they have done

so.

It avoids federalizing of juvenile pranks. And I know there was

a comment made that the bill does not indicate that it will be trying juveniles as adults, but it does not preclude such.

And I don’t believe these hoaxes that are unintended is going to

deserve lengthy Federal prison.

And if I can correct an earlier statement, this language adds the

word ‘‘maliciously’’ since ‘‘knowingly’’ is already in the bill.

Malicious acts deserve Federal felony prosecution. But innocent

bad judgment and bad jokes do not.

I would hope that we would give this legislation the strength

that it deserves by adding this language and, as well, providing the

clarity that I think criminal prosecutions need. This does not take

away from the legislation’s strength, because those people who are

intent on doing evil will be captured by this legislation with this

amendment. And I would hope that this would occur.

I do want to respond to the suggestion or the thought that in giving prosecutors discretion, we know that they will make the right

judgment. And I respect prosecutors; I have served on a municipal

court bench.

But in the course and the rapidness of the day’s work, I don’t

think we can put justice and balance on the issue of hope. And I

think prosecutors clearly appreciate distinctive standards by which

they can make judgments in order to move forward on prosecution

or to the grand jury.

That’s all we’re asking to do, is to realize that the jokesters of

which we Americans have grown up with—the Will Rogers of the

world—that we do not capture them—the late-night pranksters on

late-night shows—that we really deal with those who are malicious.

And I would ask my colleagues to accept this amendment on the

anti-hoax legislation.

Chairman SENSENBRENNER. The gentleman from Texas.

Mr. SMITH. Mr. Chairman, I oppose this amendment.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. SMITH. Mr. Chairman, the phrase ‘‘malicious’’ has common

law roots. In the criminal law in the English dictionary, malicious

means intending to harm another person. But in this case, adding

what appears to be a simple phrase actually would weaken the bill.

Adding the term ‘‘malicious,’’ in fact, would render the legislation

useless.

The term ‘‘malicious’’ means that a person has the intent to harm

another. By its very nature, a hoax is not intended to harm or injure another person.

If the person had the intent to harm, they would use real biological weapons, for example, such as anthrax, instead of powdered

sugar. By using powdered sugar instead of anthrax, the person who

18

engages in the hoax can argue that it was a joke and that they did

not intend to harm anyone.

The issue is not whether the criminal intended to physically

harm the victims of the hoax, but whether the victims reasonably

believed they might be harmed.

Furthermore, Mr. Chairman, the model penal code contends that

there are only four separate recognizable states of mind: purposeful, knowing, reckless, and negligent. Malicious is not one of those

four states of mind.

So I would urge my colleagues to oppose this amendment.

Chairman SENSENBRENNER. The question is on the adoption of

the——

Mr. SCOTT. Mr. Chairman?

Chairman SENSENBRENNER. The gentleman from Virginia, Mr.

Scott.

Mr. SCOTT. I move to strike the last word.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. SCOTT. Mr. Chairman, the adoption of the amendment would

mean that bad jokes would not be criminalized. I think that’s a

good idea, and I would support the amendment.

We should not indict and arrest, try, and try to send to jail people who have bad judgment and make bad jokes.

I would hope we would adopt the amendment. I yield back.

Chairman SENSENBRENNER. The question is on the adoption of

the amendment by the gentlewoman from Texas, Ms. Jackson Lee.

Those in favor will say aye.

Opposed, no.

The noes appear to have it. The noes have it, and the amendment is not agreed to.

Are there further amendments?

Mr. SCOTT. Mr. Chairman, I have an amendment at the desk.

Chairman SENSENBRENNER. The clerk will report the amendment.

The CLERK. Amendment to H.R. 3209, offered by Mr. Scott. Page

2, line 15, after the first period, insert ‘‘an order of reimbursement

under this subsection shall, for the purposes of enforcement, be

treated as a civil judgment.’’

[The amendment follows:]

19

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. SCOTT. Mr. Chairman, the amendment is self-explanatory.

Some of the judgment—some of the reimbursement orders that

could be ordered could be much more than could ever reasonably

be paid. The judgments will be joint and severable—the defendants

will be jointly and severably liable. And if it is enforced as a civil

judgment, you get just about everything the person has. You would

not be able to throw them in jail, for example, for not going to

work, as you could under a criminal fine.

And I would hope that we would adopt the amendment.

Chairman SENSENBRENNER. The gentleman from Texas, Mr.

Smith.

Mr. SMITH. Mr. Chairman, the gentleman from Virginia, Mr.

Scott, brought this concern out, both during the hearing and during

yesterday’s markup in the Subcommittee, and I agree that he

makes a good point. There was never any intent in this legislation

to put someone in jail for failure to pay this reimbursement.

And so I would like to urge my colleagues to support this amendment.

Chairman SENSENBRENNER. The question is on the amendment

of the gentleman from Virginia, Mr. Scott.

Those in favor will signify by saying aye.

Opposed, no.

The ayes appear to have it. The ayes have it, and the amendment is agreed to.

Are there further amendments?

Mr. BARR. Mr. Chairman?

Chairman SENSENBRENNER. The gentleman from Georgia, Mr.

Barr.

Mr. BARR. I would like to ask unanimous consent to engage in

a brief colloquy with the Chairman of the Subcommittee.

Chairman SENSENBRENNER. The gentleman moved to strike the

last word, and he’s recognized for 5 minutes.

Mr. BARR. Thank you.

As the distinguished Chairman of the Subcommittee knows,

based on both comments during our hearing and at yesterday’s

Subcommittee markup on this, I have expressed some concerns

similar to those expressed by a couple of other learned Members

of this Committee to try and ensure that what we are not doing

here is federalizing with the full weight of the Federal criminal law

apparatus bad jokes and juvenile behavior, while certainly recognizing also that, particularly in the climate engendered by recent

terrorist activities, there is a very legitimate concern for the people

of this country and for the Federal Government to stop serious

hoaxes and to punish those, particularly when they result in very

serious action and reaction on the part of government, emergency,

and police, and national security personnel.

I would just like to have the distinguished Chairman of the Subcommittee explain in a little more detail his bill as proposed today,

as has been redrafted, to ensure that we have legislative history indicating that it is not intended to reach simply a bad joke.

And I would yield to the Chairman.

Mr. SMITH. I thank the gentleman for yielding.

20

And I would like to reassure the gentleman from Georgia, as well

as the gentlewoman from Texas, Ms. Jackson Lee, that it is certainly not the intent of this legislation to punish anyone who engages in a prank that lasts 5 minutes, for example.

The intent of the legislation is, in fact, to punish someone who,

for example, engages in a hoax that perhaps shuts down a hospital

and causes loss of life. A prank such as the gentleman described

would not rise to the level of leaving the false impression that it

would violate four sections of the criminal code.

So I would like to reassure the gentleman, I am happy to state

for the record that that kind of short-term prank that would be

over with in a couple of minutes and not create the harm or the

injury or the danger that is anticipated with a real hoax would not

be prosecuted.

The intent of the legislation, again, is only to punish those who

engage in hoaxes that create a real threat and a serious and reasonable belief that a biological, chemical, or nuclear attack has occurred.

Mr. BARR. I thank the gentleman.

Mr. DELAHUNT. Mr. Chairman?

Chairman SENSENBRENNER. The gentleman from Massachusetts.

Mr. DELAHUNT. Mr. Chairman, I move to strike the last word.

Chairman SENSENBRENNER. The gentleman is recognized for 5

minutes.

Mr. DELAHUNT. I’ll be brief, Mr. Chairman. And I respect the

concerns that have been articulated by my friend from Georgia and

gentlelady from Texas.

But I just want to make two observations, because I think it’s

important that we understand, particularly as it relates to juveniles, that in those cases, if juveniles are charged with an offense

under this particular proposal, they will be tried in the Federal

courts as juveniles. And clearly, all of the protections afforded juveniles will pertain to them, given the distinctions made between juveniles and adults in our criminal jurisprudence.

There is, I suggest, no need to make any exception because it already exists.

And additionally, I would daresay that any prosecutor hopefully

would exercise appropriate prosecutorial discretion when it came to

the appropriate charge and appropriate recommendation in cases

involving hoaxes. Clearly, there are differences in degree in terms

of the harm that is inflicted.

At some point in time, we have to rely on individuals in our system of justice to exercise balanced and fair and appropriate judgment.

I think this is a very good piece of legislation. I think it makes

sense. It’s long overdue. And I hope that it passes.

Chairman SENSENBRENNER. Are there further amendments?

Ms. JACKSON LEE. Mr. Chairman?

Chairman SENSENBRENNER. The gentlewoman from Texas, Ms.

Jackson Lee.

Ms. JACKSON LEE. I would like to strike the last word.

Chairman SENSENBRENNER. The gentlewoman is recognized for 5

minutes.

Ms. JACKSON LEE. I thank the Chairman very much.

21

I think this discussion is a very productive discussion, and I do

thank Mr. Barr for his comments and colloquy with Mr. Smith, and

the effort at the clarification that this is legislation, of which broadly I support, that intends to capture those who would do evil and

would do wrong in that they wish to have a negative impact to create terror, to frighten people.

But I do want to add a note of caution and a caveat.

For all of my good friends who are here who are former prosecutors, I have the greatest respect for them and certainly have had

the experience of presiding as they have made presentations in a

local court scenario.

But let me be very clear that all cannot rest on our hope and

good wishes for all prosecutors throughout the Nation.

Now, I will look at this bill more closely and determine whether

or not the representations that have been made are accurate.

But in Houston, Texas, right now we have Vanessa Leggett, a

young woman who has been held for more than 3 months, a journalist that U.S. prosecutors refuse to give even bail because they

allege that she is interfering with a criminal prosecution, which is

absolutely not accurate, in that she has cooperated and she has

journalistic privileges. She is not the criminal; she has spoken in

the context of writing a book.

That’s poor judgment. And I think you can find poor judgment

examples across the Nation.

Additionally, those of us who have dealt with racial profiling

know there is a lot of poor judgment that goes on in the prosecutorial, in the criminal justice system. And, therefore, I think this

Judiciary Committee, Republicans and Democrats alike, because

there may be poor judgment on those who have avocations or advocate positions that I may disagree with, there may be those who

are in the groups that I may have a difference of opinion, but they

have a right to have access to a fair system.

I think when we write legislation, we should err on the side of

being the fairest that we possibly can be and not yet suggest that

the good judgment of prosecutors will be the rule of the day. We

have had good judgment, and we’ve had judgment that has not

been so good.

So I will be studying this legislation. But I frankly believe that

the language was not language that would undermine the bill. I

think it would help strengthen the bill. And, again, I think the

merits of the bill are certainly warranting of this Committee’s support.

And I thank the Chairman for yielding.

Chairman SENSENBRENNER. Are there further amendments?

Hearing none, the question occurs on the amendment in the nature of a substitute as amended.

Those in favor will say aye.

Opposed, no.

The aye has it. [Laughter.]

And the amendment in the nature of a substitute is agreed to.

The Chair notes the presence of a reporting quorum. The question now occurs on the motion to report the bill H.R. 3209 favorably

as amended by the amendment in the nature of a substitute as

amended.

Those in favor will say aye.

22

Opposed, no.

The ayes have it, and the motion to report favorably is adopted.

Without objection, the Chairman is authorized to move to go to

conference pursuant to House rules. Without objection, the staff is

directed to make any technical and conforming changes. And all

Members will be given 2 days as provided by the rules in which

to submit additional dissenting, supplemental, or minority views.

[Intervening business.]

The Chair thanks the Members for their indulgence and support.

This concludes the business on the notice, and the Committee is

adjourned.

[Whereupon, at 11:06 a.m., the Committee was adjourned.]

(23)

1There has been a recent rash of anthrax hoaxes, where one or more persons have decided

to intimidate others by sending powder through the mail purporting to be anthrax, but later

determined to be harmless. A large portion of recipients of such letters have been abortion clinics and pro-choice groups; in fact, over 280 clinics have been threatened since the initial outbreak. Dennis B. Roddy, Anthrax Threats Target 2 Abortion Providers Here, Others in East, PITTSBURGH POST-GAZETTE, Nov. 9, 2001, at A11. In a recent incident, a perpetrator used Federal Express to send powder and a threatening note to a pro-choice group and went so far as

to forge the billing numbers and return addresses of the groups themselves. Id. 2While Federal authorities do have some tools available against such offenders, see 18 U.S.C.

§ 876 (penalties for mailing threatening communications), we have heard the call of clinics and

other targets that additional legislation is needed to fill gaps. See, e.g., Planned Parenthood

Voices Support for Anti-Terrorism Bill, Press Release (Nov. 15, 2001) (‘‘We are pleased to see

Congress is considering stiffer penalties for people who commit such acts.’’).

ADDITIONAL VIEWS

We support the effort to punish people who perpetrate hoaxes involving biological, chemical, or nuclear materials or other weapons

of mass destruction; in this time of national crisis, it is outrageous

for any individual to take advantage of our collective anxiety about

terrorist acts.1 Clearly, we must act to provide law enforcement

with the tools it needs to address this problem.2 For that reason,

we support H.R. 3209, the ‘‘Anti-Hoax Terrorism Act of 2001,’’ which creates a Federal criminal penalty and a civil cause of action

to convey intentionally any false information about a threat involving biological, chemical, or nuclear weapons or weapons of mass destruction. We are submitting these additional views, however, because we believe H.R. 3209 is unintentionally drafted too broadly

and because it imposes mandatory restitution in criminal cases. We

hope these matters can be addressed as we move to the floor or resolve differences with the Senate.

The bill, as currently drafted, would make it a Federal crime to

engage in ‘‘any conduct’’ (1) ‘‘with the intent to convey false or misleading information under circumstances where such information

may reasonably be believed,’’ and (2) where the information concerns an activity which would violate Federal law with respect to

chemical weapons, biological weapons, nuclear materials, or weapons of mass destruction. This offense would be punishable by a

fine, imprisonment of up to five years, or both. In addition, the bill

makes the individual who conveys such information subject to a

civil action for emergency or investigative responses incurred as a

result of responding to the false information. Finally, the bill requires the court to order a person convicted of this Federal crime

to pay restitution. The person would be jointly and severally liable

for restitution, and the restitution would be treated as a civil, rather than a criminal, fine. The following is a description of the concerns we would hope could be addressed before the bill is signed

into law.

I. OVERBREADTH

Whenever we create new criminal penalties, we must do so in a

measured and reasonable manner. That is why Rep. Sheila Jackson

24

3 Requiring the government to prove the conduct was intended maliciously would have provided a parallel with the mens rea requirement of similar legislation introduced in the Senate

by Sen. Patrick Leahy (D-VT), Chairman of the Senate Committee on the Judiciary. See S. 1666,

the ‘‘Anti-Terrorist Hoax and False Report Act of 2001,’’ 107th Cong., 1st Sess. § 2 (2001). Unfortunately, the Jackson Lee amendment was defeated by voice vote. 4Susan Levine, Disseminating Dread; Pranksters, Disgruntled Americans Perpetrate Hoaxes, WASH. POST, Oct. 26, 2001, at A1. 5 Id.

6 Id.

7 In one case, a firefighter in Lycoming County, Pennsylvania, told his colleagues that powder

had spilled from an envelope he had opened at home; a few weeks later, he was in court facing

the felony criminal charge of creating a disturbance. Martin Kasindorf & Toni Locy, Anthrax

Hoaxes Persist Despite Arrests, USA TODAY, Nov. 6, 2001, at 1A. In addition, state prosecutors

have filed felony disorderly conduct charges against a Cook County, Illinois prosecutor who put

on a colleague’s desk an envelope filled with sugar and bearing the return address of a defendant in that colleague’s case. Richard Roeper, Anthrax-Joke Epidemic is Real National Illness,

CHICAGO SUN-TIMES, Nov. 5, 2001, at 11. Finally, Kentucky State Police are conducting a criminal investigation of Bourbon County Sheriff John Ransdell, who ‘‘slipped envelopes containing

crushed aspirin onto courthouse employees’ desks,’’ purportedly to test employee preparedness.

Laura Yuen, Sheriff Target of Criminal Inquiry over Aspirin He Put in Envelopes, LEXINGTON

HERALD LEADER, Nov. 1, 2001, at A1.

Lee (D-TX) offered an amendment at the Committee’s markup to

require the government to prove that the hoax was perpetrated

with ‘‘malicious’’ intent.3

We believe that the bill as written could go too far because it

does not require that the offenses be committed with such intent.

First, the legislation could result in Federal prosecutions of individuals who simply disseminate erroneous information about potential

acts of terrorism. For example, a chain e-mail recently was circulated that purported to contain credible information that terrorist acts involving anthrax would occur in shopping malls on October 31, 2001. Such acts did not occur. Under a strict reading of

this bill, an individual who forwarded that e-mail knowing it to be

false, but could reasonably be believed, would be subject to Federal

prosecution.

Also subject to Federal prosecution would be incidents that

amount to nothing more than mere jokes. It has been reported that

there is almost a national ‘‘epidemic’’ of people who are sending or

giving powder to friends or coworkers to give a temporary scare

about anthrax but not intending ill will.4 Furthermore, it should

come as no surprise that there are teenagers out there who have

not learned better and engage in simple pranks just to scare

friends.5 While we believe that this demonstrates poor taste and

bad judgement, we do not believe it should be subject to Federal

prosecution.

The Majority’s response essentially has been to concede that this

reading of the bill is correct but we should simply trust that Federal prosecutors will exercise their discretion and avoid prosecuting

such cases. While it is true that most prosecutors will refrain from

prosecuting incidences involving misguided pranks or bad jokes, we

already are seeing that, in the current atmosphere, there are prosecutors who will bring such cases.6 Congress should preclude such

overzealous prosecutions through more narrowly-tailored language

in this bill.

Third, despite the gaps we acknowledge exist in current Federal

law, there are some remedies available to law enforcement against

serious offenses. For instance, some state authorities already have

begun criminal investigation and prosecutions against persons

whose hoaxes were so egregious that they crossed the line.7 In adVerDate 11-MAY-2000 03:11 Nov 30, 2001 Jkt 099006 PO 00000 Frm 00024 Fmt 6601 Sfmt 6601 E:\HR\OC\HR306.XXX pfrm02 PsN: HR306
25

8 Roeper, supra; Valerie Schremp, Fired Worker at GM Plant is Charged in Prank Involving

the Anthrax Scare, ST. LOUIS POST-DISPATCH, Oct. 24, 2001, at A4. 9 BLACK’S LAW DICTIONARY 958 (6th ed. 1990). 10 H.R. 3209 § 2(a) (‘‘[t]he court, in imposing a sentence on a defendant who has been convicted

of a [criminal hoax offense], shall order the defendant to reimburse any party incurring expenses

incident to any emergency or investigative response to that conduct, for those expenses. A person ordered to make reimbursement under this subsection shall be jointly and severally liable

for such expenses with each other person, if any, who is ordered to make reimbursement under

this subsection for the same expenses.’’) (emphasis added). The provision was tempered by an

amendment offered by Rep. Bobby Scott (D-VA) ensuring that reimbursement orders would be

civil, not criminal, judgments, so that those unable to pay would not go to jail. 11See, e.g., 18 U.S.C. § 3663. 12See, e.g., Lucy Quinlivan, Judge Quits Case over Sentencing; Federal Mandate Cited in Drug

Case, SAINT PAUL PIONEER PRESS, Jan. 20, 2001, at 1B (Federal judge removes himself from

Continued

dition, numerous employers have fired employees who engaged in

such acts.8 These examples show that the congressional response

to the hoax epidemic does not need to address each and every

scare; instead, it can and should be narrowly tailored to the most

egregious cases.

Unfortunately, the Majority opposed the amendment on the

grounds that it would render the legislation meaningless. The rationale was that ‘‘malicious’’ means ‘‘intending to cause harm’’ and

that perpetrators could argue it is clear they did not intend to

cause harm because they did not send real anthrax. This argument

is flawed, however, because the term ‘‘malicious’’ does not mean

‘‘intent to cause harm;’’ instead, it has been defined as ‘‘characterized by, or involving, malice; having, or done with, wicked, evil or

mischievous intentions or motives; wrongful and done intentionally

without just cause or excuse or as a result of ill will.’’ 9 As such,

the amendment would have clarified that the legislation would

apply only to persons who are conveying ill will, not simply those

joking in bad taste.

Another problem with the existing intent standard is that it does

not require the defendant to know that the information conveyed

was false or misleading. As it is written, the bill could lead to the

prosecution of a person who intended to convey information but did

not intend for it to be ‘‘false or misleading.’’ For that reason, we

hope the bill can be clarified to state that the person must know

the information is false or misleading.

II. MANDATORY RESTITUTION

We also are concerned that because the bill imposes mandatory

restitution for criminal violations and, therefore, eliminates judicial

discretion in making sentencing decisions and discriminates

against those with lower incomes. More specifically, H.R. 3209 requires judges to order those convicted of a criminal hoax offense to

reimburse any party—likely to be the government—for any expenses incurred due to the hoax.10

The first problem with this provision is that, as with mandatory

minimum penalties, it removes judges from the sentencing process

and thereby strips their discretion. Under current law, whether a

defendant should be required to make restitution generally is left

to the discretion of the sentencing judge.11 In fact, leaving judges

the discretion to make sentencing decision has been a prized characteristic of our judicial system and prior congressional actions to

strip that away have been criticized.12 Unfortunately, this proviVerDate 11-MAY-2000 03:11 Nov 30, 2001 Jkt 099006 PO 00000 Frm 00025 Fmt 6601 Sfmt 6601 E:\HR\OC\HR306.XXX pfrm02 PsN: HR306
26

case rather than complying with U.S. Court of Appeals order to impose harsher sentence in line

with Federal Sentencing Guidelines); Michael R. Bromwich, Put a Stop to Savage Sentencing, WASH. POST., Nov. 22, 1999, at A23 (op-ed); Linda Greenhouse, Guidelines on Sentencing Are

Flawed, Justice Says, N.Y. TIMES, Nov. 21, 1998, at A12 (Supreme Court Justice Stephen G.

Breyer criticizing the Federal Sentencing Guidelines and ‘‘calling for Federal judges to regain

some of their traditional discretion to make the punishment fit the crime.’’); Benjamin Weiser,

Judge Has His Own Take on Sentencing Formulas, N.Y. Times, Sept. 14, 1997, at 1–39 (Federal

judge sometimes imposes lighter or harsher sentences than the Federal guidelines call for depending on the circumstances of each case). 13See, e.g., Letter from Ira Glasser & Laura Murphy Lee, ACLU, to the Honorable Henry

Hyde, Chairman, House Comm. on the Judiciary (Jan. 27, 1995). 14Pursuant to an amendment adopted at the Committee markup and offered by Reps. Bobby

Scott (D-VA) and Lamar Smith (D-TX), the reimbursement order would be treated as a civil,

not criminal, judgment.

sion prohibits judges from making case-by-case determinations

about whether an individual should be required to reimburse the

government or any other party, thus subjecting all defendants to

a one-size-fits-all punishment scheme.

Moreover, mandatory restitution discriminates on the basis of

economic status, in that those with lower incomes would be less

likely to be able to comply with reimbursement orders.13 As a result, defendant with lower incomes would be more likely to fall irreversibly into the justice system, from the initial criminal conviction to a reimbursement order and then possibly to a contempt of

court citation for not providing reimbursement.14

JOHN CONYERS, JR.

ROBERT C. SCOTT.

SHEILA JACKSON LEE.

MAXINE WATERS.

Æ