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September 11, 2001 : Attack on America
House Report 107-306 : Anti_Hoax Terrorism Act 2001; November 29, 2001



                            107 th Congress                             

                                 Report                                 

                                                                            

                                                                             

                        HOUSE OF REPRESENTATIVES                        

                               1st Session                              

                                107 306                                 

                                                                        



                           ANTI-HOAX TERRORISM ACT OF 2001                     



                                                                         

   November 29, 2001.--Committed to the Committee of the Whole House on  
 the State of the Union and ordered to be printed                        
                                                                         

  Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the  
 following                                                               
 R E P O R T                                                             

                              together with                              

                             ADDITIONAL VIEWS                            

                         [To accompany H.R. 3209]                        

       [Including cost estimate of the Congressional Budget Office]      


     The Committee on the Judiciary, to whom was referred the bill (H.R.  
  3209) to amend title 18, United States Code, with respect to false      
  communications about certain criminal violations, and for other         
  purposes, having considered the same, reports favorably thereon with an 
  amendment and recommends that the bill as amended do pass.              


                               CONTENTS                                 
         The Amendment                                                    1
         Purpose and Summary                                              2
         Background and Need for the Legislation                          2
         Hearings                                                         3
         Committee Consideration                                          3
         Vote of the Committee                                            3
         Committee Oversight Findings                                     3
         Performance Goals and Objectives                                 4
         New Budget Authority and Tax Expenditures                        4
         Congressional Budget Office Cost Estimate                        4
         Constitutional Authority Statement                               5
         Section-by-Section Analysis and Discussion                       5
         Changes in Existing Law Made by the Bill, as Reported            6
         Markup Transcript                                                7
         Additional Views                                                 23



                         The amendment is as follows:                     

        Strike all after the enacting clause and insert the following:    



                                  SECTION 1. SHORT TITLE.                         

      This Act may be cited as the ``Anti-Hoax Terrorism Act of 2001''.   


                             SEC. 2. HOAXES AND RECOVERY COSTS.                   

     (a) Prohibition on Hoaxes.--Chapter 47 of title 18, United States    
  Code, is amended by inserting after section 1036 the following:         
          ``1037. False information and hoaxes                                    

     ``(a) Criminal Violation.--Whoever engages in any conduct, with      
  intent to convey false or misleading information, under circumstances   
  where such information may reasonably be believed and where such        
  information concerns an activity which would constitute a violation of  
  section 175, 229, 831, or 2332a, shall be fined under this title or     
  imprisoned not more than 5 years, or both.                              
     ``(b) Civil Action.--Whoever engages in any conduct, with intent to  
  convey false or misleading information, under circumstances where such  
  information concerns an activity which would constitute a violation of  
  section 175, 229, 831, or 2332a, is liable in a civil action to any     
  party incurring expenses incident to any emergency or investigative     
  response to that conduct, for those expenses.                           
     ``(c) Reimbursement.--The court, in imposing a sentence on a         
  defendant who has been convicted of an offense under subsection (a),    
  shall order the defendant to reimburse any party incurring expenses     
  incident to any emergency or investigative response to that conduct, for
  those expenses. A person ordered to make reimbursement under this       
  subsection shall be jointly and severally liable for such expenses with 
  each other person, if any, who is ordered to make reimbursement under   
  this subsection for the same expenses. An order of reimbursement under  
  this subsection shall, for the purposes of enforcement, be treated as a 
  civil judgment.''.                                                      
     (b) Clerical Amendment.--The table of sections at the beginning of   
  chapter 47 of title 18, United States Code, is amended by adding after  
  the item for section 1036 the following:                                


      ``1037. False information and hoaxes.''.                                


                                    PURPOSE AND SUMMARY                           

      H.R. 3209, the ``Anti-Hoax Terrorism Act of 2001'' creates criminal  
   and civil penalties for whoever engages in any conduct, with intent to  
   convey false or misleading information, under circumstances where such  
   information may reasonably be believed and where such information       
   concerns an activity which would constitute a violation of title 18     
   U.S.C. 175 (relating to biological weapons attacks), 229 (relating to   
   chemical weapons attacks), 831 (nuclear attacks) or 2232a (weapons of   
   mass destruction attacks). This bill will help protect the public and   
   our nation's security by deterring and punishing those who perpetrate   
   such hoaxes.                                                            
                          BACKGROUND AND NEED FOR THE LEGISLATION                 

      Since the September 11, 2001 attacks and the ongoing anthrax attacks 
   against United States citizens on United States soil, the nation has    
   been engaged in a war at home and abroad. At home, emergency responders,
   law enforcement and investigation officials have been working overtime  
   to prevent terrorist acts and investigate suspicious events and actual  
   terrorist acts. The efforts on the home front have understandably       
   drained Federal, state and local resources.                             
      Because of these tragic attacks, the public is alarmed and           
   appropriately reporting suspicious activity. Our nation is on high alert
   and our law enforcement cannot afford to be distracted. Sadly, while law
   enforcement and emergency responders work tirelessly to prevent,        
   respond, and investigate real cases of terrorism, some have played upon 
   the public's apprehension with hoaxes.                                  
      H.R. 3209, ``the Anti-Hoax Terrorism Act of 2001,'' addresses this   
   growing phenomena of hoaxes that have further terrorized the American   
   public into falsely thinking biological attacks have occurred. A hoax of
   terrorism is terrorism. Such a hoax is designed to instill fear into the
   public or its target. While such hoaxes may not be designed to influence
   public policy or governments, they are a serious threat to the public's 
   safety on many levels. First, such a hoax distracts law enforcement from
   the actual threats or actual emergencies and, in effect, assists        
   terrorists. Second, these hoaxes often cause buildings and businesses to
   be evacuated and closed. If a hoax causes a hospital to be evacuated,   
   for instance, people could die.                                         
      The Department of Justice and the Federal Bureau of Investigation    
   testified on November 7th, before the Subcommittee on Crime, and made it
   clear that these types of hoaxes threaten the health and safety of the  
   American public and the national security of the nation.                
      Under current law, it is a felony to perpetrate a hoax such as       
   falsely claiming there is a bomb on an airplane. It is also a felony to 
   communicate in interstate commerce threatening personal injury to       
   another. A gap exist, however, in the current law as it does not address
   a hoax related to biological, chemical, or nuclear dangers where there  
   is no specific threat.                                                  
      That gap needs to be closed. This legislation makes it a felony to   
   perpetrate a hoax related to biological, chemical, nuclear, and weapons 
   of mass destruction attacks.                                            
                                          HEARINGS                                

      On November 7, 2001, the Subcommittee on Crime, held one hearing on  
   H.R. 3209, the ``Anti- Hoax Terrorism Act of 2001.'' Testimony was      
   received from two witnesses. Invited witnesses included: Mr. James F.   
   Jarboe, Section Chief, Counterterrorism Division, Domestic Terrorism,   
   Federal Bureau of Investigation, and Mr. James Reynolds, Chief,         
   Terrorism and Violent Crime Section, Criminal Division, U.S. Department 
   of Justice.                                                             
                                  COMMITTEE CONSIDERATION                         

      On November 14, 2001, the Subcommittee on Crime met in open session  
   and ordered favorably reported the bill, H.R. 3209, as amended, by a    
   voice vote, a quorum being present. On November 15, 2001, the Committee 
   met in open session and ordered favorably reported the bill H.R. 3209,  
   with an amendment by voice vote, a quorum being present.                
                                   VOTE OF THE COMMITTEE                          

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

                                COMMITTEE OVERSIGHT FINDINGS                      

      In compliance with clause 3(c)(1) of rule XIII of the Rules of the   
   House of Representatives, the Committee reports that the findings and   
   recommendations of the Committee, based on oversight activities under   
   clause 2(b)(1) of rule X of the Rules of the House of Representatives,  
   are incorporated in the descriptive portions of this report.            
                              PERFORMANCE GOALS AND OBJECTIVES                    

      The bill is intended to impose civil and criminal penalties to deter 
   and punish a person or persons for perpetrating a hoax that others could
   reasonable believe under the circumstance is or may be a biological,    
   chemical, nuclear or weapons of mass destruction attack. Such hoaxes    
   diminish Federal law enforcement resources and divert Federal           
   investigators attention away from actual threats or cases of terrorism. 
   This legislation is intended to prevent such a drain and aberration of  
   Federal resources that threaten the citizens and the national security  
   of the United States.                                                   
                         NEW BUDGET AUTHORITY AND TAX EXPENDITURES                

      Clause 3(c)(2) of House rule XIII is inapplicable because this       
   legislation does not provide new budgetary authority or increased tax   
   expenditures. This bill does provide new budgetary authority.           
                         CONGRESSIONAL BUDGET OFFICE COST ESTIMATE                

      In compliance with clause 3(c)(3) of rule XIII of the Rules of the   
   House of Representatives, the Committee sets forth, with respect to the 
   bill, H.R. 2975, the following estimate and comparison prepared by the  
   Director of the Congressional Budget Office under section 402 of the    
   Congressional Budget Act of 1974:                                       

       U.S. Congress,                                                          

       Congressional Budget Office,                                            

       Washington, DC, November 21, 2001.                                      



          Hon.  F. James Sensenbrenner,  Jr.,  Chairman,                Committee on the Judiciary,

       House of Representatives, Washington, DC.                               

       Dear Mr. Chairman: The Congressional Budget Office has prepared the 
   enclosed cost estimate for H.R. 3209, the Anti-Hoax Terrorism Act of    
   2001.                                                                   
      If you wish further details on this estimate, we will be pleased to  
   provide them. The CBO staff contact is Mark Grabowicz, who can be       
   reached at 226 2860.                                                    
   Sincerely,                                                              

        Dan L. Crippen,  Director.                                              


  Enclosure                                                               


  cc:                                                                     


   Honorable John Conyers, Jr.                                             

   Ranking Member                                                          

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

      CBO estimates that implementing H.R. 3209 would not result in any    
   significant cost to the Federal Government. Because enactment of H.R.   
   3209 could affect direct spending and receipts, pay-as-you-go procedures
   would apply to the bill. However, CBO estimates that any impact on      
   direct spending and receipts would not be significant. H.R. 3209        
   contains no intergovernmental or private-sector mandates as defined in  
   the Unfunded Mandates Reform Act and would impose no costs on State,    
   local, or tribal governments.                                           
      H.R. 3209 would establish a new Federal crime for the perpetration of
   hoaxes involving the threat of biological agents or other weapons of    
   mass destruction. Offenders would be subject to imprisonment and        
   criminal and civil fines.                                               
      Under the provisions of H.R. 3209, the government would be able to   
   pursue cases involving hoaxes that it otherwise would not be able to    
   prosecute. Because there are similar prohibitions on hoaxes in current  
   law, however, CBO expects that the bill's provisions would probably     
   affect a small number of additional cases. Thus, any increase in costs  
   for law enforcement, court proceedings, or prison operations would not  
   be significant. Any such costs would be subject to the availability of  
   appropriated funds.                                                     
      Because those prosecuted and convicted under H.R. 3209 could be      
   subject to fines, the Federal Government might collect additional fines 
   if the legislation is enacted. Collections of civil fines are recorded  
   in the budget as governmental receipts (revenues). Criminal fines are   
   deposited as receipts in the Crime Victims Fund and later spent. CBO    
   expects that any additional receipts and direct spending would be       
   negligible because of the small number of cases involved.               
      The CBO staff contact for this estimate is Mark Grabowicz, who can be
   reached at 226 2860. This estimate was approved by Robert A. Sunshine,  
   Assistant Director for Budget Analysis.                                 
                             CONSTITUTIONAL AUTHORITY STATEMENT                   

      Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House of 
   Representatives, the Committee finds the authority for this legislation 
   in article I, section 8, of the Constitution.                           
                         SECTION-BY-SECTION ANALYSIS AND DISCUSSION               

           Sec. 1. Short Title.                                                    

   This Act may be cited as the ``Anti-Hoax Terrorism Act of 2001.''       

           Sec. 2. Hoaxes and Recovery Costs.                                      

      Section 2(a) of the bill adds new section 1037 to title 18. This new 
   code section provides for criminal and civil penalties.                 
      New section 1037(a) of title 18 provides that whoever engages in any 
   conduct, with intent to convey false or misleading information, under   
   circumstances where such information may reasonably be believed and     
   where such information concerns an activity which would constitute a    
   violation of 175 (biological attack), 229 (chemical attack), 831        
   (nuclear attack), or 2332a (weapons of mass destruction attack), shall  
   be fined up to $250,000 or imprisoned not more than 5 years or both.    
      This new provision is consistent with current provisions in the      
   criminal code that treat hoaxes related to certain crimes as felonies.  
   For example, 18 U.S.C. 1365(c)(1) provides ``whoever knowingly          
   communicates false information that a consumer product has been tainted 
   . . . shall be fined under this title or imprisoned not more than 5     
   years or both.''                                                        
      Similar to existing hoax provisions, the language of 1037(a) includes
   a mens rea (intent) requirement. The language requires that the         
   perpetrator have ``the intent'' to convey false or misleading           
   information. The Committee believes that this mens rea requirement will 
   protect innocent individuals who have acted inadvertently. As an        
   additional protection against prosecuting innocent or inadvertent       
   behavior, the legislative language requires that the information be     
   reasonably believable and concern activities that would constitute a    
   violation of criminal law relating to biological, chemical, nuclear or  
   weapons of mass destruction.                                            
      Some have argued that the legislative language should include the    
   phrase ``malicious intent'' or similar language using the word          
   malicious. The Committee rejected this suggestion and believes the      
   inclusion of the term ``malicious'' or any derivative would render the  
   legislation useless. The term ``malicious'' means that a person has the 
   intent to harm another.                                                 
      By its very nature, a hoax is not intended to physically harm or     
   injure a person. If the person had the intent to harm, they would, use  
   real weapons, such as anthrax instead of powdered sugar. By using       
   powdered sugar instead of anthrax, the person engaging in the hoax can  
   argue that it was a joke and no harm could come to anyone. Furthermore, 
   it is the view of the Committee that the issue is whether the victims   
   reasonably believed they were or could be harmed, not whether the       
   criminal, while intending to convey false or misleading information     
   about a biological, nuclear, or chemical attack also intended to        
   physically harm people. Accordingly, the Committee believes adding the  
   word malicious or a derivation of the word would gut the bill.          
      Section 1037(b) provides that whoever engages in such a hoax, may be 
   liable in a civil action to any party incurring expenses incident to the
   emergency and investigative response.                                   
      Section 1037(c) requires any person convicted of a violation of      
   subsection (a) to reimburse any party for expenses incurred in          
   responding to the hoax. A person ordered to reimburse under this section
   would be jointly and severally liable for such expenses with any other  
   person ordered to reimburse under this section for the same expenses.   
   This section was amended to clarify that the reimbursement is a civil   
   judgement.                                                              
   Section 2(b) of the bill is a clerical amendment.                       

                   CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED          

     In compliance with clause 3(e) of rule XIII of the Rules of the House
  of Representatives, changes in existing law made by the bill, as        
  reported, are shown as follows (new matter is printed in italics and    
  existing law in which no change is proposed is shown in roman):         

                         CHAPTER 47 OF TITLE 18, UNITED STATES CODE               

         * * * * * * *                                                           

                           CHAPTER 47--FRAUD AND FALSE STATEMENTS                 


 Sec.                                                                    

      1001.  Statements or entries generally.                                 

         * * * * * * *                                                           


      1037.  False information and hoaxes.                                    

         * * * * * * *                                                           


          1037. False information and hoaxes                                      

     (a) Criminal Violation.--Whoever engages in any conduct, with intent 
  to convey false or misleading information, under circumstances where    
  such information may reasonably be believed and where such information  
  concerns an activity which would constitute a violation of section 175, 
  229, 831, or 2332a, shall be fined under this title or imprisoned not   
  more than 5 years, or both.                                             
     (b) Civil Action.--Whoever engages in any conduct, with intent to    
  convey false or misleading information, under circumstances where such  
  information concerns an activity which would constitute a violation of  
  section 175, 229, 831, or 2332a, is liable in a civil action to any     
  party incurring expenses incident to any emergency or investigative     
  response to that conduct, for those expenses.                           
     (c) Reimbursement.--The court, in imposing a sentence on a defendant 
  who has been convicted of an offense under subsection (a), shall order  
  the defendant to reimburse any party incurring expenses incident to any 
  emergency or investigative response to that conduct, for those expenses.
  A person ordered to make reimbursement under this subsection shall be   
  jointly and severally liable for such expenses with each other person,  
  if any, who is ordered to make reimbursement under this subsection for  
  the same expenses. An order of reimbursement under this subsection      
  shall, for the purposes of enforcement, be treated as a civil judgment. 

                                     MARKUP TRANSCRIPT                            

BUSINESS MEETING                                                        

THURSDAY, NOVEMBER 15, 2001                                             

House of Representatives,                                               

Committee on the Judiciary,                                             

 Washington, DC.                                                         

      The Committee met, pursuant to notice, at 10:10 a.m., in Room 2141,  
   Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr.         
   (Chairman of the Committee) presiding.                                  
   Chairman  Sensenbrenner.  The Committee will be in order.               

      The next item on the agenda is H.R. 3209, the Anti-Hoax Terrorism Act
   of 2001. The Chair recognizes the gentleman from Texas, Mr. Smith, the  
   Chairman of the Subcommittee on Crime.                                  
   [The bill, H.R. 3209, follows:]                                         

                                                                         

                                                                         

                                                                         

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      Mr. Smith. Mr. Chairman, the Subcommittee on Crime reports favorably 
   the bill H.R. 3209 with a single amendment in the nature of a substitute
   and moves its favorable recommendation to the full House.               
      Chairman Sensenbrenner. Without objection, the bill will be          
   considered as read and the Subcommittee amendment in the nature of a    
   substitute, which the Members have before them, will be considered as   
   the original text for purposes of amendment and will be considered as   
   read and open for amendment at any point.                               
   [The amendment follows:]                                                

                                                                         

                                                                         

                                                                         

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      Chairman Sensenbrenner. The Chair recognizes the gentleman from Texas
   to strike the last word.                                                
   Mr.  Smith.  Thank you, Mr. Chairman. I do move to strike the last word.

      Mr. Chairman, H.R. 3209, the Anti-Hoax Terrorism Act of 2001,        
   addresses the hoaxes that have terrorized the American people into      
   believing biological attacks have occurred.                             
      However, hoaxes related to anthrax, for example, don't always contain
   specific threats and are, therefore, not covered by current law.        
      If someone places white powder on a computer with a note saying,     
   ``This is anthrax,'' or sends harmless white powder through the mail,   
   such conduct may cause panic but violates no Federal law.               
      The Department of Justice and Federal Bureau of Investigation        
   testified last week before the Subcommittee on Crime and made it clear  
   that these types of hoaxes threaten public safety and health and the    
   national security of our country.                                       
      Such hoaxes also drain law enforcement and other resources away from 
   actual emergencies and terrorist threats.                               
      If a hoax causes a hospital to be evacuated, people could die. If a  
   hoax causes a business to close, people could lose their jobs. And if a 
   hoax preoccupies law enforcement officials, the public could be denied  
   protection from other crimes.                                           
      This legislation creates criminal and civil penalties for whoever    
   engages in conduct with the intent to convey false or misleading        
   information that may reasonably be believed to constitute a biological, 
   chemical, or nuclear attack.                                            
      This bill makes it a felony to carry out such a hoax. Additionally,  
   whoever engages in this crime will be subject to a criminal fine of up  
   to $250,000 in civil penalties and will have to reimburse the victims of
   this crime for expenses incident to any emergency or investigative      
   response.                                                               
      Mr. Chairman, America is engaged in a war on terrorism. Those who    
   prey on fear should be held responsible for their actions.              
      This bill will help protect the public and our Nation's security by  
   deterring and punishing those who perpetrate such hoaxes. So I urge my  
   colleagues to support this much-needed legislation and yield back the   
   balance of my time.                                                     
   Chairman  Sensenbrenner.  The gentleman from Virginia, Mr. Scott.       

   Mr.  Scott.  Thank you, Mr. Chairman.                                   

      And I am pleased to join the gentleman from Texas, the Chairman of   
   the Subcommittee, in joining as an original cosponsor of the bill,      
   because it addresses a real and serious problem.                        
      In this climate of heightened alert and attention, necessitated by   
   the events of September 11th, local emergency and first response        
   operations are constantly overstrained. In a recent meeting with a group
   of officials representing such operations, I was told that enormous     
   resources are already being expended to investigate suspected anthrax   
   and other bio and chemical scares.                                      
      Officials in the City of Norfolk, a city of about 275,000 residents, 
   estimated that it had spent over $70,000 in tracking down scares, all of
   which fortunately proved to be false alarms.                            
      There are legitimate inquiries which are triaged between law         
   enforcement, medical, and other appropriate personnel before committing 
   investigatory resources, but with the limited resources available in    
   most localities to conduct such investigations, even when they are based
   on legitimate reasons for concerns, the last thing we need to do is     
   waste such valuable time and resources on pranks or hoaxes.             
      It is my understanding that there are holes in our current ability at
   the Federal level to prosecute terroristic hoaxes. I don't know what the
   situation is on State laws, but we should certainly have the ability to 
   go after such cases on the Federal level, and that's what the bill does.
      There is one provision in the bill which I have a concern with, and  
   that is the lack of discretion on the judge in setting the amount of the
   fine. I had an amendment that provided for such discretion. The         
   amendment did not pass. However, the Chairman and I agreed on an        
   amendment, which will be offered, which makes it clear that the         
   reimbursement orders will be civil judgments in nature and, therefore,  
   the defendant will not be subject to jail time for nonpayment.          
      Thank you, Mr. Chairman. I look forward to consideration of the      
   legislation.                                                            
      Chairman Sensenbrenner. Without objection, the opening statements of 
   all Members will be inserted into the record at this point.             
   [The statement of Mr. Conyers follows:]                                 


                        Prepared Statement of the Honorable John Conyers, Jr., a    
            Representative in Congress From the State of Michigan                   
      While I am an original cosponsor of this legislation and support the 
   efforts the Subcommittee Chair and Ranking Member have made to narrow   
   and clarify it since then, I do believe the bill should be narrowed in  
   several respects.                                                       
      It is unfortunate that some people have decided to take advantage of 
   people's fears during this national crisis to perpetrate hoaxes         
   regarding anthrax or other biological, chemical, or nuclear materials.  
   It goes without saying that people who engage in such senseless behavior
   should be punished. While the bill before us accomplishes that goal, I  
   believe it goes too far.                                                
      The climate we now live in has encouraged people to transmit warnings
   of every potential attack they hear about, and they should not be       
   criminally penalized for their fears. Similarly, teenagers who have not 
   learned better and engage in simple pranks should not be targeted by    
   this legislation. That is why I hope the bill can be narrowed further so
   that only those who maliciously engage in such hoaxes are punishable.   
      Moreover, the bill requires convicted defendants to reimburse the    
   government for any costs associated with investigations into the hoax.  
   Cases should be decided on their individual merits; as such, I believe  
   the judiciary should have the discretion to determine if and when a     
   defendant should have to pay costs.                                     
   Thank you, Mr. Chairman.                                                



   [The statement of Ms. Jackson Lee follows:]                             


                        Prepared Statement of the Honorable Sheila Jackson Lee, a   
            Representative in Congress From the State of Texas                      
      I would like to thank Chairman Sensenbrenner and Ranking Member      
   Conyers for convening this markup on H.R. 3209, the ``Anti-Hoax         
   Terrorism Act of 2001.''                                                
      In light of the exponentially increasing amounts of bioterrorism     
   threats that have occurred since September 11, a Federal anti-hoax      
   provision is needed now more than ever. We must provide the resources   
   and expertise that States and localities may not posses in order to     
   respond to these hoaxes.                                                
      H.R. 3209 would make it a Federal crime for anyone who intentionally 
   imparts false information and hoaxes. The defendant shall be fined or   
   imprisoned not more than five years, or both.                           
      Mr. Chairman, the purpose of this bill should not be to prosecute    
   innocent mistakes or someone making a report concerning a suspected     
   substance, but rather it would apply to deliberate and malicious hoaxes 
   reported by individuals who know they are spreading false information.  
   This legislation should ensure that a person who executes a hoax intends
   that the hoax result in severe consequences such as a response from     
   emergency personnel.                                                    
      The purpose of most common pranks is to embarrass, humiliate,        
   frighten, or exploit without malicious intent. It is not intended to    
   threaten mass destruction or elicit an emergency response. For example, 
   in Anne Arundel County, MD, two juveniles were arrested after they      
   placed powder in an envelope and did not even mail it, but the envelope 
   was found by someone else and reported, causing an unintended emergency 
   response. The Chairman of the Subcommittee on Crime, Mr. Smith, has     
   reiterated that juveniles would not be prosecuted as adults under this  
   bill. However, a local prosecutor in Chicago recently placed an envelope
   containing sugar on a colleague's desk. He was administratively punished
   by being forced to resign from his job. The current language still does 
   not protect those who carry out practical jokes.                        
      I offer an amendment today that would allow the prosecution of       
   persons who execute hoaxes with the malicious intent to deceive the     
   victim. By requiring the defendant to have acted ``maliciously,''       
   juvenile pranks or the innocent spreading of rumors will not be         
   federalized.                                                            
      The language in my amendment would give prosecutors a means to       
   distinguish between a person who is actually threatening to use anthrax 
   on a victim on one hand, and a person who never intends to use it, but  
   truly wants the victim or police to think they have done so. The latter 
   is what we are trying to prevent.                                       
      Mr. Chairman, this legislation should punish hoaxes intending to     
   cause a grave ands serious consequence. Malicious acts deserve Federal  
   felony prosecution; innocent bad judgment and juvenile bad behavior do  
   not. Let us work together towards that end.                             
   Thank you.                                                              



   Are there any amendments?                                               

   Ms.  Jackson Lee.  Mr. Chairman?                                        

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

   Ms.  Jackson Lee.  I have an amendment at the desk.                     

   Chairman  Sensenbrenner.  The clerk will----                            

   Ms.  Jackson Lee.  For H.R. 3209.                                       

   Chairman  Sensenbrenner.  The clerk will report the amendment.          

      The Clerk. Amendment to H.R. 3209, offered by Ms. Jackson Lee of     
   Texas. On page 1, line 12, insert ``the malicious'' after ``with'' and  
   before ``intent.''                                                      
   [The amendment follows:]                                                

[Graphic Image Not Available]
      Chairman Sensenbrenner. The gentlewoman from Texas is recognized for 
   5 minutes.                                                              
      Ms. Jackson Lee. Mr. Chairman, we turned a new page in history on    
   September 11th, and I am well-aware of many of the important measures   
   that this particular Committee has to address. And we have done so with 
   an effort to be bipartisan.                                             
      This legislation is one that draws a great deal of support on the    
   basis that these are serious times. And so I do not diminish that level 
   of seriousness.                                                         
      But we also know that this is a country that is used to freedom of   
   expression, freedom of movement, and, as well, freedom of engagement. I 
   want to make sure that as we prosecute those who would do harm through  
   hoaxes that we have a clear definition, and so my amendment seeks to add
   the words ``maliciously'' and ``knowingly'' so that we can avoid the    
   wide fishnet to those jokesters who have no mean intent.                
      This language has been supported by the Senate. It gives prosecutors 
   the means to distinguish between a person who is actually threatening to
   use anthrax or some other substance or some other act on a victim on one
   hand, and a person who never intends to use it but truly wants the      
   victim or police to think they have done so.                            
      It avoids federalizing of juvenile pranks. And I know there was a    
   comment made that the bill does not indicate that it will be trying     
   juveniles as adults, but it does not preclude such.                     
      And I don't believe these hoaxes that are unintended is going to     
   deserve lengthy Federal prison.                                         
      And if I can correct an earlier statement, this language adds the    
   word ``maliciously'' since ``knowingly'' is already in the bill.        
      Malicious acts deserve Federal felony prosecution. But innocent bad  
   judgment and bad jokes do not.                                          
      I would hope that we would give this legislation the strength that it
   deserves by adding this language and, as well, providing the clarity    
   that I think criminal prosecutions need. This does not take away from   
   the legislation's strength, because those people who are intent on doing
   evil will be captured by this legislation with this amendment. And I    
   would hope that this would occur.                                       
      I do want to respond to the suggestion or the thought that in giving 
   prosecutors discretion, we know that they will make the right judgment. 
   And I respect prosecutors; I have served on a municipal court bench.    
      But in the course and the rapidness of the day's work, I don't think 
   we can put justice and balance on the issue of hope. And I think        
   prosecutors clearly appreciate distinctive standards by which they can  
   make judgments in order to move forward on prosecution or to the grand  
   jury.                                                                   
      That's all we're asking to do, is to realize that the jokesters of   
   which we Americans have grown up with--the Will Rogers of the           
   world--that we do not capture them--the late-night pranksters on        
   late-night shows--that we really deal with those who are malicious.     
      And I would ask my colleagues to accept this amendment on the        
   anti-hoax legislation.                                                  
   Chairman  Sensenbrenner.  The gentleman from Texas.                     

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

   Chairman  Sensenbrenner.  The gentleman is recognized for 5 minutes.    

      Mr. Smith. Mr. Chairman, the phrase ``malicious'' has common law     
   roots. In the criminal law in the English dictionary, malicious means   
   intending to harm another person. But in this case, adding what appears 
   to be a simple phrase actually would weaken the bill. Adding the term   
   ``malicious,'' in fact, would render the legislation useless.           
      The term ``malicious'' means that a person has the intent to harm    
   another. By its very nature, a hoax is not intended to harm or injure   
   another person.                                                         
      If the person had the intent to harm, they would use real biological 
   weapons, for example, such as anthrax, instead of powdered sugar. By    
   using powdered sugar instead of anthrax, the person who engages in the  
   hoax can argue that it was a joke and that they did not intend to harm  
   anyone.                                                                 
      The issue is not whether the criminal intended to physically harm the
   victims of the hoax, but whether the victims reasonably believed they   
   might be harmed.                                                        
      Furthermore, Mr. Chairman, the model penal code contends that there  
   are only four separate recognizable states of mind: purposeful, knowing,
   reckless, and negligent. Malicious is not one of those four states of   
   mind.                                                                   
   So I would urge my colleagues to oppose this amendment.                 

   Chairman  Sensenbrenner.  The question is on the adoption of the----    

   Mr.  Scott.  Mr. Chairman?                                              

   Chairman  Sensenbrenner.  The gentleman from Virginia, Mr. Scott.       

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

   Chairman  Sensenbrenner.  The gentleman is recognized for 5 minutes.    

      Mr. Scott. Mr. Chairman, the adoption of the amendment would mean    
   that bad jokes would not be criminalized. I think that's a good idea,   
   and I would support the amendment.                                      
      We should not indict and arrest, try, and try to send to jail people 
   who have bad judgment and make bad jokes.                               
   I would hope we would adopt the amendment. I yield back.                

      Chairman Sensenbrenner. The question is on the adoption of the       
   amendment by the gentlewoman from Texas, Ms. Jackson Lee.               
   Those in favor will say aye.                                            

   Opposed, no.                                                            

      The noes appear to have it. The noes have it, and the amendment is   
   not agreed to.                                                          
   Are there further amendments?                                           

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

   Chairman  Sensenbrenner.  The clerk will report the amendment.          

      The Clerk. Amendment to H.R. 3209, offered by Mr. Scott. Page 2, line
   15, after the first period, insert ``an order of reimbursement under    
   this subsection shall, for the purposes of enforcement, be treated as a 
   civil judgment.''                                                       
   [The amendment follows:]                                                

[Graphic Image Not Available]
   Chairman  Sensenbrenner.  The gentleman is recognized for 5 minutes.    

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

      Some of the judgment--some of the reimbursement orders that could be 
   ordered could be much more than could ever reasonably be paid. The      
   judgments will be joint and severable--the defendants will be jointly   
   and severably liable. And if it is enforced as a civil judgment, you get
   just about everything the person has. You would not be able to throw    
   them in jail, for example, for not going to work, as you could under a  
   criminal fine.                                                          
   And I would hope that we would adopt the amendment.                     

   Chairman  Sensenbrenner.  The gentleman from Texas, Mr. Smith.          

      Mr. Smith. Mr. Chairman, the gentleman from Virginia, Mr. Scott,     
   brought this concern out, both during the hearing and during yesterday's
   markup in the Subcommittee, and I agree that he makes a good point.     
   There was never any intent in this legislation to put someone in jail   
   for failure to pay this reimbursement.                                  
   And so I would like to urge my colleagues to support this amendment.    

      Chairman Sensenbrenner. The question is on the amendment of the      
   gentleman from Virginia, Mr. Scott.                                     
   Those in favor will signify by saying aye.                              

   Opposed, no.                                                            

      The ayes appear to have it. The ayes have it, and the amendment is   
   agreed to.                                                              
   Are there further amendments?                                           

   Mr.  Barr.  Mr. Chairman?                                               

   Chairman  Sensenbrenner.  The gentleman from Georgia, Mr. Barr.         

      Mr. Barr. I would like to ask unanimous consent to engage in a brief 
   colloquy with the Chairman of the Subcommittee.                         
      Chairman Sensenbrenner. The gentleman moved to strike the last word, 
   and he's recognized for 5 minutes.                                      
   Mr.  Barr.  Thank you.                                                  

      As the distinguished Chairman of the Subcommittee knows, based on    
   both comments during our hearing and at yesterday's Subcommittee markup 
   on this, I have expressed some concerns similar to those expressed by a 
   couple of other learned Members of this Committee to try and ensure that
   what we are not doing here is federalizing with the full weight of the  
   Federal criminal law apparatus bad jokes and juvenile behavior, while   
   certainly recognizing also that, particularly in the climate engendered 
   by recent terrorist activities, there is a very legitimate concern for  
   the people of this country and for the Federal Government to stop       
   serious hoaxes and to punish those, particularly when they result in    
   very serious action and reaction on the part of government, emergency,  
   and police, and national security personnel.                            
      I would just like to have the distinguished Chairman of the          
   Subcommittee explain in a little more detail his bill as proposed today,
   as has been redrafted, to ensure that we have legislative history       
   indicating that it is not intended to reach simply a bad joke.          
   And I would yield to the Chairman.                                      

   Mr.  Smith.  I thank the gentleman for yielding.                        

      And I would like to reassure the gentleman from Georgia, as well as  
   the gentlewoman from Texas, Ms. Jackson Lee, that it is certainly not   
   the intent of this legislation to punish anyone who engages in a prank  
   that lasts 5 minutes, for example.                                      
      The intent of the legislation is, in fact, to punish someone who, for
   example, engages in a hoax that perhaps shuts down a hospital and causes
   loss of life. A prank such as the gentleman described would not rise to 
   the level of leaving the false impression that it would violate four    
   sections of the criminal code.                                          
      So I would like to reassure the gentleman, I am happy to state for   
   the record that that kind of short-term prank that would be over with in
   a couple of minutes and not create the harm or the injury or the danger 
   that is anticipated with a real hoax would not be prosecuted.           
      The intent of the legislation, again, is only to punish those who    
   engage in hoaxes that create a real threat and a serious and reasonable 
   belief that a biological, chemical, or nuclear attack has occurred.     
   Mr.  Barr.  I thank the gentleman.                                      

   Mr.  Delahunt.  Mr. Chairman?                                           

   Chairman  Sensenbrenner.  The gentleman from Massachusetts.             

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

   Chairman  Sensenbrenner.  The gentleman is recognized for 5 minutes.    

      Mr. Delahunt. I'll be brief, Mr. Chairman. And I respect the concerns
   that have been articulated by my friend from Georgia and gentlelady from
   Texas.                                                                  
      But I just want to make two observations, because I think it's       
   important that we understand, particularly as it relates to juveniles,  
   that in those cases, if juveniles are charged with an offense under this
   particular proposal, they will be tried in the Federal courts as        
   juveniles. And clearly, all of the protections afforded juveniles will  
   pertain to them, given the distinctions made between juveniles and      
   adults in our criminal jurisprudence.                                   
      There is, I suggest, no need to make any exception because it already
   exists.                                                                 
      And additionally, I would daresay that any prosecutor hopefully would
   exercise appropriate prosecutorial discretion when it came to the       
   appropriate charge and appropriate recommendation in cases involving    
   hoaxes. Clearly, there are differences in degree in terms of the harm   
   that is inflicted.                                                      
      At some point in time, we have to rely on individuals in our system  
   of justice to exercise balanced and fair and appropriate judgment.      
      I think this is a very good piece of legislation. I think it makes   
   sense. It's long overdue. And I hope that it passes.                    
   Chairman  Sensenbrenner.  Are there further amendments?                 

   Ms.  Jackson Lee.  Mr. Chairman?                                        

   Chairman  Sensenbrenner.  The gentlewoman from Texas, Ms. Jackson Lee.  

   Ms.  Jackson Lee.  I would like to strike the last word.                

   Chairman  Sensenbrenner.  The gentlewoman is recognized for 5 minutes.  

   Ms.  Jackson Lee.  I thank the Chairman very much.                      

      I think this discussion is a very productive discussion, and I do    
   thank Mr. Barr for his comments and colloquy with Mr. Smith, and the    
   effort at the clarification that this is legislation, of which broadly I
   support, that intends to capture those who would do evil and would do   
   wrong in that they wish to have a negative impact to create terror, to  
   frighten people.                                                        
   But I do want to add a note of caution and a caveat.                    

      For all of my good friends who are here who are former prosecutors, I
   have the greatest respect for them and certainly have had the experience
   of presiding as they have made presentations in a local court scenario. 
      But let me be very clear that all cannot rest on our hope and good   
   wishes for all prosecutors throughout the Nation.                       
      Now, I will look at this bill more closely and determine whether or  
   not the representations that have been made are accurate.               
      But in Houston, Texas, right now we have Vanessa Leggett, a young    
   woman who has been held for more than 3 months, a journalist that U.S.  
   prosecutors refuse to give even bail because they allege that she is    
   interfering with a criminal prosecution, which is absolutely not        
   accurate, in that she has cooperated and she has journalistic           
   privileges. She is not the criminal; she has spoken in the context of   
   writing a book.                                                         
      That's poor judgment. And I think you can find poor judgment examples
   across the Nation.                                                      
      Additionally, those of us who have dealt with racial profiling know  
   there is a lot of poor judgment that goes on in the prosecutorial, in   
   the criminal justice system. And, therefore, I think this Judiciary     
   Committee, Republicans and Democrats alike, because there may be poor   
   judgment on those who have avocations or advocate positions that I may  
   disagree with, there may be those who are in the groups that I may have 
   a difference of opinion, but they have a right to have access to a fair 
   system.                                                                 
      I think when we write legislation, we should err on the side of being
   the fairest that we possibly can be and not yet suggest that the good   
   judgment of prosecutors will be the rule of the day. We have had good   
   judgment, and we've had judgment that has not been so good.             
      So I will be studying this legislation. But I frankly believe that   
   the language was not language that would undermine the bill. I think it 
   would help strengthen the bill. And, again, I think the merits of the   
   bill are certainly warranting of this Committee's support.              
   And I thank the Chairman for yielding.                                  

   Chairman  Sensenbrenner.  Are there further amendments?                 

      Hearing none, the question occurs on the amendment in the nature of a
   substitute as amended.                                                  
   Those in favor will say aye.                                            

   Opposed, no.                                                            

   The aye has it. [Laughter.]                                             

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

      The Chair notes the presence of a reporting quorum. The question now 
   occurs on the motion to report the bill H.R. 3209 favorably as amended  
   by the amendment in the nature of a substitute as amended.              
   Those in favor will say aye.                                            

   Opposed, no.                                                            

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

      Without objection, the Chairman is authorized to move to go to       
   conference pursuant to House rules. Without objection, the staff is     
   directed to make any technical and conforming changes. And all Members  
   will be given 2 days as provided by the rules in which to submit        
   additional dissenting, supplemental, or minority views.                 
   [Intervening business.]                                                 

      The Chair thanks the Members for their indulgence and support. This  
   concludes the business on the notice, and the Committee is adjourned.   
   [Whereupon, at 11:06 a.m., the Committee was adjourned.]                


                                      ADDITIONAL VIEWS                            

      We support the effort to punish people who perpetrate hoaxes         
   involving biological, chemical, or nuclear materials or other weapons of
   mass destruction; in this time of national crisis, it is outrageous for 
   any individual to take advantage of our collective anxiety about        
   terrorist acts.\1\                                                      
    Clearly, we must act to provide law enforcement with the tools it needs
   to address this problem.\2\                                             
    For that reason, we support H.R. 3209, the ``Anti-Hoax Terrorism Act of
   2001,'' which creates a Federal criminal penalty and a civil cause of   
   action to convey intentionally any false information about a threat     
   involving biological, chemical, or nuclear weapons or weapons of mass   
   destruction. We are submitting these additional views, however, because 
   we believe H.R. 3209 is unintentionally drafted too broadly and because 
   it imposes mandatory restitution in criminal cases. We hope these       
   matters can be addressed as we move to the floor or resolve differences 
   with the Senate.                                                        
   \1\There has been a recent rash of anthrax hoaxes, where one or more    
   persons have decided to intimidate others by sending powder through the 
   mail purporting to be anthrax, but later determined to be harmless. A   
   large portion of recipients of such letters have been abortion clinics  
   and pro-choice groups; in fact, over 280 clinics have been threatened   
   since the initial outbreak. Dennis B. Roddy, Anthrax Threats Target 2   
   Abortion Providers Here, Others in East , Pittsburgh Post-Gazette , Nov.
   9, 2001, at A11. In a recent incident, a perpetrator used Federal       
   Express to send powder and a threatening note to a pro-choice group and 
   went so far as to forge the billing numbers and return addresses of the 
   groups themselves. Id.                                                  
   \2\While Federal authorities do have some tools available against such  
   offenders, see 18 U.S.C. 876 (penalties for mailing threatening         
   communications), we have heard the call of clinics and other targets    
   that additional legislation is needed to fill gaps. See, e.g., Planned  
   Parenthood Voices Support for Anti-Terrorism Bill , Press Release (Nov. 
   15, 2001) (``We are pleased to see Congress is considering stiffer      
   penalties for people who commit such acts.'').                          
      The bill, as currently drafted, would make it a Federal crime to     
   engage in ``any conduct'' (1) ``with the intent to convey false or      
   misleading information under circumstances where such information may   
   reasonably be believed,'' and (2) where the information concerns an     
   activity which would violate Federal law with respect to chemical       
   weapons, biological weapons, nuclear materials, or weapons of mass      
   destruction. This offense would be punishable by a fine, imprisonment of
   up to five years, or both. In addition, the bill makes the individual   
   who conveys such information subject to a civil action for emergency or 
   investigative responses incurred as a result of responding to the false 
   information. Finally, the bill requires the court to order a person     
   convicted of this Federal crime to pay restitution. The person would be 
   jointly and severally liable for restitution, and the restitution would 
   be treated as a civil, rather than a criminal, fine. The following is a 
   description of the concerns we would hope could be addressed before the 
   bill is signed into law.                                                
                              I. OVERBREADTH                             

      Whenever we create new criminal penalties, we must do so in a        
   measured and reasonable manner. That is why Rep. Sheila Jackson Lee     
   (D-TX) offered an amendment at the Committee's markup to require the    
   government to prove that the hoax was perpetrated with ``malicious''    
   intent.\3\                                                              
                                                                           

   \3\Requiring the government to prove the conduct was intended           
   maliciously would have provided a parallel with the mens rea requirement
   of similar legislation introduced in the Senate by Sen. Patrick Leahy   
   (D-VT), Chairman of the Senate Committee on the Judiciary. See S. 1666, 
   the ``Anti-Terrorist Hoax and False Report Act of 2001,'' 107th Cong.,  
   1st Sess. 2 (2001). Unfortunately, the Jackson Lee amendment was        
   defeated by voice vote.                                                 
      We believe that the bill as written could go too far because it does 
   not require that the offenses be committed with such intent. First, the 
   legislation could result in Federal prosecutions of individuals who     
   simply disseminate erroneous information about potential acts of        
   terrorism. For example, a chain e-mail recently was circulated that     
   purported to contain credible information that terrorist acts involving 
   anthrax would occur in shopping malls on October 31, 2001. Such acts did
   not occur. Under a strict reading of this bill, an individual who       
   forwarded that e-mail knowing it to be false, but could reasonably be   
   believed, would be subject to Federal prosecution.                      
      Also subject to Federal prosecution would be incidents that amount to
   nothing more than mere jokes. It has been reported that there is almost 
   a national ``epidemic'' of people who are sending or giving powder to   
   friends or coworkers to give a temporary scare about anthrax but not    
   intending ill will.\4\                                                  
    Furthermore, it should come as no surprise that there are teenagers out
   there who have not learned better and engage in simple pranks just to   
   scare friends.\5\                                                       
    While we believe that this demonstrates poor taste and bad judgement,  
   we do not believe it should be subject to Federal prosecution.          
   \4\Susan Levine, Disseminating Dread; Pranksters, Disgruntled Americans 
   Perpetrate Hoaxes , Wash. Post , Oct. 26, 2001, at A1.                  
   \5\ Id.                                                                 

      The Majority's response essentially has been to concede that this    
   reading of the bill is correct but we should simply trust that Federal  
   prosecutors will exercise their discretion and avoid prosecuting such   
   cases. While it is true that most prosecutors will refrain from         
   prosecuting incidences involving misguided pranks or bad jokes, we      
   already are seeing that, in the current atmosphere, there are           
   prosecutors who will bring such cases.\6\                               
    Congress should preclude such overzealous prosecutions through more    
   narrowly-tailored language in this bill.                                
   \6\ Id.                                                                 

      Third, despite the gaps we acknowledge exist in current Federal law, 
   there are some remedies available to law enforcement against serious    
   offenses. For instance, some state authorities already have begun       
   criminal investigation and prosecutions against persons whose hoaxes    
   were so egregious that they crossed the line.\7\                        
    In addition, numerous employers have fired employees who engaged in    
   such acts.\8\                                                           
    These examples show that the congressional response to the hoax        
   epidemic does not need to address each and every scare; instead, it can 
   and should be narrowly tailored to the most egregious cases.            
   \7\In one case, a firefighter in Lycoming County, Pennsylvania, told his
   colleagues that powder had spilled from an envelope he had opened at    
   home; a few weeks later, he was in court facing the felony criminal     
   charge of creating a disturbance. Martin Kasindorf & Toni Locy, Anthrax 
   Hoaxes Persist Despite Arrests , USA Today , Nov. 6, 2001, at 1A. In    
   addition, state prosecutors have filed felony disorderly conduct charges
   against a Cook County, Illinois prosecutor who put on a colleague's desk
   an envelope filled with sugar and bearing the return address of a       
   defendant in that colleague's case. Richard Roeper, Anthrax-Joke        
   Epidemic is Real National Illness , Chicago Sun-Times , Nov. 5, 2001, at
   11. Finally, Kentucky State Police are conducting a criminal            
   investigation of Bourbon County Sheriff John Ransdell, who ``slipped    
   envelopes containing crushed aspirin onto courthouse employees' desks,''
   purportedly to test employee preparedness. Laura Yuen, Sheriff Target of
   Criminal Inquiry over Aspirin He Put in Envelopes , Lexington Herald    
   Leader , Nov. 1, 2001, at A1.                                           
   \8\Roeper, supra; Valerie Schremp, Fired Worker at GM Plant is Charged  
   in Prank Involving the Anthrax Scare , St. Louis Post-Dispatch , Oct.   
   24, 2001, at A4.                                                        
      Unfortunately, the Majority opposed the amendment on the grounds that
   it would render the legislation meaningless. The rationale was that     
   ``malicious'' means ``intending to cause harm'' and that perpetrators   
   could argue it is clear they did not intend to cause harm because they  
   did not send real anthrax. This argument is flawed, however, because the
   term ``malicious'' does not mean ``intent to cause harm;'' instead, it  
   has been defined as ``characterized by, or involving, malice; having, or
   done with, wicked, evil or mischievous intentions or motives; wrongful  
   and done intentionally without just cause or excuse or as a result of   
   ill will.''\9\                                                          
    As such, the amendment would have clarified that the legislation would 
   apply only to persons who are conveying ill will, not simply those      
   joking in bad taste.                                                    
   \9\ Black's Law Dictionary  958 (6th ed. 1990).                         

      Another problem with the existing intent standard is that it does not
   require the defendant to know that the information conveyed was false or
   misleading. As it is written, the bill could lead to the prosecution of 
   a person who intended to convey information but did not intend for it to
   be ``false or misleading.'' For that reason, we hope the bill can be    
   clarified to state that the person must know the information is false or
   misleading.                                                             
                        II. MANDATORY RESTITUTION                        

      We also are concerned that because the bill imposes mandatory        
   restitution for criminal violations and, therefore, eliminates judicial 
   discretion in making sentencing decisions and discriminates against     
   those with lower incomes. More specifically, H.R. 3209 requires judges  
   to order those convicted of a criminal hoax offense to reimburse any    
   party--likely to be the government--for any expenses incurred due to the
   hoax.\10\                                                               
                                                                           

   \10\H.R. 3209 2(a) (``[t]he court, in imposing a sentence on a defendant
   who has been convicted of a [criminal hoax offense], shall order the    
   defendant to reimburse any party incurring expenses incident to any     
   emergency or investigative response to that conduct, for those expenses.
   A person ordered to make reimbursement under this subsection shall be   
   jointly and severally liable for such expenses with each other person,  
   if any, who is ordered to make reimbursement under this subsection for  
   the same expenses.'') (emphasis added). The provision was tempered by an
   amendment offered by Rep. Bobby Scott (D-VA) ensuring that reimbursement
   orders would be civil, not criminal, judgments, so that those unable to 
   pay would not go to jail.                                               
      The first problem with this provision is that, as with mandatory     
   minimum penalties, it removes judges from the sentencing process and    
   thereby strips their discretion. Under current law, whether a defendant 
   should be required to make restitution generally is left to the         
   discretion of the sentencing judge.\11\                                 
    In fact, leaving judges the discretion to make sentencing decision has 
   been a prized characteristic of our judicial system and prior           
   congressional actions to strip that away have been criticized.\12\      
    Unfortunately, this provision prohibits judges from making case-by-case
   determinations about whether an individual should be required to        
   reimburse the government or any other party, thus subjecting all        
   defendants to a one-size-fits-all punishment scheme.                    
   \11\ See , e.g., 18 U.S.C. 3663.                                        

   \12\ See, e.g. , Lucy Quinlivan, Judge Quits Case over Sentencing;      
   Federal Mandate Cited in Drug Case , Saint Paul Pioneer Press , Jan. 20,
   2001, at 1B (Federal judge removes himself from case rather than        
   complying with U.S. Court of Appeals order to impose harsher sentence in
   line with Federal Sentencing Guidelines); Michael R. Bromwich, Put a    
   Stop to Savage Sentencing , Wash. Post. , Nov. 22, 1999, at A23 (op-ed);
   Linda Greenhouse, Guidelines on Sentencing Are Flawed, Justice Says ,   
   N.Y. Times , Nov. 21, 1998, at A12 (Supreme Court Justice Stephen G.    
   Breyer criticizing the Federal Sentencing Guidelines and ``calling for  
   Federal judges to regain some of their traditional discretion to make   
   the punishment fit the crime.''); Benjamin Weiser, Judge Has His Own    
   Take on Sentencing Formulas , N.Y. Times, Sept. 14, 1997, at 1 39       
   (Federal judge sometimes imposes lighter or harsher sentences than the  
   Federal guidelines call for depending on the circumstances of each      
   case).                                                                  
      Moreover, mandatory restitution discriminates on the basis of        
   economic status, in that those with lower incomes would be less likely  
   to be able to comply with reimbursement orders.\13\                     
    As a result, defendant with lower incomes would be more likely to fall 
   irreversibly into the justice system, from the initial criminal         
   conviction to a reimbursement order and then possibly to a contempt of  
   court citation for not providing reimbursement.\14\                     
                                                                           

   \13\ See, e.g. , Letter from Ira Glasser & Laura Murphy Lee, ACLU, to   
   the Honorable Henry Hyde, Chairman, House Comm. on the Judiciary (Jan.  
   27, 1995).                                                              
   \14\Pursuant to an amendment adopted at the Committee markup and offered
   by Reps. Bobby Scott (D-VA) and Lamar Smith (D-TX), the reimbursement   
   order would be treated as a civil, not criminal, judgment.              

    John Conyers, Jr.                                                       

    Robert C. Scott.                                                        

    Sheila Jackson Lee.                                                     

    Maxine Waters.                                                          


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