STATEMENT

OF

CATHERINE M. O’NEIL

ASSOCIATE DEPUTY ATTORNEY GENERAL

DIRECTOR, ORGANIZED CRIME DRUG ENFORCEMENT TASK FORCES

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY

UNITED STATES HOUSE OF REPRESENTATIVES

CONCERNING

H.R. 4547, THE DEFENDING AMERICA'S MOST VULNERABLE:

SAFE ACCESS TO DRUG TREATMENT AND CHILD PROTECTION ACT OF 2004

PRESENTED ON

JULY 6, 2004

Statement of Catherine M. O’Neil

Associate Deputy Attorney General

Director, Organized Crime Drug Enforcement Task Forces

Before the

Subcommittee on Crime, Terrorism, and Homeland Security

Committee on Judiciary

United States House of Representatives

Regarding H.R. 4547, The Defending America's Most Vulnerable:

Safe Access to Drug Treatment and Child Protection Act of 2004

July 6, 2004

            Mr. Chairman, Representative Scott, and Members of the Subcommittee, thank you for inviting me to testify before you today regarding the Justice Department’s views on H.R. 4547, Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2004.

            Protecting vulnerable victims from drug dealing predators, particularly those who would exploit human weakness by preying on persons afflicted with addictions to drugs or on those who, because of their youth and immaturity, are particularly susceptible to influence, is a laudable goal and one the Department of Justice fully endorses. Last year, Congress made significant strides by enacting the PROTECT Act, a law that has proved effective in enabling law enforcement to pursue and to punish wrongdoers who threaten the youth of America.

            The Act now under consideration takes Congress’ commendable efforts even further by focusing on the scourge of drug trafficking in some of its most base and dangerous forms: trafficking to minors or in places where they may congregate, and trafficking in or near drug treatment centers.

            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. One need only consider the following few examples:

            •          In 2003, 3,625 children were found in the approximately 9,000 methamphetamine laboratories seized nationwide. Of those, 1,040 children were physically present at the clandestine labs and 906 actually resided at the lab site premises. Forty-one children found were injured. Law enforcement referred 501 children to child protective services following the enforcement activity.

            •          According to the BBC, a 12-year-old drug mule living in Nigeria swallowed 87 condoms full of heroin before boarding a flight from London to New York. He was offered $1,900 to make the trip.

            •          In “Operation Paris Express,” an investigation led by the former U.S. Customs Service, agents learned that members of the targeted international drug trafficking organization specifically instructed couriers to use juveniles for smuggling trips to allay potential suspicions by U.S. Customs. On one smuggling trip, two couriers, posing as a couple, brought a mentally handicapped teenager with them while they carried 200,000 Ecstasy pills concealed in socks in their luggage.

            •          More recently, “Operation Kids for Cover,” an Organized Crime Drug Enforcement Task Force (OCDETF) investigation in Chicago and elsewhere, uncovered a cocaine smuggling group that “rented” infants to accompany couriers, many of whom were drug addicts themselves, who were transporting liquified cocaine in baby formula containers.

            •          In Vermont, prosecutors convicted drug dealer, Michael Baker, for selling cocaine to, among others, high-schoolers. A sophomore honors student who got cocaine from Baker began using extensively and started referring friends from his peer group to Baker in exchange for drugs. This honors student never returned to high school for his junior year.

            •          As reported in the Washington Post, between 2000 and 2002, more than 200 persons were arrested here in Washington, D.C., for distributing diverted prescription drugs and other illicit drugs in a parking lot that abuts one of D.C.’s largest methadone clinics and is within three blocks of several other treatment facilities. The dealers in that open air market took advantage of the drug treatment patients – enticing them with illicit substances and undermining any progress that had been made on their road to recovery.

             The Department of Justice is committed to vigorously prosecuting drug trafficking in all of its egregious forms, whether it be a top-level international narcotics supplier or a street-level predator who tempts a child or an addict with the lure of intoxication or the promise of profit.

            We have had some successes. Statistics maintained by the Department of Justice Executive Office for United States Attorneys indicate that, in the last two years alone, we have had over 400 convictions under Title 21, Sections 859, 860 and 861, of persons engaged in drug activity involving minors. Moreover, statistics maintained by the U.S. Sentencing Commission indicate that, between 1998 and 2002, approximately 300 defendants were sentenced annually under the guideline that provides for enhanced penalties for drug activity involving minors or in protected locations. 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 not only of our most pointed contempt, but, more importantly, of 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.

            I would like to spend a few minutes talking specifically about mandatory minimum sentences and, in particular, the mandatory minimum sentence provisions of H.R. 4547.

            The Justice Department 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 importantly, 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, typically in drug cases the only 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.

            The Department thinks that mandatory minimum sentences are needed in appropriate circumstances, and we support the specific mandatory minimum sentences proposed in H.R. 4547. These sentences are entirely appropriate in light of the plight of drug-endangered children throughout this country.

Specific Provisions Within H.R. 4547

            I would now like to turn to some specific provisions within the proposed legislation that the Department of Justice finds particularly noteworthy and offer some comments which might prove useful as the Committee continues to consider this bill.

            Before doing so, however, I must reserve opinion, in light of Blakely v. Washington – a Supreme Court case decided just two weeks ago – on those sections of the bill which propose to directly amend the sentencing guidelines, Having reserved opinion on the particular language of these sections, I will say that the Department of Justice supports the concepts and policies behind the proposed legislative amendments.

Section 3 : Fairness in sentencing: assuring traffickers in large quantities of drugs receive appropriate sentences and denying double sentencing benefits

            The Department of Justice favors eliminating the guidelines offense level limitation that applies to drug traffickers who play a mitigating role in the offense. We believe that there is no need for such an offense level “cap” and that the federal statutes and the otherwise applicable sentencing guidelines appropriately allow for the consideration of aggravating and mitigating factors. Moreover, we believe that, in most cases, the controlled substance quantity is an important measure of the dangers presented by that offense because, even without other aggravating factors, the distribution of a larger quantity of a controlled substance results in greater potential for greater societal harm than the distribution of a smaller quantity of that substance.

            We acknowledge that the Sentencing Commission has undertaken to lessen the impact of this offense level cap. Pursuant to proposed guidelines amendments submitted to Congress and published in the Federal Register in May of this year, the Commission would apply a higher cap to the initially higher offense levels. For the reasons set forth above, however, we do not believe that this proposal sufficiently addresses our concern that the significance of drug quantity be adequately taken into account and the defendant not receive multiple benefits based on his lesser role in the offense.

            Section 5: Conforming guideline sentencing to conspiracy law

            We agree that the scope of accountability for co-conspirator conduct under the sentencing guidelines should be coextensive with such accountability for purposes of criminal liability generally. We also agree that a conspirator can be held accountable for acts of co-conspirators, in addition to his own conduct. Defendants, therefore, should be accountable for all conduct occurring during the course of the conspiracy that was reasonably foreseeable and in furtherance of the conspiracy.

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 settle for 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.

            Section 9: Assuring judicial authority consistent with law in sentencings

            The Department has a number of concerns with regard to the proposed amendments to Rule 11. Notably, we have been working with Committee staff to alleviate such concerns and look forward to continuing this dialogue.

Section 10: 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 prohibited from seeking release after sentencing, if the particular circumstances of the case so warrant.

Conclusion

            We again thank you for this opportunity to share our views. I will be pleased to answer any questions the members of the Subcommittee may have.