Testimony of

RONALD WEICH

Zuckerman, Spaeder, Goldstein, Taylor & Kolker, L.L.P.

Former Special Counsel, U.S. Sentencing Commission

before the

Subcommittee on the Constitution

of the House Committee on the Judiciary

on H.R. 2436, the "Unborn Victims of Violence Act"

July 21, 1999

Mr. Chairman and members of the Subcommittee: My name is Ronald Weich and I am a partner in the law firm of Zuckerman, Spaeder, Goldstein, Taylor & Kolker. I am pleased to appear before you today to discuss the criminal law and sentencing implications of H.R. 2436, the "Unborn Victims of Violence Act."

I bring several qualifications to this task. From 1983 to 1987, I worked as an Assistant District Attorney in New York City, where I prosecuted a wide array of criminal cases. Thereafter I served as Special Counsel to the United States Sentencing Commission and participated in drafting amendments to the federal sentencing guidelines. I then served on the staff of several Senate committees where I assisted in the development of federal crime and sentencing policy. I am now in private practice, but I continue to serve on the advisory board of the Federal Sentencing Reporter, a scholarly journal in which I have frequently published articles on sentencing law and policy. I am also a member of the Criminal Justice Council of the American Bar Association.⁽¹⁾

After reviewing H.R. 2436 in light of my experience in the criminal justice system, my knowledge of the federal sentencing guidelines and an examination of relevant case law, I reach one basic conclusion: this bill is unnecessary. Current federal law provides ample authority for the punishment of criminals who hurt fetuses. H.R. 2436 adds nothing meaningful to the charging arsenal of federal prosecutors or the sentencing options available to federal judges.

Because the bill is unnecessary from a criminal law perspective, I suspect that its purpose, instead, is to score rhetorical points in the never-ending struggle over abortion rights. But for reasons that I will explain, I strongly object to the use of the federal criminal code as a battlefield in the abortion wars.

I will first describe why the bill is unnecessary in light of current federal law and then explain why I believe it is an unwise addition to federal law.

I. H.R. 2436 IS UNNECESSARY.

Current federal law already provides sufficient authority to punish the conduct that

H.R. 2436 purports to punish.

At the outset it should be understood that very few violent crimes are prosecuted in the federal courts. Most street level violent crimes are prosecuted under state law by state prosecutors in state courts. Under our constitutional system, federal criminal jurisdiction only exists if the crime implicates federal civil rights or interstate commerce - which few violent crimes do - or if the crime occurs on a federal enclave such as a federal office building, a military base or an Indian reservation. Thus there are only a handful of federal murder and assault prosecutions each year, and most of those involve Native Americans.

H.R. 2436 targets relatively rare conduct to begin with, namely criminal assault on a fetus. And in the federal context, that rare conduct is even more unusual. I researched federal case law and found only one reported case in recent years in which the victim of the offense of conviction was a fetus. In that case, US v. Spencer, 839 F.2d 1341 (9th Cir. 1988), the Native American defendant assaulted a pregnant woman on an Indian reservation, kicking and stabbing her in the abdomen. The woman was successfully treated for life-threatening injuries, but her fetus was born alive and then died. The Ninth Circuit upheld the defendant's conviction under the federal murder statute, 18 U.S.C. § I 1 1 1. Thus, even without the help of H.R. 2436, a federal defendant was successfully prosecuted for murdering a fetus.

The Spencer decision is significant for several reasons. First, it illustrates how rare such cases are in the federal system -- the court refers to the issue of federal criminal liability for fetal death as one of "first impression" and in the 11 years since it was decided, Spencer has never been cited by another court. While there may be isolated incidents that can be addressed under existing federal or state law, there is no crime wave of federal fetal assaults crying out for a legislative solution. But even should this rare scenario present itself in federal court again, Spencer stands for the proposition that criminal liability may be imposed under current federal statutory provisions. The Spencer court relies on the well established common law doctrine, developed in state courts, that fetal death subsequent to birth due to fetal injuries may be prosecuted as homicide. See, Annotation, Homicide Based on Killing of Unborn Child, 64 A.L.R. 5th 671 (1998).

Analytically separate from the question of criminal liability is the question of punishment. Here again, current federal law is sufficient. There is no dispute that causing harm to a fetus during the commission of a federal felony should generally result in enhanced punishment, and courts have uniformly held that such enhancements are available under the current sentencing guidelines. For example, in both U.S. v. Peoples, 1997 U.S. App. LEXIS 27067 (9th Cir. 1997) and U.S. v. Winzer, 1998 U.S. App. LEXIS 29640 (9th Cir. 1998), the court held that assaulting a pregnant woman during a bank robbery could lead to a two level enhancement (approximately a 25% increase) under § 2B 1. I (b)(3)(A) of the Guidelines relating to physical injury. In U.S. v. James, 13 9 F.3d 709 (9th Cir. 1998), the court held that a pregnant woman may be treated as a "vulnerable victim" under § 3A 1.1 of the Guidelines, again leading to a two level sentencing enhancement for the defendant. And in United States v. Manuel, 1993 U.S. App. LEXIS 14946 (9th Cir. 1993), the court held that the defendant's prior conviction for assaulting his pregnant wife warranted an upward departure from the applicable guideline range for his subsequent assault conviction.

While there have been no federal death penalty prosecutions of civilians in recent years involving fetal assaults, the military justice system treats the murder victim's pregnancy as an aggravating factor to be considered during the capital sentencing phase of a trial. United States v. Thomas, 43 M.J. 550 (US Navy-Marine Corps Ct. of Crim. App. 1995). This holding follows state law precedents in which the pregnancy of the victim is a statutory aggravator in capital cases. See, e. g., Del. Code Ann. Tit. 11 , § 4209(e)(1)(p) (Supp. 1986).

The federal cases that already treat fetal injury as a relevant factor for establishing criminal liability or enhancing the defendant's sentence are consistent with a much larger body of state cases. Indeed, these state cases, which the Ninth Circuit relies on in Spencer and which are comprehensively collected at Annotation, Homicide Based on Killing of Unborn Child, 64 A.L.R. 5th 671 (1998), reveal that the issue of criminal liability for fetal injury is one that Anglo-American law long ago addressed and resolved in a common sense way. Several states, such as Georgia and Illinois, have enacted feticide statutes, but in other states the governing common law rule is that assaulting a pregnant woman and thereby causing the death of a viable fetus gives rise to criminal liability.

In sum, H.R. 2436 is unnecessary because federal case law and the federal sentencing guidelines, building on well-established common law principles, already authorize serious punishment for the harm that the bill seeks to address.

II. H.R. 2436 IS DETRIMENTAL TO THE CRIMINAL JUSTICE SYSTEM.

To say that H.R. 2436 is unnecessary does not end the inquiry. As members of the Judiciary Committee well know, the federal criminal code is characterized by regrettable redundancy, and one more criminal law prohibiting what is elsewhere prohibited would barely add to the thicket. But for three reasons, H.R. 2436 would not only constitute an unnecessary addition to the Code, it would also be an undesirable addition.

First, the bill has been drafted in a structurally unsound manner and will lead to considerable confusion and litigation. To be convicted under 18 U.S.C. § 1841, the new criminal offense created by H.R. 2436, a defendant must have "engage[d] in conduct that violates" one of the existing federal crimes enumerated in § 1841 (b). But must the defendant be convicted of one of those other offenses before he may be convicted of the separate offense under § 1841? I think that is a sound reading of the statutory text, but the language is unclear. There is already considerable controversy and resource-draining litigation in the federal courts over whether various title 18 provisions constitute separate offenses requiring proof beyond a reasonable doubt or sentencing enhancements requiring only proof by a preponderance of evidence, see, eg., Jones v. United States, 119 S. Ct. 1215 (1999). H.R. 2436 would add to this confusion if there were ever a prosecution under the new criminal provision it establishes.

This problem could be addressed if, instead of creating a new criminal offense, H.R. 2436 merely directed the Sentencing Commission to either establish a new sentencing enhancement when the victim of the crime is a pregnant woman, or make clear that a pregnant woman may be considered a "vulnerable victim" under existing § 3 Al.1 of the Sentencing Guidelines. As demonstrated above, the generic provisions of the Guidelines already accomplish this result. But at least a sentencing enhancement bill would not foster confusion and litigation.

Second, H.R. 2436 is overbroad. To begin with, it incorporates by reference an unduly broad definition of "bodily injury" from 18 U.S.C. § 1365. Whereas the common law rule applied to termination of the pregnancy, H.R. 2436 would make it a violation of federal law to cause "physical pain" to the fetus or "any other injury to the [fetus], no matter how temporary." 18 U.S.C. § 1365 (g)(4). That definition may make sense in the consumer safety context from which it derives, but it is bizarre and extreme in the prenatal context of H.R. 2436. Further, H.R. 2436 applies to all fetuses, not merely those that are viable, and applies to unintentional as well as intentional conduct. The common law rule, evolved over centuries of Anglo-American jurisprudence, is that an assault causing the death of a viable (or, in the archaic phrase, "quickened") fetus gives rise to criminal liability. The rule in H.R. 2436 is that an assault unintentionally causing "pain" to a weeks-old fetus gives rise to criminal liability.⁽²⁾

Third, the bill is a transparently rhetorical exercise in the perennial effort to undermine Roe v. Wade. Since H.R. 2436 adds nothing meaningful to substantive federalcriminal law, its purpose is purely symbolic: to bestow statutory personhood on fetuses, even those that are not viable.

It is no accident that the bill says nothing about injuries to pregnant women; instead the newly created title is styled "PROTECTION OF UNBORN CHILDREN." An assault on a fetus cannot occur without an assault on the pregnant woman, but the bill is deliberately framed in terms that ignore the woman. To be sure, there is an explicit exception to the criminal penalties in the bill for "conduct relating to an abortion" but make no mistake -- this bill is just one more step in the anti-abortion movement's methodical strategy to humanize fetuses, marginalize women, demonize abortion providers, and make the image of abortion less palatable to the American people. The extreme overbreadth of H.R. 2436 flows directly from that strategy.

The validity of the constitutional protections established in Roe v. Wade exceeds the scope of this testimony and is beyond my field of expertise. But as someone who cares deeply about the integrity of the criminal law, I cringe to see a skirmish in the abortion wars flare up unnecessarily in the federal criminal code. The criminal justice system is built on ancient principles such as proportionality of punishment and the requirement that a wrongdoer have acted with intent to cause harm (mens rea). H.R. 2436, crafted as it apparently was with an eye toward public relations rather than public safety, ignores these principles and thereby corrodes respect for the criminal law as a whole.

Because I believe H.R. 2436 to be both unnecessary and unwise, I urge the subcommittee to reject it.

1. I wish to make clear that I am not testifying on behalf of the American Bar Association or any other entity with which I am affiliated. Nor am I testifying on behalf of any of my law or lobbying clients. For example, it is a matter of public record that I have represented Planned Parenthood Federation of America (PPFA) with respect to pharmaceutical pricing issues, but I do not represent PPFA at this hearing. The views I express herein are strictly my own.

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