Sen. Joe Biden (D-DE) and Rep. Tom Feeney (R-FL) took advantage of Congress' engrained inability to vote against anything that might "save the children" to win passage of two measures destined to cause pain and misery for untold numbers of adult partygoers, club owners, event organizers and criminal defendants. Biden, an inveterate drug warrior who authored the notorious "crack house" legislation of 1984, hitched his widely criticized RAVE Act (S226, now known officially as the "Illicit Drug Anti-Proliferation Act," Biden having dropped the inflammatory moniker after running into unexpected opposition last year) to the popular Amber Alert bill (S151/HR1104), which sets up a national system of alerts for kidnapped kids and increases child pornography penalties, while Feeney used the bill to pass a measure to limit the ability of federal judges to grant downward departures in sentences -- a measure not limited to sex crimes against children and much more likely to be used to prevent federal judges from lightening sentences for drug offenders.
The Amber Alert bill passed both chambers this week, with the House approving 400-25 and the Senate approving with a unanimous 98-0 vote Thursday evening.
Under Biden's RAVE Act, anyone who organizes an event or owns a venue where someone uses an illegal drug can be held liable for that drug use. Although expressly crafted and advanced as an attack on the rave culture, the bill's implications are frighteningly broad. It could be used against promoters of hemp fests, rock concert promoters or even -- in theory -- against professional sports franchises if fans are smoking joints in the stands.
Biden first advanced the bill last year, but pressure from a coalition of drug reform, civil liberties, electronic music and business groups led by the Drug Policy Alliance (http://www.drugpolicy.org) and its subsidiary, the Electronic Museum Defense and Education Fund (http://www.emdef.org), peeled off initial supporters and stopped the legislation in its tracks. But in a move demonstrating his mastery of legislative legerdemain, Biden attached his pet project to the Amber Alert bill last week.
In a bit of understatement, DPA national affairs director William McColl told DRCNet "it is unusual for a bill to appear with zero votes in committee and zero floor votes." But pushed on the Senate floor today by Sens. Orrin Hatch (R-UT) and Charles Grassley (R-IA), Biden's RAVE Act did just that. "This was real back door legislative sausage making," said McColl.
"This is not a good situation," said McColl. "This opens up clubs and one-day events to increased scrutiny, civil fines, and even arrest for club owners or event organizers. How this plays out will rely to a great extent on prosecutorial discretion. The language of the bill applies to owners who 'knowingly' open a business for the 'purpose' of drug use, but a pair of federal circuit courts have ruled that the 'knowingly' applies to owners even when it is not the owner's but the customer's 'purpose' to use drugs."
Still, said McColl, the bill is a slight improvement over last year's version, and the coalition against the RAVE Act is prepared to continue to fight to undo it. "While this is obviously disappointing, the coalition's efforts did change the bill for the better. The overt discrimination against electronic music by using the word 'rave' has been removed, as have findings that suggested that harm reduction measures, such as the presence of glow-sticks or the sales of water, were evidence of an owner's ill-intent." Still, said McColl, that wasn't enough. "This is just the beginning. We will be back and people will come out of the woodwork to help us now."
But the RAVE Act wasn't the only stinker hidden in the Amber Alert bill. Rep. Feeney's amendment further restricts federal judges' ability to grant downward departures from mandatory minimum sentences or the federal sentencing guidelines and includes provisions that require the Justice Department to report to Congress almost every time a judge does so. The New York Times in a Monday editorial branded the amendment "a brazen attempt to intimidate judges" and called on Senate Judiciary Committee chairman Orrin Hatch, "who certainly knows better than to unduly limit judicial sentencing authority," to kill the language. Hatch and the Congress disagreed, fending off efforts to defeat the amendment and passing it as part of the effort "to stop those who prey on children before they can harm children," as House Judiciary Committee chairman James Sensenbrenner (R-WI) put it.
Still, the news could have been much worse. A bulletin distributed online by Families Against Mandatory Minimums this morning (4/11) reported that the amendment was weakened somewhat from its original form, in that the specific limitations on departure authority are more limited, though it will still have a chilling effect on judicial discretion. (Visit http://www.famm.org/si_federal_sentencing_feeney_update.htm for further information on the Feeney amendment and to subscribe to FAMM action alerts.)
In the Alice in Wonderland world of the US Congress, a bill to protect children has become a bill that threatens the rights of all and the freedom of those unfortunate enough to get in the path of its extraneous drug war provisions.