A Congressman Stands Alone against the Walsh Act

Detailed comments for Q&A # 46: “Do legislators and government officials know what’s going on? If these laws are such a problem, why aren’t they fixing them?”

In consideration of the Adam Walsh Act in the US Congress, 20 senators and 17 representatives spoke in support of the bill and one lone representative rose to oppose it. The opposing argument is presented here.

Comments by Representative Robert Scott of Virginia on the Adam Walsh Act of 2006 in Congressional debate on July 25, 2006 prior to passage of the bill by a voice vote.

From the Congressional Record, page H5723..4:

[T]he crimes committed against the children named in the bill, those not named, and the suffering of their families is a tragedy for all of us, yet this does not release us from the responsibility to legislate on a sound and reasoned basis. I believe the situation is serious and grave enough to warrant a bill that is based on approaches that have been proven to reduce this scourge in our society, not on sound bites that will merely pander to our emotions.

This bill focuses on establishing a national sex offender registry and an Internet posting system for the public to allegedly track the whereabouts of convicted and released sex offenders, and it also includes a number of gratuitous provisions, such as eight additional and duplicative Federal death penalties and 11 additional Federal mandatory minimum sentences.

Virtually all of the death penalty cases, as with most criminal cases, are State cases. The cases referenced by children named in this bill, because of the grave tragedies they have suffered, are all State offenses, and I don't believe a single one of them would have been covered by Federal law. But I think all the Federal cases, you would think that all of them would be Federal cases from the provisions in the bill.

[W]e recently increased Federal sex offenses penalties in the PROTECT Act with mandatory minimums of at least 5 years and some up to mandatory life, even in cases involving consensual sex between teenagers. And these increases came right after the Sentencing Commission had already increased penalties for sex offenses at the direction of Congress. And all of these increases were Federal cases based on the name of the crime and the political appeal of striking out harshly against offenders.

But because of the few cases that are actually under Federal jurisdiction, they will primarily affect Native Americans on reservations, because all of their cases come under Federal jurisdiction. There is no evidence that Native American offenders warrant any harsher treatment than any other offenders.

Now, with no more basis than we had before, just the name of the crime and the continuing political appeal of appearing tough on sex offenders, we are again greatly increasing penalties with more death penalties and increased mandatory minimums, including more mandatory minimums for teenagers having consensual sex.

Now, we can all agree that 35, 45-year-old or even older persons, enticing or transporting a minor across State lines to engage in sexual activity is despicable and should be severely punished. However, the mandatory minimum sentences in this bill include the 18-year-old high school student who entices or transports a 17-year-old boyfriend or girlfriend across State lines.

Under the provisions of the bill, prom night in the Washington D.C., Virginia, and Maryland area could have nightmarish consequences. And to show how ridiculous it could be, if two teenagers, one 18 and one 17, engage in sexual activity without crossing a State line, you will have, if there is any prosecution at all, it will be a misdemeanor on the part of the 18-year-old. So we have the absurd anomaly of making what is now an infrequently prosecuted misdemeanor into a 10-year mandatory minimum sentence for teens who cross State lines to do it. Imposing a 10-year mandatory prison term on teenagers engaged in consensual sex is not responsible legislating.

Rather than taking such cases out of the bill, we are told that we should simply trust the prosecutor. Don't trust the Sentencing Commission's discretion to set guidelines designed to reflect what sentence should be based on the facts and circumstances of the case or the background and role of the offender, rather than simply the name of the case, the name of the provision. And don't trust judges to look at the facts and circumstances of the case, the offender's role and background and guidelines to arrive at an appropriate sentence after hearing all of the evidence at trial. Take the discretion away from these officials and trust prosecutors to decide when to ignore law requiring a 10-year mandatory minimum sentence. And trust there are no prosecutors who can be affected by issues such as local political influences.

A few years ago, in Georgia, involving an interracial couple, a teenager got 10 years for having consensual sex with his teenage girlfriend.

The problem with mandatory minimum sentences is that they defy common sense. If you deserve the mandatory minimum, you can get it. If it violates common sense, you have to get it anyway.

Many studies have shown that mandatory minimums wasted taxpayers' money, are unfairly applied to minorities, and violate common sense.

The jury is out as to whether publicly accessible sex offender registers will have any beneficial effect on reducing sex crimes, but the studies that have been done indicate that the registries do not have any effect in reducing sex crimes. And I have seen no study that suggests that the policy of posting the name of juvenile delinquents, as this bill does, on the Internet, serves any constructive purpose.

Of course, programs and grants to assist children and to provide the type of sex offender treatment that studies have been shown that can cut recidivism in half are not in this bill.

And so, …, unlike most of my colleagues we will hear from today, I believe that we can do better than this bill to effectively address the scourge of child sexual assault.

Most of the criminals affected by the mandatory minimums in this bill deserve the punishment in the bill, but they would have gotten it anyway under present law. But a 10-year mandatory minimum for consensual prom night activities does not make sense.


Page posted on January 15, 2008.
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