S-5229-119
Read twice and referred to the Committee on the Judiciary.
Sponsored by Ashley Moody (R-FL)
What it does
The SWIPES Act would amend federal law in three ways. First, it would expand the definition of "access device" under 18 U.S.C. § 1029 to include gift cards, passwords, cryptographic keys, digital asset credentials, and similar items, and would explicitly cover obtaining such devices through fraudulent websites. Second, it would roughly double existing maximum prison sentences for access device fraud (e.g., from 10 to 20 years, 15 to 25 years, 20 to 30 years) and add new tiers of up to 25 or 30 years for large-scale counterfeit device offenses. Third, it would create a new mandatory consecutive 2-year prison sentence for any covered fraud felony knowingly committed against a victim over age 60, and would add gift cards to the definition of "monetary instruments" under federal money laundering law.
Who benefits
Adults over age 60 who are disproportionately targeted by gift card and impersonation scams. Law enforcement agencies that would gain broader statutory tools to prosecute fraud schemes involving digital credentials and cryptocurrency. Prosecutors who would have clearer authority to charge gift card fraud under existing access device statutes. Financial institutions and retailers that bear indirect costs of fraud losses. Victims of large-scale fraud operations who may see stronger deterrence.
Who is hurt
Defendants convicted of fraud offenses who would face significantly longer prison sentences, including mandatory consecutive terms. Federal taxpayers and the Bureau of Prisons, which would bear the cost of longer incarcerations. Defense attorneys and civil liberties advocates who oppose mandatory minimum-style sentencing enhancements. Individuals convicted of fraud who are themselves elderly or have mitigating circumstances, since the consecutive sentence provision limits judicial discretion. Defendants in cases where the victim's age was not clearly known, who may face enhanced penalties under the bill's "reckless disregard" knowledge standard.
Supporters argue
Supporters argue that gift card fraud has become the payment method of choice for scammers targeting older Americans, with the FTC reporting that consumers lost over $217 million to gift card scams in 2023 alone, and that people over 60 are victimized at disproportionately high rates. They contend that existing penalties are insufficient to deter sophisticated, often transnational fraud networks, and that updating the definition of "access device" to include modern digital credentials closes a gap that allows fraudsters to exploit legal ambiguity. The mandatory consecutive sentence for elder fraud, they argue, reflects the particular vulnerability of older victims and sends a clear deterrent signal.
Opponents argue
Opponents argue that doubling maximum sentences and adding mandatory consecutive terms for elder fraud represents a blunt approach that removes judicial discretion without evidence that longer sentences deter fraud, particularly when perpetrators operate from outside U.S. jurisdiction. They contend that the "reckless disregard" standard for knowing a victim's age could sweep in defendants who had no meaningful awareness of their victim's age, raising due process concerns under the Fifth Amendment. Critics also argue that the fiscal and human cost of longer incarcerations falls on taxpayers and nonviolent offenders alike, and that resources would be better directed toward victim restitution and international law enforcement cooperation.
Constitutional context
The bill's mandatory consecutive sentencing enhancement raises Eighth Amendment proportionality questions — courts have scrutinized mandatory sentencing schemes that remove judicial discretion, though the Supreme Court has generally upheld mandatory enhancements for specific offense characteristics. The "reckless disregard" knowledge standard for the victim's age could face Fifth Amendment due process challenges regarding the mens rea required for enhanced punishment.
Checks and balances
Congress expands federal criminal penalties and mandatory sentencing enhancements; the judiciary retains limited discretion only on concurrent sentencing between multiple violations of the new elder fraud section; the U.S. Sentencing Commission provides guidelines that courts must consider when exercising that limited discretion.
Historical precedent
The Elder Abuse Prevention and Prosecution Act (2017) similarly directed federal resources toward elder fraud and required DOJ reporting on elder abuse cases, establishing a federal legislative pattern of enhanced protections for older victims.