Department of Justice Seal

REMARKS

OF

THE HONORABLE WILLIAM W. MERCER
ACTING ASSOCIATE ATTORNEY GENERAL

AT THE

2006 PROJECT SAFE CHILDHOOD
NATIONAL CONFERENCE

ON

TUESDAY, DECEMBER 5, 2006
WASHINGTON, DC

       Good morning.

       Thank you for the nice introduction, Bob.  One of the great opportunities in my current position is to work with Bob and Assistant Attorney General Schofield on child exploitation prevention through the ICAC program, the new SMART office, and other related efforts.

       I want to start by reading you a quote that has inspired me throughout my career in public service.  It is a quote from former Attorney General Robert Kennedy who told a group of graduating university students something which I believe has special significance for all us gathered here today.

       He said: “You have the opportunity and responsibility to help make the choices which will determine the greatness of this nation.... You can use your enormous privilege and opportunity to seek purely private pleasure and gain.  But history will judge you, and as the years pass, you will ultimately judge yourself on the extent to which you have used your gifts to enlighten and enrich the lives of your fellow man.  In your hands, not with Presidents or leaders, is the future of your world and the fulfillment of the best qualities of your own spirit.”

       I want to thank you for your public service.  You are using your talents day in and day out to make your communities better.  You are certainly not going to get rich off of that, but I hope as you grow older, you will look back at the work you are doing now and at your participation in this project and this conference, and feel a great wealth of satisfaction, a great spiritual wealth as Kennedy thought of it, that you put in the time and did the work that made a difference in the lives of the children we are trying to protect: the children who were victimized and received justice and the children who were not victimized because you were instrumental in taking a pedophile off the streets for a long time.

       It is a privilege for me to be here this morning with all of you who are on the front-lines of the fight against the people who use the internet to facilitate the commission of some of the most depraved and immoral crimes imaginable: the sexual exploitation and abuse of children.

       I want to talk to you this morning about winning that fight. We don’t have the luxury of losing it.

       The Path To This Place

       More than two years ago, when considering what crime problem could be attacked with a new federal-state-local law enforcement initiative along the lines of what had been accomplished through Project Safe Neighborhood, United States Attorney Greg Scott of Sacramento recommended that a more robust, coordinated effort was required to adequately combat child pornography offenses.  U.S. Attorney Scott and his colleagues on the Attorney General’s Advisory Committee of United States Attorneys recognized what a productive partnership PSN created between ATF, state and local law enforcement, and U.S. Attorneys’ Offices, and the public safety dividends it paid.  In the four year period from 2002-2005, federal prosecutors charged more than 38,000 defendants with firearms charges compared to fewer than 17,000 defendants for the four year period between 1995 and 1998.

       Upon his confirmation as Attorney General, Judge Gonzales embraced the idea of a broad-based attack against child exploitation, including both child pornography and on-line enticement offenses.  As you no doubt noted in yesterday’s address, the Attorney General views the problem of child exploitation as one deserving an immediate and full response from all of us.  However, this urgency not withstanding, the Attorney General encouraged a team to consult with all the experts - - ICAC task force coordinators, experienced AUSAs, FBI agents assigned to the Innocent Images program, leadership from ICE and the Postal Inspection Service, the Child Exploitation and Obscenity Section from the Department’s Criminal Division, and representatives from the National District Attorneys Association, the National Association of Attorneys General, and the International Association of Chiefs of Police - - to determine what public safety gains should and could be made through Project Safe Childhood.  We weren’t starting from scratch as in the PSN situation – the ICACs had been doing this work for years with funding from the Department of Justice.  And, as you know, following extensive planning involving folks like Leura Canary, Drew Oosterbaan, leaders from ICAC task forces, and too many others to mention by name, including my colleagues at OJP and the Office of the Deputy Attorney General, the Attorney General launched the initiative, each U.S. Attorney drew up a district-specific strategic plan, and this conference was designed as a forum to share best practices and communicate the significance of this mission to each other.

       So, how do we do everything in our collective power to make sure that tomorrow, the day after tomorrow, and the day after that a boy or girl isn’t sexually abused in order to create video images?  And how do we ensure that a home computer does not facilitate a sexual encounter between a child and a predator?

       Can the Fight be Won?

       The first question is, is this a fight that can be won?

       My answer to you is yes, but it will require each of us to first agree on four core principles and then to agree on how we will hold ourselves accountable and how we will measure success.  First, the core principles.

       Number 1, state, local, or federal law enforcement must investigate child pornography crimes, whether the act is possession, distribution, or production of child pornography, or illegal use of the internet by an on-line predator.

       Second, if a viable charge is the result of the investigation, a federal, state, or local prosecutor must charge those responsible for the crime.

       Third, and of great significance, if prosecuted and convicted, defendants must receive substantial sentences.  Public safety demands it. As the research suggests, those guilty of child pornography offenses have a high probability of prior or contemporaneous hands-on sexual abuse.

       In our focus group discussions leading up to the announcement of Project Safe Childhood, we learned a great deal from many of you about the potential to do more and barriers that had precluded progress in the past.  We studied data.  And we studied more data.  This provided perspective on the number of cases referred to state and federal prosecutors by ICACs and other local, state, and federal law enforcement officials and we learned about the numbers of prosecutions of on-line predators and child pornography defendants by federal prosecutors in recent years.  We heard about instances in which defendants in these cases, particularly in state courts, did not receive terms of incarceration.  We heard frustrations about an inadequate number of prosecutions in federal court.  And we learned that state prosecutions in some places, like Arizona, resulted in tougher sentences than federal court.  We also were told that a few ICACs rarely referred cases to the U.S. Attorneys in their districts.

       Fourth core principle: we must look at this fight a bit differently than a pure law enforcement battle and embrace the community outreach and media component of this work.  Particularly with respect to the prevention of on-line predation, we need to continue to raise awareness with community organizations and parents.  This is a non-traditional role for many of us who are more accustomed to investigating cases or prosecuting cases as opposed to making presentations to the noon time Kiwanis club or a PTA group.  But we need footsoldiers outside the law enforcement community and all of us need to have a plan to multiply our force on prevention.

       I think we are already seeing some progress on this front.

       For example, an excellent study of youth experiences on the internet conducted by University of New Hampshire researchers for the National Center for Missing & Exploited Children (NCMEC) compared youth experiences in 1999-2000 with those in 2005.  The study found online youth receiving fewer unwanted online sexual solicitations, only 1 in 7 in 2005 compared to 1 in 5 youth in 1999-2000.  The report attributes this to more cautious behavior by young people, fewer of whom went to chat rooms or interacted online with people they did not know.  The study’s authors think educational messages and media stories about the dangers of online encounters have had some benefit.  This is why the public outreach responsibility of PSC is such an important part of the path to victory.

       The public is focused on these issues now more than ever.  Parents are beginning to understand the dangers to their teenage children.

       Congress has acted.  We have new laws on the books strengthening penalties and creating new crimes that will help us focus on keeping child predators off the streets and away from children.

       The media is engaged.  Even though we have gotten convictions in thousands of child pornography and on-line predator cases, public awareness has been enhanced by television and print accounts.  We have all seen the Chris Hansen Dateline NBC series “To Catch a Predator,” which also helps focus public attention in a productive manner.  Our society is ready to listen to your leadership and your experience and to become partners with you in keeping children safe.  This is why you should take the public outreach mission of PSC so seriously.  A much more vigorous prosecutorial effort is certainly required, but we are not going to simply prosecute our way out of this problem, society will need to become more engaged and vigilant if we are to win.

       Our goal must be to make solicitation and distribution of child pornography so costly and so risky to perpetrators that there will be a more pronounced deterrent to engaging in this conduct.

       So now we are gathered at this Project Safe Childhood conference where you together comprise the leadership of the fight against online child exploitation and abuse.  I hope that this conference will represent a unique opportunity for you to make contacts, exchange ideas, improve coordination, and obtain new and better practices for your district that will enhance the efficiency and effectiveness of your work.  The fact that we have so many of you here who are committed to this fight gives me a lot of hope that we will win.

       If we agree that we can win this fight, it is vital for us to know whether we are winning.  How do we measure success?  How do we know we are actually making a difference?  How do we know that our strategy is sound?

       Many government programs are set into motion. Some work and some don’t, but not often enough do we take a step back and rigorously check to see if the program is actually doing what it needs to do.  We all support the goals of Project Safe Childhood.  We all agree that child predators are dangerous and need to be removed from society.

       But how do we turn our words into action?  How do we make sure that we don’t simply leave here feeling good, and return home to business as usual content with the number of cases we are handling each year and the way that we handle them?  Can we commit ourselves to doing more in a better way?

       We don’t want to look back on today’s conference two years from now and think that we could have done more, we should have done more.  We need to be doing everything we can today to ensure our victory.

       I view three areas as a framework for us to use to assess whether we are winning, whether we are doing everything we can do.  Those areas are: accountability, effectiveness, and efficiency.  We must be able to measure our progress and be accountable for our results and regularly reassess our methods and practices.

       Accountability

       Let’s talk about accountability first.

       Winning the fight requires accountability.  It requires transparency. Project Safe Childhood was lifted right from the Project Safe Neighborhoods model.  PSN relies heavily on case referrals from state and local authorities and ATF.  Much like in the child pornography and solicitation arena, federal law provides some mandatory minimum sentences for certain firearm offenses that some states do not have.  The idea behind PSN was to attack violent crime by incapacitating firearms offenders with the longest sentences available in each jurisdiction – sometimes that meant going federal and sometime it meant a state prosecution was best.

       PSN was revolutionary when it was first rolled out. It was the first program to require the 94 U.S. Attorneys’ Offices to report every six months on their progress in prosecuting a particular type of crime.  It made us accountable for a rise in gun prosecutions in our districts.  As a United States Attorney, the fact that I was going to be accountable for my effectiveness in prosecuting gun crime was a powerful incentive for me to make sure we focused on this problem.  And our state and local partners understood the commitment.  Following a conference to launch Project Safe Neighborhood much like this one, the county attorney in my hometown called me before I’d been confirmed by the Senate to say that he’d seen the Attorney General speak at the PSN national conference and had genuine hope and confidence that my office and ATF would be more engaged and responsive in the enforcement of federal firearms offenses because of what was said and how it was said.  And we were responsive, as were my colleagues across the country given the statistics that I noted at the outset.

       In Project Safe Childhood, U.S Attorneys’ Offices have the same reporting obligations and the same mandate to demonstrate progress in combating online exploitation and abuse.  Their strategic plans will be reassessed and will evolve.  The PSN planners did not implement this kind of accountability lightly, but rather because of a commitment to the success of this work.

       Understanding whether we are winning the fight also requires accountability and transparency from the ICACs, the foundation upon which PSC is built.  Because PSC envisions a closer, more effective relationship between ICACs and U.S. Attorneys offices, we must understand where our strengths lie and what our weaknesses are.  I will be working with the ICACs in the coming weeks to finalize a case reporting protocol to track cases referred for prosecution, the offense committed, the forum of the prosecution, the outcome of the prosecution, and the sentence imposed.

       In general, we will make a significant effort to review data to determine how all of the pieces of the PSC strategy are working.  We will make sure to focus on a district-by-district basis to ensure that the initiative is having an impact throughout the country.

       Here is what the landscape looks like now.  Last year in FY06, we prosecuted 1543 cases, an almost 7% increase over the 1447 cases we filed in FY05.  But there is room to do more.  Here are some of the districts both big and small, urban and rural, we think are doing the job well.  Here are some of the good stories we see:

       But here is where we can show some impressive growth. 35 districts filed cases against fewer than 10 defendants in FY 06 and, of those, 17 charged fewer than 5 defendants in FY 06.

       While the numbers certainly do not tell the whole story, they are a way we can see if we are making progress because when you consider the research, these are not just numbers.  Each case represents one defendant who was put through the system, one defendant who may now be off the streets, one defendant who will not be able to harm another child, create new images, or re-victimize a child by receiving and possessing an image.

       We will be held accountable.  And we will be looking at your progress.  And if progress is difficult in your district, we want to hear about it so we can help.  And if you are not seeing the kinds of case numbers and case referrals that other districts have, I encourage you to talk to each other and learn new and different ways of doing things.  Talk to Johnny Sutton in Western Texas, talk to McGregor Scott from Eastern California (or the PSC coordinators in these districts) and find out how they are doing things.

       One of the tremendous advantages with a national initiative is the ability to have incubators in all fifty states.  At future conferences like this, in e-mails among PSC coordinators, in postings on the PSC website and other publications, you can actively share your best practices and innovations.  To some extent, the ICAC task forces have been doing this already and doing it well.  However, never before have all 93 districts had strategic plans in writing based upon the views of the key stakeholders in their communities on how to attack the problem.  By incorporating all of those voices in one process and reassessing our methods and practices through an on-going nationwide conversation, we can make great progress.

       As long as we are being accountable about our progress and reevaluating if we are not seeing the results we want to see in our communities, we will be able to adjust our strategy as conditions in the community and on the internet change.  This is essential to winning the fight.

       Effectiveness

       Let’s turn to effectiveness.  Effectiveness in this fight requires that we all work together as seamlessly as possible.  The internet knows no borders and makes no distinction between federal, state, and local jurisdiction.  This is why it is so important that we work together and coordinate our efforts.  We need to be more like the internet, and break down the borders that separate us.

       One of the key aspects of Project Safe Childhood is productive integration of our efforts.  An ICAC task force or another state, local, or federal law enforcement agent can have great success in investigating on-line predators and those who possess, distribute, and/or produce child pornography, but that work is undercut if a prosecution is not undertaken and if the defendant is not imprisoned if convicted.  On the other hand, a firm commitment from state and federal prosecutors to vigorously prosecute and seek substantial sentences is of little significance if ICAC task forces and other local, state, and federal law enforcement officers fail to present a large number of viable cases for prosecution.  And all of us need to care about the outcome in each case.  For those who investigate cases, it isn’t enough to be satisfied with getting a defendant charged and convicted.  For prosecutors, it isn’t enough to get a defendant charged and convicted.  We all have a role to play at the time of sentencing to ensure that the court understands how each of these defendants is a player in an international marketplace in which their actions result in the sexual exploitation of some of society’s most vulnerable.  And, if history suggests that a prosecution of these offenders in a particular forum is not likely to generate an optimal sentence, we have an obligation, working together, to consider a different approach.

       So how will we know we are being effective?  Some measures are obvious.  We are committed to increase the number of convictions each year.  But that is not enough – convictions do not tell the whole story.

       In addition to the number of convictions, we must also be looking at the length of our sentences.  We should move toward a model, much like the one we use in gun prosecutions, where cases are referred based on where the perpetrator will get the most severe sentence.

       When the answer is the federal system, the Attorney General has made this commitment to you: U.S. Attorneys’ Offices will actively seek and accept cases developed by state and local law enforcement.  We want you to bring these cases to us.

       If you had any doubts about our commitment, the Attorney General’s announcement yesterday about our forthcoming training program should make our intentions perfectly clear.  We are committing $500,000 to train state and local law enforcement on the federal system and on how to most effectively and efficiently bring cases to a U.S. Attorney’s Office.

       I don’t want this training commitment to be misinterpreted as a suggestion that state and local law enforcement officers are not well trained.  That is not the kind of training I am talking about – I have seen the fine work that Ron Laney in the Office of Juvenile Justice and Delinquency Prevention has done with the ICACs.  I know the training programs you have are on the leading edge of innovation.  The training I am talking about will make it easier for you to investigate a case for prosecution in the federal system.

       There are differences between the systems in each state and the federal system: different rules of evidence, different warrant requirements, different criminal laws and penalties, different elements to the offenses.  The training will be important so that you can understand how the federal laws we have, which have recently been changed and improved, can help you in your own investigations.

       Let me give you an example.  The recently enacted Adam Walsh Act makes it a felony for a sex offender to fail to register.  This gives you an additional potential charge.

       Apart from the difference in law that may affect the length of incarceration, there are differences in the views of judges toward these crimes.  These laws and these crimes and our understanding of them are evolving.  You are all well versed in the literature and you work on these cases everyday.  Advocacy is a major element of making our convictions effective.  You may have heard of the Burke case in Connecticut.  Burke had 141 photo images and two videos on his computer of known child victims being violently raped.  The victims ranged in age from toddlers to prepubescent children.  He was prosecuted by the state.  They reached a plea deal where Burke would agree to serve four years in prison, five years' probation, and mandatory sex offender registration for 10 years.  Incredibly, in October, the judge in the case gave the defendant a suspended sentence noting that Burke had actively participated in sex-offender therapy for the last year and, by his doctor's account, is at very low-risk to offend again.  This shocking result is not uncommon. It is our job to be advocates and bring the findings from the literature and our experience to the courts’ attention.

       Bringing cases will be of little value unless judges impose the significant terms of incarceration demanded by these cases.  If offenders are receiving probation - - and it is not just those who are in possession of child rape videos that do - - we are not being effective even if we are obtaining more convictions.

       And I cannot stress enough, that we will know we are being effective as the numbers of children we rescue increase.  I haven’t seen that we are keeping track of these numbers.  In every case where there is a new image of a child who we know is out there being abused, our number one priority should be to do everything we can to find and rescue that child.  Get the National Center for Missing and Exploited Children involved, they have great expertise in analyzing photographs for clues to where the child is from.  They have the network that they can tap into to have the best shot at finding the child.

       At the end of the day, the people around this room and your colleagues who work these cases with you are in the best position to assess effectiveness.  To some extent, the best subjective measure is the one offered by Justice Stewart in his attempt, ironically given our subject matter, to identify obscenity.  He said “you know it when you see it.” Are law enforcement agents satisfied with the commitment of prosecutors, the number of prosecutions, and the outcomes of cases?  Are prosecutors, having gained an awareness of the work in other jurisdictions, satisfied that the number of viable cases presented for prosecution is appropriate to improve public safety?  And are we collectively promoting respect for the law and deterring this behavior?

       Efficiency

       Let’s turn to efficiency.  To win the fight we must be efficient.  Efficiency means we are using our limited time and limited resources as productively as possible.

       Efficiency means we are investigating, taking cases in, and disposing of them quickly using the minimum amount of resources necessary in each case.  The longer an investigation is pending before arrest, the more opportunity a pedophile has to harm children and we will be able to catch and prosecute fewer predators.

       We need to focus on deconfliction.  Too often, different investigators have worked on separate on-line predator or child pornography cases involving the same target.  Technology and our partnerships show great promise in ensuring that we do not duplicate efforts.  With a number of targets in excess of our resources to combat them, we can ill-afford to have overlapping efforts.

       Conclusion

       Finally, I want to discuss the two elephants in the room that I know you are all thinking about and that I hope we can bring out in the open to discuss.  Those two elephants are: our forensics capacity issues and our resource issue, because I understand we are asking you to do more with no additional commitment of resources.

       I’ll take the resource issue first.  We are actually in better shape here at the start of PSC than we were at the start of PSN.  We already have $15 million going to our communities through the ICACs and we have the solid foundation that the ICACs have built because they have been doing this work for years, working on cases, developing investigative techniques, developing training programs, innovating, years before PSC was conceived.  We did not have that foundation when we started PSN, so we are already ahead of the game.

       I’ll give you an example of two districts that found a way to do more without a new commitment of resources.  Northern Indiana is a district that has shown significant improvement.  That district filed cases against 7 defendants in FY `05, but filed cases against 41 defendants in `06 and the number of matters received went from 6 to 46.  Northern New York had a similar experience – from 10 cases filed in `05 to 39 filed in `06.  Talk to them.  They found a way forward.

       Now let’s turn to the forensics issue.  I am with you on this.  It is unacceptable that in many cases, it can take six months to a year after we execute a search warrant to seize a computer before we know whether the computer contains images of child sexual abuse.  In that time, the target of the investigation is living among us, unregistered, and unfettered to victimize children.  With PSN, we endeavored to get defendants who had committed state or federal firearms laws charged as quickly as possible for fear that they would kill or injure a person.  The nature of on-line predator and child pornography investigations makes speedy resolution difficult, but the principle is obviously the same.

       The forensics issue is the product of limited high-demand resources, but we must figure out a way to use our limited resources more efficiently.

       I don’t have an answer for you on the forensics issue.  I can tell you that the development of PSC has brought the forensics issue to a head. DOJ leadership is very focused on this issue and we are looking for solutions.   That is the good news.  I suspect that the solutions will emerge from all of you gathered here and I urge you to use this conference to discuss how you will address forensics issues in your own districts.

       You are each incubators for new ideas.  Some districts have developed some creative approaches using their limited resources.  For example, at least one district, the Southern District of Indiana, uses a mobile computer lab that they bring on scene when they execute search warrants.  They analyze the computer hard drives on the scene, making the on scene interviews more effective, and making the danger assessments timely.

       I’m not saying this approach will be appropriate in every district or in every case, but every district should work with their state, local, and federal partners to come up with creative ways to have a quicker turnaround and a greater impact with our computer forensics.  So then another way to know we are winning and we are being efficient is when we see a decline in the amount of time it takes to obtain results from a forensics analysis.  When we see that the amount of time investigations are open and pending is declining because forensics is not delaying a case, we will know we are winning.

       Finally, many have lamented that the internet is facilitating these crimes against children.  In this respect I look at the internet as an opportunity: the internet has brought hands on sex offenders we had no idea were there out into the open for us to find.  We just need to make sure we are using our tools as efficiently and effectively as we can to find them.

       In closing, I want to speak directly to those who do this work full-time.  You are the ones trolling on line.  You are the ones evaluating the images.  You are the ones trying to beat the encryption.  You are the ones looking for victims.  You are the ones who find images while executing search warrants.  You are the ones charging and trying the cases.  We are profoundly grateful that you have found this calling.  Thank you for all you are doing to answer that call.  What Attorney General Kennedy said is what Attorney General Gonzales knows to be true about Project Safe Childhood and feels to his core: the work we do together is the fulfillment of the best qualities of our collective spirit.

       This is a great calling.  Thank you for all you are doing to answer that call.

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