Identity Theft Penalty Enhancement Act

IDENTITY THEFT PENALTY ENHANCEMENT ACT -- (House of Representatives - June 23, 2004)

Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 1731) to amend title 18, United States Code, to establish penalties for aggravated identity theft, and for other purposes, as amended.

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Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise in opposition to H.R. 1731. Although I agree with the purpose of the bill, my position is based on the reliance in the bill of mandatory minimum sentencing. By adding mandatory minimum sentencing and denying probation and concurrent sentences, the bill imposes unnecessary and unproductive restrictions on the ability of the Sentencing Commission and judges, in individual cases, to assure a rational and just system of sentencing as a whole and for individuals.

The notion that Congress is in a better position to determine at the front end what the sentence has to be for an individual case than the judge who has heard the case and applies guidelines established by the sentencing professionals not only defeats the rational sentencing system that Congress adopted but also makes no sense in our separation of powers scheme of governance. Moreover, the notion of mandating a 2-year or 5-year sentence to someone who is already willing to risk a 15-year sentence is not likely to add any deterrence.

Mandatory sentences do not work. They have been studied extensively and have been shown to be ineffective in preventing crime. They distort the sentencing process. They discriminate against minorities in their application, and they waste money. In a study report entitled "Mandatory Drug Sentences: Throwing Away the Key or the Taxpayers Money?" The Rand Corporation concluded that mandatory minimum sentences were less effective than either discretionary sentencing or drug treatment in reducing drug-related crime and far more costly than either. The Judicial Conference of the United States has reiterated its opposition to mandatory minimum sentencing over a dozen times to Congress, noting that though sentences "severely distort and damage the Federal sentencing system ..... undermine the Sentencing Guideline regimen" established by Congress to promote fairness and proportionality," and "destroy honesty in sentencing by encouraging charge and fact plea bargains." The U.S. Sentencing Commission indicated its opposition to the Senate bill, which is virtually identical to this bill, for similar reasons.

Both the Judicial Center in its study report entitled "The General Effects of Mandatory Minimum Prison Terms: a Longitudinal Study of Federal Sentences Imposed" and the United States Sentencing Commission in its study entitled "Mandatory Minimum Penalties in the Federal Criminal Justice System" found that minorities were substantially more likely than whites under comparable circumstances to receive mandatory minimum sentences. The Sentencing Commission also reflected that mandatory minimum sentences increased the disparity in sentencing of like offenders with no evidence that mandatory minimum sentencing had any more crime-reduction impact than discretionary sentences.

Chief Justice Rehnquist has spoken often and loudly about these wasteful cost increases. One quote attributed to him says: "Mandatory minimums are perhaps a good example of the law of unintended consequences."

Mr. Speaker, there is one good part of the bill, and that is an authorization for funding to investigate consumer credit card fraud cases. I introduced in the committee a newspaper report of an identity theft case in which a Senator from New Mexico, Senator Domenici, was the victim. It involved about $800 worth of fraudulent credit card purchases. We checked with the FBI. No action is being taken on this case because of limitations on resources. That is not surprising because these cases often involve stolen credit cards with the card stolen in one jurisdiction, purchases made in another jurisdiction, a suspect living entirely somewhere else, and so the local place cannot effectively investigate these cases.
They can be solved because there is usually a paper trail leading right back to the suspect, but it takes resources.
Mandatory minimum sentences will do nothing in cases that are not investigated and not prosecuted, and this bill does provide funds to investigate and prosecute cases such as Senator Domenici's.

Unfortunately, Mr. Speaker, because this bill primarily focuses on the narrow piece of the identity theft problem, much of which has nothing to do with consumer identity theft, through the discredited and ineffective and costly mechanism of mandatory minimum sentencing, I cannot support the bill.

Mr. Speaker, I reserve the balance of my time.

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Mr. SCOTT of Virginia. Mr. Speaker, I yield 5 minutes to the gentleman from California (Mr. Schiff), a distinguished
member of the Committee on the Judiciary and a former assistant U.S. Attorney.

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Mr. SCOTT of Virginia. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I thank the gentleman from California for his remarks and also for his hard work on this legislation. As I have indicated, I agree with the purpose of the legislation. However, I disagree with the use of the mandatory minimums.

With mandatory minimums, low level offenders frequently get too much time. The more serious violators often get too little time. That is why we have the Sentencing Commission, that is why we have judges who will hear the evidence and impose the appropriate punishment in the individual case.

Mr. Speaker, I would hope that we would reject the legislation so that we could eliminate the mandatory minimums.

Mr. Speaker, I yield back the balance of my time.