March 17, 2005
Chief of Staff
Drug Enforcement Administration
Subcommittee on Crime, Terrorism and Homeland Security
April 12, 2005
America’s Most Vulnerable: Safe Access to Drug Treatment
and Child Protection Act of 2005 -- H.R. 1528”
and distinguished Members of the Subcommittee on Crime, Terrorism and
Homeland Security, on behalf of Attorney General Alberto Gonzales and
Drug Enforcement Administration (DEA) Administrator Karen Tandy, I
appreciate your invitation to testify today regarding this important
issue that affects many of our nation’s children.
The DEA has seen
firsthand the devastation that illegal drugs cause in the lives of
children. Children are our nation’s future and our most precious
resource, and sadly, many of them are having their lives and dreams
stolen by illegal drugs. This theft takes many forms, from a drug addicted
parent who neglects a child, to a clandestine methamphetamine “cook” using
a child’s play area as a laboratory site, to a parent using a
child to serve as camouflage for their “stash,” to a child
being present during a drug transaction. The list goes on and on, but
the end result remains the same: innocent children needlessly suffer
from being exposed to illegal drugs.
The Department of Justice and other law enforcement agencies at all levels
seek to protect the most vulnerable segments of our society from those
drug traffickers and drug addicted individuals who exploit those individuals
least able to protect themselves. In 2003, Congress made significant strides
in this area by enacting the Prosecutorial Remedies and Other Tools to
end the Exploitation of Children Today Act, better known as the PROTECT
Act. This law has proven effective in enabling law enforcement to pursue
and to punish wrongdoers who threaten the youth of America. Last year Chairman
Sensenbrenner introduced H.R. 4547, the “Defending America’s
Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act
of 2004,” which would have taken these efforts even further by focusing
on the scourge of drug trafficking in some of its most base and dangerous
forms: those who use minors to commit trafficking offenses, trafficking
to minors, trafficking in places where minors are present, and trafficking
in or near drug treatment centers.
Mr. Chairman, today
my testimony is a follow-up to the testimony presented in July of last
year to this Subcommittee by Ms. Catherine O’Neil, Associate
Deputy Attorney General, regarding H.R. 4547. We request that her earlier
testimony be made part of today’s hearing record. We are here
today to reiterate our support for legislation that addresses drug-related
incidents involving minors.
of children through exposure to drug activity, sales of drugs to children,
the use of minors in drug trafficking, and the peddling of pharmaceutical
and other illicit drugs to drug treatment patients are all significant
problems today. Sadly, the horrific examples below are just a few instances
where children have been found victimized and exploited by people whose
lives have been taken over by drugs:
- From FY 2000
through the first quarter of FY 2005, over 15,000 children were reported
as being affected in clandestine laboratory-related incidents. The
term “affected children” is defined as a child being
present and/or evidence that a child lived at a clandestine laboratory
site. This total reflects only those instances where law enforcement
was involved. The true number of children affected by clandestine
laboratory incidents is unknown, though it is surely much greater.
- In 2004, a defendant
from Iowa pled guilty to conspiring to manufacture methamphetamine.
Although the meth was not manufactured in the defendant’s home,
where the defendant’s four-year old son also lived, was used
as the distribution point for large quantities of meth. The son’s
hair tested positive for extremely high levels of meth, indicating
chronic exposure to the drug. In this case, no enhancement could
be applied because of the son’s exposure, as he had not been
endangered during the actual manufacture of the meth.
- In November
2004, the DEA raided a suspected methamphetamine lab located in a
home in Missouri. During this operation three children, all under
five years of age, were found sleeping on chemical-soaked rugs. The
residence was filled with insects and rodents and had no electricity
or running water. Two guard dogs kept by the “cooks” to
fend off law enforcement were also found: clean, healthy, and well-fed.
The dogs actually ate off a dinner plate.
- Currently, investigations
targeting individuals involved in the manufacture of methamphetamine
or amphetamine which are prosecuted on a federal level have a sentencing
enhancement available. This enhancement provides a six-level increase
and a guidelines floor at level 30 (about 8-to-10 years for a first
offender) when a substantial risk of harm to the life of a minor
or an incompetent individual is created. Unfortunately, investigations
targeting traffickers involved in the distribution of other illegal
drugs, such as heroin or cocaine, do not have this same enhancement.
- During October
1999, the DEA’s Philadelphia Field Division initiated a heroin
investigation targeting an international organization ranging from
street level dealers and couriers to a source of supply in South
America. This investigation resulted in “spin-off” investigations
in New York and South America. Indictments and arrests stemming from
the Philadelphia portion of this investigation began in early 2001,
and resulted in over 20 arrests. The most significant charge filed
against these defendants was Conspiracy to Distribute Heroin (21
USC § 846). Additionally, seven subjects were charged with Distribution
of Heroin within 1,000 feet of a School (21 USC § 860).
- During August
2003, fire department personnel and local law enforcement authorities
responded to a hotel fire in a family resort in Emmett County, Michigan.
The fire was
the result of a subject’s attempts to manufacture methcathinone. Authorities
subsequently seized a small quantity of methcathinone, along with chemistry
from the room.
- In an investigation
initiated by DEA’s Philadelphia Field Division, a subject hid
approximately 400 grams of heroin under his infant during a buy/bust
operation. During the course of his guilty plea in March 2004, the
defendant admitted that he stored the drugs under the infant.
The Department of Justice is committed to vigorously prosecuting drug trafficking
in all of its egregious forms. Prosecutions range from high-level international
drug traffickers to street-level predators who are tempting children or
addicts with the lure of profit and the promise of intoxication.
We have had some
successes. Statistics maintained by the U.S. Sentencing Commission
indicate that between 1998 and 2002 over 300 defendants were sentenced
annually under the guideline that provides for enhanced penalties for
drug activity involving protected locations, minors, or pregnant individuals.
But our tools are limited. And we have no specific weapon against those
who distribute controlled substances within the vicinity of a drug
The people who would
sink to the depths of inhumanity by targeting their trafficking activity
at those with the least ability to resist such offers are deserving
the most severe punishment. The Department of Justice cannot and will
not tolerate this conduct in a free and safe America, and that is why
the Department of Justice stands firmly behind the intent of this legislation
to increase the punishment meted out to those who would harm us, our
children, and those seeking to escape the cycle of addiction.
The Department of Justice supports mandatory minimum sentences in appropriate
circumstances. In a way sentencing guidelines cannot, mandatory minimum statutes
provide a level of uniformity and predictability in sentencing. They deter
certain types of criminal behavior determined by Congress to be sufficiently
egregious as to merit harsh penalties by clearly forewarning the potential
offender and the public at large of the minimum potential consequences of committing
such an offense. And mandatory minimum sentences can also incapacitate dangerous
offenders for long periods of time, thereby increasing public safety. Equally
important, mandatory minimum sentences provide an indispensable tool for prosecutors,
because they provide the strongest incentive to defendants to cooperate against
the others who were involved in their criminal activity.
In drug cases, where
the ultimate goal is to rid society of the entire trafficking enterprise,
mandatory minimum statutes are especially significant. Unlike a bank
robbery, for which a bank teller or an ordinary citizen could be a
critical witness, often in drug cases the critical witnesses are drug
users and/or other drug traffickers. The offer of relief from a mandatory
minimum sentence in exchange for truthful testimony allows the Government
to move steadily and effectively up the chain of supply, using the
lesser distributors to prosecute the more serious dealers and their
leaders and suppliers. Mandatory minimum sentences are needed in appropriate
circumstances, such as trafficking involving minors and trafficking
in and around drug treatment centers.
Provisions within H.R. 1528
I would now like
to turn to a few of the specific provisions included in H.R. 1528.
As I mentioned earlier, the Department stands behind the testimony
provided last year by Ms. Catherine O’Neil.
2: Protecting Children from Drug Traffickers
The Department agrees
with the idea that individuals who intentionally endanger children,
either through the distribution, storage, manufacture, or otherwise
trafficking of drugs, should face appropriate punishments.
However, we do have
some reservations about the consequences of Section 2(m), titled “Failure
to Protect Children from Drug Trafficking Activities.” As drafted,
we have some concerns about the enforceability of the section due to
the vagueness of the language. In addition, we are concerned that it
will unintentionally create an adversarial parental relationship, and
discourage (rather than encourage) kids to talk openly with their parents
about drug trafficking. Certainly, we want to encourage parents and
other legal guardians to do the right thing, but we would encourage
the Subcommittee to reconsider this section.
Section 6: Assuring
limitation on applicability of statutory minimums to persons who have
done everything they can to assist the Government
We strongly support the proposed amendment to 18 U.S.C. § 3553(f), insofar
as it would require Government certification that the defendant has timely
met the full disclosure requirement for the safety valve exemption from certain
mandatory minimum sentences.
We certainly understand the concerns that prompted this proposal. Our prosecutors
rightfully complain that courts often accept minimal, bare-bones confessional
disclosures and, in some cases, continue sentencing hearings to afford a defendant
successive tries at meeting even this low standard. The Department of Justice
thus is aware that some courts and defendants have too liberally construed
the safety valve and have applied it in circumstances that were clearly unwarranted
and where no beneficial information was conveyed. For these reasons, we strongly
support the prosecutor certification requirement.
Requiring courts to rely on the Government’s assessment as to whether
a defendant’s disclosure has been truthful and complete would effectively
address the problems prosecutors have encountered with respect to application
of the safety valve.
However, we are concerned that the bill may unnecessarily exclude those who
initially make a false statement, but later correct it. We expressed this
concern informally last year and look forward to working with the Subcommittee
to address it.
Section 9: Mandatory detention of persons convicted of serious drug trafficking
offenses and crimes of violence
The Department agrees with the principle that, in almost all circumstances,
a defendant who has been found guilty should be immediately detained. We
also acknowledge that the circumstances in which release pending sentencing
or appeal is necessary are extremely limited.
Nevertheless, we cannot support this proposal to the extent it requires Government
certification as to a defendant’s cooperation and precludes release
pending appeal. Even with sealed pleadings, a defendant’’s
intention to cooperate would be much more apparent under this provision,
and this likely would have an adverse impact on a defendant’s willingness
to cooperate, on the value of the cooperation, and on the safety of the
defendant. By foreclosing the possibility of release for circumstances
other than cooperation and, thereby, telegraphing a defendant’s intention
to assist the Government, this proposal would severely diminish the value
of one of our most useful investigative and prosecutorial tools. Moreover,
this is a tool that we employ not simply post-conviction but, sometimes,
pending appeal as well. A prosecutor should not be effectively prohibited
from seeking release after sentencing, if the particular circumstances
of the case so warrant.
We look forward to working with the Subcommittee on this issue.
Section 10: Protecting
Human Life and Assuring Child Safety
The Department was pleased to see the addition of language asking the Sentencing
Commission to make recommendations for an increase in the guideline range
where there is a substantial risk of harm to the life in the manufacture
of ANY controlled substance. The case in the Western District of Michigan
(mentioned earlier) highlights the need to expand these guidelines. We
support the proposal to widen the guidelines from including only the manufacture
of methamphetamine or amphetamine to include the manufacture of any controlled
to be exposed, exploited and endangered by individuals involved at
all levels of the illegal drug spectrum. Regardless of whether they
are high-level traffickers, street-level dealers, “cooks” or
addicts, they all are involved in some fashion in stealing away our
nation’s youth. The Department of Justice is committed to aggressively
investigating and prosecuting drug traffickers. We support measures
that will aid in the protection of children and enhance our abilities
to prosecute those individuals who seek to involve them in their illegal
drug activities, and support the Subcommittee’s efforts to do
Mr. Chairman, thank
you for your recognition and assistance on this important issue and
the opportunity to testify here today. This is an ambitious bill with
important implications for the work of the Justice Department. We continue
to study the issues presented by the bill and stand ready to discuss
the matter with you or the Subcommittee’s staff. I will be happy
to answer any questions you may have.