SPEAKERS CONTENTS INSERTS Tables
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67–341
2000
PROBATION OFFICERS' PROTECTION ACT OF 2000 AND CHILD SEX CRIMES WIRETAPPING ACT OF 1999
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
ON
H.R. 4423 and H.R. 3484
JULY 13, 2000
Serial No. 118
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Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
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SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
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
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on Crime
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BILL McCOLLUM, Florida, Chairman
STEVE CHABOT, Ohio
BOB BARR, Georgia
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
CHARLES T. CANADY, Florida
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MARTIN T. MEEHAN, Massachusetts
STEVEN R. ROTHMAN, New Jersey
ANTHONY D. WEINER, New York
SHEILA JACKSON LEE, Texas
GLENN R. SCHMITT, Chief Counsel
DANIEL J. BRYANT, Chief Counsel
RICK FILKINS, Counsel
CARL THORSEN, Counsel
BOBBY VASSAR, Minority Counsel
C O N T E N T S
HEARING DATE
July 13, 2000
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TEXT OF BILL
H.R. 4423
H.R. 3484
OPENING STATEMENT
McCollum, Hon. Bill, a Representative in Congress From the State of Florida, and chairman, Subcommittee on Crime
WITNESSES
De Santis, Judith M., executive vice president, Federal Law Enforcement Officers Association
Johnson, Hon. Nancy L., a Representative in Congress From the State of Connecticut
Knowlton, David R., Deputy Assistant Director, Federal Bureau of Investigation, Criminal Investigation Division
Kopel, David B., research director, Independence Institute, Golden, CO
Ryan, Robert, chief probation officer, District of Massachusetts
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Sullivan, Emmet G., United States District Judge, District of Columbia
Varrone, John, Acting Assistant Commissioner, Office of Investigations, United States Customs Service
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Administrative Office of the United States Courts: Memorandum to all Chief Judges, United States District Courts, dated April 23, 1987
De Santis, Judith M., executive vice president, Federal Law Enforcement Officers Association: Prepared statement
Johnson, Hon. Nancy L., a Representative in Congress From the State of Connecticut: Prepared statement
Knowlton, David R., Deputy Assistant Director, Federal Bureau of Investigation, Criminal Investigation Division: Prepared statement
Kopel, David B., research director, Independence Institute, Golden, CO: Prepared statement
Regulations of the Director of the Administrative Office Concerning Carrying and Using Firearms By United States Probation and Pretrial Services Officers
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Sullivan, Emmet G., United States District Judge, District of Columbia: Prepared statement
Varrone, John, Acting Assistant Commissioner, Office of Investigations, United States Customs Service: Prepared statement
APPENDIX
Material submitted for the record
PROBATION OFFICERS' PROTECTION ACT OF 2000 AND CHILD SEX CRIMES WIRETAPPING ACT OF 1999
THURSDAY, JULY 13, 2000
House of Representatives,
Subcommittee on Crime,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 10:04 a.m. in room 2237, Rayburn House Office Building, Hon. Bill McCollum (chairman of the committee) presiding.
Present: Representatives Bill McCollum, Steve Chabot, Bob Barr, George W. Gekas, Howard Coble, Robert C. Scott, Steven R. Rothman, and Sheila Jackson Lee.
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Staff present: Glenn R. Schmitt, chief counsel; Bobby Vassar, minority counsel; and Veronica L. Eligan, staff assistant.
OPENING STATEMENT OF CHAIRMAN McCOLLUM
Mr. MCCOLLUM. This morning we are holding a hearing on two different bills that we are going to consider separately with two panels. I would like to start first with the hearing on H.R. 4423, the Probation Officers' Protection Act of 2000, introduced by our colleague, Congressman Bob Barr on May 11 of this year. It would authorize probation and pretrial services officers to carry firearms.
[The bill, H.R. 4423, follows:]
106TH CONGRESS
2D SESSION
H. R. 4423
To amend title 18, United States Code, with respect to the authority of probation officers and pretrial services officers to carry firearms.
IN THE HOUSE OF REPRESENTATIVES
MAY 11, 2000
Mr. BARR of Georgia (for himself, Mr. DOOLITTLE, and Mr. COBLE) introduced the following bill; which was referred to the Committee on the Judiciary
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A BILL
To amend title 18, United States Code, with respect to the authority of probation officers and pretrial services officers to carry firearms.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Probation Officers' Protection Act of 2000''.
SEC. 2. NEW AUTHORITY FOR PROBATION AND PRETRIAL SERVICES OFFICERS.
(a) SECTION 3603 AMENDMENT.—Paragraph (9) of section 3603 of title 18, United States Code, is amended to read as follows:
''(9) be authorized to carry firearms upon satisfactorily completing any safety and proficiency training or testing proscribed by the Director of the Administrative Office of the United States Courts; and''.
(b) SECTION 3154 AMENDMENT.—Paragraph (13) of section 3154 of title 18, United States Code, is amended to read as follows:
''(13) be authorized to carry firearms upon satisfactorily completing any safety and proficiency training or testing proscribed by the Director of the Administrative Office of the United States Courts.''.
Mr. MCCOLLUM. Probation officers and pretrial services officers are employees of the Judicial Branch. They perform a number of functions, including preparing reports to the court concerning whether release on bail is appropriate for a defendant, monitoring compliance with bail orders by all defendants, and monitoring activities of persons who are on parole or on supervised release. Under current law, they are authorized to carry firearms if approved by the district court. In practice, the chief judge of the district court in each of the 94 Federal judicial districts decides whether probation and pretrial services officers may carry firearms. As a result, officers in 84 judicial districts may carry them, while officers in the remaining 10 may not.
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H.R. 4423 would make this practice uniform by amending current laws to authorize all probation officers and pretrial services officers to carry firearms. The bill would require all such officers to first complete any safety and proficiency training or testing as may be required by the Director of the Administrative Office of the United States Courts.
I think we all agree that we should take whatever steps are necessary to protect our Federal law enforcement officials. Probation officers and pretrial services officers are important elements of our criminal justice system. We should never send them into harm's way without ensuring that we have taken the proper precautions to protect them. I don't know if authorizing all of these officers to carry a firearm is the answer, but I remain open minded to that as a solution. I am curious, however, as to why judges in 84 districts think allowing these officers to carry firearms is a good idea, but judges in only 10 districts do not. I look forward to the testimony of our witnesses on this issue.
I want to again thank Mr. Barr for bringing this issue to the attention of the subcommittee and for his leadership in introducing the bill to address it.
Mr. Scott?
Mr. SCOTT. Thank you, Mr. Chairman.
I am pleased to join you in convening the hearing on H.R. 4423, the Probation Officers' Protection Act of 2000, authored by our colleague, Representative Barr from Georgia, a member of the subcommittee. While I can appreciate the motive evidenced by the title of the bill, I am not convinced that the bill is warranted and therefore I am delighted that you are holding the hearing today.
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The law already allows probation officers to be authorized by their employer to carry firearms in the scope of their duties, consistent with the rules and regulations of the Administrative Office of the Courts. Close to 90 percent of the judicial districts already authorize probation officers to carry firearms and two other districts now have decided to do so.
Yet it is my understanding that in the districts where POs are authorized to carry firearms, not all are authorized to carry firearms in all situations. I also understand that not all POs want to carry firearms, nor think it is a good idea to give individual POs the authority to make that decision.
While some may believe that carrying a firearm is an issue that any PO should be able to decide for himself or herself under all circumstances, whether they are just starting on the job or working only behind a desk, it seems to me to be a matter much better decided by the PO's employer rather than Members of Congress. Mr. Chairman, it also seems that out of a consideration of comity, if not a consideration of separation of powers, that we would refrain from giving judges' employees the authority to thumb their noses at their bosses on an issue as volatile as carrying firearms.
We responded to judges' requests 4 years ago to let them decide whether and under what circumstances a PO should be armed. There is no evidence that this authority has been abused in any way. And I understand there has not been a single incident in which a PO has had to fire a weapon in the line of duty during the interim time period.
Mr. Chairman, I am looking forward to the testimony of the witnesses for enlightenment on the need for the bill and the issues that surround it.
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Thank you very much.
Mr. MCCOLLUM. Thank you very much.
Mr. Barr?
Mr. BARR. Thank you, Mr. Chairman.
I am somewhat mystified by the statement of the gentleman from Virginia that granting this authority—which would simply make uniform a policy that now is not uniform and clearly is a matter at the discretion of the Congress and this particular subcommittee—why granting this authority would be something akin to thumbing their nose at the district judges. I think that is an absurd analogy. I have no idea what the gentleman from Virginia is talking about.
In my experience—maybe his experience is different with probation officers—but in my experience as a U.S. attorney and in my civilian life, all Federal probation officers that I know are men and women of tremendous distinction and professionalism who put their lives on the line in their work just as other law enforcement officers do. Granting a law enforcement officer the ability to protect himself or herself in the performance of their duty is not thumbing their nose at anybody. It is simply saying that these men and women do put their lives at stake.
They have a very difficult job. They carry it out with professionalism and sometimes at great danger to themselves. There is no reason under Federal law to say that some are worthy of the protection that is afforded by the ability to carry firearms and others are not.
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I really do resent the implication in this gentleman's statement that somehow simply granting them this authority is thumbing their noses at the judges. It is not in any way, shape or form. We are simply here today in our capacity, with jurisdiction over the Federal Criminal Code—which is where these provisions are found in title 18—and this ought to be a very simple matter.
I am somewhat mystified by the opposition to this bill. It may simply be a jurisdictional or bureaucratic problem or dispute, but I thank the chairman for holding this hearing today. While it should be a very simple matter—one that all should agree on, that we are simply saying that we ought to have a uniform policy—somehow it is not. People on the other side seem to think that we ought to not have a uniform policy. I would certainly be interested to hear their reasons why and perhaps something a little more substantive than that this would be thumbing their nose at the judge.
Under current legislation, Mr. Chairman, as you know, Federal probation and pretrial officers are permitted to carry firearms, but only if approved by the district court. This policy has led to inconsistencies among districts around the Nation. Some districts readily grant officers the right to bear arms while other districts severely restrict or deny officers in their jurisdiction this right due to factors such as local sentiment about gun control or personal bias.
Presently, only 84 judicial districts permit probation officers to carry, leaving 10 without express authority granting this right to their fellow officers. I believe this is a serious threat to the personal safety of these officers in those 10 judicial districts. These men and women routinely perform contact visits with known criminals, often in dangerous areas where law enforcement is viewed with resentment. Should we not grant Federal probation officers the same basic level of safety afforded other law enforcement officials conducting essentially the same duties in the same areas and allow them to protect themselves?
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To address this problem of inconsistent application of Federal policy, I introduced H.R. 4423, the Probation Officers' Protection Act. This legislation simply grants Federal pretrial and probation officers in all Federal judicial districts the right to carry firearms so long as they complete the proper safety training. It seeks to protect all those officers who risk their lives each and every day to ensure they remain safe.
I urge all members to help ensure the safety and protection of our Federal pretrial and probation officers by supporting their right to carry firearms and protect themselves by supporting this important legislation.
Thank you, Mr. Chairman, for your time and the time of this subcommittee and the time of the witnesses. Like you, I look forward to hearing from our witnesses.
Mr. MCCOLLUM. Mr. Rothman, do you have an opening comment?
Mr. ROTHMAN. Thank you, Mr. Chairman.
I, too, look forward to learning more about the need for this legislation. I thank the gentleman for bringing this matter to our attention.
I approach the hearing with an open mind but with some fundamental questions, namely: If in fact the existing system of allow probation officers to have weapons is based on an act of Congress, why then didn't the Congress, when it enacted that legislation, determine that? Why did they do it the way they did it? Why did they do it that way? Did they not hold hearings? Has something changed in America? If it has changed, then of course we should address that.
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Is there a problem other than a person's individual belief that it is simply a wrong that needs to be righted when there is not a uniform policy with regards to officers of this type? But nonetheless, if there is no real problem, if in fact there have been no incidents where officers have been in danger or the incidents are de minimis, then we want to wonder, Should we fix something that is not broken in light of certain opponents to this proposed legislation who suggest that there would be additional dangers arising out of this legislation?
I haven't come to any conclusions about these questions and I am looking forward to learning more.
Thank you, Mr. Chairman.
Mr. MCCOLLUM. Thank you, Mr. Rothman.
Mr. MCCOLLUM. I would like to introduce our panel and invite them to join us here at the witness table as I do so.
The first witness on our list is the Hon. Emmet G. Sullivan, United States District Judge, District of Columbia. Judge Sullivan was nominated by President Clinton and confirmed by the Senate in 1994. He testifies here today on behalf of the Committee on Criminal Law of the Judicial Conference of the United States. Judge Sullivan received his undergraduate and law degrees from Howard University.
Our second witness is Judith M. De Santis, Executive Vice President, Federal Law Enforcement Officers Association. She is also a special agent for the United States Drug Enforcement Administration. Ms. De Santis joined the DEA in 1991 and has worked in the Newark Field Division and the New York Division. Before joining the DEA, Ms. De Santis served almost 12 years as an officer in the United States Army. She received her master's degree from Columbus College and her MBA from the Florida Institute of Technology, which I note is in my State.
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Robert Ryan, our third witness, is the chief probation officer for the District of Massachusetts. He has served as a probation officer for over 20 years. Before becoming a Federal probation officer, he served as a probation officer in the Massachusetts State system for 9 years. He received his undergraduate degree from Holy Cross.
I thank all of you for coming today.
Judge Sullivan, we will begin with you. I will say that the entire testimony of each of you, as submitted in writing, will be admitted into the record without objection. I hear none, and it is so done.
Judge Sullivan, you may summarize as you see fit.
STATEMENT OF EMMET G. SULLIVAN, UNITED STATES DISTRICT JUDGE, DISTRICT OF COLUMBIA
Mr. SULLIVAN. Mr. Chairman and members of the subcommittee, my name is Emmet G. Sullivan. I am a United States District judge for the District of Columbia. I am appearing before you today in my capacity as a member of the Committee on Criminal Law of the Judicial Conference of the United States. I Chair that committee's Legislative Subcommittee.
On behalf of the Conference, I appreciate the invitation to testify today regarding H.R. 4423. The Judicial Conference unequivocally opposes this legislation. However, before I elaborate on the reasons for our opposition to H.R. 4423, I would first like to take a moment to put this issue in context by explaining the role of our Federal probation and pretrial services employees, as well as our current firearms program. I believe this background will assist you in understanding our opposition to this legislation.
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Federal probation and pretrial officers are employees of the district court. They are appointed by the judges they serve. The authority of the court to supervise them is exercised by a chief probation officer or a chief pretrial services officer.
Probation officers have two basic duties. They conduct presentence investigations and supervise offenders. In the presentence report, the probation officer assesses the probability of risk to the community in the form of future criminal behavior, the harm caused by the offense, the need for restitution, and the defendant's ability to pay sanctions. Probation officers are also responsible for supervising offenders placed on probation and supervised release.
Like probation, Federal pretrial officers also have the two main functions of investigation and supervision. Pretrial officers investigate defendants charged with a criminal offense and submit reports to the court that include recommendations for conditional release or pretrial detention. Pretrial officers also supervise defendants released to their custody and monitor defendants' compliance with the release conditions imposed by the court.
Federal probation and pretrial officers are not law enforcement officers with criminal investigative and policing responsibilities traditionally found in the Executive Branch. They are not hired centrally, as are Executive Branch law enforcement officers. Further, they do not perform general policy type functions.
While probation officers have authority under section 3606 to arrest supervisees for a violation, existing policy discourages probation officers from arresting apparent violators. Instead, probation officers are cautioned to obtain an arrest warrant to be executed by the United States Marshals.
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The situation with pretrial officers is even clearer. They do not have any statutory authority to make arrests. Pretrial officers are required to inform the court and the United States attorney of all apparent violations which may result in the issuance of an arrest warrant that is executed by the U.S. Marshals Service. Since officers do not have primary law enforcement responsibilities and do not make arrests, their activities can currently be performed in such a way as to enhance their safety and minimize danger, depending upon the circumstances.
Currently, 83 of the 94 district courts—or more than 88 percent—participate in the firearms program and authorize officers to carry firearms. Several of the remaining 11 districts are considering participation. Of the approximately 4,700 probation and pretrial officers nationwide, only about 800 are in offices that do not currently permit officers to carry firearms. In the offices that do permit officers to carry, more than 2,700—nearly 60 percent—are currently authorized to carry firearms.
The authority for carrying firearms was originally approved in 1975 by the Judicial Conference. The policy for carrying firearms requires individual officer justification and allows the district court to consider which officers may carry and under what circumstances.
The 1975 policy permitted officers to carry firearms only in those districts in which State law permitted them to carry. While this presented no problems in most States, there were several districts where State authorities determined that the officers were not authorized to do so pursuant to State law.
In March 1991, the Judicial Conference approved draft legislation to authorize probation and pretrial officers, with the approval of their courts, to carry weapons under regulations to be adopted by the Director of the Administrative Office of the United States Courts. The legislation was successfully passed in the 104th Congress.
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Under the leadership of the Judicial Conference, the Federal probation and pretrial services firearms program has come to stress rigorous training and certification requirements, objective justification for the need to carry firearms, and public safety. Sometimes the decisions of a particular court or chief probation or pretrial officer may not be popular with all officers who may have a different idea about when and where it is appropriate for them to carry firearms.
For example, some courts limit the carrying of firearms to on-duty situations, not allowing officers to carry them off duty. Frankly, a decision that disallows off-duty officers from carrying firearms does not appear to me to be unreasonable. Nor does it appear to put these officers at untoward risk.
The effect of H.R. 4423, if enacted into law, would be to eliminate the authority of the courts to supervise and direct their own employees regarding the use of firearms. The bill would prohibit the employer and supervisor of these employees to direct in any manner the use of firearms in connection with their official duties. This will result in officers possessing carte blanche authority to carry a firearm whenever, wherever, and in whatever manner they see fit.
To my knowledge, no other Federal employee in America possesses such unbridled firearms authority. Needless to say, insulating a Government employee from supervision as to an important and sensitive facet of his or her official duties would likely be an unprecedented act of Congress.
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If it were passed, H.R. 4423 would constitute an extreme and unwarranted interference in the day-to-day operations of the Federal Judiciary. For these reasons, the Judicial Conference strenuously objects to the passage of this legislation.
It is critical for both the court and the chief probation or chief pretrial officers to have control over whether and under what circumstances their employees may carry firearms in the course of their official duties. At the very least, this enables the court to determine under what conditions it is appropriate for probation and pretrial officers to carry firearms, minimize the potential liability of both the district and the United States, ensure continuity and program standards, and ensure effective and necessary training.
Compounding the court's loss of authority over firearms, H.R. 4423's specific elimination of the Director's rules and regulations would gut even the most basic parameters of the Judiciary's firearms program. For example, under current regulations, an officer may use lethal force only in the case of self defense or the defense of a fellow officer. Absent such control, an officer may engage in a more proactive use of his firearm, resulting in possible harm to the officer, innocent bystanders, and the defendant, as well as civil litigation against the officer and the court.
Officers would no longer be required to secure their weapon at their residence with a locking device. Officers would no longer be required to submit an inventory of each weapon they carry in the course of official business. And of great concern, under H.R. 4423, chief probation and pretrial officers would lose their current capacity to inhibit an officer's ability to carry a firearm for personal, emotional, mental, physiological, and performance-related reasons.
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The loss of any one of these regulations or policies would be injurious to a coherent, rational firearms program. The loss of all of them—and many more, I might add—would be nothing less than a disaster waiting to happen.
However, even if all these specific problems were resolved, one fact would remain. Any legislation that removes from the district courts this level of control over their own employees would constitute an unparalleled interference in the authority of the courts to carry out their duties and responsibilities as provided under Article III of the Constitution of the United States. This bill intrudes upon a relationship that has well served both the Judiciary and the American public for many years. And as you can see from my testimony here today, it is totally without justification.
On behalf of the Judicial Conference, I strongly urge you to oppose this legislation.
Once again, I thank you, Mr. McCollum, for the opportunity to appear before you today. I am prepared to respond to any questions you or other committee members might have about this issue.
Thank you, sir.
[The prepared statement of Judge Sullivan follows:]
PREPARED STATEMENT OF EMMET G. SULLIVAN, UNITED STATES DISTRICT JUDGE, DISTRICT OF COLUMBIA
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Mr. Chairman, and Members of the Subcommittee, my name is Emmet G. Sullivan. I am a United States District Judge for the District of Columbia. I am appearing before you today in my capacity as a member of the Committee on Criminal Law of the Judicial Conference of the United States. I chair that Committee's Legislative Subcommittee.
On behalf of the Conference I appreciate the invitation to testify today regarding H.R. 4423. The Judicial Conference unequivocally opposes this legislation. However, before I elaborate on the reasons for our opposition to H.R. 4423, I would first like to take a moment to put this issue in context by explaining the role of our federal probation and pretrial services employees, as well as our current firearms program. I believe this background will assist you in understanding the ill-considered nature of this legislation.
FEDERAL PROBATION AND PRETRIAL SERVICES
Federal probation and pretrial services officers are employees of the district court. They are appointed by the judges they serve. See 18 U.S.C. §3152, 3602. The authority of the court to supervise them is exercised by a ''chief'' probation officer or a ''chief'' pretrial services officer. 18 U.S.C. §3152, 3602. These employees are truly an integral part of the court's staff—particularly in the management of its criminal docket.
Probation officers have two basic duties. They conduct presentence investigations and supervise offenders. See 18 U.S.C. §3603. In the presentence report, the probation officer assesses the probability of risk to the community in the form of future criminal behavior, the harm caused by the offense, the need for restitution, and the defendant's ability to pay sanctions, such as a fine, restitution or costs. The report is used by the court to determine an appropriate sentence under the sentencing guidelines promulgated by the United States Sentencing Commission, and is later used by the Bureau of Prisons to designate the offender to an appropriate penal institution. Of equal importance with the presentence investigation, probation officers are also responsible for supervising federal offenders placed on probation and supervised release whose conditions of release to the community are set by the court. Those conditions may include treatment for substance abuse or mental illness, home confinement, payment of a fine or restitution, community service, and restrictions on travel and association.
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Like probation, federal pretrial services officers also have the two main functions of investigation and supervision. See 18 U.S.C. §3154. Pretrial services officers investigate defendants charged with a federal criminal offense and submit reports to the court that include recommendations for conditional release, or pretrial detention. Pretrial services officers also supervise defendants released to their custody and monitor defendants' compliance with the release conditions imposed by the court.
Within the broad statutory directives established under §3603 and 3154, probation and pretrial services officers' day-to-day activities are directed by the court and the chief officer. Likewise, the Director of the Administrative Office of the U.S. Courts has only limited, statutorily defined authority over probation and pretrial services officers, chiefly in the area of qualifications standards and rates of compensation. See 18 U.S.C. §3672, 3153(a)(1). See also 28 U.S.C. §604(a)(9).
Federal probation and pretrial services officers are not classified in the Office of Personnel Management occupational series as GS–1811 positions, that is, as law enforcement officers with criminal investigative and policing responsibilities traditionally found in the executive branch of government. Rather, probation and pretrial services officers occupy positions that are unique to the federal judiciary. Officers are appointed by the individual district courts and carry out responsibilities under the jurisdiction of that district court. They are not hired centrally, as are executive branch law enforcement officers. Further, they do not perform general police type functions. The law enforcement authority of probation and pretrial services officers is limited to the authority provided in 18 U.S.C. §3603 and 3154, and is further limited to executing the orders of the court as specified in each particular case.
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While probation officers have statutory authority under §3606 to arrest a probationer or a person on supervised release for a violation with or without a warrant, existing policy discourages probation officers from arresting apparent violators. Instead, probation officers are cautioned to initiate violation proceedings with the court and obtain a warrant of arrest that can then be executed by the United States Marshals Service. The Committee on Criminal Law of the Judicial Conference has indicated its disapproval of probation officers making arrests, noting that arrest responsibility has traditionally belonged to the Marshals Service. See Supervision of Federal Offenders, Monograph 109, Chapter V, p. 49. See also Report of the Judicial Conference of the United States, March 1993, p. 13. The situation with pretrial services officers is even clearer because they do not have any statutory authority to make arrests. Pretrial services officers are required under 18 U.S.C.§3154(5) to inform the court and the United States attorney of all apparent violations, which may result in the issuance of an arrest warrant that is executed by the U.S. Marshals Service.
Probation and pretrial services officers receive specialized training that is tailored to their unique role and mission within the federal judiciary. To also require specialized law enforcement training in making arrests and performing work that is more police related, in a responsible and safe manner, would be at the expense of training and development that is more relevant to their actual duties, as set forth in §3603 and 3154. Participation in activities beyond those for which officers are trained or authorized would not only be inappropriate for their role, but also dangerous for the officers and for third parties. Moreover, it would expose the officers to loss of immunity from liability, loss of services of the Department of Justice in providing a defense for these officers, and loss of Federal Tort Claims Act protection. Conversely, however, since officers do not have primary law enforcement responsibilities, and do not make arrests, their activities can currently be performed in such a way as to enhance their safety and minimize danger, depending upon the circumstances.
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It is entirely reasonable and proper for a district court or a chief to decide not to invest the time and expense of having officers practice and qualify in the use of firearms if other self-defense policies and practices are deemed as effective in that particular jurisdiction. The chief in one district of which I am aware believes that the many hours that must be invested in firearms training are better used in developing verbal skills and non-lethal self-defense training that he deems more appropriate and useful for his probation officers. That chief believes that carrying a firearm is incompatible with the role of the probation officer to assist a person under his or her supervision to ''bring about improvements in his conduct and condition.'' 18 U.S.C. §3603 (3).
FIREARMS PROGRAM
Currently, 83 of the 94 district courts, or more than 88 percent, participate in the firearms program and authorize officers to carry firearms, and several of the remaining 11 districts are considering participation. Of the approximately 4,700 probation and pretrial services officers nationwide, only about 800 are in offices that do not currently permit officers to carry firearms. In the offices that do permit officers to carry, more than 2,700—nearly 60 percent—are currently authorized to carry firearms.
The authority for carrying firearms was originally approved in 1975 by the Judicial Conference which specifically provided that probation officers may be authorized to carry firearms after ''[t]he probation officer has presented to the chief probation officer sufficient reasons in writing why the carrying of a firearm is reasonably necessary: (1) in the performance of his duties generally, or (2) in the performance of duty in a specified assignment.'' See Report of the Judicial Conference of the United States, March 1975, pp. 20–21. The authority to carry firearms under certain circumstances as reflected in the 1975 policy was expanded by the Judicial Conference to include pretrial services officers in September 1985. See Report of the Judicial Conference of the United States, Sept. 1985, p. 64. The policy for carrying firearms requires individual officer justification and allows the district court to consider which officers may carry and under what circumstances. The presumption under Judicial Conference policy is still that officers should carry firearms only for defensive purposes and only with the approval of their district court.
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The 1975 policy permitted officers to carry firearms only in those districts in which state law permitted them to carry. While this presented no problems in most states, there were several districts where the chief judges had approved the carrying of firearms by officers, but the state authorities determined that the officers were not authorized to do so pursuant to state law. At least one state gave clearance for federal probation officers to carry firearms, yet denied such clearance for pretrial services officers. There was also the problem of officers living in one state but working in another where a firearms permit was required.
Because of these problems, in March 1991 the Judicial Conference approved draft legislation to authorize federal probation and pretrial services officers, with the approval of their courts, to carry weapons under regulations to be adopted by the Director of the Administrative Office of the U.S. Courts. According to the policy adopted by the Conference, such legislation ''would (a) correct the situation in which the security of probation and pretrial services officers is left to the vagaries of state law; (b) remove the uncertainty of the authority of officers who must cross state lines in the course of their duties; and (c) clarify the removability from state court of a civil action arising out of the use of a firearm by an officer under 28 U.S.C. §1442.'' See Report of the Judicial Conference of the United States, March 1991, pp. 17.
The legislation was introduced without success in both the 102nd and 103rd Congresses. Finally, the same legislation was successfully passed in the 104th Congress and became Public Law No. 104–317, 110 Stat. 3847 (October 19, 1996). This law amended 18 U.S.C. §3603(9) and 18 U.S.C. §3154(13), which enumerate the duties of probation officers and pretrial services officers, respectively, to include the following addition:
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if approved by the district court, be authorized to carry firearms under such rules and regulations as the Director of the Administrative Office of the United States may prescribe.
Under the leadership of the Judicial Conference, the federal probation and pretrial services firearms program has come to stress rigorous training and certification requirements, objective justification for the need to carry firearms, and public safety. Sometimes the decisions of a particular court or chief probation or pretrial officer may not be popular with all officers, who may have a different idea about when and where it is appropriate for them to carry firearms. Indeed, in one court I know of, the chief judge instructed the officers in his district that they are not authorized to carry firearms without the specific permission of a supervisor each time the officer requests approval to carry. More commonly, however, courts limit the carrying of firearms to on-duty situations, not allowing officers to carry them off-duty. Frankly, a decision that disallows off-duty officers from carrying firearms does not appear to me to be unreasonable. It does not appear to put these officers at untoward risk. Again, as I discussed earlier, they are not law enforcement or police officers who may properly be armed when off-duty for the sake of public safety.
JUDICIAL CONFERENCE OPPOSITION TO H.R. 4423
H.R. 4423 would amend 18 U.S.C. §3603 and 3154 with respect to firearms. As noted above, under current law §3603(9) and 3154(13) authorize probation and pretrial services officers, respectively, to carry firearms, ''if approved by the district court.'' The proposed amendment would strike those words from both statutes. Moreover, both §3603(9) and 3154(13) provide further that probation and pretrial services officers who receive authority from their courts must carry their firearms ''under such rules and regulations as the Director of the Administrative Office of the United States Courts may prescribe.'' H.R. 4423 would strike this obligation by deleting those words from both statutes, as well.
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The effect of this, if enacted into law, would be to eliminate the authority of the courts to supervise and direct their own employees who are probation or pretrial services officers regarding the use of their firearms. H.R. 4423 would prohibit the employer and supervisor of these employees to direct, in any manner, the use of firearms in connection with their official duties. This will result in officers possessing carte blanche authority to carry a firearm whenever, wherever, and in whatever manner they see fit. To my knowledge, no other federal employee in America possesses such unbridled firearms authority. Needless to say, insulating a government employee from supervision as to an important and sensitive facet of his or her official duties would likely be an unprecedented act of Congress.
In short, if it were passed H.R. 4423 would not only implement an extraordinarily flawed policy, it would also constitute an extreme and unwarranted interference in the day-to-day operations of the federal judiciary and its probation and pretrial services component. For these reasons, the Judicial Conference strenuously objects to the passage of this legislation.
It is critical for both the court and the chief probation or chief pretrial services officer to have plenary control over whether and under what circumstances their employees may carry firearms in the course of their official duties. At the very least, this enables the court to determine under what conditions it is appropriate for probation and pretrial services officers to carry firearms, minimize the district's, as well as the United States', exposure to liability, ensure continuity and program standards, and ensure effective and necessary training.
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For example, under the current system, the chief of the district is authorized to take action and revoke an officer's ability to carry a firearm if he violates any provision of the national or district policy. I am aware of at least one instance in which a chief asked an officer to surrender a firearm when she became aware that the officer was depressed over his pending divorce. H.R. 4423 would remove the chief's authority to regulate and respond to an officer's behavior or circumstances as it relates to firearms. In short, the district could be held civilly liable for an officer's actions with a firearm, yet would have no authority to regulate such actions or respond in a timely way to changed circumstances.
Compounding the court's loss of authority over firearms, H.R. 4423's specific elimination of the Director's rules and regulations would gut even the most basic parameters of the judiciary's firearms program. For example, under current regulations, an officer may use lethal force only in the case of self defense or the defense of a fellow officer. Absent such control, an officer may engage in a more proactive use of his firearm, resulting in possible harm to the officer, innocent bystanders, and the defendant, as well as civil litigation against the officer and the court.
Officers would no longer have the benefit, guidance and protection of a national firearms as well as a district firearms policy, and may not even have the support of the court that appointed and employs them. Officers would no longer be required to secure their weapon at their residence with a locking device. Officers would no longer be required to submit an inventory of each weapon they carry in the course of official business. Officers would not even be required, as under current policy, to file a report with the chief probation or pretrial services officer in the event they discharge their weapon in the line of duty.
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Under current national policy, the Director has established criteria for the duty weapon, the duty ammunition and acceptable holsters. This is a common practice among law enforcement and minimizes liability exposure. Absent such criteria, the officer may carry any make, model, and caliber of weapon, as well as ammunition. This could result in officer, subject and innocent third party injury. Finally, and of great concern, under H.R. 4423, chief probation and pretrial services officers would lose their current capacity to inhibit an officer's ability to carry a firearm for personal, emotional, mental, physiological and performance-related reasons, as was the case in my previous example.
The loss of any one of these regulations or policies would be injurious to a coherent, rational firearms program. The loss of all of them would be nothing less than a disaster waiting to happen.
However, even if all these specific problems were resolved, one fact would still remain: Any legislation that removes from the district courts this level of control over their own officers and employees would constitute an unparalleled interference in the authority of the courts to carry out their duties and responsibilities as provided under Article III. This bill intrudes upon a relationship that has well served both the judiciary and the American public for many years. And, as you can see from my testimony here today, it is totally without justification. On behalf of the Judicial Conference, I strongly urge you to oppose this unwise and improvident legislation.
Once again, I thank you for the opportunity to appear before you today. I am prepared to respond to any questions you might have about this issue.
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Mr. MCCOLLUM. Thank you, Judge Sullivan, for being here today.
Ms. De Santis, you are recognized.
STATEMENT OF JUDITH M. DE SANTIS, EXECUTIVE VICE PRESIDENT, FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATION
Ms. DE SANTIS. Good morning.
Mr. Chairman, distinguished members of the subcommittee, ladies and gentlemen, my name is Judy De Santis. I am the Executive Vice President of the Federal Law Enforcement Officers Association. FLEOA is a voluntary, non-partisan, professional association representing exclusively the interests of more than 18,000 members of Federal law enforcement officers from more than 51 agencies, including probation and pretrial services officers. FLEOA is honored to be able to give this oral summary of our support of H.R. 4423, which bears directly on the safety and security of more than 4,000 Federal probation and pretrial services officers.
The personal safety of all probation officers must be given top priority. FLEOA believes that all chief district court judges are well intentioned when it comes to the safety of probation and pretrial services officers. However, a few well-intentioned judges may not be fully aware of the dangers faced by probation and pretrial officers on the streets and in the communities where they supervise offenders and defendants.
Unfortunately, the safety and security of hundreds of officers has been compromised in the 10 districts where they are not permitted to carry firearms. These officers investigate and supervise the same, often dangerous, felony defendants and convicted offenders that officers in the other 84 districts investigate and supervise. FLEOA emphasizes that probation and pretrial officers must maintain long-term, frequent contact with the very same defendants and offenders that are brought to justice by the agents and investigators of the FBI, DEA, U.S. Marshals Service, and any other Federal law enforcement agencies you can name. FLEOA is certain that you do not believe that felony offenders with violent criminal histories, drug abuse problems, or mental disorders are less dangerous in Los Angeles or Boston than they would be in Lincoln, Nebraska or Eugene, Oregon.
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Pretrial services officers maintain community contact with these often-dangerous criminal defendants until they are sentenced in Federal court. They make unannounced home visits, almost always alone and often at night. Probation officers are indeed unique from other law enforcement officers. They have the added complexity of balancing rehabilitative and counseling efforts along with statutorily mandated enforcement duties.
Do not Federal probation and pretrial officers deserve a full range of safety options as do other Federal officers? FLEOA says yes. In 1986, a mentally disturbed offender gunned down United States Probation Officer Thomas E. Gahl while Officer Gahl was attempting a routine home visit. Thomas Gahl's district, Southern Indiana, did not permit carrying a firearm. Unarmed, Officer Gahl had no chance of survival. An investigative report into Thomas Gahl's murder acknowledges that ''a firearm might have assisted Tom Gahl'' in that incident. Within the same paragraph, the report recommended that a probation officer's ability to carry firearms still be left to the discretion of the district court.
In 1996, the Honorable Barefoot Sanders testified before the House Judiciary Committee regarding Federal probation and pretrial officers. The dominant theme in that testimony was preventing probation officers' safety from being compromised. Congress agreed and corrected that problem with the Federal Courts Improvement Act of 1995.
However, the personal protection of these officers continues to be compromised. This is self-evident when entire districts of officers are denied the ability to protect themselves and carry a firearm. FLEOA believes this was not the intent of either Congress, the Judicial Conference of the U.S. Courts, or the Administrative Office of the U.S. Courts.
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The General Accounting Office study entitled ''Federal Offenders: Trends in Community Supervision'' stated that data provided by the Administrative Office of the U.S. Courts and the Federal Bureau of Prisons suggests that at the end of fiscal year 1996, almost as many convicted offenders were serving terms of community supervision as there were inmates in the Federal prison system. The report also stated that inmates projected to be released from the Bureau of Prisons in fiscal years 1997 through 2001 may include a greater number of high-risk offenders than was previously released.
These offenders are not projected for release sometime in the near future. They are being released right now and they are being supervised by Federal probation officers across the Nation.
In closing, FLEOA is confident that this subcommittee acknowledges that it only makes common sense for Federal probation and pretrial officers, as part of the Federal law enforcement community, to be secure and protected as much as reasonably possible while performing their duties. But just as importantly, their families deserve to know that they have been afforded every commonly accepted means of self-defense in the law enforcement community for their personal safety. This must be done to ensure that every probation officer and pretrial officer will return home to their families at the end of the day.
Thank you again for allowing FLEOA to come before you and speak on this very important issue.
Subject to your questions, this concludes our testimony.
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[The prepared statement of Ms. De Santis follows:]
PREPARED STATEMENT OF JUDITH M. DE SANTIS, EXECUTIVE VICE PRESIDENT, FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATION
Mr. Chairman, distinguished members of the Subcommittee, ladies and gentlemen. My name is Judith De Santis. I am the Executive Vice President of the Federal Law Enforcement Officers Association [FLEOA]. FLEOA is a voluntary, non-partisan, professional association representing exclusively the interests of more than 18,000 members of federal law enforcement officers and special agents from more than 51 agencies of the Federal Government, including Probation and Pre-Trial Services Officers. FLEOA is honored to be able to give this oral summary of our submitted written testimony in support of H.R. 4423, which bears directly on the safety and security of more than 4,000 federal probation and pre-trial services officers.
I am also a career special agent with the Drug Enforcement Administration and serve as a Lieutenant Colonel in the United States Army Reserve.
Distinguished members of this Subcommittee, FLEOA respectfully asserts that the personal safety of all probation officers must be given top priority. FLEOA believes that all chief district court judges are well intentioned when it comes to the safety of probation and pre-trial services officers. However, FLEOA also believes that a few well-intentioned judges may not be fully aware of the dangers faced by probation and pre-trial officers on the streets and in the communities where they supervise offenders and defendants.
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Unfortunately, the safety and security of hundreds of officers has been compromised in ten districts where they are not permitted to carry firearms, as is authorized by law in 18 USC 3605 (9). Districts that currently prohibit their officers from carrying firearms are: Eastern Virginia, Massachusetts, Eastern Tennessee Probation (except Chattanooga), Eastern and Western Wisconsin, Northern Ohio, Eastern Oklahoma, the U.S. Virgin Islands, and Southern and Central California.
These officers investigate and supervise the same, often dangerous, felony defendants and convicted offenders that officers in the other 84 districts investigate and supervise. FLEOA emphasizes to this Subcommittee that probation and pre-trial officers must maintain long-term, frequent contact with the very same defendants and offenders that are brought to justice by the special agents and criminal investigators of the FBI, DEA, U.S. Marshals Service and any other federal law enforcement agencies you can name. FLEOA is certain that the members of this Subcommittee do not believe that felony offenders with violent criminal histories, drug abuse problems or mental disorders are less dangerous in Los Angeles, CA and Boston, MA than they would be in Lincoln, NE or Eugene, OR.
Pre-Trial Services Officers maintain community contact with these often-dangerous criminal defendants until they are sentenced in Federal Court. Once probationers have been sentenced and, in the case of post-imprisonment of supervised releasees, probation officers maintain even longer and more frequent contact with these offenders. They make unannounced home visits, almost always alone and often at night. Probation Officers are indeed unique from other law enforcement officers. They have the added complexity of balancing rehabilitative and counseling efforts along with their statutorily mandated enforcement duties.
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Mr. Chairman and Subcommittee members, the obvious question must be asked. Do not Federal Probation and Pre-Trial Officers deserve a full range of safety options as do other federal officers? FLEOA believes all Federal law enforcement officers are entitled to every commonly available means of self-defense, especially including the carriage of firearms. We, as your constituents, believe you share the view of FLEOA on this subject. In 1986, a tragedy occurred that is the driving force behind why FLEOA is before you today. A mentally disturbed offender gunned down United States Probation Officer Thomas E. Gahl while Officer Gahl was attempting a routine home visit. Thomas Gahl's district, Southern Indiana, did not permit probation officers to carry firearms for their personal protection at that time. Unarmed, U.S. Probation Officer Gahl had no chance of survival against his armed assailant. An investigative report compiled by the Administrative Office of the U.S. Courts into Thomas Gahl's murder acknowledges that ''a firearm might have assisted Tom Gahl'' in that incident. Interestingly, within the same paragraph, the report recommended that a probation officer's ability to carry firearms still be left to the discretion of the district court. A few blocks from here, Tom Gahl's name appears on the wall of the National Law Enforcement Officers Memorial on Panel 39, Line E–4. The story of this senseless murder has been chronicled in a book entitled A Violent Act, by Alec Wilkinson (1994). His wife, Nancy, and two sons, Nicholas and Christopher survived Thomas Gahl.
In 1996, the Honorable Barefoot Sanders testified before the House Judiciary Committee regarding federal probation and pre-trial officers. Although the initiative before Congress at that time was to obtain legislation which exempted federal probation and pre-trial officers from state laws that prohibited them from carrying firearms in their jurisdictions and across state lines, a dominant theme in that testimony was preventing probation officers' safety from being compromised. Congress agreed with this clearly common sense position and corrected this problem by including appropriate legislation in the Federal Courts Improvement Act of 1995.
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However, the personal protection of these officers continues to be compromised. This is self-evident when entire districts of officers are denied the ability to protect themselves by being trained and qualified to carry firearms. As I have indicated earlier, under current law a district court judge can at any time remove or severely restrict the authority of an entire district of probation and pre-trial officers in the carriage of firearms. FLEOA believes this was not the intent of either Congress, the Judicial Conference of the U.S. Courts, or the Administrative Office of the U.S. Courts.
In 1997, The General Accounting Office published a study entitled Federal Offenders: Trends in Community Supervision. Among other findings, report GGD–97–110, stated that data provided by the Administrative Office of the U.S. Courts (AOUSC) and the Federal Bureau of Prisons suggests that at the end of Fiscal Year 1996, almost as many convicted offenders were serving terms of community supervision as there were inmates in the federal prison system. The AOUSC provided documentation showing that offenders serving post-prison release supervision pose more problems for probation officers and present a greater risk to the community than do those on probation.
Even more significant, the report stated that inmates projected to be released from the Bureau of Prisons in Fiscal Years 1997 through 2001 may include a greater number of high-risk offenders than was released from the federal prison population from 1990 through 1996. Mr. Chairman and Subcommittee members, these offenders are not projected for release sometime in the future. They are being released now and are being supervised now by Federal Probation Officers across the nation.
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In closing, FLEOA is confident that this Subcommittee acknowledges that it only makes common sense for Federal Probation and Pre-Trial Officers, as part of the Federal law enforcement community, to be as secure and protected as much as reasonably possible while performing their duties. But just as importantly, their families deserve to know that they have been afforded every commonly accepted means of self-defense in the law enforcement community for their personal safety. This must be done to ensure that every probation officer and pre-trial services officer will return home to their families at the end of the day.
Thank you again for allowing FLEOA to come before you today on this very important issue.
Subject to your questions, this concludes FLEOA's testimony.
Mr. MCCOLLUM. Thank you very much, Ms. De Santis.
Mr. Ryan, you are recognized.
STATEMENT OF ROBERT RYAN, CHIEF PROBATION OFFICER, DISTRICT OF MASSACHUSETTS
Mr. RYAN. Mr. Chairman and members of the subcommittee, my name is Robert Ryan. As has been previously stated, I am the chief probation officer in the District of Massachusetts. I have been a Federal probation officer for 20 years; I have been the chief probation officer for the past 6 months, since January of this year. Prior to that, I was a State probation officer in Massachusetts for 9 years. And before I began that job, I was in the United States Army and served in Vietnam.
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I think the issue here today is the importance of individual districts being able to develop their own safety programs within their district. Some districts have a safety program that have firearms components. Some districts—like the District of Massachusetts—have a safety program that does not have a firearm component.
One isn't right and the other isn't wrong. It is a matter of a decision on the local level in the individual district court as to where your time and energy and resources are going to be spent. It is our view in the District of Massachusetts that our time, our energy, and our resources are to be spent in areas other than firearms in terms of officer safety.
As the chief probation officer in Massachusetts, I don't feel that I take a back seat to any chief probation officer around the country in terms of officer safety. I think it is extremely important. I have devoted—in my previous capacity as the deputy chief probation officer in Massachusetts—energy in officer safety programs and I have devoted—in the first 6 months of my tenure as chief—energy as well.
I would like to point out that in my district—again, who does not have a firearms policy—the first committee that I strengthened and called was the Safety Committee. It has met more in my district in the last 6 months than any other committee that exists in Massachusetts. So I don't think it is a question of those districts who have firearm policies and allow people to carry firearms are those districts that take safety seriously and those districts who do not, do not take it seriously.
I feel that I have, as the chief probation officer in Massachusetts, a strong obligation to look out for the safety of my officers. I have that obligation to the officers and I have an obligation to their families.
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We in Massachusetts have put our resources in other areas than firearms. We conduct regular defensive tactics programs. We provide to our officers training which deals with defusing volatile situations that may present themselves in the course of their work. We have cell phones for officers to assist in their safety. We have Capstan that is available to officers. We have training in that area. We have physical fitness programs which allow officers to maintain their physical fitness. And there are a wide range of other training programs that we provide officers that go to the heart of the issue of providing officer safety.
It has been alluded to here that the probation officer has a much different role than the traditional law enforcement officer, and that is the case. We are not the FBI. We are not DEA. We are part of the Judicial Branch and we have an obligation statutorily to use all methods reasonable to try to bring about an improvement in the conduct and condition of those offenders that are under our charge. We are—both districts that have firearms policies and those that do not—to avoid confrontational situations.
I tell my officers that if they pull up to a street corner and they are going to make a home visit and things don't look right, it looks like a dangerous situation, to leave the area. That is not just me in Massachusetts. I would say those are the views of virtually all the chief probation officers across the country.
We do not have to look at a situation that is dangerous and go into that situation regardless. That is not our mandate. We could ask the offenders—if we think it is a dangerous situation—to come into the office where there is a greater degree of protection.
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So to put Federal probation officers in the same boat as other law enforcement officers I think is a bit—I don't think that is correct and I think you can go in a wrong direction when you do that.
In our district, candidates who come in to apply for Federal probation officer positions are informed right up front at the time of the interview that we do not carry firearms in the District of Massachusetts. They are aware of that.
They are aware also of the full scope of our jobs, that we do make field visits. We are very aggressive in the community. We don't stay in our office because we don't carry firearms. We are out in the community. But we authorize probation officers to team up when there is a view that there is a dangerous situation out there. And in addition to that, for those officers who would come to me, as the chief probation officer, and say, ''I am in supervision and I don't like the idea of going out there; I am fearful for my life; you haven't provided me with a firearm''—we would offer them the opportunity to work in the presentence unit, which is another function of the probation officer where there is much less exposure to the community and a greater degree of safety.
So it seems to me that for districts who have policies to carry firearms, and for those districts like us who do not, this bill is a bad bill. Take for example those districts who do have a policy. It seems to me that it strips away all the regulations that are currently in effect to regulate the carrying of those firearms. The judge has clearly stated that.
I am not just here talking about those districts that don't have firearms policy. I am talking about those that do. It seems to be reckless to allow each individual probation officer to decide under what circumstances they are going to carry firearms, regardless of what the chief judge or the chief probation officer does.
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In many other areas, chief probation officers and chief judges are required to set policies and procedures that govern the operation of their office. To remove this authority to establish policies and procedures in this critical area I think is a mistake.
Thank you for this opportunity to speak to you. I am available for whatever questions you might have.
Mr. MCCOLLUM. Thank you, Mr. Ryan.
I will recognize myself for 5 minutes.
With all due respect, Judge Sullivan, whether we should do it or not is another story, but I do believe—looking at the statutes—that Congress has the power over the probation officers and the pretrial officers. We could set the rules and we have traditionally given you this kind of authority, but I don't think it is a constitutional issue.
Mr. SULLIVAN. All we are asking you to do is to allow us to continue to exercise that authority for our own employees.
Mr. MCCOLLUM. I wasn't sure from your testimony if you were expressing it in a constitutional way, but I don't think it is.
Mr. Ryan, I have one question that your testimony gave rise to.
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If you were to allow—and you don't, I know—the probation officers and pretrial services officers in your district to carry firearms if they voluntarily chose to do so, do you have any idea what percentage would choose to do so?
Mr. RYAN. I really don't.
To be frank with you, I would have to say that if we polled the probation officers in my district, the majority would probably say they would like to have the option of carrying firearms. I think from that number you would drop significantly to the actual probation officers who would carry firearms. I don't know what the national percentages are, but I remember—and I may be wrong—that actual officers who choose to carry firearms—I don't know if it is half, but it is relatively small in terms of the total number of officers in those districts who have that authority.
Mr. MCCOLLUM. Why would they want the option?
Mr. RYAN. To carry firearms?
Mr. MCCOLLUM. Yes.
Mr. RYAN. I think there are a number of probation officers who feel that their safety is at issue out on the street and that they feel protected, to a greater degree, with firearms. And that I think is what motivates the districts who have established these firearms policies.
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I am not here to say they are wrong. But it seems to me that they—who have decided to go that route—and us—who are in the minority, who have decided to go in a different direction but still concentrate on the importance of officer safety—should be allowed to make those decisions.
Mr. MCCOLLUM. Do the judges in the Massachusetts District consult with you and with others in the probation officer world about this issue? Is there a process for actually having dialogue?
Mr. RYAN. Yes. About a year ago—a little over a year ago—the issue of firearms in our district came up again. We had a self-assessment and officers in our district talked about wanting to have that option. So we revisited this issue and had a number of meetings with feedback from officers and our management team. We made a recommendation to the court, and it was a unanimous recommendation within our management team that we not change the current policy which prohibits it. The court adopted that recommendation.
Mr. MCCOLLUM. Ms. De Santis, in the world of law enforcement officers other than probation officers and pretrial, there is a major movement to which this Congress is close to embracing to allow retired and current officers—regardless of the laws of individual States—to carry firearms across State lines—State police officers, sheriff's deputies, and so forth—principally because of their concern about safety if somebody who they have been following, investigating, involved with would turn on them and be actually trying to seek retribution against the officer.
That is the principal concern, the safety of that officer, not so he can go do his duty in some way or get involved in a police action.
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Is there that kind of sense of concern among probation and pretrial officers? Do they have situations that are comparable to this where when through their jobs—either while they are still on active service or when they are retired—that they are threatened or feel threatened by the potential of somebody they have come in contact with wanting to harm them because of something perceive or did do with respect to their case?
Ms. DE SANTIS. Yes, sir, I would have to say that that is a true statement. Just because an officer retires doesn't mean that there is no potential for running into a client you have dealt with in the past in the mall or anyplace else. What applies to any other law enforcement would be true in that case as well.
The issue is that we just want to ensure that all the probation officers have the opportunity to have this ability to have this arsenal completely full. Officer safety is tantamount. It should be noted for the record that the probation and pretrial officers who do carry guns have not had any incidents of using them since they have been doing it. It is just one more implement to allow them to protect themselves should the possibility occur.
One of the districts that does not allow the carrying of firearms is South Central Los Angeles. Why? They are going in and doing home visits. The potential is there to restrict a felonious offender's freedom. The possibility exists that that could occur. Just giving them one more opportunity to protect themselves in this volatile environment is to their benefit. It is to all officers' benefit.
We have already paid the ultimate price. We have lost a probation officer because he was unarmed. The investigative report shows that it might have helped him survive that incident. We will never know. That man is dead and is survived by a wife and two young children.
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We just want to make sure that we give them every possibility in the world to protect themselves and be able to go home at night back to their families.
Mr. MCCOLLUM. I have used up my 5 minutes.
Mr. Scott?
Ms. DE SANTIS. I am sorry, sir.
Mr. MCCOLLUM. No, no. I am just commenting. I have used them up. I asked you the question. You properly answered it.
Mr. Scott?
Mr. SCOTT. Thank you.
Ms. De Santis, this bill doesn't cover retirees, does it?
Ms. DE SANTIS. No, sir. No.
Mr. SCOTT. Do you have any experience with State probation officers, whether they carry firearms?
Ms. DE SANTIS. Sir, I am only dealing with Federal probation and pretrial. I can get some information, if that is what you need.
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Mr. SCOTT. Are there law enforcement officers, like prison corrections officers, that cannot carry firearms?
Ms. DE SANTIS. Sir, I do not know the answer to that question. I would have to get back to you on that.
Mr. SCOTT. Judge Sullivan, I understood your testimony to indicate that this would cover probation and pretrial officials whose duties are different.
Mr. SULLIVAN. That is correct.
Mr. SCOTT. As I understand present law, you give individual consideration. Even in those districts where it is allowed, the decision is made on an individualized basis.
Mr. SULLIVAN. That is correct.
Mr. SCOTT. You have developed regulations on how this should be carried out?
Mr. SULLIVAN. Yes.
Mr. SCOTT. Do they indicate that the decision has to show that for that particular officer to carry a firearm is reasonably necessary and it can only be done in his official duties? You have a statement that it can only be used in self-defense, or to protect a fellow officer from death or grievous harm. You indicated a requirement that it be either on his person or locked, that he should keep an inventory and file a report if he discharges a firearm in the performance of his duties.
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Mr. SULLIVAN. Yes, there are policies and procedures. Yes.
Mr. SCOTT. We would like to introduce a copy of these regulations into the record.
Mr. MCCOLLUM. Without objection, the referenced document will appear in the record.
[The information referred to follows:]
REGULATIONS OF THE DIRECTOR OF THE ADMINISTRATIVE OFFICE CONCERNING CARRYING AND USING FIREARMS BY UNITED STATES PROBATION AND PRETRIAL SERVICES OFFICERS
Pursuant to 18 U.S.C. §3603(9) and 3154(13), probation and pretrial services officers are authorized to carry and use firearms pursuant to the following regulations only upon the written approval of the district court in the district in which they serve.
1. A probation or pretrial services officer may carry a firearm under the following conditions:
a. The probation or pretrial services officer has presented to the chief probation officer or the chief pretrial services officer, respectively, sufficient reasons in writing why the carrying of a firearm is reasonably necessary (A) in the performance of the officer's duties generally, or (B) in the performance of the officer's duties in connection with a specific assignment. Sufficient reasons for carrying a firearm are that an assignment or an officer's duties generally subject the officer to serious risk of physical harm and that other methods of protection are not appropriate or available-under the circumstances.
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b. The approval of the request has been granted in writing by the chief probation officer or chief pretrial services officer.
c. The probation or pretrial services officer has completed the National Firearms Training Program for U.S. Probation and Pretrial Services Officers and has been qualified thereunder to carry a firearm.
2. Except for transportation to and from a location in which an officer will perform official duties, a probation or pretrial services officer who has been authorized to carry a firearm may only carry or use a firearm in the course of the performance of the officer's official duties.
3. A probation or pretrial services officer who has been authorized to carry a firearm shall use the same only in the exercise of his or her rights of self defense or to protect a fellow officer from death or grievous bodily harm in accordance with the law.
4. The Director, in consultation with the Committee on Criminal Law of the Judicial Conference, shall periodically determine which firearms and ammunition are authorized for use by probation and pretrial services officers. No other firearms or ammunition are authorized to be carried or used.
5. A probation or pretrial services officer who has been authorized to carry a firearm is responsible for the care and maintenance of the firearm, whether the firearm is the property of the officer or the property of the United States. When practical, repairs on weapons should be made only by factory-authorized, armorers or gunsmiths.
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6. A probation or pretrial services officer who has been authorized to carry a firearm shall, while on duty, carry the firearm on the officer's person or shall store it in a locked gun box or cabinet. Any such officer shall keep the firearm safely secured utilizing a safety lock device any time the firearm is at the officer's residence.
7. The chief probation officer or chief pretrial services officer in each district in which firearms are authorized to be carried shall keep an inventory which shall consist of title and name of officer, date the weapon was issued and serial number; whether the weapon is surplus, purchased by the officer or the district; and date safety lock was issued. The inventory and any changes thereto shall be forwarded to the Administrative Office. Any firearm that is the property of the United States must be returned to the chief by any officer who terminates his or her service in the district. However, if the officer issued the weapon transfers to another district where firearms are authorized, the chief in the issuing district will decide if the officer can transfer the weapon to the new district.
8. A probation or pretrial services officer who discharges a firearm while in the performance of the officer's duties - except in the course of training or qualification—shall file a report in writing with the chief probation officer or chief pretrial services officer as appropriate within twenty-four (24) hours. The report shall describe in detail the factual circumstances of, and reason for, the discharge of the firearm. The chief probation officer or chief pretrial services officer shall forthwith send copies of any reports required to the chief judge of the district and to the Director of the Administrative Office.
Mr. SCOTT. How does this legislation interact with a probation officer's individual right to get a concealed weapon permit outside of his duties, if he has a concealed weapons permit in the State and he used that permit to carry the weapon while he is on duty?
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Mr. SULLIVAN. I don't want to guess, but I will guess. My answer is no, he probably would not be able to carry that concealed weapon. But I don't want to speculate about that because the laws are different in the various jurisdictions. I can provide the committee with additional information in that regard, if you so desire.
Mr. SCOTT. Mr. Ryan, I think I got from your testimony that you only have a certain number of hours that you can train people, and if you use training out on the range on firearms that is training they can't get in some other area. Could you state again what kinds of training and other safety methodology take time for training that might not take place if in those precious hours they are out on the range?
Mr. RYAN. You are right. I think it is commonly understood that to operate an effective firearms policy in a district, it takes a tremendous amount of time and effort.
We have decided to put our time and effort in other areas in terms of officer safety. Our initial orientation of new officers has a safety component. We have an annual off-site, 3-day defensive tactics program that is offered. In fact, other districts besides Massachusetts who do have firearms policies come to Massachusetts to participate in that defensive tactics program.
We have the issuance of Capstan and we do training in order to teach people how to properly deliver that. We have stepped up our safety in terms of some of the satellite offices that are outside of Boston where the security wasn't very good. And we have put in magnetometers; we have put in bullet-proof walls where necessary. We have training in terms of verbal skills to diffuse volatile situations or potentially violent situations, to teach officers how to recognize situations that could potentially turn ugly and result in violence. It is our view that to devote our time and energy in those areas returned bigger dividends.
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Again, I am not saying that we are right and they are wrong. But I am saying that in the 20 years I have been a Federal probation officer in the District of Massachusetts, we have not had one serious assault on an officer—never mind a shooting—but not one serious assault. Knock on wood, that could change tomorrow because we are dealing with serious offenders.
I agree with the testimony about the jails having offenders that are violent with mental health histories. We are very much aware of the potential for violence. I am just not convinced that arming our officers contributes to their safety. In fact, an argument could be made that an armed probation officer might decide—in that scenario I gave you before of pulling up to a street corner that looks dangerous—my better sense would say, ''I better not go in there,'' but maybe on a subconscious level they may say, ''Well, I have a firearm here that might be the equalizer.''
We are taught not to do that—both firearms districts and non-firearms districts—but it seems to me that there is that potential for that kind of reaction.
In any event, we feel that our time and energy should go into other areas in our effort to keep our officers safe so they can go home to their families.
Mr. SULLIVAN. Mr. McCollum, if it is appropriate, I would like to correct the record with respect to a statement Ms. De Santis made—if that is appropriate at this time.
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Mr. MCCOLLUM. If you would like.
Mr. SULLIVAN. With all due respect to Ms. De Santis, she quoted from an investigative report prepared by the Administrative Office of the U.S. Courts. Her quote was that a firearm might have assisted Tom Gaul. Indeed, in paragraph eight of the report—and I would be happy to submit a copy for the record—the Administrative Office stated that although a firearm might have helped Tom Gaul in this particular incident, there are many circumstances where the presence of a firearm could aggravate the matter.
So I think it is appropriate that the full——
Mr. MCCOLLUM. I will be very glad to receive the full report into the record. Without objection, it is so ordered.
[The information referred to follows:]
| Administrative Office of |
| the United States Courts, |
| Washington, DC, April 23, 1987. |
MEMORANDUM TO ALL CHIEF JUDGES, UNITED STATES DISTRICT COURTS
SUBJECT: Death of U.S. Probation Officer Thomas E. Gahl
Upon the recommendation of the Judicial Conference Committee on the Administration of the Probation System, I am attaching for your information a report of a review the Division of Probation made of the circumstances surrounding the murder of U.S. Probation Officer Thomas E. Gahl of Indianapolis, Indiana. Tom Gahl was the first U.S. probation officer killed by a client under supervision. A copy of this report has also been provided to all chief probation and pretrial services officers.
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| L. Ralph Mecham, Director. |
Attachment
This report is a review by the Probation Division into the circumstances surrounding the September 22, 1986, death of U.S. Probation Officer Thomas E. Gahl. The information in this report was compiled by Probation Division staff who conducted interviews and reviewed records in Indianapolis, Indiana, and Springfield, Missouri.
INTRODUCTION
Thomas E. Gahl was killed by probationer Mike Wayne Jackson at Jackson's Indianapolis residence. Tom Gahl was 38 years old, and had been a U.S. Probation Officer since 1975.
Mike Wayne Jackson was on probation for a firearms offense. He was 40 years old, and had a history of mental illness, alcohol and drug abuse, and criminal behavior. After killing Gahl Jackson killed two more people, wounded a police officer, and kidnapped several people. Ten days later, when apprehension was imminent, he committed suicide.
This report will be in two sections. The first section will be a history of the Jackson case from the time of his arrest on Federal charges to the time of his death. The second section provides a summary and recommendations.
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CASE HISTORY
On March 1, 1985, Indianapolis Police arrested Jackson for shoplifting. A homemade shotgun and incendiary devices were found in his truck. Possession of these weapons led to a four count Federal indictment. During pretrial proceedings, the Court ordered him detained because of dangerousness and the likelihood of flight. Upon the motion of defense counsel, the Court committed Jackson for a mental competency examination pursuant to 18 U.S.C. 4241. He was confined in the Medical Center for Federal Prisoners at Springfield, and subsequently was found to be competent to stand trial. Psychiatric diagnoses were paranoid schizophrenia in remission and antisocial personality disorder. He was returned to Indianapolis for trial.
While awaiting trial in Federal custody at a county jail, Jackson's behavior was disruptive. He also ''fired'' his appointed attorney. The Court then appointed two other attorneys to represent him.
Count 1 charged Jackson with Possession of an Unregistered Firearm (26 U.S.C. 5861 (d) and 5871) and Count 2 with Possession of a Firearm without a Serial Number (26 U.S.C. 5861 (i) and 5871). Counts 1 and 2 involved galvanized pipe constructed to fire 12 gauge shotgun shells. Counts 3 and 4 alleged possession of four ''molotov cocktails'' and of a firearm by a convicted felon. On September 20, 1985, Jackson pled guilty to Counts 1 and 2. The Court committed Jackson to the custody of the Attorney General for one year on Count 1, suspended imposition of sentence on Count 2, and placed him on three years probation. A presentence report was not ordered.
The psychiatric evaluation prepared during the competency examination provided background information about Jackson. According to that report, Jackson committed the offense because he wanted to protect himself. He thought someone was out to kill him. Jackson said he had been arrested over 30 times, and had spent 17 years in prison. He indicated he had been arrested on several occasions for assault and battery with intent to kill. Jackson reported he first got into trouble at age 13 or 14, when he robbed a taxi driver. He said he had married the same woman twice, had two children, and was divorced twice. His work history consisted of unskilled labor. He reported he drank alcohol as often as he could get it, and used drugs (''mostly diet pills and pot'') since age 18. Jackson reported he had been diagnosed as schizophrenic and psychotic, and had been medicated and hospitalized on several occasions. The Federal Bureau of Investigation fingerprint record revealed Jackson had served three felony prison terms, one of which was for rape.
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After sentencing, Jackson was returned to the Medical Center. His anticipated release date was February 7, 1986. While in custody, Jackson's mental condition deteriorated. As early as October 30, 1985, authorities at the Medical Center advised the Probation Office in Indianapolis, that they were considering hospitalization of Jackson in a secure facility for the mentally ill in Indiana.
While the Medical Center was exploring release options, Jackson was medicated, and his condition improved. On January 14, 1986, a psychiatric panel recommended Jackson be treated as an outpatient.
Title 18, Section 4246, as amended by the Comprehensive Crime Control Act of 1984, provides authority to the Director of the Medical Center at Springfield to certify to the local U.S. District Court that a person whose sentence is about to expire is suffering from a mental disease or defect, and release would create a substantial risk of bodily injury to another person or serious damage to property. Under this provision, the release of the individual is stayed pending a hearing. After a hearing, the Court can conditionally release the individual to a prescribed regimen of medical, psychiatric, or psychological care or treatment which has been certified as appropriate by the Director of the Medical Center. The person responsible for the treatment of a conditionally discharged individual is required to notify the Attorney General and the Court of any failure of the individual to follow the prescribed treatment. In the event the individual does not follow the prescribed treatment, the Court may have the individual arrested and returned for a hearing to determine if the individual should be remanded to a suitable facility.
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On April 12, 1986, Jackson was released under the provisions of 18 U.S.C. 4246. The Court in the Western District of Missouri ordered the discharge of Jackson with the condition he follow a treatment plan developed by the Medical Center and a community mental health center in Indianapolis. The treatment plan required Jackson to receive medication once a day from a mental health professional or a nurse.
During Jackson's confinement, the probation office in Indianapolis was kept informed of his medical condition and of the various release plans. Staff in the probation office attempted to make arrangements for Jackson to reside in a halfway house. These efforts were unsuccessful because of Jackson's history of violent behavior.
On the date of his release, Jackson was escorted by staff from the Medical Center at Springfield, to the community mental health center where he met with a psychiatric social worker. Arrangements were made for daily medication. Medical Center staff then escorted Jackson to the probation office.
Probation office staff made arrangements for Jackson to stay that evening at a local mission. Referrals were made for housing assistance, Social Security benefits, and job placement. Eventually, the community mental health center made arrangements for Jackson to stay at a Salvation Army facility, and for him to participate in a work program for the mentally ill. In June Jackson began receiving Social Security benefits.
The community mental health center contacted the court in the Western District of Missouri through the Medical Center, and obtained authority to modify the method of administering medication to Jackson. Staff at the community mental health center then saw Jackson every two weeks. Consideration was being given to reducing visits to once per month. Jackson's condition appeared stable.
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In September, the probation officer assigned to Jackson made arrangements through the chief probation officer to transfer supervision to probation officer Gahl. This was done because the assigned officer felt the case required more time than he could devote to it.
On Monday, September 15, the previously assigned officer, Gahl, and Jackson met jointly in the probation office. Gahl was familiar with the case since he had earlier contact with Jackson. The transfer was explained and conditions of probation were reviewed. Jackson related well to both probation officers, but was hostile toward his family and over the requirement he take medication. There were no signs of illegal drug use. Gahl also met with Jackson alone. He made an appointment for Jackson that afternoon at the community mental health center, since he had missed his appointment on September 10, 1986. Jackson went to the center and received his medication.
On Friday, September 19, Gahl went to the community health center, reviewed the Jackson file, and talked with a psychiatric social worker who was familiar with him. Staff recommended Jackson be tested for illegal drug use as family members had told them he was using drugs.
On Monday, September 22, at approximately 8:15 a.m., Gahl went to Jackson's residence to obtain a urine specimen. It is unknown if Jackson anticipated the visit. Jackson had been at this address since mid-August. The house was run-down, and had no electricity or running water. The front porch was surrounded by overgrown bushes. Both the yard and house were full of debris.
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Gahl was shot three times. There were no witnesses to the first shot. A neighbor heard what sounded like a knock on a door, and then a loud blast. The Indianapolis Police received a report at about 8:15 a.m. of a shooting. In the opinion of the Federal Bureau of Investigation, Gahl was shot in the left elbow from behind as he left the residence. Witnesses saw him down on his right knee, and then saw him get up and go toward his car with Jackson in pursuit. Gahl was seen backing down the sidewalk away from Jackson. One witness heard Gahl's plea for help from about 15 feet away. Jackson then shot Gahl in the right side of the head, and also fired a third shot at close range into the right side of his head. Jackson initially went back into his residence. A few moments later, he left the house with a shotgun and extra shells, got into his truck, and drove away.
A search of the residence by police revealed medication dating back to August which had been prescribed for Jackson by the community mental health center. No illegal drugs or paraphernalia were found. It was determined the shotgun had been purchased by Jackson at an Indianapolis pawn shop for $195 cash on September 11, 1986.
At approximately 8:33 a.m., Indianapolis Police received a report of a fatal shooting of the owner of a small neighborhood grocery market. Jackson then kidnapped a witness to the robbery and killing. He also robbed, terrorized, and kidnapped several other people before leaving Indiana. At approximately 6:48 p.m., Jackson shot and killed a motorist on Interstate 70 in Missouri. The individual had been driving a car which resembled an unmarked highway patrol car which it is believed caused Jackson to think the victim was a police officer. During the evening, Jackson continued to rob and kidnap. When two police officers attempted to arrest Jackson at approximately 9:15 p.m., he shot at them and wounded one of the officers.
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Jackson remained at large until October 2. He was located in a barn a few miles from where he had shot and wounded the police officer on September 22. As police arrived at the barn, Jackson committed suicide with his shotgun. The spent shells matched those found at the scene of the killing of Gahl. An autopsy report showed no evidence of illegal drug in Jackson's system although some drugs may have metabolized by the of time the autopsy.
SUMMARY AND CONCLUSIONS
Probation Officer Tom Gahl was killed on the morning of September 22, 1986, by probationer Mike Wayne Jackson while making a home visit. Gahl appeared to have been moving away from the house when he was shot by Jackson from the front porch. The attack apparently occurred upon Gahl's arrival with little, if any, conversation. Jackson was on 3 years probation for illegal possession of a weapon and had served a 1-year Federal sentence on a separate firearms violation. He had also previously served three major prison sentences, and had been diagnosed on several occasions as being paranoid schizophrenic and having an antisocial personality disorder.
The U.S. Medical Center at Springfield, Missouri, had held Jackson beyond his release date since he was considered mentally ill and dangerous. He was conditionally released only after an Indiana mental health agency agreed to see him regularly on an out-patient basis and to prescribe psychotropic drugs. Although he had missed an appointment with the clinic on September 10, 1986 (a violation of his conditional release), the clinic did not report to the institution as required by the terms of release. Instead the clinic reported the delinquency to the probation office. After a subsequent visit to the probation office, Jackson renewed contact with the clinic and was provided psychotropic drugs. Jackson was, however, apparently not taking his medication since the prescription bottles still containing medication were found by the police in his residence. According to staff at the clinic, they did not view Jackson as mentally ill, but as a person who had reverted to drug use. Clinic staff said they believed Jackson should simply be returned to prison if he violated the conditions of his probation.
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Tom Gahl was well informed of Jackson's background, and was working to insure his compliance with the conditions of probation. Neither his personal contact with Jackson nor the mental health personnel who treated him had apparently led Gahl to conclude Jackson represented a threat to him. Jackson's state of mind on the morning in question or what might have triggered his unprovoked attack is unknown.
The probation system has a number of high risk clients with histories of violence and mental problems similar to that of Jackson. There are, therefore, several operational procedures which should be reemphasized and issues which need be addressed that will enable the probation system to minimize the possibility of a similar tragedy in the future.
The reviewers recommend that:
1. the Probation Division provide a brief summary of this report to chief probation and pretrial services officers, and instructors in the Probation Staff Safety Course sponsored by the Federal Judicial Center.
2. the Probation Division provide information to the probation system concerning the authority of the Bureau of Prisons to conditionally release an inmate and revoke this release.
3. the Probation Division encourage all districts to request the safety training course from the Federal Judicial Center.
4. the Probation Division seek information for the field on special methods of supervision which officers may employ with offenders similar to Jackson. This information can be obtained from probation officer mental health specialists and other experienced officers.
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5. the Probation Division continue to seek adequate staff as determined by workload formulas to enable probation officers sufficient time for supervising difficult cases. Such cases require considerable planning as well as consultation with supervisory staff and other experts.
6. the Probation Division explore the need for probation officers to obtain regular psychiatric or psychological consultation on methods for supervising offenders with mental problems, and psychiatric or psychological, contract services for selected offenders.
7. the Probation Division encourage offices to place mentally ill and dangerous offenders into treatment with drug and alcohol contract agencies if the offenders also have histories of substance abuse.
8. the Probation Division not recommend a change in the Judicial Conference policy on carrying firearms by probation officers. The policy does not permit probation offices to carry firearms unless approved by their respective courts and certain conditions have been met. Although a firearm might have helped Tom Gahl in this particular incident, there are many circumstances where the presence of a firearm could aggravate the matter. The decision to carry firearms is best left to the appointing authority with direct oversight of the probation officer.
The reviewers found good communication between the officers and Jackson when his case was transferred and between the officers and the mental health agency. Several points, however, need to be reemphasized to probation offices. They are:
1. Probation offices should encourage their courts to order presentence investigations or complete post sentence reports in all high risk cases which come under supervision. Such a report will help insure staff is aware of the complete backgrounds of individuals under supervision.
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2. Probation offices should emphasize careful release planning in high risk cases including close contact and coordination with local correctional, mental health, or social agencies which will be providing services. Assigning prerelease cases to a probation officer as soon as the institution begins release planning or when the first furlough occurs will result in clearer communication between institution staff, the probation officer, community agencies, and the client. Whenever possible, prerelease cases should be assigned to the probation officer who ultimately will be responsible for supervision.
3. Probation offices should carefully review the need for officers to make home or community visits with high risk offenders who have assaultive backgrounds, are mentally unstable, or have strong anti-authority or anti-government beliefs (expressed by affiliation with prison gangs or anti-government organizations). Although the officer has an obligation to make certain an individual is complying with the terms of supervision, it might be prudent to utilize alternative methods to insure officer safety. Examples of such methods are office visits, meetings at neutral or public sites, and frequent contact with relatives.
Mr. MCCOLLUM. Mr. Barr, you are recognized for 5 minutes.
Mr. BARR. Thank you, Mr. Chairman.
Mr. Chairman, I would like to do something that perhaps would have helped place in context some of the testimony of the witnesses a little bit earlier, and that is to focus on the language of the statute we are proposing here today, the language of the bill.
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I think anybody who actually reads this and understands the plain meaning of it will see very readily that it does not fall into the category of reckless or extreme or unbridled authority, basically saying that the sky is going to fall if we simply provide a uniform policy for a power that is already there.
It is funny, Ms. De Santis. If you believe the rhetoric on both sides of you today, both you and I ought to feel pretty bad today because simply calling for this authority to help protect all probation and pretrial officers, rather than just those that happen to live in districts in which the judges agree with them that they ought to be protected, has been characterized as extreme, unbridled, unwarranted, reckless—and these are the words you constantly hear up here. Anytime we propose anything it is characterized as extreme, unbridled, reckless, and unwarranted.
Even reducing the marriage tax penalty has been characterized as extreme. Reforming welfare has been characterized as extreme. So you tend to discount that. Don't feel bad about it. It is not the case.
This is not granting unbridled, reckless, extreme, unwarranted authority to probation officers. It does not take away in any way, shape, or form, the authority that the judges in our district courts obviously have and obviously need. They will continue to have to maintain full and complete disciplinary authority over probation and pretrial officers.
So raising the red herring that this will remove that authority from you is a little bit disingenuous. I think you have complete authority to do that, as any employer would.
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This amendment simply says that for probation and pretrial officers, they shall ''be authorized to carry firearms upon satisfactorily completing any safety and proficiency training or testing proscribed by the director of the Administrative Office of the United States District Court.''
That gives your organization very significant authority to make sure that whatever probation officers are carrying firearms—and this doesn't mandate that they have to, it just says that they have the authority to do it—you maintain full and continuing authority for regular retesting, evaluations, and at any time if any one of these officers shows signs of mental instability or some sort of problem, this language does not in any way diminish your capacity, capability, or responsibility to deal with that.
So I think that we really need to put this whole thing in proper perspective. It does not mean the sky is going to fall. There are no constitutional issues here. This is simply a proper oversight by the Congress, addressing an authority that is already there, that seems to be working very well, and simply saying that in the view of the Congress—or those of us who support this legislation—and in the view of the officers that are carrying out these responsibilities, that it does reflect a change.
I think one of our colleagues on the other side was musing over the fact that maybe nothing is changed. The reality is that the job that these men and women face has changed. The environment in which they are working has changed.
For example, in the Federal Probation Journal for June of this year, Volume 64 number one, it notes that the Federal Probation and Pretrial Officers Association's national committee on safety training noted that between 1984 and 1997 there was a 237 percent increase in hazardous incidents reported. Then it goes on to correctly characterize the current environment—that I would think none of us would disagree with—that probation and pretrial services officers face, saying, ''The population now being supervised has changed drastically from the white collar probations of the past to more dangerous, recidivous of today.''
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So I think merely what we are trying to do is reflect the fact that the situation in which your employees—and I know you are concerned about them—face today. We wish it were otherwise, but it is a very dangerous situation. When I look, for example, at the 10 districts that currently do not allow the officers to protect themselves by carrying firearms under appropriate supervision and training, there is no common thread. I think it is a power that is being exercised very arbitrarily and that concerns us.
We want to bring some uniformity to it. We don't diminish and have no intent to diminish the ability of the judges to properly supervise and protect those whom they serve. And I don't think this legislation does that. It is very narrowly and very carefully crafted, I believe, and I think it will serve all of you—the judges, the pretrial officers, the probation officers, and the public—very, very well by simply bringing uniformity and sending a very important message to the men and women that serve this country in these capacities that we are concerned about their safety and we do want them to be able to protect themselves.
Thank you.
Mr. MCCOLLUM. Thank you, Mr. Barr.
Mr. Rothman?
Mr. ROTHMAN. Thank you, Mr. Chairman.
This hearing raises more questions in my mind that I don't have the answers to, and I would like to get the answers.
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For example, I am aware of the dangerous nature of the street in the 1970's and 1980's, in particular, when crack was running wild. Crack is not so much running wild these days as it was in the 1980's. What was the incidence of serious assaults on probation officers during the 1980's? Was it higher? Lower?
I understand the gentleman from Georgia's comments citing the statistic about the 237 percent increase from 1984 to 1997. I heard that. I would be interested to know the numbers. For example, if the incidents nationwide went from 10 officers injured a year to 24 a year, that would be an increase of 240 percent. Are we talking about 10 to 24? That increase over that period of time? What are the numbers?
Are there any risks? We have heard that there are risks to this legislation. It is hard to quantify that. Would it encourage officers to go into situations that they would otherwise reasonably avoid?
What are the benefits of giving every probation officer the ability to carry a weapon, albeit with weapons training determined by the judge?
Again, I don't know whether the system is broken and needs to be fixed. Ms. De Santis said something that was very powerful. Judges are not aware of the dangers probation officers are exposed to. Judges are not aware of the dangers probation officers are exposed to. I don't know how that could be. If in fact the probation officers make applications to the judges and present their cases to the judges about the dangers they face, how could a judge not be aware of it? Maybe they don't get it, they don't understand it, they can't empathize, but certainly the officers have a chance to impress upon the judges the dangers they do face.
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Ms. De Santis, do you want to comment on that?
Ms. DE SANTIS. Yes, sir.
I hear what you are saying and I am just amazed that that sentence is being questioned.
The judges have security in their own Federal buildings. Why? But yet you are asking a probation officer to go out into inner city and if it is a non-carry district, you are asking them to go in there and impose the rules that the judge is giving them to impose. These rules are becoming more intrusive and more restrictive and they have to make sure that these releasees and supervisees are doing what the judge has told them that they have to do, which could result in a loss of their freedom. They have already served a Federal sentence and they don't want to go back. They will do anything within their power not to have that happen.
Mr. ROTHMAN. Reclaiming my time, in these 11 districts that do not participate in the authorization program, do we have some statistics about the incidence of serious assaults on probation officers? Have those incidents gone up? Have they stayed the same? Have they decreased? Is there a decline in the number of men and women who wish to become probation officers because of these dangers?
Do we have any of that information?
Mr. RYAN. I can only speak for Massachusetts. As I have stated, in the 20 years we have never had—so we can't compare it with any other period—we have never had firearms in our district. We have not had in the 20 years and I have not heard anecdotally even prior to that of any serious assaults of officers.
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I think we also have to put this into some perspective. One officer lost is one too many. I agree with that. But since 1925, there has been one Federal probation officer—as is my understanding—that has been killed in the line of duty. There are hazardous incidents and we do deal with violent offenders.
To get to your question of how much judges are aware of it, I think it varies from judge to judge. These are people that they sentence, they know their records, they certainly should know their history of violence, and they are asking us to carry out orders of the court.
Mr. ROTHMAN. I think just about everybody on this panel is concerned about the well being of law enforcement officers. I take a back seat to no one on this panel. I was a mayor of a little city in New Jersey and worked intimately with the law enforcement officials in high crime areas throughout my career as the mayor of that city. I have nothing but the highest regard for the bravery and work that these men and women do. I did everything in my power to protect them and I will do that here as a congressman.
I just want to make sure I don't make things worse, that I don't endanger any officers' lives by making a uniform policy.
Thank you, Mr. Chairman.
Mr. MCCOLLUM. Thank you.
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Mr. Chabot?
Mr. CHABOT. Mr. Chairman, I would like to yield my time to Mr. Barr.
Mr. MCCOLLUM. Mr. Barr, you are back up?
Mr. BARR. I thank the gentleman from Ohio.
Ms. De Santis, I think you were mentioning that there are laws and policies in place that provide proper protection, including officers with firearms at Federal courthouses. That is correct, isn't it?
Ms. DE SANTIS. Yes, sir.
Mr. BARR. Are you aware also that there is legislation pending which the Federal Judiciary fully supports, H.R. 1752, which allows judges to carry firearms?
Ms. DE SANTIS. Yes, sir. I am aware of that.
Mr. BARR. It strikes some of us as a little bit inconsistent that the judges want for themselves their right to protect themselves, but are very hesitant—indeed, vehemently opposed—to simply allowing officers that work for them to have that right. I certainly support judges being able to protect themselves, but I think it is a little bit inconsistent for the Judiciary to say that they want the legal authority and legislative, statutory authority to protect themselves, yet they want to continue to be able to deny it to probation officers and pretrial officers.
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Judge, apart from some of the issues you have discussed with Chairman McCollum over separation of powers and so forth, what is the policy reason why probation officers should not carry firearms? Also, I would note—I believe it is correct—that in your judicial district, they are allowed to.
Mr. SULLIVAN. That is correct.
Mr. BARR. Is that a disaster waiting to happen?
Mr. SULLIVAN. The chief judge of our court some years ago and the chief probation officer made a decision that the probation officers should be allowed to carry firearms.
Simply speaking, Mr. Barr, probation officers and pretrial officers are not law enforcement officers.
Mr. BARR. Why grant them the authority at all, then?
Mr. SULLIVAN. To carry firearms?
Mr. BARR. Right. You grant it in your district.
Mr. SULLIVAN. That is correct. And all we are asking for is the authority to continue to make those decisions. They are our employees. They help us supervise offenders we placed on probation. They help us supervise offenders we have incarcerated and are currently on supervised release. They are our employees. We would not dare think of coming into Congress and making rules for Congress with respect to the supervision——
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Mr. BARR. You don't have that authority. Congress does have the authority to provide statutory authorization and funding for Federal probation officers and pretrial officers. Congress has that authority. You don't have that authority over Members of Congress. So that is a red herring.
Mr. SULLIVAN. Right. But all we are saying is that Congress very graciously gave us the authority to make those decisions some years ago. All we are asking for is the right to continue to make those decisions for our employees, because they are our employees and they serve us. And they serve us very well.
We are very aware of danger. We are very aware of when danger is present. Before offenders become probationers, before they become supervised on supervised release, they are defendants in our court room. So we are acutely aware of who we are——
Mr. BARR. Is the policy then for granting the authority, for granting the power to carry the firearms, the danger the officers face?
Mr. SULLIVAN. That is a factor to be considered by the chief judge and the chief probation officer, one of many factors.
Mr. BARR. Then if I would look at the Federal judicial districts which don't grant the authority, I see some that are pretty darn dangerous. Southern California, including the Los Angeles area, Eastern Virginia—all of these are dangerous, but particularly a couple of those that I mentioned.
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It seems to me that when you say that probation and pretrial officers are different from law enforcement officers—and that seems to be the reason for your opposition to this bill—and then you turn around and say that in those districts, including the one that you are in, you recognize that there is a danger and that is the basis on which they are allowed in almost all judicial districts to carry.
What we are left with, then, is a general policy that recognizes that the officers face danger and in the vast majority of circumstances have been granted this authority. And no disaster has happened. You say that if this bill is enacted this would be a disaster waiting to happen. In 80 or 90 percent of the districts that have this authority because of the danger they face—as you indicated—there hasn't been any disaster. So I think you are overstating the danger here and I think what it really comes down to is simply some resentment that Congress is—in your words—perhaps interfering in the power of the judges to supervise their employees.
That, to me, is not really a good reason to place some officers at risk and others not.
So I think that this, again, Mr. Chairman, is a very sound piece of legislation. It is very consistent. If we are going to grant judges—as the judges have asked us to do—the power to carry firearms, if the judges—as they have even here today—recognize that the ability or situations where pretrial and probation officers should carry firearms is based on the danger, then I think that clearly this ought to be something that applies across the board in all judicial districts.
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I think this is a very appropriate piece of legislation and appreciate your hearing today.
Mr. MCCOLLUM. Thank you, Mr. Barr. And thank you for bringing it to our attention.
Mr. SCOTT. Mr. Chairman, could I ask one additional question?
Mr. MCCOLLUM. Certainly.
Mr. SCOTT. I would like to ask Judge Sullivan, in those districts where the authority is granted, it is my understanding that everyone is not authorized to carry a firearm, only those specific ones that have been selected within that district.
Mr. SULLIVAN. That is correct.
Mr. SCOTT. What portion is that?
Mr. SULLIVAN. What percentage?
Mr. SCOTT. Yes.
Mr. SULLIVAN. I am sure it varies in each district.
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Mr. SCOTT. This bill, if it were passed, would authorize—60 percent carry firearms in those districts that now authorize and 40 percent do not. And this bill would authorize 100 percent of everybody right across the board without any targeting?
Mr. SULLIVAN. As I understand it, that is correct.
Mr. SCOTT. Thank you.
Mr. MCCOLLUM. I thank the panel for being here today, Judge, Mr. Ryan, and Ms. De Santis. The first panel is concluded and we will move on to the second panel.
Mr. MCCOLLUM. The second panel today will testify on H.R. 3484. I would like to make a very brief opening statement about the Child Sex Crimes Wiretapping Act of 1999.
[The bill, H.R. 3484, follows:]
106TH CONGRESS
1ST SESSION
H. R. 3484
To amend title 18, United States Code, to provide that certain sexual crimes against children are predicate crimes for the interception of communications, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
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NOVEMBER 18, 1999
Mr. MCCOLLUM (for himself, and Mrs. JOHNSON of Connecticut) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To amend title 18, United States Code, to provide that certain sexual crimes against children are predicate crimes for the interception of communications, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Child Sex Crimes Wiretapping Act of 1999''.
SEC. 2. AUTHORIZATION OF INTERCEPTION OF COMMUNICATIONS IN THE INVESTIGATION OF SEXUAL CRIMES AGAINST CHILDREN.
(a) CHILD PORNOGRAPHY.—Section 2516(1)(c) of title 18, United States Code, is amended by inserting ''section 2252A (relating to material constituting or containing child pornography),'' after ''2252 (sexual exploitation of children),''.
(b) COERCION AND ENTICEMENT TO ENGAGE IN PROSTITUTION OR OTHER ILLEGAL SEXUAL ACTIVITY.—Section 2516(1)(c) of title 18, United States Code, is amended by inserting ''section 2422 (relating to coercion and enticement),'' after ''section 2321 (relating to trafficking in certain motor vehicles or motor vehicle parts),''.
(c) TRANSPORTATION OF MINORS TO ENGAGE IN PROSTITUTION OR OTHER ILLEGAL SEXUAL ACTIVITY.—Section 2516(1)(c) of title 18, United States Code, is amended by inserting after the matter added to that section by subsection (b) of this section the following: ''section 2423 (relating to transportation of minors)''.
SEC. 3. TECHNICAL AMENDMENT ELIMINATING DUPLICATIVE PROVISION.
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Section 2516(1) of title 18, United States Code, is amended—
(1) by striking the first paragraph (p); and
(2) by inserting ''or'' at the end of paragraph (o).
Mr. MCCOLLUM. With the advent of modern technology, we as a Nation have witnessed once unimaginable crimes take place against our most vulnerable citizens—our Nation's children. In the past few years, all of us have become painfully aware that criminals who are bent on sexually abusing children have begun to use the Internet to lure their victims. These predators often troll though chat rooms on the Internet hoping to engage in conversations with teens or even younger children in order to strike up friendships that might lead to sex. In many cases, once these perverted friendships are established, the predator will transmit pornographic images to their victim in an attempt to entice them and to dull their instinctive defenses to the advances of an unknown adult.
Another sad fact is that child pornography still exists in this country. In some cases it is produced in this country. Many times, however, it is produced abroad and then smuggled into the country. Unfortunately, the dramatic development of the Internet has made the trafficking in these materials all the more easy.
Fortunately, our law enforcement authorities have been focusing their efforts on these criminals. The FBI's Innocent Images program and the Customs Service's Cybersmuggling Center are just two ways that Federal law enforcement has been working to combat these evils, and I commend them for their efforts. We have laws on the books today that make trafficking in child porn and traveling across State lines to engage in illegal sex with a minor Federal crimes. Yet these crimes are only as effective as the tools we give law enforcement to enforce them.
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Under current law, law enforcement agencies may only seek court authority to use a wiretap in investigations of a limited number of crimes. Some crimes involving the sexual exploitation of children are already wiretap predicates, but several are not. For example, the crime that involves enticing children to travel across State lines to engage in illegal sex is not a wiretap predicate. Similarly, the crime of trafficking in child pornography is not a wiretap predicate.
Therefore, on November 18, 1999, together with my colleague, Congresswoman Nancy Johnson, I introduced H.R. 3484 to assist Federal law enforcement agencies to better investigate certain sex crimes and protect our children. In my view, we need to close the loophole in the law. H.R. 3484 would do that by making each of these crimes a wiretap predicate. Nothing in the bill changes the requirement in existing law that a judge must approve each wiretap request before the wiretap is activated. However, without these tools our law enforcement officials are placed at a distinct disadvantage to the criminal. We simply cannot allow that to happen.
I want to take a moment to thank my good friend, Congresswoman Nancy Johnson, for her leadership on this issue. Her bill, H.R. 1159, first brought this issue to light, and I am glad that she has co-sponsored H.R. 3484 with me and is here today to testify on this. I look forward to hearing from you. But before I do that, I will yield to Mr. Scott, if he has an opening comment.
Mr. SCOTT. Thank you, Mr. Chairman.
I want to thank you for holding this hearing on H.R. 3484, the Child Sex Crimes Wiretapping Act. The current wiretap authority dates back to the 1968 crime bill. The primary intent of that act was to permit a limited use of electric surveillance of organized crime and gambling groups, although it was envisioned as a tool of last resort.
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Since that time, the act has been amended over a dozen times with now over 50 predicate crimes to which wiretap authority may be obtained. Now the argument goes if we amended the wiretap authority to add X, we should certainly amend it to add Y, a much more serious offense. By that rationale, wiretaps will soon be routine rather than an extraordinary procedure to be used only as a last resort.
Alongside some of the crimes which wiretap authority can now be sought, adding sex crimes against children as a wiretap predicate would seem irresistible. However, further extension of this extraordinary power now might not now be justified be less justified extensions in the past. Just because we did wrong before doesn't mean we should do wrong again.
Sexual exploitation of children is already a crime for which wiretap predicate is available. It is not clear to me why crimes that are now being added are not already covered by the present law, nor is it clear as to what is missing in the current investigation of crimes which would require the extraordinary procedure of a wiretap.
Mr. Chairman, I look forward to the testimony of the witnesses as to the need for and problems with the legislation. That is why we have hearings of this nature.
I want to welcome our colleague from Connecticut for joining us today, the copatron of the bill.
Mr. MCCOLLUM. Thank you very much, Mr. Scott.
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Mr. Rothman, would you like to make an opening comment?
Mr. ROTHMAN. Just briefly.
I am well aware of people's concerns about invasions of privacy by the Government for well-intentioned purposes and the dangers that lurk to our basic freedoms. However, these are terrible crimes. I am mindful the Justice Department does support this.
I would be interested to know the precise number of wiretaps nationwide that have been issued. I think the fear is extraordinarily overblown in terms of abuse of wiretap authority. So I would be interested in some of that information.
It is a pleasure to see Congresswoman Johnson.
Mr. MCCOLLUM. Mr. Barr, do you have any opening comments on this bill?
Mr. BARR. No, Mr. Chairman.
Mr. MCCOLLUM. Thank you.
First of all, I want to introduce my colleague and neighbor—because her office is across the hall from mine—Congresswoman, Nancy L. Johnson, who represents the 6th District of Connecticut. First elected in 1982, she is now serving in her ninth term. In 1988, Ms. Johnson became the first Republican woman ever named to the House Ways and Means Committee and is now the fifth ranking Republican on that committee. In January 1999 she became the chairman of the Subcommittee on Human Resources and has the distinction of being the first woman to chair a Ways and Means subcommittee. Ms. Johnson is a graduate of Radcliffe College.
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I don't think I need to give a greater introduction of my colleague. We are just very happy you are here and please proceed with your testimony. The full written one will be introduced into the record.
STATEMENT OF HON. NANCY L. JOHNSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CONNECTICUT
Ms. JOHNSON. Thank you very much, Chairman McCollum.
Thank you not only for holding this hearing but also for your really keen interest in this problem since I first introduced H.R. 1159. I am pleased that as a result of that legislation we did add additional financial resources in the Customs budget for the Child Pornography and Child Sexual Exploitation Program. But a key part of the legislation was this effort to update wiretapping authority.
I am not a member of the Judiciary Committee, nor am I a lawyer. I don't come to this issue with a depth of expertise. You will hear that from other people. But it was the Customs people, the people in the child pornography and child sexual exploitation unit, that brought to my attention that they needed this authority. They have prosecuted 220 cases. They have never lost a case. They are very good.
Customs got into this because child pornography and child pornographic materials are illegal in America and they mostly come in from other countries. Since Customs regulates what comes in from other countries, they have ended up on the front line of what is coming in, not only through our ports but what is coming in over our airways and now the Internet.
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I was brought up in Chicago. I wasn't brought up in the suburbs of Chicago, I was brought up on the streets of Chicago. Let me tell you that my parents taught me early, often, and tough where to go and where not to go. Where you could be safe and where you couldn't be safe. How to handle yourself and how not to handle yourself. That is really what we have to teach our kids.
I have had the Customs agents and the FBI up to my district twice. We have gone into schools. We have talked to kids about this. And they can help kids understand. This is just like in your neighborhood. There are things you do to invite danger and there are things you do that don't invite danger. Unfortunately, now we have to teach quite young children about what the dangers are that lurk on the Internet.
When my kids were in public school, everybody—parents, teachers, everybody—watched for those people that hung around school yards. You didn't let that go unreported because you knew there could be real danger to your kids from the people hanging around the school yard. You don't have to hang around the school yard anymore. Nobody has to see you. You can hang around the Internet and you can achieve exactly the same goal.
One time down here in Washington we had a press thing about this. The Customs guy pulls up on his computer the index. Do you know what one of those chat rooms is called? Infant rape and torture.
When we brought this up when we had this connection—we only did this once. After that we didn't do the direct connections, but the first time we did a direct connection—he pulls up the list, puts himself on as a teenage girl, and literally within minutes he had five different people questioning him. Who are you? What are your interests? What do you like to do? What do you look like? All friendship stuff.
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In Connecticut, we have had two arrests of people who have, through these friendships on the Internet, while the parents were at work, gained a friendship and a trust and met these kids in parking lots.
Luckily, for one reason or another—sometimes because the FBI guy caught on and alerted the parents and they had the meeting under surveillance—none of these kids were murdered. But not all children in America have been that fortunate.
There is a big business here in trading pornography. You know and I know, it is just like abusive women. You look at the pornography long enough and pretty soon you need to act out your fantasy.
So these issues are very, very serious for our children. There are 25 million children between 10 and 17 using the Internet now. But this is a drop in the bucket compared to the coming years. There are 10,000 Web sites maintained by pedophiles. This is very big business. This is a very big danger to our children. And we have an FBI group and a Customs group who are truly skilled. They can tell by the questions, they can tell you what questions are coming up, they know what questions are a predicate to danger. They have intercepted people who have come from California to Detroit to meet kids.
So they know a lot, but they are lacking one of the most effective tools in law enforcement, and that is the ability to go to the judge and wiretap.
Nothing in the McCollum bill changes our law in regards to wiretap, it just adds a new predicate offense. And I want to talk a little bit about the predicate offense of child sex tourism.
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Child sex tourism, as defined by Federal law, prohibits the attempt to travel or travel in foreign commerce to engage in sexual activities with a minor child. The statute prohibits an American from travelling abroad to engage in sex with a minor or from bringing a child from a foreign country into America to engage in sex. It has been a Federal offense since 1995, not very long ago.
Mr. MCCOLLUM. What is the offense you just mentioned? Could you state that again?
Ms. JOHNSON. Child tourism, the law we passed in 1995 that prohibits you from going to another country for the purpose of having sex with a minor or bringing a minor into America for the purposes of sexual exploitation.
Mr. MCCOLLUM. Is that listed in the bill now?
Ms. JOHNSON. No, this is current law.
We passed it about the time the Internet began to grow, but we didn't pass it with any understanding of the Internet or how this particular activity might be affected by the Internet.
With the Internet, it has become much easier both to find children and for the people who want to exploit them to get paired up with them. At one time, most of these crimes were committed in Thailand and the Philippines. However, aggressive public awareness campaigns and stricter laws have nearly put a stop to this kind of activity in those countries. So, not surprisingly, those who would exploit children just found other countries to invade. Now much of the trade in children's sexual tourism is in South America.
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A recent Washington Post article referred to a California man who was on his second trip to Costa Rica in 2 years to find a young woman who had no prior sexual experience. He found a 13-year-old girl whose parents willingly charged $400 for him to have sex with their daughter. The first person prosecuted for travelling abroad to have sex with a minor was a Florida man who went to Honduras and met up with a 14-year-old boy and brought the boy back to the United States to live as a sex slave.
Wiretapping is a powerful investigative tool. It is usually the last one to use, but it is effective. Despite the usefulness of wiretaps and the growth and prevalence of these sex crimes against children, the Customs Service cannot request a wiretap for someone who is suspected of child sex tourism.
The Customs Service and the FBI prosecuted 228 people, as I mentioned earlier. Remember, every one of those 228 people had more than one victim. Sexual exploitation isn't something that you do once unless you happen to get caught for it. But it is the kind of crime where there are just multiple victims. So behind those 228 people that they actually have arrested and prosecuted and won their cases with are literally thousands of children whose lives have been affected.
So we really do need to modernize the statute simply to strengthen the tools, not so that wiretapping can be used with abandon, but so that you can go to the judge with the evidence and get the right to intervene in the most powerful way to protect our children.
Again, I thank you for holding this hearing. I understand how serious it is to add a new predicate offense to the list of those for which you can go to the judge to wiretap. But it is also simply appalling, startling, frightening, and horrifying to see the names of these chat rooms. I am sure that if you want the Customs guys to come in here, look at their computer—go to your computer in your own office—they will show you how present, how pervasive, and how dangerous the activity of pedophiles on our Internet is. We simply must do a better job of giving law enforcement the tools they need to prosecute.
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[The prepared statement of Ms. Johnson follows:]
PREPARED STATEMENT OF HON. NANCY L. JOHNSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CONNECTICUT
I would like to thank my colleague, the Chairman, for his leadership on this issue and for convening this hearing.
Last year, I introduced H.R. 1159, the Protection of Children from On-Line Predators and Exploitation Act. In addition to providing additional financial resources to the U.S. Customs Service for its Child Pornography/Child Sexual Exploitation program, my legislation would have provided the Service with updated wiretapping authorities. Chairman McCollum has now combined this wiretap provision with two others and introduced it as H.R. 3484 which I am proud to co-sponsor.
As I learned from meetings with the Customs Service, students, parents and teachers, the predator no longer just lurks on the playground. He is now on the Internet, in chat rooms waiting to befriend a child and lure them into a sexual relationship or worse. With nearly 25 million children ages 10 to 17 using the Internet, the risks are very high and protections for our kids need to be even higher.
The Customs Service has visited my district twice to meet with students, parents and teachers to discuss Internet safety. Members of the Committee should all consider having either the Customs Service or the FBI to your districts for similar discussions because they are very effective at teaching kids about Internet safety without discouraging its use. As a kid growing up in the city of Chicago, I was taught where not to go. We simply have to teach our kids about the dangers that lurk on the Internet so they can benefit from its wonderful resources . . . in safety.
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During one visit to Connecticut, a Customs agent entered a chat room camouflaged as a teenage girl and within minutes was solicited by no less than 5 individuals seeking information about what she looked like, where she lived and what she liked to do . . . all under the guise of being a friend. Such contacts have lead to agreements to meet the new ''friend'' and sexual abuse, but so far in Connecticut none of these encounters has led to abduction and murder. Not all kids have been so lucky.
The National Center for Missing and Exploited Children estimates that there are over 10,000 websites maintained by pedophiles. There are even more child pornography sites with as much as 80 percent of it coming in from other countries. One of the chat rooms I was shown was named ''Infant Rape and Torture.'' The pornography trading rooms are truly frightening as a person trading in child pornography easily moves to acting out their fantasies. What we are talking about—the threat to our kids from on-line predators—is real and in our homes daily. It is critical to the safety of our children that we take aggressive action to track down pedophiles and protect our kids.
Our legislation would create several new predicate offenses for which a federal agent can seek permission to wiretap a suspect. Our bill adds to the list of predicate offenses enticing or coercing a person to travel within a state, between states or between countries to engage in prostitution or sexual activity and traveling to engage in sex or to engage someone in prostitution. I would like to speak specifically to the provision that addresses ''child sex tourism.'' Child sex tourism as defined by federal law prohibits the attempt to travel or travel in foreign commerce to engage in sexual activities with a minor child. The statute prohibits an American from traveling abroad to engage in sex with a minor or from bringing a child in to the United States to engage in sex.
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It has been a federal offense since 1995, about the same time the Internet really began to expand but with the growth of the Internet, it has become much easier to find both children to exploit and people who want to exploit them.
At one time, most of these crimes were being committed in Thailand and the Phillippines. However a very aggressive public awareness campaign and stricter laws has nearly put a stop to it in these countries. Not surprisingly, those who exploit children just found other countries to invade and now much of the trade in children and sex tourism is in South America. A recent Washington Post article referred to a California man who was on his second trip to Costa Rica in two years to find a young woman with no prior sexual experience. He found a 13 year old girl whose parents willingly charged $400 dollars for him to have sex with their daughter. The first person prosecuted for traveling abroad to have sex with a minor was a Florida man who went to Honduras and met up with a 14 year old boy. He later brought that boy back to the U.S. to live as a sex slave.
Wiretapping is often the investigative tool used last but it can be a very effective one. Despite the usefulness of wiretaps and the growth and prevalence of these crimes, the Customs Service cannot request a wiretap for someone suspected of child sex tourism offenses. The Customs Service and the FBI have been very successful at finding these individuals and prosecuting them. In 1998 alone the Customs Service arrested 228 people who had victimized many times that number of children. Think how many more could be stopped if Customs was given this additional tool?
I think it is important to clarify for Members of the Committee that Mr. McCollum's bill would not authorize new wiretaps, it just modernizes the statute. The officers would still have to present their case to a judge who would then have to authorize the use of the wiretap on the grounds that suspicion does exist that a law has been violated. However, with the expansion of the Internet this authority is more important than ever.
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Again, I commend Mr. McCollum for convening this hearing and helping to keep the spotlight on the issue of child exploitation. I look forward to working with the entire committee for prompt consideration of this legislation.
Mr. MCCOLLUM. Nancy, thank you for coming to testify about this bill.
We have had in this subcommittee in this session of Congress a hearing related to what the Internet is like with regard to these chat rooms. It is exactly as you describe it. I think every member here who has been at that hearing would agree with that. I think most Americans don't realize this and I think one of the things beyond this law is that we need to get more education out there to parents and to others to supervise this. It is very hard, as you know, to legislate restrictions on the Internet. But this is a wiretap authority.
If my understanding is correct, Customs brought this to your attention and they have told you that they need this wiretap authority.
Ms. JOHNSON. Right.
Mr. MCCOLLUM. And that is why you brought it to our attention, as I recall, to begin with.
Ms. JOHNSON. That is exactly right.
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Mr. MCCOLLUM. I really commend you for it and I thank you for it. We are going to have a couple of them come up here today from the Federal Government and tell us that.
Ms. JOHNSON. Thank you very much for giving your serious attention to it. I do understand what a serious matter it is to allow wiretapping.
Mr. MCCOLLUM. But we do that.
Mr. Scott, do you have a question for Ms. Johnson?
Mr. SCOTT. No, thank you, Mr. Chairman. I appreciate her bringing this to our attention and look forward to the testimony of the other witnesses that can give us the technical details of the bill.
Mr. MCCOLLUM. Mr. Barr, do you have questions?
Mr. BARR. I appreciated the gentlelady's testimony and look forward to the testimony of the other witnesses.
Mr. MCCOLLUM. Thank you very much for coming today, Nancy.
Mr. MCCOLLUM. We now have our second panel on this bill and I would like to call them forward.
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The first one is David R. Knowlton, Deputy Assistant Director, Federal Bureau of Investigation, Criminal Investigation Division. Mr. Knowlton has been employed by the FBI for over 28 years, starting as a support employee. He was appointed to the position of special agent in 1976 and has held many positions, including supervisory special agent, special agent in charge, inspector, and chief inspector of the FBI. This past year, Director Freeh appointed him to his current position. He is a graduate of the University of Maryland and we want to welcome him today.
The second witness on the panel is John Varrone, Acting Assistant Commissioner, Office of Investigations, United States Customs Service. Prior to this appointment, Mr. Varrone was the special agent in charge of the New York field office of the Customs Service. He began his law enforcement career in 1977 as a Customs patrol officer in the New York regional office. In 1992, Mr. Varrone was transferred to Customs Headquarters in Washington, where he served as branch chief, section chief, Customs representative to the ONDCP, and Special Assistant to the Under Secretary for Enforcement at the Department of Treasury. In 1999, he was promoted to the position of executive director for domestic operations on the east coast of the U.S. Mr. Varrone received his bachelor's and master's degree in criminal justice from John Jay College of Criminal Justice.
Welcome to both of you. Mr. Knowlton and Mr. Varrone, your written testimony is admitted into the record in its entirety without objection. I hear none and it is so ordered.
Mr. Knowlton, you are recognized to summarize your testimony.
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STATEMENT OF DAVID R. KNOWLTON, DEPUTY ASSISTANT DIRECTOR, FEDERAL BUREAU OF INVESTIGATION, CRIMINAL INVESTIGATION DIVISION
Mr. KNOWLTON. Good morning. And thank you, Mr. Chairman and other members of the subcommittee.
I am pleased to appear before you today to discuss the need for the expansion of the predicate offenses for title III electronic surveillance, proposed in H.R. 3484. This expansion would include additional statutes which are designed to protect our children from sexual exploitation.
As you may recall, in 1993, while investigating the disappearance of 10-year-old George Stanley Burdeynski, just a few miles from this hearing room in Prince George's County, Maryland, the FBI determined that adults were routinely using computers to transmit images of minors showing frontal nudity or sexually explicit conduct and luring minors into illicit sexual activities. Through this investigation, the FBI recognized that the utilization of computer telecommunications was rapidly becoming one of the most prevalent techniques by which pedophiles and other sexual predators shared sexually explicit photographic images of minors and used it as a means to identify and recruit children for sexually illicit relationships.
In 1995, the FBI began an undercover investigation—code named Innocent Images—focusing on persons who, through the use of on-line computers, indicate a willingness to travel for the purposes of engaging in sexual activity with a minor and using the Internet or other on-line services to produce, distribute, and/or post child pornography.
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In one of my past assignments, I was a special agent in charge of the Baltimore field division and supervised this Innocent Images initiative. I can tell you that since 1995 790 cases involving persons travelling interstate to meet minors for the purpose of engaging in illicit sexual relationships have been instituted in more than 1,850 cases involving persons trading child pornography based on its experience in conducting Innocent Images national initiative.
The FBI believes that expansion of the list of predicate offenses for electronic surveillance—and that is, enumerating them under title 18, U.S. Code, section 2516—to include three additional sexual exploitation of children statutes is not only warranted but necessary.
Under title 18, U.S. Code, section 2516, subsection 3, the Government can apply to a Federal District Court judge for authority to intercept electronic communications—that is, computer transmissions, e-mails, facsimile and pager communications—when such interception may yield evidence of any Federal felony. Communications carried out by means of the Internet are electronic communications and are therefore covered by this limited authority.
However, as you know, when it comes to oral and wire communications, authority for interception can only be granted when the predicate offense being investigated is specifically enumerated as one of the offenses set forth in title 18, U.S.C., section 2516, subsection 1. It is our strong belief that Title 18, U.S. Code, Section 2252A, Certain Activities Relating to Material Constituting or Containing Child Pornography, should be designated as a title III predicate offense.
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In 1996, Congress passed and the President signed the Child Pornography Protection Act in an effort to close several loopholes existent in the original child pornography law. The original child pornography law, Certain Activities Relating to Material Involving the Sexual Exploitation of Minors codified at title 18, U.S. Code, section 2252, is commonly referred to as the old statute. The new law is codified at title 18, U.S. Code, section 2252A and is commonly referred to as the new statute.
The original child pornography statute, which far predates the development of computers and the Internet, did not address the issues of computer-created virtual child pornography. The old statute makes it a crime for any person to transport, receive, distribute, possess, or sell in interstate commerce any visual depiction that involves the use of a minor engaging in sexually explicit conduct. The visual depiction had to be of an actual minor, which is defined as any person under the age of 18.
The new statute was designed to address the technological advances of computers wherein the definition of the lay term ''child pornography'' was expanded to include child pornographic images created through the use of modern computer technology.
I can see I am running out of time, Mr. Chairman, but to sum it up, the new statute, 2252A, is a more powerful child pornography statute that is not listed as a predicate offense for wiretapping. Neither are two other statutes, Title 18, U.S. Code, Section 2422, Coercion and Enticement—commonly referred to as the enticement statute—nor is title 18, section 2423, commonly referred to as the traveler statute. We believe these offenses should be added to the title III predicate offenses.
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I will be glad to answer questions following the testimony. Thank you for the time.
[The prepared statement of Mr. Knowlton follows:]
PREPARED STATEMENT OF DAVID R. KNOWLTON, DEPUTY ASSISTANT DIRECTOR, FEDERAL BUREAU OF INVESTIGATION, CRIMINAL INVESTIGATION DIVISION
Good morning, Mr. Chairman and members of the Subcommittee. I am very pleased to appear before you today to discuss the need for the expansion of the predicate offenses for Title III electronic surveillance to include additional statutes which are designed to protect our children from sexual exploitation, and a bill you have introduced, H.R. 3484, the Child Sex Crimes Wiretapping Act of 1999.
While investigating the 1993 disappearance of 10-year-old George Stanley Burdynski, Jr., in Prince George's County, MD, the FBI determined that adults were routinely using computers to transmit images of minors showing frontal nudity or sexually explicit conduct, and to lure minors into illicit sexual activities. It was through this investigation that the FBI recognized that the utilization of computer telecommunications was rapidly becoming one of the most prevalent techniques by which pedophiles and other sexual predators shared sexually explicit photographic images of minors, and identified and recruited children for sexually illicit relationships.
In 1995, the FBI began an undercover investigation, code named ''Innocent Images,'' focusing on persons who, through the use of on-line computers, indicate a willingness to travel for the purposes of engaging in sexual activity with a child and those persons who use the Internet or other online services to disseminate original images of child pornography which they manufactured or produced, and those who possess, receive and distribute child pornography. Since 1995, the FBI has investigated more than 790 cases involving persons traveling interstate to meet minors for the purposes of engaging in illicit sexual relationships and more than 1850 cases involving persons trading child pornography.
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Based on our experience in conducting the Innocent Images National Initiative, we are of the opinion that an expansion of the list of predicate offenses for Title III electronic surveillance (codified at Title 18, United States Code [U.S.C.], §2516)(1), to include three additional statutes pertaining to sexual exploitation of children, is not only warranted but necessary.
Pursuant to Title 18, U.S.C., §2516(3), the government can apply to a Federal District Court judge for authority to intercept electronic communications (pager, facsimile and computer transmissions) when such interception may yield evidence of any Federal felony. Communications carried out by means of the Internet are electronic communications and thus are covered by this limited authority. However, when it comes to oral communications (those intercepted by means of a concealed microphone) and wire communications (communications intercepted by wiretap), authority for interception can only be granted when the predicate offense being investigated is specifically enumerated in Title 18, U.S.C., §2516(1).
It is our strong belief that Title 18, U.S.C., §2252A, entitled Certain Activities Relating to Material Constituting or Containing Child Pornography, should be designated as one of those Title III predicate offenses.
In 1996, Congress passed, and the President signed, the Child Pornography Protection Act (cppa) in an effort to close several loopholes existent in the original child pornography law. The original law, entitled Certain Activities Relating to Material Involving the Sexual Exploitation of Minors, codified at Title 18, U.S.C., §2252, is commonly referred to as the ''old statute.'' The new law, entitled Certain Activities Relating To Material Constituting or Containing Child Pornography, codified at Title 18, U.S.C., §2252A, is commonly referred to as the ''new statute.''
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The original child pornography statute, which far predates the development of computers and the Internet, did not address the issues of computer created ''virtual child pornography.'' The ''old statute'' makes it a crime for any person to ''knowingly transport or ship a visual depiction in interstate commerce or knowingly receive, distribute or possess a visual depiction that has been mailed, shipped or transported in interstate commerce, if such visual depiction involves the use of a minor engaging in sexually explicit conduct or if the visual depiction is of such conduct.'' Under the ''old statute,'' the visual depiction had to be of an actual minor, defined as ''any person under the age of 18 years.''
The new statute was designed to address the technological advances of computers, wherein the definition of the lay term child pornography was expanded to include child pornographic images of ''virtual'' children created through the use of modern computer technology. The ''new statute,'' Title 18, U.S.C., §2252A, makes it a crime for any person to ''knowingly transport or ship child pornography in interstate commerce or knowingly receive, distribute or possess child pornography that has been mailed, shipped or transported in interstate commerce.'' Child pornography is defined in the ''new statute'' as any visual depiction that ''appears to be'' of a minor engaging in sexually explicit conduct, or ''conveys the impression'' that they depict a minor engaged in sexually explicit conduct. The expanded definition of child pornography is based upon an interest in prohibiting any material whether it depicts real children, or computer generated images of children. Due to anticipated constitutional challenges to the ''new statute,'' Title 18, U.S.C., §2252A, challenges specifically with regard to the language ''appears to be'' and ''conveys the impression,'' Congress left Title 18, U.S.C., §2252, the ''old statute,'' in effect as a fall back for investigators and prosecutors in the event that all or part of Title 18, U.S.C., §2252A were struck down by the courts. Title 18, U.S.C., §2252A is a more powerful child pornography statute and clearly addresses the new technologies and increasing threats against children. The original child pornography statute is listed as a Title III predicate offense, but the new one Title 18, USC, §2252A is not.
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During the summer of 1995, the Baltimore Division of the FBI conducted a court authorized Title III interception of electronic (Internet/computer) communications in which the electronic mail (E-Mail) of six subjects was intercepted. Since these subjects were using computers to share illegal child pornography, Title 18, U.S.C., §2252 was used as a predicate offense for the FBI to seek authorization from the Court to use the Tile III interception technique. That investigative technique enabled the FBI to obtain evidence of the criminal activities of a secretive group of men who were using computers to traffic in sexually explicit pictures of young boys. From the intercepted computer communications of these subjects, more than 30 additional subjects were identified, including at least two who were found to have sexually abused children. This demonstrates the usefulness of Title III electronic surveillance of computer communications in child pornography investigations.
We believe that the interception of wire and/or oral communications could have significantly enhanced this investigation based on the fact that pedophiles and other sexual predators who utilize the Internet and other on-line services often take their criminal activities ''offline.'' The only applicable child pornography statute in existence at the time of this investigation, Title 18, U.S.C., §2252, was listed as a predicate offense and therefore would have permitted an application under Title III to intercept such communications. Under the current Title III scheme, the FBI has the authority to intercept computer, and other electronic communications, that may constitute evidence of violations of Title 18, U.S.C., §2252A. We do not however, currently have authority to intercept wire and/or oral communications that may constitute such evidence, because Title 18, U.S.C., §2252A is not specifically enumerated as a predicate offense under Title 18, U.S.C., §2516(1).
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We believe that adding Title 18, U.S.C., §2252A, a more powerful child pornography statute, to the list of Title III predicate offenses will enhance our ability to successfully identify and prosecute these types of offenders and possibly prevent additional children from being sexually exploited and abused.
Additionally, we believe that Title 18, U.S.C., §2422, entitled Coercion and Enticement, (commonly referred to as the enticement statute) and Title 18, U.S.C., §2423, entitled Transportation of Minors, (commonly referred to as the traveler statute) should also be added to the list of Title III predicate offenses.
With the increasing prevalence of computers and the Internet in our society, a burgeoning number of sexual predators are using computer communications to recruit children with whom they hope to have sexual relations, in violation of Title 18, U.S.C., §2422 and/or §2423. Title 18, U.S.C., §2422(a) makes it a crime for someone to entice or coerce a child to travel in interstate commerce to engage in child sexual activity/prostitution. Title 18, U.S.C., §2422(b) makes it a crime to use an interstate facility (computer, Internet Service Provider) to entice or coerce a child to engage in child sexual activity / prostitution and no travel needs to occur by either the victim or subject. Title 18, U.S.C., §2423 (a) makes it a crime for someone to transport a child in interstate commerce with the intent that the child engage in sexual activity. Title 18, U.S.C., §2423 (b) makes it a crime for someone to travel interstate for the purpose of engaging in sex with a child.
Under Title 18, U.S.C., §2516(3), the FBI currently has the ability to seek court authority to intercept only electronic (computer) communications that constitute evidence of violations of both the ''Coercion and Enticement'' statute and the ''Traveler'' statute. we lack the ability to intercept wire and/or oral communications because neither of these statutes is specifically enumerated as a Title III predicate offense Title 18, U.S.C., §2516(1). The ability to intercept such communications on a real time basis would greatly enhance the ability of the FBI to respond to crisis situations where children are at risk. In addition, it would allow us to collect strong evidence to be used in the prosecution of child predators.
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Based on our experience in conducting the Innocent Images National Initiative, we have found that pedophiles and other sexual predators who utilize the Internet and other commercial on-line services to meet and converse with children for illicit sexual purposes often take their relationships ''offline.'' There are numerous cases where the on-line sexual predator will provide the child with a telephone calling card number or will request that the child call them collect, so that the child can speak with the predator on the telephone. It is the experience of the Innocent Images National Initiative that children who engage in on-line relationships with these sexual predators go to great lengths to conceal their relationships from their parents. In cases where a parent inadvertently discovers the relationship between their child and an on-line sexual predator, the child is often disciplined and their computer privileges are taken away. Very frequently the child victim thinks he or she is ''in love'' with the subject and, therefore, is uncooperative with and resentful toward his or her parents and/or law enforcement. These children then continue their relationships ''offline'' utilizing the telephone as well as meeting the predator in person. In such cases, it would be very useful, if not crucial, to have the ability to intercept the communications of the predator and the victim whether they occur over the computer, in person, or by means of the telephone. This type of Title III electronic surveillance would enable the FBI to intercede prior to the victimization of the child, and it would allow for the collection of valuable evidence which could result in the identification of other child sex offenders and child victims. We currently lack the ability to intercept wire and/or oral communications in these situations because Title 18, U.S.C., §2422 and Title 18, U.S.C., §2423 are not specifically enumerated as Title III predicate offenses in Title 18, U.S.C., §2516(1).
Enabling the FBI to obtain Title III authority for the interception of wire and oral communications will expand our investigative and prosecutive efforts which are aimed not only at the proliferation of child pornography, but at the pedophiles and sexual predators who are sexually exploiting children.
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For all of these reasons, the FBI would like to see Title 18, U.S.C., §2252A, Certain Activities Relating to Material Constituting or Containing Child Pornography, Title 18, U.S.C., §2422 Coercion and Enticement, and Title 18, U.S.C., §2423 Transportation of Minors, added to the list of Title III predicate violations as proposed by your bill. In our view, these proposed predicate offenses are entirely consistent with the two child sexual exploitation offenses already on the list. A modest expansion of this nature will, as noted previously, improve our ability to investigate offenses involving the sexual exploitation of children—a goal we all share.
This concludes my prepared remarks. I would like to respond to any questions that you may have.
Mr. MCCOLLUM. Thank you very much, Mr. Knowlton.
Mr. Varrone, you are recognized.
STATEMENT OF JOHN VARRONE, ACTING ASSISTANT COMMISSIONER, OFFICE OF INVESTIGATIONS, UNITED STATES CUSTOMS SERVICE
Mr. VARRONE. Good morning, Mr. Chairman and distinguished members of the subcommittee.
Thank you for the opportunity to present the efforts of the United States Customs Service in combatting the sexual exploitation of children. I am especially pleased to have the opportunity to comment on the Child Sex Crimes Wiretapping Act of 1999, which will enhance law enforcement's ability to investigate and prosecute individuals who prey upon our children for sexual purposes.
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Before I begin, I would like to recognize Congresswoman Johnson's efforts in this area. She has been a very great supporter of Customs in this area and we deeply appreciate that.
The Customs Service investigates two of the most cruel and damaging crimes against children: international child sex tourism and the international distribution of child pornography. We have achieved some notable accomplishments in this area. For example, in fiscal year 1999, we effected in excess of 200 arrests for these specific offenses.
Many of these arrests came under Operation Cheshire Cat, which was an investigation that dismantled a large-scale international ring of pedophiles known as the Wonderland Club. This club traded pornographic images of children over the Internet. Dismantling this organization and network of criminal deviants involved the initial execution of 32 search warrants in 14 countries. Subsequently, we went as far as 50 search warrants.
The shocking nature of this crime and its violators can be characterized by the post arrest suicide of four defendants. I have a copy of that article that I would like to submit for the record, if that is okay, Mr. Chairman.
Mr. MCCOLLUM. Without objection, the referenced article will appear in the record.
Mr. VARRONE. In addition, Operation Cheshire Cat resulted in the seizure of millions of images of hard-core child pornography, including homemade images made by club members that documented, in some cases, the molestation of their own children. Last year, our New York office succeeded in arresting the principal organizer of this club, who has subsequently pled guilty to these charges.
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This successful investigation was concluded thanks to an outstanding cooperative effort between Customs and its many international partners. Also critical to our success was the use of two electronic intercepts targeting Internet transmissions.
The Customs Service has seen a dramatic rise in child exploitation investigations. During fiscal year 1999, our investigations increased 36 percent. Alarmingly, this year investigations are rising at a rate of 81 percent. This is largely in part to the increase in worldwide usage of the Internet.
In response to this increase, the Customers Service has taken a proactive approach. A critical element in this approach has been providing training to our foreign law enforcement counterparts. This initiative has led to training of more than 250 foreign investigators located in 10 countries. This initiative has also led to the identification of numerous suspects who have travelled abroad to engage in these illegal acts while trying to insure their anonymity.
Additionally, we have made presentations to the member countries of INTERPOL outlining Customs initiatives and methodologies targeting international child sex travelers. We feel this training and education is a necessary element to the timely identification of child victims and the apprehension of violators. The Customs Service takes very seriously its mission and obligation to protect children from this type of exploitation.
As is the case with child exploitation via the Internet, we are seeing a rise in crimes involving international sex tourism. We currently have approximately 40 ongoing investigations targeting suspects who travel abroad expressly seeking to engage in sex with minors.
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Critical to our success was the 1994 passage of title 18, U.S. Code 2423, a law prohibiting transportation or travel with the intent to engage in sexual activity with a juvenile. This legislation provided an important tool in conducting child sex tourism investigations involving U.S. citizens. However, it still left law enforcement with a difficult burden: namely, that of proving that the defendant's travel was intended for the purpose of engaging in sex with a minor. As in other criminal investigations, proof of such intent often comes through collection and recording of oral communications transmitted by the suspects as they arrange or negotiate their activities.
Our investigative experience shows that violators who engage in child sex tourism tend to communicate with their victims by telephone, or with those who can facilitate their crimes. With that in mind, it is easy to understand just how important a recording of such communications can be in prosecuting these offenders.
Many child advocacy organizations, including the National Center for Missing and Exploited Children as well as the non-profit group End Child Prostitution, Child Pornography, and the Trafficking of Children for Sexual Exploitation, estimate that more than 1 million children worldwide enter the sex trade every year.
To offer two quick examples, in September 1999, Customs arrested an individual who had been travelling to Vietnam, where he had an ongoing sexual relationship with a 13-year-old girl. The investigation was concluded successfully based on interviews and other evidence. However, we learned subsequent to investigation that the violator had made numerous international calls to his victim and her family, who had actually negotiated to sell their daughter to him.
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In a similar investigation, the Customs Service tracked a suspect who travelled to Honduras for the purpose of having sexual relations with several underage boys. Again, investigation revealed the violator had made many international calls and maintained his contact with his coconspirators and his child victims in Central America.
In these examples, we were fortunate to gather enough evidence absent oral communications to successfully prosecute the violators. The use of oral communications as evidence would no doubt have bolstered both of these cases.
In several of the recent child exploitation cases, Customs exhausted all investigative techniques in pursuit of these suspects. Absent specific wiretap capability, we have been unsuccessful to bring these suspects to justice. It is for these reasons we support this legislation adding this offense, similar to existing offenses such as the distribution of child pornography, which are already included as predicate offenses in title 18, 2516.
Mr. Chairman, thank you for the opportunity to present my remarks today. We are grateful to you and your committee for all your leadership and work in providing Customs and other law enforcement agencies with the requisite support to investigate and prosecute child sex offenders.
I will be happy to answer any questions you may have.
[The prepared statement of Mr. Varrone follows:]
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PREPARED STATEMENT OF JOHN VARRONE, ACTING ASSISTANT COMMISSIONER, OFFICE OF INVESTIGATIONS, UNITED STATES CUSTOMS SERVICE
Good morning, Mr. Chairman and Members of the Subcommittee. Thank you for the opportunity to present the efforts of the U.S. Customs Service to combat the sexual exploitation of children. I am especially pleased to have the opportunity to comment on the Child Sex Crime Wiretapping Act of 1999, which will enhance law enforcement's ability to investigate and prosecute individuals who prey upon children for sexual purposes. With your permission Mr. Chairman, I would like to submit my statement for the record.
The Customs Service investigates two of the most cruel and damaging crimes against children: International Child Sex Tourism and the International Distribution of Child Pornography. We have achieved some notable accomplishments in this area. For example, in fiscal year 1999, we effected 203 arrests of violators involved in these offenses.
Many of these arrests came under Special Operation ''Cheshire Cat,'' an investigation that dismantled a large-scale international ring of pedophiles known as the ''Wonderland Club'' who traded pornographic images of children over the Internet. Dismantling this organization and network of criminal deviants involved the simultaneous execution of search warrants in 14 countries, including 32 in the United States. The shocking nature of this crime and its violators, can be characterized by the post arrest suicide of four defendants.
Operation Cheshire Cat resulted in the seizure of millions of images of hard core child pornography, including ''homemade'' images made by Club members that documented, in some cases, molestation of their own children. Last year, our New York office succeeded in arresting the principle organizer of the Club, who subsequently pled guilty to his crimes.
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This successful investigation was concluded thanks to an outstanding cooperative effort between Customs and its many international partners. Also critical to our success was the use of two electronic wire intercepts targeting Internet transmissions.
The Customs Service has seen a dramatic rise in child exploitation investigations. During fiscal year 1999 investigations increased 36% from the previous year. Alarmingly, this year investigations are rising at a rate of 81%. This is largely in part to the increase in worldwide usage of the Internet.
In response to this dramatic increase, the Customs Service has taken a proactive approach. A critical element in this approach has been providing training to our foreign law enforcement counterparts. This initiative has led to training more than 250 foreign investigators located in 10 countries. This initiative has also led to the identification of suspects who have traveled abroad to engage in these illegal acts while trying to insure their anonymity.
Additionally, we have made presentations to the Member countries of INTERPOL outlining Customs initiatives and methodologies targeting international child sex travelers. We feel this training and education is a necessary element to the timely identification of child victims and the apprehension of violators. The Customs Service takes seriously its obligation to protect children from exploitation.
As is the case with child exploitation via the Internet, we are seeing a rise in crimes involving International Child Sex Tourism. We currently have approximately 40 active investigations targeting violators who travel 'abroad expressly seeking to engage in sex with minors.
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Critical to our success was the passage in 1994 of Title 18, U.S. Code 2423, a law prohibiting Transportation or Travel with the Intent to Engage in Sexual Activity with a Juvenile. This legislation provided an important tool in conducting child sex tourism Investigations involving U.S. citizens. However, it still left law enforcement with a difficult burden; namely, that of proving that the defendant's travel was intended for the purpose of engaging in sex with a minor. As in other criminal investigations, proof of such intent often comes through collection and recording of oral communications transmitted by the defendants as they arrange or negotiate their activities.
Our investigative experience shows that violators who engage in child sex tourism tend to communicate with their victims by telephone, or with those who can facilitate their crimes. With that in mind, it is easy to understand just how important a recording of such communications can be in prosecuting these offenders.
Many child advocacy organizations including the National Center for Missing and Exploited Children identify child sex tourism as a significant and growing threat to minors. The nonprofit group ''End Child Prostitution, Child Pornography, and the Trafficking of Children for Sexual Exploitation'' estimates that more than 1 million children worldwide,enter the sex trade every year.
To offer some examples: in September 1999, the Customs Service arrested an individual who had been traveling to Vietnam where he, had an ongoing sexual relationship with a 13-year-old girl. The investigation was concluded successfully based on interviews and other substantive evidence. But we also learned that the individual had made a number of international calls to his victim and her family, who had negotiated to sell their daughter to him.
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In a similar investigation, the Customs Service tracked a suspect who traveled to Honduras for the purpose of having sexual relations with several underage boys over a three year period.
Again, investigation revealed the violator made many international calls to keep in contact with his co-conspirators and his child victims in Central America.
In these examples we were fortunate to gather enough evidence absent oral communications to successfully prosecute the violators. The use of oral communications as evidence would no doubt have bolstered both cases.
For several other child exploitation cases Customs exhausted all investigative techniques in pursuit of suspects, without the capability of wiretaps, and to date, have been unsuccessful in bringing violators to justice. It is for these reasons we support this legislation adding this offense, similar to existing offenses such as distribution of child pornography, which are already included as predicate offenses in title 18 USC 2516.
Mr. Chairman, thank you for the opportunity to present remarks today. We are very grateful to you and your Committee for all your leadership and work in providing Customs and other law enforcement agencies with the requisite support to investigate and prosecute child sex offenders.
I would be happy to answer any questions you have now.
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Mr. MCCOLLUM. Thank you, Mr. Varrone. And thank you, Mr. Knowlton.
I will be very quick in recognizing myself so we can let all the members ask some questions before we have to go vote.
Is my impression correct, Mr. Varrone, that the Internet is now the dominant method of trafficking child pornography—or am I wrong in that impression?
Mr. VARRONE. No, it is, sir. There are some underground publications, but with the capability on the Internet to pass information and the anonymity involved, it is the primary method.
Mr. MCCOLLUM. And the same is true of pedophiles soliciting victims? Is the Internet now the dominant method of pedophiles soliciting victims? Or is the old-fashioned way on the street corner the preferred method?
Mr. VARRONE. I don't know specifically, but I believe so, sir.
Mr. MCCOLLUM. What about you, Mr. Knowlton? You are the FBI. You probably see the pedophile part a little more commonly. You used to see this, unfortunately even crossing State lines, without the Internet. Is the Internet now the more common vehicle to lure somebody? Or am I wrong in that impression?
Mr. KNOWLTON. I don't think there is any statistical doubt that you are correct. The anonymity afforded the Internet is far greater than lurking in playgrounds.
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Mr. MCCOLLUM. And to cut to the chase here, my impression is equally so from both your testimonies that having wiretap authority with predicates regarding these two particular matters in this bill is essential to many prosecutions in this region and this area being successful. Without it, we are not going to have as many successful conclusions to these cases.
Is that correct, Mr. Knowlton?
Mr. KNOWLTON. That is correct?
Mr. MCCOLLUM. Is that correct, Mr. Varrone?
Mr. VARRONE. Yes, sir.
Mr. MCCOLLUM. Mr. Scott?
Mr. SCOTT. Do you want to intercept Internet communications as well as oral communications? Would that be possible under the bill?
Mr. KNOWLTON. As I understand the bill, we are asking for them to be included as predicate offenses for oral wire interceptions. Currently we can do the Internet interception, but not the oral wire communications.
Mr. SCOTT. You can already get the Internet communication?
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Mr. KNOWLTON. Yes.
Mr. SCOTT. How would you target what you wiretap so that you know you are getting the right communications and not sort of shotgun style?
Mr. KNOWLTON. The authorities being asked for, as proposed in the bill, do not differ in shape from any other Federal wiretap offense. You have to have specific probable cause to go before a Federal judge to get the authority to do it. I can give you a couple of specific instances of cases where we have had where the telephone has been used to lure victims to travel interstate. Once the arrest has been made, we learned that there were other victims involved. Perhaps if we had had the ability to intercept the oral communications we may have prevented other victims from being preyed upon.
Mr. SCOTT. Have you had investigations where you knew you did not have the authority to get wiretaps where you would like to have had it? The example given was that if you had the wiretap previously you could have gotten information. At what point during an investigation do you know there is something going on for which you would have probable cause for a wiretap?
Mr. KNOWLTON. I think it would vary in different investigations, but at a certain point probable cause is developed. But even if probable cause was developed, we would not have any authority to do the wiretap.
Mr. SCOTT. Even under the old statute?
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Mr. KNOWLTON. Even under the old statute, for traveller cases in particular.
Mr. VARRONE. Mr. Scott, if we are collecting information and we are developing probable cause, sometimes we are short on that probable cause. Being able to track through a phone analysis that there are calls being made to some of these organizations that sell sex tourism, if you will, being able to capture those criminal conversations is really what we believe is key to developing and prosecuting cases.
Mr. SCOTT. And you can get to the probable cause standard that early in an investigation? I mean, how do you know there is a crime being committed?
Mr. VARRONE. We are building along all the way. And then when we get to a level where we believe we have it, we would make application for a Federal wiretap.
Mr. SCOTT. And if you get it too early, what can you do with the evidence that you obtain with a wiretap for which there was not probable cause?
Mr. VARRONE. We would not have the wiretap without the probable cause. That would have been the basis of it.
Mr. SCOTT. Well, let me ask it in another way.
Is the exclusionary rule still alive and well?
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Mr. VARRONE. Yes, sir.
Mr. SCOTT. Okay.
I have no further questions, Mr. Chairman.
Mr. MCCOLLUM. We have very limited time. I can either hold these witnesses for the other two questioners, or if you have perhaps one each——
Mr. BARR. Just very, very quickly, I would like to take this opportunity to thank both the FBI and the Customs Service for their very, very important work in this area. We appreciate the work of the dedicated men and women of both of these agencies. I do, personally, as a former U.S. Attorney and as a parent and as a Member of Congress and as a citizen. I thank them very much.
I do have some questions, but in the interest of time, I will be glad to submit those in writing, Mr. Chairman.
Mr. MCCOLLUM. Thank you, Mr. Barr.
Ms. Jackson Lee?
Ms. JACKSON LEE. Thank you very much, Mr. Chairman, for holding this hearing. I was detained on the Floor. I apologize with respect to witnesses earlier.
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I would like to ask unanimous consent to put my two statements into the record. I know there are horrible acts against children on the Internet and so I will study this legislation to work toward making sure that it answers the constitutional concerns and protects our children.
With respect to H.R. 4423, Mr. Chairman, I just simply wanted to say that I am studying that as to whether or not there is a real need for such legislation in light of the structure of the district court structure of allowing decisions to be made regionally.
With that, I thank the gentlemen. Any questions I have will likewise be submitted to the witnesses in writing.
Mr. MCCOLLUM. Mr. Knowlton and Mr. Varrone, I want to thank you for being here today. We will recess because we have a third panel, but there are three votes now so it will probably be in 30 minutes or something of that nature. Mr. Scott I assume will be back with me for the third panel.
The subcommittee is in recess.
[Recess.]
Mr. MCCOLLUM. The committee will now hear from our last witness, Mr. David B. Kopel, Research Director, Independence Institute, Golden, Colorado. In addition to working for the Independence Institute, Mr. Kopel is also an associate policy analyst for the CATO Institute and an adjunct professor of law at New York University School of Law. Mr. Kopel received his bachelor's degree from Brown University and his law degree from the University of Michigan Law School.
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We welcome you here today. We apologize for the vote that interrupted us and we thank you for enduring with us and being willing to come give your testimony. Your entire written testimony will be put in the record without objection. I hear none, and it is so ordered.
You may proceed to summarize.
STATEMENT OF DAVID B. KOPEL, RESEARCH DIRECTOR, INDEPENDENCE INSTITUTE, GOLDEN, CO
Mr. KOPEL. Thank you both very much, Mr. Chairman. This is the fourth time I have testified before this particular committee, the second time under your chairmanship and for sure the last time under your chairmanship. I commend the fair way you have run the committee and your conscientious attention to detail on the different matters that have come before this committee.
Besides all those things you talked about, another thing I have done in my life before coming to work in the Colorado Attorney General's Office, I was an assistant district attorney in New York City where, among the cases I prosecuted were rape cases. I certainly agree with the sentiment that is behind this bill that sex crimes—especially sex crimes against minors—are particularly heinous, even compared with the other many serious offenses there are out there. The people who commit them ought to be stopped when possible and then prosecuted vigorously whenever possible.
We should emphasize the facts about this particular wiretap legislation. There was a great deal of testimony earlier, especially from Representative Johnson and also from other people, about the Internet. We need to make things very clear, in terms of e-mail, chat rooms, Web sites—all those kinds of things—this bill does not address those. Under existing Federal law, 18 United States Code, section 2516, subsection 3—those are all electronic communications. Any electronic communication—any kind of e-mail, chat room communication, all that—can already be searched and essentially seized electronically by going to get a search warrant from a court. This bill does not apply to that at all. That authority already exists.
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What we are talking about under this bill is wire taps, which is listening to telephone conversations, and oral communications, which is putting a bug in somebody's business, home, or even in their bedroom as might be appropriate in the case of a sex crimes investigation. It has nothing at all to do with the Internet.
We should also emphasize that this bill has nothing to do with child pornography, at least as it is commonly conceived. There is existing wiretap and oral communication—all the authorities mentioned in this bill—already exist for 18 U.S. Code section 2852, which is child pornography involving actual children, any picture of a minor. Of course, that should be a crime because necessarily the creation of that product involved the exploitation of a minor.
What this bill would do in terms of child pornography is only 18 U.S. Code 2252A, a different section which applies not to things involving children, but simply to things that involve computer graphic false portrayals of children. In other words, the only thing that is being exploited there are some pixels on a screen. There are no actual children involved in the pornography statute that is at issue here, 2252A.
Wiretapping is a particularly dangerous form of searching because the person who is being searched doesn't know they are being searched, necessarily, because it is done in secret. It therefore lacks one of the most important checks and balances in our fourth amendment system, which is the person being searched and their ability to object. Wiretapping is at record levels right now. It is up 600 percent at the Federal level since 1980. We need to think with already having gone from 26 wiretappable offenses in 1968 to over 100 today, whether we need to continue going in that direction. Maybe it is time to start paring them back rather than expanding.
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I am aware of the time and I will be brief.
Finally, these statutes describe some particular kinds of heinous conduct. I would certainly agree that travelling to Vietnam to have sex with a 12-year-old who is being prostituted by her parents is a horrible crime and ought to be criminalized. But the enticement and the travel statutes are written far, far, far more broadly than that. They apply literally to cases where somebody might commit what is a petty offense or a misdemeanor under State law.
For example, under these statutes, as they currently exist, if two 17-year-olds in one State travel to another State and in that State heterosexual oral sex is illegal under an anti-sodomy statute—it might be a petty offense with a $50 fine, but still illegal—under the existing travel and enticement statutes, they are guilty of a Federal felony subject to imprisonment up to 15 years.
I would suggest that before we take the major step of adding wiretapping authority to these existing offenses at the least the underlying crimes ought to be rewritten so that they properly apply to things that are legitimately within Federal concern, such as international travel for these kinds of purposes, and take out of them things which—whatever you think about the underlying laws—are properly a matter of State and local law rather than Federal law.
I have 1 second left and I thank you for your time.
[The prepared statement of Mr. Kopel follows:]
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PREPARED STATEMENT OF DAVID B. KOPEL, RESEARCH DIRECTOR, INDEPENDENCE INSTITUTE, GOLDEN, CO
Thank you for the opportunity to testify. During the last decade, I have testified several times before this Subcommittee, both during your tenure as Chairman, and before. I would like to thank you for your conscientious work on the issues that have come before this subcommittee. At the hearings I have attended, you have provided all sides with a fair opportunity to state their case.
SUMMARY OF KEY POINTS
This bill would create federal wiretap authority for three federal crimes: possession of child pornography (18 U.S. Code sec. 2252A); enticing a minor to engage in sexual activity (section 2422); traveling to engage in an illegal sex act with a minor (section 2423).
This bill would apply only to telephone conversations. Other federal law already provides authority for wiretaps of e-mail and other electronic communications involving the above offenses.
Current federal wiretap law is already far too broad, with over 100 predicate crimes listed. Federal wiretaps set a record in 1999, rising 600% since 1980.
Wiretapping is a particularly dangerous and invasive form of searching. It is more likely than other searches to invade the privacy of innocents, and is more subject to abuse—because search victims do not know they are being searched.
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The federal predicate crimes for which wiretaps would be authorized are themselves overbroad, and should not be used as the basis for wiretaps. For example, if a state law makes certain kinds of sex a misdemeanor, wiretaps to find out about (or listen to!) the sex would be authorized—even if the seventeen-year-old who was who having sex was over the age of consent in her state.
The Constitution gives the federal government only limited, enumerated powers; the Congressional power to regulate Interstate Commerce should not be used to create a general criminal code.
Given the particular dangerousness of wiretapping, it does not seem appropriate to expand federal wiretapping even further, for sexual offenses which are better addressed by state authorities.
I. WIRETAP AUTHORITY ALREADY COVERS TOO MANY CRIMES, AND INTERCEPTS TOO MANY INNOCENT CONVERSATIONS
Current federal wiretap authority stems from the Wiretap Act of 1968, which was part of the Omnibus Crime Control Act, the most gargantuan, and most rights-invasive crime bill ever enacted by Congress from 1789 until 1968. The 1968 Act's record combination of page size, restrictions on civil liberty, and federalization of state-related issues would not be exceeded until the 1994 Clinton crime bill. Today's legislation builds on the legacy of that 1968 Act.
President Johnson was very concerned about the dangers of wiretapping—perhaps because he personally had ordered some abusive wiretaps; so the President opposed proposals to create federal wiretap power. Eventually, he accepted the Wiretap Act as part of a larger compromise to allow passage of the Gun Control Act of 1968. Part of the compromise was that wiretap powers would be invoked only for certain, enumerated, and particularly dangerous offenses. These were crimes involving espionage, treason, violence, or organized crime.
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Unfortunately, in the following three decades, the number of suspected offenses for which wiretapping is allowed has quadrupled, to over 100. Among these offenses are making false statements on student loan applications or passport applications. 18 U.S.C. sec. 2516(1).
Accordingly, should this subcommittee determine that new wiretapping authority is imperative, the expansion of this authority should be coupled with removing several of the less serious predicate crimes from the wiretap list.
In the last several years, the number of federal wiretaps have hit record numbers. The table below provides the numbers:
In 1980, crime was much higher than it is today. The FBI's crime index (crimes per 100,000 population) was 6519. By 1998, the index had fallen to 4615. In other words, crime was 29% lower. Yet in 1980, when there was notably more crime to be controlled, there were 81 federal wiretaps. In 1998, there were 566. The number of wiretaps has risen 600 percent.
Final crime data for 1999 are not yet available, but they are expected to show a further decline, while federal wiretaps in 1999 set an all-time record high.
Plainly, federal wiretapping is expanding at a record pace, and for reasons unrelated to increased need. The FBI has ordered telephone companies in urban areas to provide the FBI with the capacity to listen in on one percent of all telephone conversations simultaneously.
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Plainly, now is not the time for even more wiretap authority to be given to the FBI. Instead, Congress needs to comprehensively examine wiretap law, and prune predicate crimes for which wiretapping is not essential. Further, Congress ought to reexamine wiretap related statutes passed in recent years—such as the Communications Assistance to Law Enforcement Act—which were sold to Congress as merely protecting the status quo, but which have aggressively been used by the FBI to seek vastly greater wiretapping ability.
II. NEW WIRETAP AUTHORITY IS NOT REQUIRED FOR INTERNET-BASED COMMUNICATIONS REGARDING CHILD SEX EXPLOITATION
When new technologies become public, there is often a fear-based backlash against the new dangers allegedly flowing from the new technologies. The Internet has certainly been the subject of a backlash, and there have been many claims about the Internet being a major tool for child sexual exploitation. Some of these claims have been legitimate, while many others have been unfounded or greatly exaggerated. But for purposes of H.R. 3484, the essential fact is this: law enforcement already has the authority to intercept any e-mail electronic communication, including e-mail, regarding child sex exploitation. Current federal law authorizes interception of any electronic communication to investigate ''any Federal felony.'' 18 U.S.C. sect. 2516(3).
In other words, if a pedophile exchanges e-mail with a potential victim, these
e-mails can currently be intercepted. Indeed, just yesterday the Washington Post reported that the FBI has a massive e-mail interception program called ''Carnivore'' which digs through e-mails looking for incriminating words and sentences.
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John Schwartz, ''FBI's Internet Wiretaps Raise Privacy Concerns,'' Washington Post,
July 12, 2000, p. A1, http://washingtonpost.com/wp-dyn/articles/A23986-2000Jul11.html.
Thus, H.R. 3484 would apply only to ''wire or oral communication.'' In other words, to ordinary telephone conversations. In contrast to surfing the web and exchanging e-mail, talking on the telephone is an activity that is more than a century old. There is nothing new about it. Accordingly, there is no more justification for the wiretaps that H.R. 3484 would allow than there was in 1968.
III. WIRETAPS ARE A PARTICULARLY DANGEROUS AND INVASIVE FORM OF SEARCHES, ESPECIALLY SO IN THE CONTEXT OF THE PREDICATE CRIMES IN THIS BILL
The Fourth Amendment's protections are at the heart of American liberty. A little while before independence was declared, Samuel Adams observed that the British government's excessive searches were ''the Commencement of the Controversy between Great Britain and America.''
When the Fourth Amendment was written, the Founders expected that all searches and seizures would be controlled by an important type of checks and balances. Whenever a person was searched, he would know about the search; government agents would enter his home or business, look around, and take property away. The victim of the search would necessarily know that he had been searched. He would have every incentive to use all legal means to ensure that the search was conducted properly, according to the warrant, and that the warrant itself was properly issued. After the search, he would be able to seek various forms of redress, including filing a lawsuit, if any part of the search had been improper.
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Wiretaps, however, destroy this important check that safeguards the Fourth Amendment. Under current federal law, wiretaps—unlike every other kind of search—may be conducted in secret. 18 U.S.C. sec. 2518. The law allows delay of months—and sometimes indefinite delay—in notifying a person that she has been subjected to wiretaps. Thus, the most important element of the Fourth Amendment's checks and balances—the desire of the person being searched to protect her privacy—is eliminated.
One remaining check is the warrant requirement of the Fourth Amendment, which requires a court order before a wiretap can be conducted. This check, however, is not always very effective. Hardly any wiretap requests are rejected by the federal courts.
Moreover, ordinary search warrants must specifically describe what will be searched for, and where the search will be conducted. So if the police are looking for a stolen car, they will check the garage, but not rummage through a person's bedroom drawers.
Wiretaps, in contrast, more closely resemble the Writs of Assistance which provoked the American Revolution. When a wiretap is placed on a phone, the police listen to every conversation, since they cannot tell in advance whether the people will talk about a subject related to the wiretap warrant, or about something else. Technically, the police are required to stop listening when they are sure that the conversation is not about the alleged crime involving the wiretap. But in practice, it is very difficult to ensure that this requirement is obeyed. Even the most conscientious police wiretapper cannot held overhearing many innocent conversations, since he cannot foresee what the parties will talk about. In 1996, there were one million, seven hundred thousands innocent conservations that were overheard as a result of federal and state wiretaps.
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Unfortunately, while wiretaps are subject to fewer checks and balances than ordinary searches, they are considerably more invasive and destructive to security and privacy. Supreme Court Justice Louis Brandeis explained:
The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them upon any subject, and although proper, confidential, and privileged, may be overheard. Moreover, the tapping of one man's telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping.
Olmstead v. United States, 277 U.S. 438 (1928)(Brandeis, J., dissenting).
The offenses involved in H.R. 3484 carry a particular risk of invasive, improper enforcement. In recent years, journalists such as Dorothy Rabinowitz of the Wall Street Journal have detailed the disturbing frequency with which police and prosecutors push child abuse cases based on flimsy and unreliable evidence.
Child abuse cases—including cases with sexual abuse allegations—can get started based on hysterical allegations from mentally troubled individuals, from poison-pen anonymous reports, and from other very inappropriate sources. The prospect that a family's ability to communicate privately on the telephone could be destroyed on the basis of such allegations is frightening.
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Moreover, it is important to recognize the very broad scope of the offenses covered by the predicate crimes. Some states have laws outlawing fornication, which is defined as all sexual activity outside of marriage. Other states have laws with outlaw various forms of sexual activity (such as oral sex). Some of these statutes apply to heterosexuals, and some of them apply even to married couples.
Accordingly, if an 17-year-old male takes his 17-year-old girlfriend to a motel (or, in some states, if he takes his 17-year-old wife) and they perform certain types of sex acts (or if just asks her to, then the asking would constitute an illegal ''attempt''), then he would be guilty of violating 18 U.S.C. sec. 2423, regarding ''transportation of minors.''
Before adding wiretap authority to a federal law which is already too broad, it would be better to fine-tune the predicate law first. More fundamentally, it ought to be asked why the federal government needs to create 15-year federal felony out of state crimes which may range from major felonies to petty offenses.
IV. ENFORCEMENT OF THE UNDERLYING CRIMES IS PROPERLY A MATTER FOR THE STATES, NOT THE FEDERAL GOVERNMENT
The Wiretap Act authorizes states to create their own wiretap laws. 18 U.S.C. sec. 2516(2). The predicate crimes covered by H.R. 3484 addressed by many different state laws. There is no reason to believe that state and local law enforcement officials are not diligent or are unwilling to investigate and prosecute these crimes. To whatever extent the wiretapping is necessary for such investigations, states can authorize wiretaps under appropriate state law.
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We must remember that the Constitution does not give Congress any general authority over criminal law.
The Constitution specifically authorizes federal enforcement of only three types of laws, all of which involve uniquely federal concerns. The first is based on the congressional power ''To provide for the Punishment of counterfeiting the Securities and current Coin of the United States.'' The counterfeiting enforcement power immediately follows the delegation of power to Congress to ''coin Money, regulate the Value thereof, and of foreign Coin.''
The second congressional criminal power is ''To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.'' The third is, ''Congress shall have Power to declare Punishment of Treason.'' Although counterfeiting, treason, and piracy clearly involve areas of federal, not state, concern, it is notable that, even in those cases, the authors of the Constitution felt a need specifically to authorize congressional law enforcement.
While the body of the Constitution grants only narrow criminal powers to the federal government, the Bill of Rights, in the Tenth Amendment, specifically reserves to the states all powers not granted to the federal government.
Even the Federalist Papers, which were, after all, a defense of increased federal power, made it clear that criminal law enforcement would not come within the federal sphere under the new Constitution. James Madison wrote that federal powers ''will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. . . .
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The powers reserved to the several states will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the state.''
Madison assured the American people: ''The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.'' The Federalist, no. 45.
Likewise, Alexander Hamilton, the most determined nationalist of his era, explained that state governments, not the federal government, would have the power of law enforcement and that that power would play a major role in ensuring that the states were not overwhelmed by the federal government: ''There is one transcendent advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light—I mean the ordinary administration of criminal and civil justice.'' The Federalist, no. 51.
Are the crimes covered in H.R. 3484 (certain types of sex with people under 18; possessing especially pernicious pornography) legitimately within these ''narrow and defined'' Congressional powers? Perhaps not in light of recent Supreme Court decisions. It is true a majority of Supreme Court in the period of 1964–1994 abdicated its responsibility to enforce the Constitution's limits on Congressional use of the Interstate Commerce power. But in the 1995 Lopez case and in the June 2000 Morrison case, the Supreme Court reminded us that Interstate Commerce power is not a platform for criminal laws about subjects not enumerated in the Constitution. While Court shows no inclination to restrict use of the Interstate Commerce power over economic subjects (e.g., wage and hour laws), the Court has made it clear that power over economic subjects may not be twisted into power over non-economic, criminal issues, which are properly reserved to the states.
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The predicate offenses for H.R. 3484 lie at the boundary of where the Interstate Commerce clause may operate. They do have jurisdictional predicates such as ''Whoever knowingly persuades . . . any individual to travel in interstate or foreign commerce . . .'' Some prosecutors might conscientiously apply this language to require actual travel across a state border. But other prosecutors might argue that merely taking a cross-town bus trip, from a bus terminal that also serves interstate passengers, still puts one within the stream of interstate commerce. In the past several decades, many prosecutors have made such arguments, and many courts have backed them up.
But the willingness of some courts to stretch the interstate commerce power beyond any limit that Madison or Hamilton would have recognized does not change the fundamental fact. The federal predicate crimes at issue in H.R. 3484 all involve various kinds of sexual offenses, all of which have traditionally, and adequately, been dealt with by state law. Some of these offenses involve extremely wicked acts (e.g., prostituting a ten-year-old) and others involve acts (such as oral sex) which some people should not be crimes at all. These issues—raising important and controversial moral questions—are best addressed at the state level, to take advantage of the diversity of our federal system of government.
Given the particular dangerousness of wiretapping, which is already at record levels, it does not seem appropriate to expand federal wiretapping even further, for sexual offenses which are better addressed by state authorities.
Mr. MCCOLLUM. Thank you very, very much, Mr. Kopel.
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Basically, I gather the thrust of your concern is simply adding another wiretap predicate, it isn't necessarily this particular one. You would generally not favor more wiretap predicates, period.
Mr. KOPEL. Yes. And I think the point of title III back in 1968 with wiretapping was something much different than having the police come in with a search warrant and look around somebody's house. It is an especially dangerous and intrusive form of searching. Therefore, we are going to keep it focused only on certain offenses for which it is especially necessary.
I wouldn't rule out the theoretical possibility that you could find more offenses, but it seems that when we are up to over 100 now that it is becoming more of just a routine type of thing and we ought to resist that trend.
Also, in terms of adding a Federal wiretap, many of these crimes are properly prosecuted as a matter of State and local law and whether they should be wiretapped or not ought to be up to the State Legislatures.
Mr. MCCOLLUM. You heard Customs and FBI today say that in the Internet part of this for these kids it is very difficult to prove the cases without a wiretap and they might actually stop other crimes that might be committed, based on their experience.
Did you take any seriousness to that? Or do you think they are just using it as an excuse to try to get this authority?
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Mr. KOPEL. Having been in law enforcement, I can tell you that the people in law enforcement have lots of faith in their propriety and honesty and I think often legitimately so. But we need to also be careful that when you grant power to the Government it is not only going to be used in the constructive ways that the witnesses and the Government relations people see—and they are people of integrity—but Government power tends to be used and expands out to the reaches of the statute and sometimes beyond.
I would agree with the Customs official who said, for example, when you have somebody who is going overseas to participate in a child sex ring, I can imagine where the wiretap could be useful there. In fact, I would say that might be a good thing to add wiretapping authority for because I think he made a good case. But at the same time, we need to be very careful what the predicate is, and that statute that he is talking about adding a wiretap predicate for ought to be cut back so that it applies to things that are properly in the Federal sphere—certainly international travel is one—and takes out so many other things which are really State and local crimes about having the wrong kind of sex and these kinds of things, which are not properly matters of Federal concern.
Mr. MCCOLLUM. Do you think this bill could be rewritten in a way that would be appropriate?
Mr. KOPEL. I think it could be rewritten, but a significant part of that underwrite would include paring the underlying predicate offenses themselves to focus most properly on genuinely Federal issues rather than sort of the way I think they were done. These statutes predate the Lopez and Morrison decisions and come from a time when adding the words ''interstate commerce'' to anything was considered by Congress to be sufficient to make something into a Federal issue.
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If they were narrowed down to especially the international issues, I think they could be redeemed.
I would also have to say that in 2252A—that is the virtual child pornography not involving the actual children—it doesn't seem that that particular offense is so dangerous to society as opposed to actual child pornography involving real child victims where the wiretap authority is already—that for merely the imaginary part we would need to add wiretap authority at all.
Mr. MCCOLLUM. Mr. Scott?
Mr. SCOTT. Thank you, Mr. Chairman.
When you get one of these wiretaps, what are the police entitled to listen in on?
Mr. KOPEL. According to the law, they must describe what kind of evidence they are trying to go after and what they are trying to find evidence on. But this is another example of how wiretaps are inherently more expansive and intrusive.
Representative Scott, if somebody thought that you had stolen a car and the police went to your house with a search warrant to look for it, they would look in your garage and they might look in your back yard because they were looking for a stolen car. They wouldn't rummage through your bedroom drawers because, of course, you couldn't have a car in there.
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The problem with a wiretap is you are trying to intercept certain communications. With the oral communications, you are trying to listen to what people are saying or doing by putting a bug in their house or the bedroom or their place of business. But you don't know in advance what they are going to say. So you essentially have to listen to everything.
Now, typically under a warrant, once the police are sure that the conversation is not going to be incriminating, they would turn it off. If the suspect's teenage daughter calls her boyfriend and they start gossiping about school, once the police are sure that that conversation is only going in that direction, they are supposed to stop listening. Of course, it is impossible, as a practical matter, to verify and ensure that they do. But a police officer with integrity would stop listening at that point.
But because you can't tell what any suspect is going to be talking about in advance, you would have to listen to a lot of innocent conversations. I think the latest figures are that in 1996 there were 1.7 million innocent conversations which were overheard as part of State and Federal wiretapping.
Mr. SCOTT. Out of how many wiretappings?
Mr. KOPEL. In that year, I think there were approximately 580 Federal wiretaps and maybe a somewhat larger number—approximately 700 or so—State wire taps.
Mr. SCOTT. I guess my question was, Of all the conversations listened in on, how many of them were legitimate criminal activity conversations as opposed to how many innocent conversations?
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Mr. KOPEL. I think the figure there was 2.2 million conversations listened in on, of which 1.7 million were non-criminal.
It is interesting that out of only 1,500 wiretap orders that went in that year, you had 2.2 million conversations listened in on. That is an example of how any single wiretap warrant generates a gigantic search in a way that an ordinary search warrant doesn't. A search warrant for somebody's house generates a big search and maybe a lot of things being overturned in that house on a single day, but it is finite. In contrast, the wiretap warrants generate a gigantic amount of continuing surveillance based on any single warrant.
Mr. SCOTT. One of the reasons proponents need this bill is because intent is such an important element on the crime under the tourism aspect where the intent is the whole crime, the fact that you left the State with the intent. Without a wiretap, without a conversation, all you have is that they left the State and can't complete any kind of prosecution.
How would you suggest that they develop a case without a wiretap?
Mr. KOPEL. Let's remember, to the extent that they are describing things that are crimes under State law—such as statutory rape, for example—those can all be prosecuted under State laws. Indeed, if there is a need for a State wiretap, that might be a good argument in the State Legislature. I guess the question is, why is there a matter of Federal law? I know the fact that a person might travel from one State to another does under existing precedent probably allow congressional use of its interstate commerce power.
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But even though that is allowed, is this really something where you have to get the FBI involved and get the Federal Government involved? Perhaps we can let the State governments do that. I think that is the kind of argument that maybe a State police officer might well make for a State Legislature.
Mr. SCOTT. You are making an argument about whether or not the law ought to be on the books or not. I think it is a policy question. It is on the books. My question is, How can you ever get a prosecution if you don't have the wiretap authority to get those communications?
Mr. KOPEL. You can tell intent in lots of ways. For one thing, if there is an exchange of e-mail, that is already available for interception. We are talking about going even above the level of e-mail, about listening in on telephone conversations or putting bugs in people's houses. For probably every single offense you can find in any State criminal code—for that matter, most of the traffic codes—you can find ways that wiretaps can enhance the prosecution in some cases. Of course, the more you listen in, the more you can learn. The question is, Are these offenses so crucial and the matter of Federal law so crucial that wiretapping is essential for these.
The purpose of title III is not to have wiretapping in every case where useful evidence can be developed. The point is to have wiretapping in cases where it is essential and really tied to the nature of the offense that wiretapping—this unusual tool—has to be brought in.
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Mr. SCOTT. Is the exclusionary rule alive and well enough to protect us from undue intrusion?
Mr. KOPEL. No—well—no. This goes back to the Waco hearings from a few years ago. There are so many exceptions in the exclusionary rule, including the fact that if a search warrant is obtained—not with deliberate fraud on a police officer's part, but as part of a negligent process where witnesses really aren't properly interviewed and there is bad police work and the magistrate rubber stamps it, but he is not acting in bad faith. Because of a good faith exception to the exclusionary rule, that kind of evidence comes in.
I understand that people push the good faith exception successfully have had themselves good faith and were merely trying to prevent the exclusion of evidence based on genuine technicality. But what that has led to in practice I think has been a real degradation in both prosecutorial procurement of search warrants and judicial seriousness about authorizing search warrants. It is sort of like horseshoes where not only a leaner counts, but even now if you sort of get it in the ring it counts, even if it is not touching the pole.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. MCCOLLUM. Thank you.
Thank you, Mr. Kopel, for coming and spending the time, especially enduring through that break we had. We appreciate your coming and testifying.
This hearing of the Subcommittee on Crime is adjourned.
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[Whereupon, at 12:41 p.m., the subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
PREPARED STATEMENTS OF HON. SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
H.R. 4423
Mr. Chairman, I thank the committee for holding this hearing on H.R. 4423, the ''Probation Officers' Protection Act of 2000,'' which would authorize probation and pretrial services officers to carry firearms. While I am certain that this legislation was drafted with good intent, I am concerned that it may in fact have a dire impact upon the people and society that these probation and pretrial service officers have pledged to serve.
In truly analyzing the benefits of this bill we must first look to the duties that these two occupations entail. A probation officers duties consist of conducting background investigations which includes the compilation information such as the victim's attributes, the perpetrator's past criminal behavior and the type of crime or injury and pre-sentencing reports which includes a recommendation of an appropriate sentence to the judge after an individual has been convicted of a crime.
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In addition, the probation officer supervises individuals who have recently been released from prison, thus, assisting for prison inmates to assimilate back into society as a productive member of society. In many instances, a bond is formed between probation officers and former inmates as the probation officer strives to ensure that the former inmate stays on the straight and narrow path while keeping busy with gainful employment and wholesome activities. Reasonable concerns immediately lead me to believe that this bond will mostly likely be broken or never occur with the insurgence of firearms which will immediately thrust the probation officer into the same category of a police officer which many of these former inmates see as a figure that they cannot trust or confide in. However, my main concern does not lie solely with this premise, but the notion of State rights.
On October 19, 1996 the United States Code was amended to grant each district court the discretionary authority to authorize its probation officers and pre-trial officers to carry firearms under regulations prescribed by the Director of the Administrative office of the United States Courts. Currently, 83 courts do, in fact, authorize probation officers to carry firearms, however, 11 districts have elected not to authorize their probation officers to carry firearms. The current firearms authorization program prescribed by the Administrative Office of the U.S. Courts ensures a uniform method of executing the firearm program. Furthermore, the regulations preserve a balance of powers by acknowledging the autonomy of the U.S. Courts. Thus, because Federal probation officers are employees of the district court and are appointed by the judges they serve, it is appropriate that decisions regarding probation officers are currently made at the local level. The legislation being discussed today would take this deciding authority out of the hands of the local level for which these officers serve by allowing every probation officer and pretrial officer to carry firearms regardless of what the locality desired, thus, invalidating all other current regulations.
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For these reasons, I am concerned that this bill's positive points do not tilt the scale in the best interest of the American people. However, I look forward to the testimony that is to be presented in today's hearing, and will keep an open mind, throughout the course of deliberations.
Thank you.
H.R. 3484
Mr. Chairman, I would like to say a few words concerning this bill, H.R. 3484 which amends the Federal criminal code to authorize the interception of wire, oral, or electronic communications in the investigation of child pornography, coercion and enticement to engage in prostitution or other illegal sexual activity, and transportation of minors to engage in prostitution or other illegal sexual activity.
Mr. Chairman, I support the underlying goal of this bill which is to protect our children from sexual predators on the Internet. As a parent, I can only shudder at the thought of sexual predators inducing any child to engage in conversations in ''chat rooms'' or sending children pornography through the Internet.
I recognize that under 18 U.S.C. §2516 of the Federal Code, law enforcement agencies may only institute wiretaps in the investigations of a limited number of crimes. Those crimes are commonly called ''wiretap predicates'' and this bill purports to include additional acts that are more targeted toward sexual activities against children.
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Although there are a growing number of state laws on the books, such as in Maine, New Hampshire, and Connecticut, even with current the Federal statutes, this is not always enough to catch this increasingly savvy wave of sexual predators surfing the Internet today.
As an advocate on behalf of children, I support efforts like those by the Justice Department's Office of Juvenile Justice and Delinquency Prevention (OJJDP) under its Internet Crimes Against Children program where programs are funded for such things as the education of law enforcement officers and the development of prevention materials. These types of efforts will help us to eliminate the sexual exploitation of children, yet I realize that additional efforts must be taken to win the war.
Yet, without additional knowledge regarding the various acts that this bill would encompass and the actual effectiveness of such an expansion of the ''wiretap statute'' I will continue to study this bill as it moves through the committee.
However, I understand that the Department of Justice supports this bill, H.R. 3484 and I am anxious to hear from the witness in attendance today. I believe, nonetheless, that we must protect our children.
Thank you.