[Congressional Record Volume 162, Number 73 (Tuesday, May 10, 2016)]
[House]
[Pages H2175-H2179]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
{time} 1630
TRANSNATIONAL DRUG TRAFFICKING ACT OF 2015
Mr. GOODLATTE. Mr. Speaker, I move to suspend the rules and pass the
bill (S. 32) to provide the Department of Justice with additional tools
to target extraterritorial drug trafficking activity, and for other
purposes.
The Clerk read the title of the bill.
The text of the bill is as follows:
S. 32
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Transnational Drug
Trafficking Act of 2015''.
SEC. 2. POSSESSION, MANUFACTURE OR DISTRIBUTION FOR PURPOSES
OF UNLAWFUL IMPORTATIONS.
Section 1009 of the Controlled Substances Import and Export
Act (21 U.S.C. 959) is amended--
(1) by redesignating subsections (b) and (c) as subsections
(c) and (d), respectively; and
(2) in subsection (a), by striking ``It shall'' and all
that follows and inserting the following: ``It shall be
unlawful for any person to manufacture or distribute a
controlled substance in schedule I or II or flunitrazepam or
a listed chemical intending, knowing, or having reasonable
cause to believe that such substance or chemical will be
unlawfully imported into the United States or into waters
within a distance of 12 miles of the coast of the United
States.
``(b) It shall be unlawful for any person to manufacture or
distribute a listed chemical--
``(1) intending or knowing that the listed chemical will be
used to manufacture a controlled substance; and
``(2) intending, knowing, or having reasonable cause to
believe that the controlled substance will be unlawfully
imported into the United States.''.
SEC. 3. TRAFFICKING IN COUNTERFEIT GOODS OR SERVICES.
Chapter 113 of title 18, United States Code, is amended--
(1) in section 2318(b)(2), by striking ``section 2320(e)''
and inserting ``section 2320(f)''; and
(2) in section 2320--
(A) in subsection (a), by striking paragraph (4) and
inserting the following:
``(4) traffics in a drug and knowingly uses a counterfeit
mark on or in connection with such drug,'';
(B) in subsection (b)(3), in the matter preceding
subparagraph (A), by striking ``counterfeit drug'' and
inserting ``drug that uses a counterfeit mark on or in
connection with the drug''; and
(C) in subsection (f), by striking paragraph (6) and
inserting the following:
``(6) the term `drug' means a drug, as defined in section
201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
321).''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Virginia (Mr. Goodlatte) and the gentleman from Michigan (Mr. Conyers)
each will control 20 minutes.
The Chair recognizes the gentleman from Virginia.
General Leave
Mr. GOODLATTE. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days within which to revise and extend their
remarks and include extraneous materials on S. 32, currently under
consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Virginia?
There was no objection.
Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may
consume.
International drug traffickers are profiting off the misery of
American citizens, including our children. In recent years, our Nation
has experienced an epidemic of opioid abuse. A significant part of that
epidemic involves the trafficking of illicit heroin across our borders
and into our communities and homes. Every Member in this Chamber today
has a heartbreaking story about a constituent or a constituent's child
who has been lost to this scourge.
The irony, Mr. Speaker, is that international drug traffickers know
our drug trafficking laws as well as, if not better than, most
Americans do. They know that if they simply employ a middleman to take
the drugs from them and transport them into the U.S., it makes it much
harder, if not impossible, for U.S. law enforcement to prosecute them
under those drug trafficking laws.
Why is it more difficult, you might ask. Because under current law
the government must prove that a trafficker knew the drugs were headed
for the United States. Drug trafficking organizations in Colombia,
Peru, Ecuador, and other Central and South American source nations sell
their illicit products to Mexican traffickers who, in turn, traffic the
drugs into the United States.
This makes it difficult, under current law, for Federal prosecutors
to make cases against such source nation manufacturers, wholesale
distributors, brokers, and transporters since direct evidence of their
intent that the drugs are bound for the United States is difficult, if
not impossible, to develop.
The result is that source nation malefactors who produce and
distribute illegal narcotics escape prosecution under U.S. law because
they feign ignorance of the drug's ultimate destination. This has
happened with increasing regularity over the past several years, and it
is Congress' responsibility to address this problem.
S. 32, the Transnational Drug Trafficking Act of 2015, is identical
to H.R. 3380, legislation that was introduced by my Committee on the
Judiciary colleagues, the gentleman from Pennsylvania (Mr. Marino) and
the gentleman from Puerto Rico (Mr. Pierluisi).
This bill makes crucial changes to our Federal drug laws to give law
enforcement additional tools to combat extraterritorial drug
trafficking. It does this by amending the Controlled Substances Import
and Export Act to stipulate that, when a narcotics trafficker or
manufacturer has a ``reasonable cause to believe'' that the illegal
narcotics he produces or traffics will be sent into the U.S., the U.S.
may prosecute him. This amendment will permit Federal prosecutors to
pursue extraterritorial drug traffickers who are not directly smuggling
drugs into the United States but who facilitate it.
S. 32 also amends the Controlled Substances Import and Export Act to
address the increasingly prevalent problem of trafficking in listed
chemicals, which are chemicals regulated by the
[[Page H2176]]
DEA because they are used in the manufacture of controlled substances.
During a recent codel to South and Central America, several of my
colleagues and I heard firsthand how drug trafficking organizations
have relied upon shadowy chemical suppliers in the manufacture of
methamphetamine, heroin, cocaine, and other dangerous narcotics. S. 32
would enable Federal prosecutors to reach chemical traffickers who
knowingly facilitate and benefit from the illicit production and
smuggling of listed chemicals.
Both of these amendments will allow Federal law enforcement to go
after not the lowly drug mules moving drugs into the United States, but
the criminals who facilitate at a high level, within the source nation,
the trafficking of narcotics and precursor chemicals into the United
States. As one law enforcement official has said to me, it is better to
fight this battle there than here.
In addition to these important reforms, S. 32 also amends the
criminal counterfeit law to include an intent requirement for
trafficking in counterfeit drugs. I am pleased the House is taking up
this important bill, which the Senate has already passed unanimously,
so that it can move expeditiously to the President's desk.
I urge my colleagues to support this important legislation.
Mr. Speaker, I reserve the balance of my time.
House of Representatives,
Committee on Energy and Commerce,
Washington, DC, May 10, 2016.
Hon. Bob Goodlatte,
Chairman, Committee on the Judiciary,
Washington, DC.
Dear Chairman Goodlatte: I am writing to notify you that
the Committee on Energy and Commerce will forgo action on S.
32, Transnational Drug Trafficking Act of 2015, so that it
may proceed expeditiously to the House floor for
consideration.
This is done with the understanding that the Committee on
Energy and Commerce's jurisdictional interests over this and
similar legislation are in no way altered. In addition, the
Committee reserves the right to seek conferees on S. 32 and
requests your support when such a request is made.
I would appreciate your response confirming this
understanding and ask that a copy of our exchange of letters
on this matter be included in the Congressional Record during
consideration of the bill on the House floor.
Sincerely,
Fred Upton,
Chairman.
____
House of Representatives,
Committee on the Judiciary,
Washington, DC, May 10, 2016.
Hon. Fred Upton,
Chairman, Committee on Energy and Commerce,
Washington, DC.
Dear Chairman Upton: Thank you for your letter regarding S.
32, the ``Transnational Drug Trafficking Act of 2015,'' for
which the Committee on Energy and Commerce received an
additional referral.
I am most appreciative of your decision to forego formal
consideration of S. 32 so that it may proceed to the House
floor. I acknowledge that although you are waiving formal
consideration of the bill, the Committee on Energy and
Commerce is in no way waiving its jurisdiction over the
subject matter contained in those provisions of the bill that
fall within your Rule X jurisdiction. In addition, I would
support your effort to seek appointment of an appropriate
number of conferees on any House-Senate conference involving
this legislation.
Finally, I am pleased to include this letter and your
letter in the Congressional Record during floor consideration
of S. 32.
Sincerely,
Bob Goodlatte,
Chairman.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
I would like, first, for everyone to know that we here in the
Congress are working to address the current heroin epidemic. We know
that illegal drugs continue to present a public health crisis that
impacts individuals and families in communities across the United
States. S. 32 attempts to address the illegal importation of the drugs
coming into the United States by amending section 959 of the Controlled
Substances Act.
We have a bit of a problem here, but no one has worked on this longer
or harder than Ms. Sheila Jackson Lee. It is in that spirit that I
yield such time as she may consume to the gentlewoman from Texas (Ms.
Jackson Lee).
Ms. JACKSON LEE. Mr. Speaker, I thank the chairman and the ranking
member for capturing what we in the Committee on the Judiciary have
been doing over the last couple months. We have been working in a very
effective, bipartisan manner to deal with the whole scheme, if you
will, of criminal justice reform. We have been extensively involved in
what has become a major epidemic across this Nation.
I listened to a number of legislative initiatives, one dealing with a
veteran who died from a drug overdose that was just debated here on the
floor of the House. As I was flying in today, we knew there was an
incident in my district where a motorcyclist was killed by a driver, a
young woman who was under the influence of opioids. We know that this
Transnational Drug Trafficking Act is an important act, and we want to
continue in our bipartisan effort.
It is important for me to note a concern that I do not believe the
sponsors intended, but which I believe must be addressed. This bill is
intended to help us do more to combat the importation of illegal drugs
into our country, but it could also subject more people to mandatory
minimum sentencing, an unfortunate feature of our criminal justice
system that we must address.
The United States has been suffering from the damaging effects of
illicit drug trafficking for decades. The majority of the drugs
wreaking havoc in the United States originate in foreign countries,
moving from one country to the next under the direction of powerful and
wealthy drug kingpins. I think all of my adult life, Mr. Speaker, we
have heard the words ``drug kingpins''--you cannot live in urban
America without hearing about them; you cannot live in Texas without
hearing about them--many of whom never see or touch the drugs or enter
the boundaries of this country themselves.
Foreign drug kingpins in Colombia, Ecuador, and Peru are leading
producers of cocaine imported into the United States. These kingpins
lead operations which sell to traffickers in Mexico, who receive the
drugs from Central America, South America, or Mexico and then smuggle
the drugs into the United States.
Certainly, drugs come from all over. The Obama administration
reported instances of Afghan drug trafficking working with West African
drug trafficking organizations to smuggle heroin into the United
States. It is around the world.
I support the idea that these drug kingpins are dangerous, but S. 32
is intended to help Federal prosecutors successfully prosecute foreign
drug traffickers whose criminal activity outside the U.S. threatens the
health, safety, and security of Americans at home.
Section 959 makes it a crime to manufacture or distribute controlled
substances or certain chemicals used to make controlled substances
intended or knowing that the substance or chemical will ultimately be
brought illegally into the U.S. or within 12 miles of the coast of the
U.S. In recent years, Federal prosecutors reported difficulties
enforcing this statute in some instances.
Some drug traffickers are aware of the methods used to charge and
then extradite foreign criminals into the U.S. for prosecution. Drug
traffickers simply avoid any discussion of the destination of the drug
shipments. S. 32 would amend section 959, making it easier for
prosecutors to obtain a conviction against drug traffickers who operate
in other countries. That is certainly an important mission.
I am troubled, however, that lowering the intent requirement in the
statute without limiting its use to leaders and organizers would expose
even low-level offenders to mandatory minimum sentences. We are working
now to stop that tide so that we can restore the criminal justice
system to be just and fair. This would happen, depending on the
quantity of drugs involved.
Historically, mandatory minimums created in the late 1980s to target
kingpins have been largely applied to low-level, nonviolent offenders.
Mandatory minimums have led to unwarranted and unfair sentences and
overincarceration. As the ranking member of the Subcommittee on Crime,
Terrorism, Homeland Security, and Investigations, I am engaged with
colleagues on both sides of the aisle to address the problem of
mandatory minimum sentencing. I am concerned that S. 32 may make
matters worse.
In the Committee on the Judiciary, Ranking Member Conyers proposed a
[[Page H2177]]
very thoughtful amendment to H.R. 3380, the House companion to this
bill, to specify that the reduced intent standard would only apply to
leaders and organizers of foreign drug trafficking organizations. The
amendment would have made certain that the substantial resources, time,
and money necessary to extradite foreign criminals will be expended
only on those individuals whose prosecution would disrupt the chain,
the pipeline, or dismantle drug trafficking networks. If this bill was
amended as recommended, it would be a useful tool to help target
leaders of transnational organized crime from Africa to Afghanistan, to
South and Central America and beyond, networks in the U.S. and abroad,
priorities and objective detail in the President's strategy to combat
transnational organized crime.
In a climate in Congress when we are working on a bipartisan basis to
make our criminal justice system more just and effective and to reduce
mandatory minimums, the best course is for us to limit the scope of
this bill to high-level drug traffickers--a simple fix. While we do not
have the opportunity to amend this bill today, I ask that my colleagues
vote against it so that we may continue to work to address this
concern, which would not undermine the goals of the bill.
S. 32 also corrects an error in section 2320 of title 18, the statute
that governs trafficking in counterfeit goods and services. In order to
prove the offense of trafficking in drugs with counterfeit marks, there
must be proof that the accused knowingly used a counterfeit mark on or
in connection with a trafficked drug. I support those changes.
The underlying change and spirit of the bill is a positive one. We
are working here together. This scourge is something we must attack.
May I simply say, Mr. Speaker, I commend the sponsors of this bill
for their desire to improve our ability to pursue, convict, and
ultimately imprison top-level drug traffickers who have plagued our
Nation for decades and beyond. Although I believe this bill still
requires a simple change to address the unintended issue impacting
mandatory minimum sentencing, I look forward to us working in the
manner in which we can work, and I look forward to this concluding in a
positive way.
Mr. Speaker. Although I support the goals of the Transnational Drug
Trafficking Act, I must note a concern that I do not believe the
sponsors intended but which I believe must be addressed.
This bill is intended to help us do more to combat the importation of
illegal drugs into our country.
But, it could also subject more people to mandatory minimum
sentencing--an unfortunate feature of our criminal justice system that
we must address.
The United States has been suffering from the damaging effects of
illicit drug trafficking for decades.
The majority of the drugs wreaking havoc in the U.S. originate in
foreign countries, moving from one country to the next, under the
direction of powerful and wealthy drug kingpins--many of whom never see
or touch the drugs or enter the boundaries of this country themselves.
Foreign drug kingpins in Columbia, Ecuador, and Peru are the leading
producers of cocaine imported into the U.S.
These kingpins lead operations which sell to traffickers in Mexico,
who receive the drugs in Central America, South America, or Mexico and,
then, smuggle the drugs into the U.S.
In 2011 the Obama Administration reported instances of Afghan drug
trafficking operations working with West African drug trafficking
organizations to smuggle heroin into the U.S.
I support enhanced efforts to combat international drug trafficking.
S. 32 is intended to help federal prosecutors successfully prosecute
foreign drug traffickers whose criminal activity outside of the U.S.
threatens the health, safety, and security of Americans at home.
At present, Section 959 of Title 21 targets criminal conduct
committed outside of the United States.
Section 959 makes it a crime to manufacture or distribute controlled
substances or certain chemicals used to make controlled substances,
intending or knowing that the substance or chemical will ultimately be
brought illegally into the U.S. or within 12 miles of the coast of the
U.S.
In recent years, federal prosecutors have reported difficulties
enforcing this statute in some circumstances.
Since drug traffickers are aware of the methods used to charge and,
then, extradite foreign criminals into the U.S. for prosecution, drug
traffickers simply avoid any discussion of the destination of their
drug shipments.
This tactic leaves prosecutors with no direct evidence that the
traffickers know the ultimate destination of their drugs or the drugs
produced using their chemicals.
S. 32 would amend Section 959, making it easier for prosecutors to
obtain a conviction against drug traffickers who operate in other
countries.
Prosecutors would no longer be required to prove the accused intended
or actually knew the drugs or chemicals would be brought illegally into
the U.S.
S. 32 would reduce the level of intent necessary to prove the
accused's guilt, requiring prosecutors to only prove that there was
reasonable cause for the accused to believe the drugs or chemicals used
to make the drugs would be brought illegally into the U.S.
I am troubled, however, that lowering the intent requirement in the
statute, without limiting its use to leaders and organizers would
expose even low-level offenders to mandatory minimum sentences,
depending on the quantity of drugs involved.
Historically, mandatory minimums created in the late 80's to target
kingpins have been largely applied to low-level, non-violent offenders.
Mandatory minimums have led to unwarranted and unfair sentences and
over-incarceration.
As the Ranking Member of the Subcommittee on Crime, I am engaged with
colleagues on both sides of the aisle to address the problem of
mandatory minimum sentencing.
I am concerned that S. 32 may make matters worse.
In the Judiciary Committee markup, Ranking Member Conyers proposed an
amendment to H.R. 3380, the House companion to this bill, to specify
that the reduced intent standard would only apply to leaders and
organizers of foreign drug trafficking organizations.
The amendment would have made certain that the substantial resources,
time, and money necessary to extradite foreign criminals would be
expended only on those individuals whose prosecution would disrupt or
dismantle drug trafficking networks.
If this bill was amended as recommended, it would be a useful tool to
help target leaders of transnational organized crime networks in the
U.S. and abroad--priorities and objectives detailed in the President's
Strategy to Combat Transnational Organized Crime.
In a climate in Congress when we are working on a bipartisan basis to
make our criminal justice system more just and effective and to reduce
mandatory minimums, the best course is for us to limit the scope of
this bill to high-level drug traffickers.
While we do not have the opportunity to amend this bill today, I ask
that my colleagues vote against it so that we may continue to work to
address this concern, which would not undermine the goals of the bill.
S. 32 also corrects an error in Section 2320 of Title 18, the statute
that governs trafficking in counterfeit goods and services. In order to
prove the offense of trafficking in drugs with counterfeit marks, there
must be proof that the accused knowingly used a counterfeit mark on or
in connection with a trafficked drug, and I support this change.
In conclusion, Mr. Speaker, I commend the sponsors of this bill for
their desire to improve our ability to pursue, convict, and,
ultimately, imprison top-level drug traffickers, although I believe the
bill still requires a change to address the unintended issue impacting
mandatory minimum sentencing.
Mr. GOODLATTE. Mr. Speaker, it is my pleasure to yield such time as
he may consume to the gentleman from Pennsylvania (Mr. Marino), a
member of the Committee on the Judiciary and the chief sponsor of the
House companion legislation to the bill before the House at this time.
{time} 1645
Mr. MARINO. Mr. Speaker, I thank the chairman for yielding and for
his leadership in committee and today on this important bipartisan
piece of legislation.
I also would like to thank my colleague, Congressman Pierluisi, for
his stalwart support and work on this bipartisan bill.
The chairman of the Judiciary Committee is correct in recognizing
that Federal law often fails to keep up with lawbreakers. As a former
U.S. attorney, I am acutely aware of the ways criminal organizations
adapt their practices to skirt Federal law and harm American citizens.
This bill directly responds to one scenario that has played out time
and again in our Federal courts.
I would like to start by making a key point about the purpose of this
bill and the type of organizations it targets. Our focus through this
bill is the leaders of sophisticated, often multinational drug-
trafficking organizations
[[Page H2178]]
with expansive networks of distribution internationally.
This includes source nation manufacturers primarily in South and
Central America. They are a significant source, if not the largest
source, of deadly drugs on the streets and in homes across America. It
also includes the leaders of large ``middleman'' wholesale trafficking
and distribution organizations.
I want to stress that the bill does not target petty dealers or low-
level smugglers in the final chain to the narcotics' final destination.
Instead, the focus is on higher levels of the drug-trafficking chain
beyond our borders. These are the decisionmakers who have twisted our
law for their own profit.
Federal law requires prosecutors to prove that defendant
manufacturers and traffickers knew the narcotics were destined for the
U.S. Under their direction, drugs are manufactured and packaged for
illegal wholesale distribution in these countries outside of the U.S.
In many instances, the final destination is the United States. But
these individuals can hide their knowledge or insert additional
middlemen to potentially evade prosecution.
One recent case in the D.C. Federal district court perfectly depicts
this problem. On trial were two Guatemalan nationals, leaders of an
organization that received tons of cocaine over 13 years from
manufacturers in Colombia and Venezuela. They built runways and
warehouses to store and receive such massive quantities of narcotics.
They then distributed the drugs to additional middlemen in Mexico.
It was known that these drugs reached the U.S. But the defendants
claimed that, once they passed them on, they had no knowledge of its
ultimate destination. At trial, this was their only defense. Currently,
the law allows them to claim ignorance and simply put the blame on
those who do their bidding.
My district and many of my colleagues' districts face a growing
heroin epidemic. Our efforts this week to counter this crisis are
crucial to stopping it.
My final point. This bill is about dismantling international drug-
trafficking organizations. It is about bringing to justice the source
nation manufacturers and middlemen wholesalers behind the flow of
deadly narcotics across our borders, nothing else.
I urge my colleagues to support the bill so we can make that happen
today.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, there is no doubt that we must stop the flow of illegal
drugs coming into the United States from foreign countries.
I want to commend our colleagues who have worked with Ms. Jackson Lee
on this, and I want to commend the chairman of the full committee, Mr.
Goodlatte, as well for dealing with this very important subject.
Mr. Speaker, we must avoid subjecting more people to mandatory
minimum sentences. As a matter of principle, I oppose mandatory minimum
sentences because they are unjust and unwise.
The flaws in mandatory minimum sentencing have led to extraordinary
injustices, prison overcrowding, and excessive cost to taxpayers. They
have been shown to have a disparate impact on minorities.
While I am committed to combating the importation of illegal drugs in
this country, I must oppose the expansion of mandatory minimum
sentences, which is what S. 32 would do.
In the Judiciary Committee markup, I offered an amendment to limit
the scope of the changes that would be made by this bill to the leaders
or organizers of the drug organizations, in other words, the real
kingpins.
Whether or not it is the intent of this bill to target low-level
offenders, too often it is precisely these individuals who are easier
to arrest, easier to convict, and subject to mandatory penalties.
Now, while I understand that we are today considering a Senate-passed
bill, I maintain that we should take the time to address this issue.
This bill's expansion of those convicted under the statute should be
limited to kingpins, those to whom mandatory minimum penalties were
originally intended to apply in the first place.
So, accordingly, I sincerely ask my colleagues to vote against this
bill so that we may address this concern.
Mr. GOODLATTE. Mr. Speaker, I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, in closing, without question, illegal drugs
imported into the United States have harmed our citizens and our
communities in innumerable ways. It is critical that appropriate steps
be taken to address this problem.
Although S. 32 is a well-intentioned effort to do so, I believe that
this bill should be amended to address a concern related to mandatory
minimum sentencing. On this basis, I oppose the bill in its current
form.
I urge my colleagues to join me and the ranking subcommittee member
of the Judiciary Committee from Texas, Ms. Jackson Lee, in supporting
this bill.
Mr. Speaker, I yield back the balance of my time.
Mr. GOODLATTE. Mr. Speaker, I urge my colleagues to support this
legislation.
I yield back the balance of my time.
Mr. SCOTT of Virginia. Mr. Speaker, I rise in opposition to S. 32,
the Transnational Drug Trafficking Act of 2015. While I support the
underlying goal of combating drug trafficking, existing federal
criminal laws already prohibit and punish this conduct. This bill
however weakens existing mens rea standards, and therefore could lead
to the application of mandatory minimums to action which the defendant
did not know was illegal.
This bill therefore is a perfect example of four of the most common
problems in crime policy.
First, it is a textbook example of overcriminalization, namely the
careless creation and addition of federal crimes without reviewing if
that conduct is already sufficiently prohibited and can be prosecuted
under existing federal criminal laws. Existing federal laws prohibit
importation and exportation of controlled substances, possession with
intent to distribute such substances, or attempt or conspiracy to do so
and therefore already prohibit the very conduct S. 32 was drafted to
reach.
Our federal code contains over 5,000 offenses carrying criminal
penalties, but a precise count eludes not only the Congressional
research service but also the Department of Justice, the agency charged
with prosecuting those offenses. The House Judiciary Committee's bi-
partisan Overcriminalization Task Force, upon which I served as Ranking
Member, found that our Congressional appetite to add new federal
offenses to demonstrate that we were ``tough on crime,'' instead of
relying on existing state or federal statutes, was a significant
driver. If we are serious about cleaning up our federal code, it starts
with ensuring that the first question we ask when introducing, marking
up, or voting on a bill is whether that bill is necessary. There is no
such evidence in the record that the Department of Justice has been
unable to investigate or prosecute these such cases under existing law,
nor is there any evidence that the present punishment for violation of
these laws is insufficient.
Second, the mens rea standard in S. 32 is weaker than the criminal
intent standards of existing federal drug statutes carrying mandatory
minimums. This means that the government can convict based on a lower
standard of proof. Again, the need for a robust mens rea standard is a
key Constitutional requirement that ensures that citizens are not
deprived of their liberty, absent a showing that they were aware that
their conduct was prohibited and they intended to engage in that
unlawful conduct. In the wake of discussions about the importance of
mens rea in protecting defendants who act with innocent intent and/or
no notice of the illegality of their conduct, it is disappointing to
see a step in the wrong direction that makes it easier for the
government to convict them based upon a weaker standard.
Third, applying S. 32 would lead to unintended consequences due to
this weaker mens rea standard. Specifically, not only does S. 32
criminalize ``intending'' or ``knowing'' that one of the prohibited
chemicals will be used to manufacture a controlled substance, but also
``having reasonable cause to believe that the controlled substance will
be unlawfully imported into the United States.''
Many legitimate industrial chemicals, such as anhydrous ammonia found
in fertilizer or ephedrine found in sinus medication, and natural
substances, such as the alkaloid fluid extracted from the bulbs of
poppy plants, can also be used to process and synthesize some illicitly
produced drugs.
Thus, the problem S. 32 presents is that it may sweep too broadly.
For example, a fertilizer manufacturer or pharmaceutical company or
florist in Europe could be criminally liable and subject to a mandatory
minimum penalty. That is because under S. 32's rubric, any
manufacturer, importer, or distributor of any substance that some
illicit chemist seeks to turn into an existing, or as-of-yet-developed,
controlled substance would be vulnerable to
[[Page H2179]]
federal criminal charges. The problem is that S. 32's ``reasonable
cause to believe'' benchmark is intellectually bankrupt''--is it
``reasonable cause to believe that the entity they are shipping it to
has requested it for illicit purposes'' or merely ``reasonable cause to
believe that these are the types of chemicals that could be turned into
illicit drugs?''
Lastly, this bill expands the universe of conduct to which a
mandatory minimum applies. Research and evidence in the past few
decades has demonstrated that mandatory minimums are ineffective
deterrents, waste the taxpayers' money, force judges to impose
irrational sentences, and discriminate against minorities, particularly
with regards to drug offenses. Unfortunately, there are too many
mandatory minimums in the federal code. If we expect to do anything
about that problem, the first step has to be to stop passing new ones.
The mandatory minimums in the code today did not get there all at
once--they got there one at a time, each one part of a larger bill,
which on balance might have been a good idea. Therefore, the only way
to stop passing new mandatory minimums is to stop passing bills that
contain mandatory minimums. Giving lip service to the suggestion that
you would have preferred that the mandatory minimum had not been in a
bill, then voting for it anyway, just creates another mandatory minimum
and guarantees that those who support mandatory minimums will include
them in the next crime bill. And more mandatory minimums will be
created and the failed war on drugs will continue.
If our goal is to ensure that we prosecute transnational drug
traffickers, let us provide adequate funding to local, state, and
federal law enforcement agencies to do so under multiple federal
statutes that already achieve that goal, without raising these
problematic implementation and fairness concerns.
In summary, while I support the underlying goal of S. 32, I have
grave concerns about its redundancy, its erosion of the mens reas
standard commonly used in these offenses, its broad sweep and its use
of mandatory minimums. Therefore, I urge my colleagues to vote no on S.
32.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Virginia (Mr. Goodlatte) that the House suspend the
rules and pass the bill, S. 32.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill was passed.
A motion to reconsider was laid on the table.
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