March 12, 2002  

Dear Representative:  

We are writing to ask you to oppose H.R. 2146, the "Two Strikes You're Out Child Protection Act." This bill would impose a mandatory life sentence for any person convicted of certain federal sex offenses against a minor, if the person has a prior conviction for a sexual offense against a minor. This mandatory sentencing scheme raises grave civil liberties concerns because it would prescribe arbitrary and disproportionate sentences. Furthermore, the bill is unnecessary because of enhancements recently enacted by the United States Sentencing Commission (USSC) that impose severe sentences for these crimes. Although we agree that society must be protected from those who commit crimes against children, we believe that the penalties currently in place, especially given the recently enacted enhancements by the USSC, provide for adequate punishments.  

H.R. 2146 will result in arbitrary and disproportionate sentences for vastly different crimes.  

As with all mandatory sentencing schemes that eliminate judicial discretion, H.R. 2146 will result in disproportionate punishments because judges will be required to impose life sentences for vastly different offenses. For example an individual convicted of raping a six-year-old child using force who has a prior conviction of a similar nature would be subject to the same penalty as a 19 year old who engages in consensual sex with a 15 year old, if the 19 year old had a prior conviction against a minor. Violent rape against a young child is a more serious crime than consensual sex with a teenager who is under the age of consent. Mandatory life imprisonment is a severe punishment for either crime, but unfairly so for the second.  

H.R. 2146 would apply to "attempted" sexual offenses as well as sexual offenses involving mere "sexual contact." Sexual contact is so broadly defined as to include behaviors like touching a breast or the inside of a thigh over the victim's clothing. This could produce the extraordinary result that a person could be convicted of two instances of attempting to touch a child's breast above clothing and serve a life sentence.  

These severe penalties risk violating the Eighth Amendment. The Eighth Circuit Court of Appeals recently struck down, on Eighth Amendment grounds, the life sentence of a man convicted of possessing a quarter gram of cocaine. The court wrote that it "denies reality and contradicts precedent to say that all drug crimes are of equal seriousness and pose the same threat to society." Similarly, it denies reality to conclude that all sexual offenses are the same and pose the same threat to society.  

Newly enacted sentencing enhancements are harsh and provide for severe punishment of sexual offenses against minors.  

Pursuant to Congressional directives contained in the "Protection of Children from Sexual Predators Act of 1998", the USSC increased sentencing enhancements in several guidelines relating to sexual offenses against children: USSG sec. 2A3.1 (Criminal Sexual Abuse), 2A3.2 (Criminal Sexual Abuse of a Minor - Statutory Rape), 2A3.3 (Criminal Sexual Abuse of a Ward), 2A3.4 (Abusive Sexual Contact), 2G1.1 (Promoting Prostitution or Prohibited Sexual Conduct), 2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Material) and 4B1.5 (Repeat and Dangerous Sex Offender Against Minors).  

Because of vacancies on the United States Sentencing Commission, it did not begin to create new enhancements pursuant to the 1998 law until May of 2000 and they were not implemented until the following year. The Congress should gauge the effectiveness of these enhancements before amending the law again.  

The guideline most similar to H.R. 2146 is 4B1.5. Like H.R. 2146, the new guideline specifically targets repeat sex offenders against children and significantly increases the penalties for those crimes. Furthermore, the new sentencing guideline goes even farther than H.R. 2146 in that it punishes a broader spectrum of repeat offenders, by not requiring that the prior offense involve a minor in order to trigger the enhancement, and also by increasing sentences for many of the sexual offenses that fall within the scope of H.R. 2146. The other guidelines increase penalties for related sexual offenses against children.  

Although we understand Congress' move to impose penalties upon those who commit despicable acts on the weakest members of our society, increasing already harsh penalties to disproportionate levels is not the answer. The current sentencing guidelines, including the recent amendments regarding sexual offenses, sufficiently punish repeat sexual offenders. We ask you to oppose H.R. 2146 not only because the disproportionate sentences would infringe on civil liberties, but also because measures have already been taken to ensure that this particular class of criminals is harshly punished.  

Thank you for your attention to our concerns. We would be happy to discuss this with your further.  

Sincerely,  

Laura Murphy, Director
Washington Office American Civil Liberties Union  

Julie Stewart, President
Families Against Mandatory Minimums  

Irwin Schwartz, President
National Association of Criminal Defense Lawyers