DEA Congressional Testimony [print friendly page]
April 12, 2005

Statement of

Jodi L. Avergun
Chief of Staff
Drug Enforcement Administration

Before the

House Judiciary Committee
Subcommittee on Crime, Terrorism and Homeland Security

April 12, 2005

“Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005 -- H.R. 1528”

Chairman Coble, 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.

Overview

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.

Drug Endangered Children

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.

The endangerment 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. For example:
  
• 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 books,
  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.

Drug Prosecutions

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 treatment center.

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.

Mandatory Minimum Sentences

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.

Specific 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.

Section 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 substance.

Conclusion

Children continue 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 the same.

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.