[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



DEFENDING AMERICA'S MOST VULNERABLE: SAFE ACCESS TO DRUG TREATMENT AND 
                      CHILD PROTECTION ACT OF 2004

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                                   ON

                               H.R. 4547

                               __________

                              JULY 6, 2004

                               __________

                             Serial No. 103

                               __________

         Printed for the use of the Committee on the Judiciary


    Available via the World Wide Web: http://www.house.gov/judiciary


                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee        ZOE LOFGREN, California
CHRIS CANNON, Utah                   SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama              MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana          MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin                WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida                  ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania        TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana                  ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia            LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee

             Philip G. Kiko, Chief of Staff-General Counsel
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

                 HOWARD COBLE, North Carolina, Chairman

TOM FEENEY, Florida                  ROBERT C. SCOTT, Virginia
BOB GOODLATTE, Virginia              ADAM B. SCHIFF, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
MARK GREEN, Wisconsin                MAXINE WATERS, California
RIC KELLER, Florida                  MARTIN T. MEEHAN, Massachusetts
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia

                      Jay Apperson, Chief Counsel

                        Elizabeth Sokul, Counsel

                          Katy Crooks, Counsel

                 Jason Cervenak, Full Committee Counsel

                     Bobby Vassar, Minority Counsel


                            C O N T E N T S

                              ----------                              

                              JULY 6, 2004

                           OPENING STATEMENT

                                                                   Page
The Honorable Howard Coble, a Representative in Congress From the 
  State of North Carolina, and Chairman, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     1
The Honorable Robert C. Scott, a Representative in Congress From 
  the State of Virginia, and Ranking Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................     2

                               WITNESSES

Ms. Catherine M. O'Neil, Associate Deputy Attorney General, 
  United States Department of Justice
  Oral Testimony.................................................     5
  Prepared Statement.............................................     7
Mr. Robert J. Cramer, Special Investigator, United States General 
  Accounting Office
  Oral Testimony.................................................     9
  Prepared Statement.............................................    11
Mr. Tyrone V. Patterson, Manager of the Model Treatment Center, 
  District of Columbia Department of Health
  Oral Testimony.................................................    17
  Prepared Statement.............................................    18
Mr. Frank O. Bowman, III, J.D., M. Dale Palmer Professor of Law, 
  Indiana University School of Law
  Oral Testimony.................................................    21
  Prepared Statement.............................................    23

                                APPENDIX
               Material Submitted for the Hearing Record

Letter from Commissioners and Vice Chairmen of the U.S. 
  Sentencing Commission..........................................    60
Letter from Robert D. Evans, Director of the Washington Office of 
  the American Bar Association...................................    63
Questions and Responses for the Record from Mr. Robert J. Cramer.    65
``Drug Market Thrives By Methadone Clinics: D.C. Patients Must 
  Face McPharmacy,'' article from The Washington Post, August 
  12,2002........................................................    67
``Probe Confirms Dealing of Drugs Near D.C. Clinics,'' article 
  from The Washington Post, July 7, 2004.........................    70
Letter from Edwin C. Chapman, M.D. and James T. Speight, Jr. of 
  the United Planning Organization-Comprehensive Treatment Center    72

 
DEFENDING AMERICA'S MOST VULNERABLE: SAFE ACCESS TO DRUG TREATMENT AND 
                      CHILD PROTECTION ACT OF 2004

                              ----------                              


                         TUESDAY, JULY 6, 2004

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 4 p.m., in Room 
2141, Rayburn House Office Building, Hon. Howard Coble (Chair 
of the Subcommittee) presiding.
    Mr. Coble. Good afternoon, ladies and gentlemen. The 
Subcommittee on Crime, Terrorism, and Homeland Security is 
holding a hearing today on H.R. 4547, the ``Defending America's 
Most Vulnerable: Safe Access to Drug Treatment and Child 
Protection Act of 2004.''
    The hearing will examine the problem of drug dealers 
preying on vulnerable individuals such as recovering addicts 
and minors.
    Recent studies have revealed the growing problem of drug 
dealers targeting individuals as they are leaving drug 
treatment centers. A 2002 news article in the Washington Post 
highlighted this problem, which appears to be occurring on a 
daily basis just minutes from where we sit. More than 1,000 
addicts attend drug treatment in Northeast Washington, 
receiving care at three public methadone centers in the area. 
Drug dealers operate out of a nearby McDonald's parking lot 
next to the largest meth treatment center in D.C., and within 
three blocks of two other treatment centers. According to the 
article, many addicts say the availability of drugs present 
daily temptations as they try to overcome psychological and 
physical addiction.
    The General Accounting Office investigators found that this 
is not the only city where this problem exists. Adult addicts 
are not the only victims of the drug dealers. The Substance 
Abuse and Mental Health Services Administration estimates that 
approximately 6 million children under the age of 18 were 
living with at least one parent who abused or was dependent 
upon alcohol or drugs in the year 2001. Studies have found that 
children of addicted parents are more likely to mimic their 
parents' behavior.
    Even more troubling are cases in which parents knowingly 
expose children, including their own, to the seedy and 
dangerous world of drug trafficking, including the storage and 
distribution of drugs for profit in their own homes where small 
children may reside. H.R. 4547 addresses this issue by 
strengthening the laws regarding trafficking to minors and 
creating criminal penalties for individuals who traffic drugs 
near a drug treatment facility. The legislation examined today 
makes it unlawful to distribute drugs to a person enrolled in a 
drug treatment center or to distribute drugs within 1,000 feet 
of a drug treatment facility.
    Now only recently the Supreme Court in Blakely v. 
Washington has cast doubt upon the continued viability of the 
Federal sentencing guidelines. While neither Congress nor the 
judiciary should react in haste without thoughtful 
consideration of the decision, it does seem clear that 
mandatory minimums may well take on added importance in 
assuring appropriate sentences for serious Federal crimes as a 
result of this Supreme Court's action.
    I want to thank the four witnesses who will participate 
today and thank you for your being here. And with that, I 
conclude my opening statement and am pleased to recognize the 
distinguished gentleman from Virginia, the Ranking Member of 
the Subcommittee, Mr. Bobby Scott.
    Mr. Scott. Thank you, Mr. Chairman. And I am pleased to 
join you in convening this hearing on H.R. 4547. The bill 
purports to protect drug treatment patients, children and young 
adults from drug dealers. That is an excellent goal. However, 
the primary focus of the bill is an array of provisions 
increasing sentencing guideline ranges, adding new mandatory 
minimum sentences, and increasing existing sentences by at 
least fivefold to mandatory life without parole, three strikes 
and you're out and other provisions. The latter provision, 
three strikes and you're out, has been roundly discredited as 
being wasteful, racially discriminatory, sound-bite-based, and 
having no impact on reducing crime. In California, where it is 
broadly applied, it is now slated for a referendum to eliminate 
it.
    Also, the bill provides for conspiracies and attempts to 
punish in the same manner as actual--as those actually 
committing the crime. This will only increase the disparity in 
sentencing. With mandatory minimum sentencing, there is no way 
to distinguish between the major players and the bit players in 
a crime. One of the primary purposes in establishing the U.S. 
sentencing guidelines was to remove disparate treatment from 
like offenders. Giving unlike offenders the same sentence for a 
crime creates as much sentencing disparity as giving like 
offenders different sentences for the same crime.
    Other provisions of the bill eliminate the drug quantity 
sentencing cap established by the Sentencing Commission, and 
strict application of the safety valve, and substantial 
assistance to the Government sentencing reduction provisions.
    We have often cited the numerous studies and 
recommendations of researchers, the judicial branch, including 
the Chief Justice of the U.S. Supreme Court and sentencing 
professionals, reflecting the problems created by the 
proliferation of mandatory minimum sentences. They are often 
cited as being wasteful as compared to alternative sentencing 
and alternatives such as drug treatment. They also disrupt the 
ability of the Sentencing Commission and the courts to apply an 
orderly, proportional, nondisparate sentencing system, and also 
they are found to be discriminatory against minorities and for 
transferring an inordinate amount of discretion from 
prosecutors--to prosecutors from the judges in an adversarial 
system.
    Our criminal justice system is an adversarial system which 
anticipates a balanced, vigorous prosecution and a balanced, 
vigorous defense with an impartial trier of fact determining 
guilt or innocence. It then envisions an impartial and learned 
judge, after having heard all the evidence and circumstances, 
to determine a just sentence. To assure uniform sentencing 
practices amongst the various courts and judges, and to guard 
against disparate treatment, we provide sentences to be bounded 
by sentencing guidelines developed by sentencing experts.
    Unfortunately this bill ignores these goals and 
structures--continues the recent trend in determining sentences 
up front through mandatory minimum sentences with virtually all 
discretion shifted to the prosecutor in the charge and plea 
bargain phase of the case.
    Practically there is no reason to believe that 4547 will 
have an impact on crimes at which it is purportedly aimed. In 
its essence the bill simply increases the penalties for drug 
trafficking, yet the problem seems to be a law enforcement 
problem, not a sentencing problem.
    With the GAO, the treatment centers and now the Judiciary 
Committee reporting illegal drug activity in and around drug 
treatment centers in specific detail, the question is why 
aren't the current stringent drug laws being enforced by local 
and Federal authorities rather than just being reported to us 
by the GAO and others? Adding more laws to the current ones 
that are not being enforced will be little assistance to the 
problem. The suggestion that current Federal illegal drug 
penalties are not severe enough to have the law enforcement 
officials incentivized to enforce them is unfounded because 
there are long prison terms now available for the drug 
offenders and the fact that they constitute a growing majority 
of offenders in the Federal system.
    Just as unfounded is the notion that the access to drugs by 
drug treatment patients and children will be significantly 
affected by having harsher penalties within a certain distance 
of drug treatment and other facilities and for drug crimes 
around children, even by parents. Studies of drug quantities, 
quality and price indicate that they are even more plentiful 
now in higher qualities and lower prices than before. Offenders 
generally have ready access to drugs in their neighborhoods. 
There is nothing to suggest that they obtained the drugs for 
which they are addicted near a drug treatment center. Moreover, 
having drug offenders who happen to violate the law within the 
inner edge of a prohibited zone and ones who violate the law a 
few feet away receiving disparate sentences makes no sense. 
Jailing parents or custodians of children for longer periods 
for drug activities in their presence and forcing children into 
foster care is of dubious benefit to the children.
    In light of the implications of the recent Blakely v. 
Washington case for the sentencing guidelines system, we should 
not be passing more and possibly unconstitutional sentencing 
provisions until we have had a chance to review the decision 
and determine what changes in the law are necessary to meet 
constitutional muster.
    So, Mr. Chairman, I look forward to the testimony of our 
witnesses on these points and thank you for convening the 
hearing.
    Mr. Coble. I thank the gentleman.
    Mr. Coble. Our first witness today is Ms. Catherine O'Neil. 
Ms. O'Neil is the Associate Deputy Attorney General of the 
Office of the Deputy General at the Department of Justice. Her 
portfolio includes all issues relating to international and 
domestic drug policy, drug enforcement and money laundering. 
She serves as the Director of the Organized Crime Drug 
Enforcement Task Force program.
    Prior to serving in her current capacity, Ms. O'Neil was an 
assistant U.S. attorney in the Northern District of Georgia and 
received her B.A. From the University of Virginia, a master's 
in public policy from the Kennedy School of Government at 
Harvard University, and her law degree from the Harvard School 
of Law.
    Our second witness today is Mr. Robert Cramer, the Managing 
Director of the Office of Special Investigations at the United 
States General Accounting Office. Mr. Cramer was an assistant 
United States attorney in the Southern District of New York 
before he joined GAO in 2000. He also served as an assistant 
district attorney in New York County and was an attorney in 
private practice in New York City.
    Mr. Cramer received his undergraduate degree from Brooklyn 
College and his law degree from Notre Dame Law School.
    Our third witness is Mr. Tyrone Patterson, program manager 
for the Model Treatment Program within the District of Columbia 
Department of Health. Mr. Patterson has over 1,000 years of 
substance abuse training--and has over 1,000 years--hours--I 
know something didn't sound right. I accelerated your 
advancement in age--1,000 hours of substance abuse training and 
has worked in the field as a counselor, supervisor counselor 
and program manager for 28 years. He is certified and 
registered for addiction counseling in the State of Maryland 
and is CSC certified and registered in the District of 
Columbia.
    Mr. Patterson is the president of the Mitchellville Boys 
and Girls Club and has coached both adult and youth sports 
since 1968 in Prince George's County, Maryland, and Washington, 
D.C.
    Our final witness, Mr. Frank O. Bowman, III, a professor at 
the Indiana School of Law at Indianapolis. Prior to serving in 
his current position, he served as an academic advisor to the 
Criminal Law Committee of the United States Judicial Conference 
and as a special counsel to the United States Sentencing 
Commission in Washington, D.C. He further served as a deputy 
district attorney for Denver, Colorado, and was Deputy Chief of 
the Southern Criminal Division in the United States Attorney's 
Office for the Southern District of Florida.
    Mr. Bowman was awarded his law degree from Harvard 
University.
    It is the practice of the Subcommittee, lady and gentlemen, 
to swear in our witnesses who appear before us. So if you would 
please stand and raise your right hands.
    [Witnesses sworn.]
    Mr. Coble. Let the record show that each of the witnesses 
answered in the affirmative, and you may be seated.
    Folks, we are glad to have you all with us. We operate 
under the 5-minute rule here. You will not be administered 20 
lashes if you violate that rule, but the light that appears 
before you on your table, when the amber light appears, that is 
your warning that 5 minutes is imminent. When the red light 
appears, the 5 minutes have elapsed. So if you will keep a 
sharp look on that, we will be appreciative of that.
    We have your statements, and they have been examined and 
will be reexamined. And, Ms. O'Neil, we will start with you.

  TESTIMONY OF CATHERINE M. O'NEIL, ASSOCIATE DEPUTY ATTORNEY 
          GENERAL, UNITED STATES DEPARTMENT OF JUSTICE

    Ms. O'Neil. Mr. Chairman, Representative Scott, thank you 
for inviting me to testify before you today.
    Protecting vulnerable victims from drug dealing predators, 
particularly those who would exploit human weakness by preying 
on persons afflicted with drug addiction or on those who, 
because of their youth and immaturity, are particularly 
susceptible to influence is a laudable goal and one that the 
Department of Justice fully endorses. The act now under 
consideration focuses on the scourge of drug trafficking in 
some of its most base and dangerous forms, trafficking to 
minors or in places where they congregate, and trafficking in 
or near drug treatment centers.
    Unfortunately, endangerment of children from exposure to 
drug activity, sales of drugs to children, and the use of 
minors in drug trafficking and the peddling of pharmaceuticals 
and other illicit drugs to drug treatment patients are all 
significant problems today. Too often law enforcement agents 
come upon children during raids and search warrants. We find 
thousands of children in methamphetamine laboratories, children 
being used as decoys or distributors for drug-smuggling 
operations, and children unable to attend school without being 
exposed to illegal drugs. And right here in D.C., we have seen 
open-air markets where heartless dealers driven only by their 
own greed have taken advantage of drug treatment patients, 
enticing them with illicit substances and undermining any 
progress these patients may have made on the 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 
street-level predator who tempts a child or an addict. The 
people who target their trafficking activity at those with the 
least ability to resist it are deserving of severe punishment, 
and that is why the Department stands firmly behind the 
overriding intent of this legislation, to increase penalties 
for those who would harm our children and those who are seeking 
to escape the cycle of addiction.
    The Justice Department supports the mandatory minimum 
sentences in this bill. 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 so egregious as 
to merit these harsh penalties by clearly forewarning the 
offender and the public of the minimum potential consequences 
of committing such an offense. In drug cases, mandatory 
minimums are especially significant. Drug dealers by nature are 
risk takers. Lack of certainty in the consequences of engaging 
in certain egregious conduct does not effectively deter these 
risk takers because they can forever hold on to the hope of 
finding a lenient judge and getting a lenient sentence. The 
only possible deterrence for these dealers is to take away that 
cause for hope.
    Equally importantly, mandatory minimum sentences are an 
indispensable tool for prosecutors. They provide the strongest 
incentive to defendants to cooperate against the others 
involved in their criminal activity. In drug cases, where the 
ultimate goal is to rid society of the entire trafficking 
enterprise, 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 lesser distributors to prosecute larger dealers, 
leaders and suppliers.
    For all of these reasons, we support the provisions of this 
legislation which address the plight of endangered children and 
addicts by punishing those who would exploit them.
    I must reserve opinion in light of Blakely v. Washington, a 
Supreme Court case decided just 2 weeks ago, on those sections 
of the bill which propose to directly amend the sentencing 
guidelines. Nevertheless, I will say that the Department of 
Justice supports the concepts and policies behind those 
proposed amendments to the extent that the amendments seek to 
eliminate the mitigating role cap for drug traffickers, to 
ensure that the scope of accountability for coconspirator 
conduct is consistent with conspiracy law, and to confine the 
application of the so-called safety valve to cases where it is 
clearly warranted.
    The Department has concerns with the proposed amendments to 
rule 11 regarding plea agreements, but we are looking forward 
to working with the Committee to alleviate those concerns.
    Finally, while the Department agrees with the principle 
that in almost all circumstances a defendant who has been found 
guilty of an offense should be immediately detained, we cannot 
support the proposed amendment here on detention. 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 valuable 
investigative and prosecutorial tools.
    This legislation will reduce the availability of illicit 
drugs to those afflicted with drug addictions and reduce the 
incidence of drug activity involving young people. The Attorney 
General has often observed that while children are but 25 
percent of our population, they are 100 percent of our future. 
If there is any conduct which is deserving of the penalties set 
forth in this bill, it is the conduct at issue here. Drug 
trafficking to and through children diminishes the potential of 
our Nation and robs this country of its future, and it cannot 
be tolerated.
    Thank you for this opportunity to share our views with you, 
and I will be pleased to answer any questions that the 
Subcommittee may have.
    Mr. Coble. Thank you, Ms. O'Neil.
    [The prepared statement of Ms. O'Neil follows:]

               Prepared Statement of Catherine M. O'Neil

    Mr. Chairman, Representative Scott, and Members of the 
Subcommittee, thank you for inviting me to testify before you today 
regarding the Justice Department' views on H.R. 4547, Defending 
America' 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. 
Sec. 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.

    Mr. Coble. Mr. Cramer.

  TESTIMONY OF ROBERT J. CRAMER, SPECIAL INVESTIGATOR, UNITED 
                STATES GENERAL ACCOUNTING OFFICE

    Mr. Cramer. I am pleased to be here today to summarize the 
results of our investigation of street narcotics sales in the 
vicinity of certain drug rehabilitation clinics. Special Agent 
George Ogilvie, the principal investigator in this work, is 
here with me today. To obtain an overview of the problem, Agent 
Ogilvie and other criminal investigators from the Office of 
Special Investigations at GAO conducted physical surveillance 
of five clinics in the District of Columbia. We found a 
significant amount of illegal drug trafficking takes place 
around these clinics. In fact, patients frequently must 
navigate their way through a virtual bazaar of illegal drug 
dealing when they enter and exit the clinics.
    During our visits to the clinics, investigators observed 
many of the typical patterns of activity on nearby streets that 
indicate that drug trafficking is taking place and were 
actually solicited to buy drugs. Groups of individuals were 
loitering in the vicinity of the clinics. People driving 
vehicles would circle the locations where these groups 
congregated, slowing down to speak with people on the street. 
The investigators observed people from the street groups 
repeatedly entering and exiting vehicles that pulled up to 
them, meeting other people on the street and engaging in hand-
to-hand contact, or walking away with them to complete a sale 
at another location.
    Some of the drug dealers were very brazen about their 
activities. For instance, on three occasions, dealers outside 
clinics asked one of our investigators if he wanted to buy 
drugs. There were numerous occasions when our investigators 
observed people exchange cash for a small bag or other objects 
that were too small for us to see.
    One particular clinic is located in an isolated area near a 
bus stop. We learned from local police officials that the bus 
stop is known as a place in which illegal drug activity 
frequently takes place. We viewed a videotape made by local 
police of a drug transaction that took place at the bus stop in 
which an undercover officer purchased narcotics. The officer 
made the purchase from someone who, while appearing to be 
waiting for a bus, sold drugs to the officer from a bag that 
she carried. When our investigators observed the bus stop, 
approximately 8 to 10 people were seated there and appeared to 
be waiting for the bus. When a bus pulled up, however, none of 
the people who were sitting there got on board. As the 
investigators continued to watch, they observed other people 
approach the individuals who were seated at the bus stop, 
engage in conversation, followed by hand-to-hand contact, and 
then walk away.
    Adjacent to another clinic is a McDonald's restaurant. 
Local police detectives reported that the area surrounding the 
restaurant and clinic is a magnet for persons seeking to buy 
and sell narcotics. As a result, Federal, State and local law 
enforcement agencies cooperate in investigating illegal drug 
sales in the area. On repeated visits to this location, our 
investigators observed that individuals who stood outside the 
restaurant were approached by others, engaged in hand-to-hand 
exchanges with them.
    In our interviews of personnel at three clinics, they 
confirmed that there is extensive illegal drug activity in the 
vicinity of their clinics. A director at one clinic reported 
that it is especially difficult for these patients who are 
struggling with addiction to resist the temptations offered by 
the drug dealers who confront them on a daily basis outside the 
clinic.
    In conclusion, patients who seek treatment must navigate 
their way to and from the clinics in an environment in which 
illegal sales of narcotics are daily occurrences. The efforts 
of patients who are seeking rehabilitation and the clinic 
professionals who serve them are significantly undermined by 
the criminal activity that surrounds them.
    Mr. Chairman, this concludes my prepared statement, and I 
would be pleased to respond to any questions that you or other 
Members of the Subcommittee may have.
    Mr. Coble. Thank you, Mr. Cramer.
    [The prepared statement of Mr. Cramer follows:]

                 Prepared Statement of Robert J. Cramer



    Mr. Coble. We have been joined by the distinguished 
gentleman from Ohio Mr. Chabot.
    And I now I recognize our 1,000-year-old witness Mr. 
Patterson. I apologize for that mistake.

    TESTIMONY OF TYRONE V. PATTERSON, MANAGER OF THE MODEL 
  TREATMENT CENTER, DISTRICT OF COLUMBIA DEPARTMENT OF HEALTH

    Mr. Patterson. Thank you, Mr. Chairman.
    Good afternoon, Mr. Chairman, distinguished Members of 
Congress and the Subcommittee, colleagues, and concerned 
advocates and Members of the Committee. My name is Tyrone 
Patterson, and I am the program manager of Model Treatment at 
1300 First Street Northeast. I have been the manager since 
1991. As indicated in my bio. I have been involved in drug 
treatment for the last 28 years, but I have been affected by 
drug abuse for the last 52 years because I have lived in 
Washington, D.C., all my life.
    Just starting out--and I am going to go away from my text--
starting out as a counselor many, many years ago, we saw drug 
dealing in the many clinics we had in the city at that time, 
but being a counselor, there is only so much you can do. But I 
said after so many years, if I could get in a position to make 
an impact and make a difference, that I would do something 
about it.
    In 1991, I became a manager and started to do something 
about it after seeing it for so long, seeing my loved ones, 
friends, family, virtually come through a minefield of drug 
dealers reaching my clinic. And right now I look out my window, 
and I have a great big window, picture window, that I can see 
blocks and blocks away. And I can see--actually see patients 
who are confronted on a daily basis as they come to the clinic 
and as they leave. This makes me very angry, and it has made me 
more determined to get more involved not just calling the 
police or calling my superiors, but me actually going out on 
that corner and confronting drug dealers who know me, who know 
me from being in the treatment programs for so many years. But 
sometimes they don't go, they don't move, because I don't know 
all of them. And at times it is disheartening to see our folks 
that we work with relapse over and over again because the 
temptation is so great.
    Now, I am not a legislator. I guess I was brought here to 
put a human face on what we go through every day, but I am here 
representing our patients who struggle with this disease every 
day of their life. And when we can get them in the program and 
start that process of rebuilding their lives and doing things 
that we take for granted, like family outings, going to 
graduations, picnics, taking our families to the ballgames and 
going out on a date; believe it or not, things that we take for 
granted that we have done all our lives that these folks don't 
do anymore because their life is centered around drug abuse and 
the drug culture.
    I was undecided whether or not I should appear today, 
because I am not a politician. I am not--I don't understand the 
law totally, but I know that this will help in some way to let 
the drug dealers know that they cannot take advantage of the 
most vulnerable people that we have, and that is our people who 
are seeking treatment. I am determined not to let it happen 
whether you pass this bill or not. But I do think that the 
people who do sell drugs--and I said it in my testimony--that 
it should be a provision that the people who are selling just 
because they need it to maintain their own habit or just to be 
able to take care of their own humanly needs, there needs to be 
a provision in there that they receive treatment, that they are 
offered treatment.
    I think that is very important. I think that is what is 
being talked about all over this country, that treatment does 
work versus prison. But we have to offer it to them. We have to 
give them that option.
    Today I buried a very close friend of mine, who, after 45 
years, succumbed to drug addiction and died, and we buried him 
today. I looked at him in that casket, and I tried to save his 
life on four, five different occasions by getting him into 
treatment and exposed to treatment, but I couldn't save him. I 
could not save him. I couldn't save him from what has took 
control of his life all these years. And it has affected his 
family, the people who love him. It affected what he wanted to 
be, because he was a good artist. And he is not the only one 
that we have seen, a life that has been destroyed by drug 
addiction.
    I could stay up here really all day long and tell you about 
some of the stories, but I want to tell you one story what it 
means to really complete treatment. I had one gentleman after 
25 years complete treatment, and he was off for 90 days, and he 
came back to talk to me after 90 days being in recovery and he 
was free of all drugs. And he said, Mr. Patterson, this has 
been the best 90 days of my life in the past 25 years, and I 
just wanted to thank you and your staff for providing what you 
did for me in this program. One week later he passed. That 
really hurt me. And I thought about it. But what he was telling 
me--the reason he came back at this particular time was to say 
thank you, thank you for looking out for him and his best 
interests.
    This is what we see every everyday. This is what my staff 
sees. And there is so much I can tell you that 5 minutes is not 
really long to tell the story because I have 28 years of 
stories. But I am so glad and very humble to be here. All the 
patients that know I was going to be here, they are excited 
that I am getting an opportunity to tell their story, and 
hopefully I can tell more after this hearing is over if you 
want to ask some more questions and even come by the clinic. I 
will be glad to have you come by, and you can look out my 
picture window. Thank you again.
    [The prepared statement of Mr. Patterson follows:]

                 Prepared Statement of Tyrone Patterson

    Good afternoon Mr. Chairman, distinguished Members of Congress and 
this Subcommittee, colleagues and concerned advocates and members of 
the community. My name is Tyrone Patterson, Program Manager for the 
Model Treatment Program located at 1300 First Street, NE in Washington, 
D.C.--only blocks away from Capitol Hill. I am testifying today on 
behalf of the District of Columbia government and Mayor Anthony 
Williams.
    Through our Model Treatment Program, the Addiction Prevention and 
Recovery Administration (APRA) within the District of Columbia 
Department of Health (DOH) provides comprehensive opioid treatment, 
methadone medication, counseling, group education and case management 
activities for over three hundred patients. In addition, the Commission 
on Accreditation of Rehabilitation Facilities accredits the District's 
Model Treatment Program.
    I have worked in drug treatment for twenty-eight years, including 
twenty-two years in Model Treatment and serving as its Program Manager 
since 1991.
    It gives me great pleasure to testify before you today. Two years 
ago, when the Washington Post first interviewed me, I did not imagine 
that this issue would reach so far and impact so many. For that, I am 
truly grateful and honored. Beyond the fact that today marks my first 
time ever before a convened body of Congress, I remain extremely 
passionate and personally involved in the issues presented before us.
    I take my job very personally. I view it with a great sense of 
commitment and determination because it is so much more than just a 
job--it is a daily matter of life and death. I am in the business of 
saving lives. What we do in Model Treatment is save human beings from 
the negative and destructive grips of drug addiction. It is a struggle 
defined by spiritual and emotional skirmishes, trenches and body bags. 
We are on the front line of a great war and I take that responsibility 
very seriously. I also take great comfort in the fact that, each day, I 
am doing what's best to serve the common good and the community 
entrusting us to do just that. At Model Treatment, we do more than 
serve and treat addicts--we protect communities, families and children 
who are greatly impacted by substance abuse and addiction.
    It is heartening to know that I am on the right side of that 
battlefield.
    But, I also lead a troubled and worried life--a life burdened by 
the valley of shadow and death that I must travel through each day. 
Although I draw immense satisfaction from the good work that I am 
engaged in, I cannot help but be troubled. Each day brings with it 
uncertainty because of what we do and who we help.
    There is this notion--a stigma, in fact--that drug addiction is a 
behavioral problem caused by bad habits, personal sin and 
irresponsibility. I am here to tell you today that such a notion could 
be further from the truth.
    Drug addiction is a disease and a debilitating dysfunction of the 
brain. There are people that we help, treat and counsel for addiction 
who believe that what they are doing is actually NORMAL. In some 
instances, many are convinced, after so many years, that addiction is 
an acceptable way of life--that it becomes a normal routine. This 
belief is so ingrained that many become removed from what we take for 
granted. Many live in a completely different world. To the full-blown, 
fully engaged addict, priorities dramatically shift for the worse. Some 
lose focus of activities that were once important in their life: 
raising a family, taking a vacation, buying a house or reading a good 
book. Sadly, addiction becomes their sole purpose in life.
    This is a great challenge we face head on at Model Treatment.
    To many addicts, NORMALCY consists of the next high. This mindset 
runs deeper for those individuals that have lived with their disease 
for twenty or thirty years. Many addicts have not witnessed or 
experienced another way of life. Model Treatment is critical because we 
show addicts an alternative.
    People, particularly those defeated by addiction, must have access 
to different choices. If not, they can't understand what it's like to 
not be an addict. Hence, it becomes a battle for the soul since many 
are unaware of any other life or completely forget the life they once 
had. At Model Treatment, we engage addicts with a positive alternative 
and the potential for substantive and positive outcomes.
    Treatment by itself is a tough and arduous road. But, imagine being 
treated and looking forward to it, taking that first major step, and 
then forced to walk through a virtual minefield of temptation and 
addiction right outside the Program doors. Imagine being preyed upon by 
dealers only moments after you've made that critical first decision to 
seek treatment and create positive change in your life.
    Sometimes we win these battles. But, many other times, we don't 
win. Too many of our patients relapse as soon as they leave Model 
Treatment, finding themselves bombarded with opportunities to regress 
due to the overwhelming presence of drug dealers.
    It has been a severe and continuing problem for many years. Dealers 
traffic numerous illegal and addicting substances to our clients soon 
after they have undergone treatment. Each day, I survey this activity 
right below my office window, an anxious anthill of criminal motives, 
unabated, in a McDonald's parking lot and the corner of First and New 
York Avenues, NE. It is a sight that depresses and angers me.
    Fortunately, it has improved over the past several years due to 
coordinated planning and response with the Metropolitan Police 
Department (MPD). It still presents a pressing challenge, but we have 
found ways to fight back.
    Over the years, our vigilance and determination, in partnership 
with the MPD, has actually diminished much of this activity. Increased 
police presence and increased arrests, coupled by my own personal and 
sometimes dangerous confrontations with dealers, have dealt a major 
blow to the dark industry plaguing our patients. In addition, we have 
taken the dramatic, but highly useful, step of opening Model Treatment 
an hour earlier. We now open at 6:00 a.m. and begin medicating clients 
with methadone at 6:30 a.m. Many of our group sessions take place at 
5:30 a.m. Clients have admitted that new hours are too early for 
dealers who, we find, are too tired or too lazy to wake up that early! 
It may seem too simple to be that effective, but it works.
    You would be amazed to see how treatment works, because when it 
takes hold on an addict, they become alive. It's as though they're 
taking a breath of fresh air for the first time in their life. 
Suddenly, they view their addiction and the dealers much differently. 
We help them realize what made them vulnerable in the first place. They 
view the dealer negatively because they recognize that such a life has 
no positive influence or outcome.
    Treatment works because we actually show them that addiction and 
the dealing outside the Program walls are barriers. I routinely invite 
clients into my office to look outside and watch the dealers stalk 
their prey. This vivid display of unadulterated addiction actually 
angers, offends and saddens every client who witnesses it. We tell 
them: ``This is what you look like.'' They respond shamed and 
embarrassed, but they are also motivated to do something about it.
    As a result of our efforts, the patients themselves are telling 
dealers not to traffic around their Model Treatment Program. Patients 
routinely volunteer information about drug sales occurring around the 
entire block, including information about illegal and discrete 
trafficking within the McDonalds. The increased police presence and 
joint surveillance have been so aggressive that dealers find other ways 
by which they can sell their product.
    Ultimately, I want my people to feel safe and protected when 
entering Model Treatment. I'm also concerned that drug trafficking 
around our Program actually heightens the stigma attached to addicts 
and the places that treat them. It negates the good work that we do. 
This should, instead, be a peaceful and serene location where patients 
are undeterred in their quest for recovery and a better way of life. 
The comfort comes from the fact that I know the dealers and they know 
I'll call the police and have them chased away or locked up.
    In principle, H.R. 4547 directly addresses the problem by imposing 
penalties severe enough to make the dealer think twice. It brings with 
it grave consequences for the dealers and sends a stern message that we 
desperately need in our fight to save lives.
    My only concern is that H.R. 4547 lacks a provision that allows 
treatment for dealers that are addicts. There are some addicts so 
desperate for a hit that they will resort to dealing and endangering 
other addicts in order to get money for the next high. They are not 
really driven by profit; they too are struggling with a disease that 
has left them without options and no place to go. They feel the only 
way to survive is the next hit. The next hit, therefore, is obtained by 
gaining funds from drug sales. They do not recognize their faults 
because they are afflicted with this terrible disease, and they need 
treatment. In this case, I ask this body to consider an additional 
provision that balances increased penalties with opportunities for 
treatment. Such flexibility in this law would also address the concerns 
of advocates who have launched a nationwide movement favoring treatment 
over punishment.
    If the culture of substance abuse is pervasive and right at your 
doorstep, it makes the war many times harder to fight. This is why H.R. 
4547 has the potential to serve as a useful and effective resource in 
that fight. Model Treatment is an oasis of help in a desert of 
hopelessness. Yet, our oasis is surrounded by adversaries we confront 
daily. We need the necessary tools to help our clients reach that oasis 
safely and undeterred.
    Thank you, again, Mr. Chairman for this opportunity to testify 
before you today. I am available to answer any questions and look 
forward to working closely with this Subcommittee.

    Mr. Coble. You say you bring a human face to this, and you 
say you are not a legislator. Your human face, day in day out, 
is just as important and perhaps more so than legislating it, 
and thank you for bringing the human face to us.
    Mr. Bowman, good to have you with us. Recognize you for 5 
minutes.

    TESTIMONY OF FRANK O. BOWMAN, III, J.D., M. DALE PALMER 
       PROFESSOR OF LAW, INDIANA UNIVERSITY SCHOOL OF LAW

    Mr. Bowman. Thank you, Mr. Chairman, Ranking Member Scott 
and Members of the Subcommittee. It is an honor to appear 
before you.
    I am now a teacher, but for roughly 13 years, I was a 
prosecutor, Federal and State. For 7 years, I was an Assistant 
United States Attorney in Miami, Florida. I prosecuted many 
drug cases, and I have helped to send many drug traffickers to 
prison for lengthy terms.
    And becoming a teacher has not made me a wimp. I believe 
Federal prosecution is an important component of American 
antidrug efforts. I have no qualms about sending significant 
drug dealers to prison for significant periods. Nonetheless, 
the bill before you, H.R. 4547, seems to me ill advised, 
particularly at this moment in the history of Federal criminal 
justice. I have submitted extended written remarks explaining 
my position, and my oral presentation attempts to distill those 
written remarks into a couple of basic points.
    First, as you all know, on June 24, the Supreme Court 
decided Blakely v. Washington. The Court, in an opinion by 
Justice Scalia, found the Washington State sentencing 
guidelines unconstitutional. And for reasons I explain in 
detail in my written statement, Blakely almost certainly 
applies to the Federal sentencing guidelines, rendering them 
unconstitutional. As of last night at least five or six Federal 
district court judges have found Blakely applicable to the 
guidelines, including noted conservative scholar and Utah 
district judge Paul Cassell. I expect that this trickle of 
opinions invalidating the current regime is going to grow to a 
flood over the next few weeks.
    The result of Blakely has been chaos and paralysis 
throughout the Federal criminal system. Every criminal case 
resulting in conviction must, of course, have a sentencing, but 
because of Blakely, Federal prosecutors and judges simply don't 
know how to proceed. No definitive guidance will issue from the 
Supreme Court for months, and when that guidance comes, it may 
come in the form of an opinion voiding the guidelines and 
leaving the other branches to pick up the pieces.
    For this reason alone, today seems an inauspicious time to 
consider legislation which would materially alter statutes and 
guidelines governing the sentencing of the roughly 40 percent 
of all Federal defendants convicted of drug crimes. Several of 
my academic colleagues who have seen copies of this bill 
suggest that H.R. 4547 amounts to rearranging the deck chairs 
on the deck of the Titanic, and they may not, at least in the 
short term, be far wrong. And thus I would strongly suggest 
that at a minimum, consideration of this bill be deferred and 
that this Committee direct its immense talents to preventing 
the ship of Federal sentencing law from slipping below the 
waves. I propose in my written remarks a simple statutory fix 
which might bring the guidelines into conformity with Blakely.
    My second point, however, is even if we were not in the 
midst of the Blakely earthquake, this bill should not be 
enacted. Virtually all of the bill's provisions are subject to 
some criticism. I'm going to focus on only two: Its mandatory 
minimum sentence provisions and its rollback of existing 
guidelines rules mitigating sentences for first-time and low-
level drug offenders.
    As you know, the very idea of mandatory minimum sentences, 
particularly quantity-based drug sentences, has long been 
subject to criticism. For myself, I don't necessarily oppose 
mandatory sentences in principle so long as such sentences meet 
certain common-sense preconditions. Among these are that 
mandatory sentences be narrowly targeted at offenders that 
deserve them, and that the sentences not be disproportionate to 
the offense.
    The mandatory sentences in this bill fail to meet these 
common-sense preconditions. Sections 2 and 4 of the bill create 
what I call proximity provisions; that is, in the name of 
protecting children and of recovering drug addicts from drug 
dealers, which are certainly laudable goals, they impose 5- and 
10-year minimum mandatory sentences on virtually every Federal 
drug crime regardless of drug type or amount committed within 
1,000 feet of a long list of public and private facilities. The 
result, as indicated in my report, is to impose 5-year minimum 
mandatory sentences on virtually every Federal drug offense 
committed in an urban area in this country.
    That result is objectionable for at least three reasons. It 
is widely overinclusive. It imposes high minimum mandatory 
sentences on literally thousands of defendants whose activities 
pose no threat to children or to recovering drug addicts. It is 
irrational in that it creates huge sentencing disparities 
between identically situated defendants based on the fortuity 
of their distance from a swimming pool, library or video 
arcade. And finally, if actually enforced, it would exacerbate 
racial and economic disparities in drug sentencing by imposing 
dramatically higher sentences on drug transactions in urban 
areas which are disproportionately inhabited by minorities and 
the poor.
    Section 2 of the bill is directed to deterring the sale of 
drugs to children by imposing mandatory sentences on persons 
who distribute to minors and young adults. While that, too, is 
a laudable objective, the actual language of the bill would 
impose 5- and 10-year mandatory sentences on young adults who 
sell or exchange personal use quantities of drugs to one 
another. For these and other reasons, which the passage of my 
time precludes me from getting to at the moment, it seems to me 
that this bill is primarily simply unnecessary.
    It seems to me that there is very little public request for 
a drug bill of this kind. Certainly there is no request for it 
from the Federal judiciary, none from the defense bar, none 
from the broader public. And I must say that, at least among 
line Federal prosecutors, I can think of none of them, or 
certainly very, very few, who would think that a drug bill of 
this type was necessary for them to do their important work.
    [The prepared statement of Mr. Bowman follows:]

               Prepared Statement of Frank O. Bowman, III



    Mr. Coble. With two of us here, I think time will permit 
for a second round of questioning. Ms. O'Neil, we impose the 5 
minutes against us, too, so if you could make your answers 
terse, we would appreciate that.
    Mr. Patterson in his testimony, Ms. O'Neil, indicated that 
there are some traffickers who are feeding their own habit by 
selling drugs. Are there different ways of addressing low-level 
offenders in the District of Columbia that allow the option of 
the treatment first prior to sentencing, A; B, are there 
treatment options available for traffickers who are sentenced 
to an active Federal prison sentence; and how is the decision 
made with regard to sentencing someone to an active prison 
sentence versus drug court?
    Ms. O'Neil. Mr. Chairman, as you just alluded to, there are 
several ways to deal with drug traffickers. And though I am not 
an expert in the State system, I have practiced my entire 
career in the Federal system, I am aware here in Washington, 
D.C., that they do have a drug court program, and that is a 
system whereby you are able to, in lieu of prison time, move a 
person into a treatment program that has very specific limits, 
goals and targets for the person that they must complete. They 
do extensive treatment, they have retraining efforts, and they 
are constantly monitored by the court. And if they fail to 
complete their treatment successfully, then they actually go 
into a more incarceration program, a prison program.
    Drug courts can be very successful. As I said, since I am 
not an expert of the State system or the D.C. System, I don't 
know what exact processes are used by the District of Columbia 
or other States to decide whether they will recommend 
candidates for the particular drug court programs at issue.
    With regard to the Federal court system, we offer a number 
of programs through the Federal Bureau of Prisons for Federal 
inmates who are incarcerated for drug offenses and for other 
sentences. They are able to get drug abuse education where they 
receive information about alcohol, drugs and the physical, 
social and psychological impact of their addiction. Fifty of 
the BOP institutions in the country offer what is known as the 
residential drug abuse treatment program. This is a program 
that is designed to provide inmates with very intensive 500 
hours of drug abuse treatment, 4 hours a day, 5 days a week for 
9 months. We find that the likely use of drugs after completing 
this program is severely diminished.
    We also have informal group therapy within the Bureau of 
Prisons and what is called a transitional drug abuse treatment 
program, which provides the general population with information 
about drug treatment and effective transition from the prison 
institution to the community.
    Mr. Coble. Thank you.
    Mr. Cramer, you may not know the answer to this, but I am 
interested in knowing what comes first, the trafficker or the 
treatment center? Do your studies reflect on that?
    Mr. Cramer. No. Our study doesn't really reach that 
question.
    Mr. Coble. I was just thinking aloud now whether the need 
is in the X section of the city, so we will locate the center 
here, as opposed to traffickers already there, or after the 
center is located and the traffickers are attracted to the 
center and the vulnerable activity that is forthcoming.
    Let me ask you this: Were there instances where you 
observed children involved or being exposed to these drug-
trafficking activities?
    Mr. Cramer. During our observations that we were there 
many, many times, we did not actually see children among the 
groups of people who were--appeared to be selling drugs. We did 
not make observations of that kind ourselves.
    Mr. Coble. Mr. Patterson, I am going to get to you on my 
next round, but let me put this question to Mr. Bowman. Given 
the Blakely decision--and it has recently been handed down, and 
I have not read it--what other choice does Congress have 
besides mandatory minimums if we wish to ensure that these 
individuals who are preying on America's most vulnerable 
receive active sentences?
    Mr. Bowman. Mr. Chairman, I believe there is a way to 
essentially restore the viability of the Federal sentencing 
guidelines with a relatively simple statutory fix, which is 
outlined in my written remarks, but it is a little too 
complicated to talk about in this short period of time.
    I would go beyond that, however, and I think to respond to 
what I take to be a more particular question, the difficulty 
that I see in general with much of this bill is simply its 
overbreadth. No one can argue with the objective here that is 
preventing sale of drugs to children, preying on addicts. But 
it would be simple, I think, to draft statutory provisions that 
are narrowly directed at those who do those activities, who 
actually sell to addicts, who actually sell to children, rather 
than drafting what we have here, a bill which imposes 5- and 
10-year minimum mandatory sentences on virtually everybody who 
commits a drug crime in an urban area.
    Mr. Coble. I see my time has expired.
    Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Ms. O'Neil, you said some nice things about drug courts and 
how effective they are. Of course, this is a Federal bill in 
the Federal system. Is there anything in the bill that makes an 
activity that is legal now illegal, or all the activities in 
the bill already illegal?
    Ms. O'Neil. Well, certainly drug trafficking is illegal, 
period. What the bill does effectively is to increase the 
penalties for conduct when it is in its most egregious forms, 
either involving addicts or children.
    Mr. Scott. There is nothing in here that has any 
diversion--there is no diversion possibility. If you go to 
court under this and get prosecuted under this, then you get 
the increased sentence; is that what I understand?
    Ms. O'Neil. You will get the increased sentence, although 
like all other mandatory minimum provisions, offenders who are 
subject to mandatory minimums have the opportunity to 
cooperate, for example, and to provide information about the 
other individuals who were involved in the activity and to be 
relieved from those mandatory minimum sentences. And that is, 
of course, a very important aspect of this bill, because it is 
one of the ways that we are most effective in drug enforcement, 
by obtaining information from individuals involved in drug 
activity.
    Mr. Scott. Has the Department of Justice suggested 
draconian penalties for securities fraud and other things where 
life without parole and those kinds of things would be 
available unless you told everything you knew?
    Ms. O'Neil. The Department of Justice enforces the laws 
that Congress passes, and we believe it is up to Congress to 
determine what is egregious. And if securities fraud were 
determined to be sufficiently egregious, then we would seek 
mandatory minimums. We would enforce them, and we would 
encourage people to cooperate.
    Mr. Scott. Are you testifying in favor of the legislation?
    Ms. O'Neil. In favor of a number of the provisions in the 
legislation, yes.
    Mr. Scott. Are you testifying against any of the provisions 
in the bill?
    Ms. O'Neil. As I have put forth in the written remarks that 
I have submitted, we do have some concerns with certain 
provisions of the bill, and we are hoping that we will have the 
opportunity to work more fully with the Committee to address 
some of those concerns and those provisions.
    Mr. Scott. You indicated the mandatory minimums were good 
in appropriate cases. Are you aware of any case in which the 
Department of Justice has testified against mandatory minimums; 
this Department of Justice and this Administration has 
testified against any mandatory minimums?
    Ms. O'Neil. I am not aware of all of the people who have 
testified on behalf of the Department of Justice.
    Mr. Scott. In terms of the age in dealing with children, is 
the age of the defendant a relevant factor; that is, if a 
person is 17, is it relevant whether the defendant is 17 or 18?
    Ms. O'Neil. With regard to what is proposed in the 
legislation or with regard to the general impact of drug 
trafficking?
    Mr. Scott. In the imposition of mandatory minimums, if you 
deal to somebody who is 17 years old, does it matter whether 
the person who is dealing is 40 years old or 17 or 18 himself?
    Ms. O'Neil. With regard to this legislation, there are some 
distinctions made with regard to individuals over 21 who deal 
to individuals who are under the age of 18, and in those cases 
have more harsh mandatory minimums.
    Mr. Scott. If you are in a fraternity or a sorority, for 
personal use going back and forth, the seniors in college would 
be at severe risk if they are dealing with freshman fraternity 
members.
    Ms. O'Neil. That would be the case, and they ought to know 
better.
    Mr. Scott. Do you know how much this bill will cost to 
implement?
    Ms. O'Neil. I do not. I would be happy to try to obtain 
that information, but I don't have that information.
    Mr. Scott. You are testifying in favor of the bill, and you 
don't know how much it is going to cost?
    Ms. O'Neil. I personally don't know how much it would cost.
    Mr. Scott. Mr. Bowman, you indicated that there were areas 
that the legislation might cover, a significant area of a 
particular city. Do you have any charts to demonstrate that?
    Mr. Bowman. Yes, I do. If we could have the Power Point, 
please?
    Essentially--if we go to the second slide, please. Next 
slide. Next slide. Next slide.
    What this slide shows is a chart of the city of New Haven, 
Connecticut. Turns out that several years ago, Connecticut had 
a series of laws not dissimilar from the one being suggested 
here today in that these laws created minimum mandatory 
sentences for drug sales and other transactions within 1,500 
feet of a variety of facilities involving children and schools 
and so forth. As part of the Connecticut Legislature's 
consideration of these bills and their minimum mandatory 
effect, they had their legislative research office proceed to 
map all the areas of New Haven and other Connecticut cities 
where the law would actually apply. This is a map of New Haven, 
Connecticut, and as you can see, the Connecticut legislation 
would have covered virtually the entire city of New Haven. I am 
told by reliable sources that it covers the entire city of New 
Haven except the Yale golf course and a swamp.
    Now, this Connecticut legislation is dissimilar from the 
Federal legislation being proposed here today in that the 
circle around the affected area is somewhat larger, 1,500 feet 
rather than 1,000. The Federal legislation is dissimilar from 
the Connecticut legislation in that the list of protected 
facilities is much, much, much longer. So this map that you see 
in front of you is, I think, at least a reasonably fair 
approximation visually of the effect of this legislation in any 
major American city. And everywhere in which you see one of 
those circles, any drug transaction, any quantity or amount 
except marijuana transactions less than 5 grams would draw a 
minimum mandatory penalty under this legislation of 5 years.
    Mr. Coble. Mr. Chabot was coming back. Let us have a second 
round.
    Mr. Patterson, we oftentimes hear that drug trafficking is 
a nonviolent offense. I am sure you probably heard that. You 
have seen it up close. As you say, you are the human face. You 
have seen what drugs and drug addiction can do to victims, 
destroying lives or disrupting families. I suspect--strike 
that. I shouldn't speak for you. Let me ask you, do you 
conclude that drug trafficking is, in fact, a violent offense? 
And how about sharing some observations with the Subcommittee.
    Mr. Patterson. Mr. Chairman, in the sense of how you are 
phrasing that as far as a violent offense, it is a violent 
offense to the person who is using. The problems that they 
experience after becoming addicted with the loss of their 
families, loss of their goals and loss of who they are, the 
purpose of trying to get a chance to experience things that we 
experience every day, in that sense, yes, I think it is--you 
could phrase it that way. I don't know if I would phrase it 
that way, but it does have a damaging effect on all of us 
because it affects our communities. It affects the people we 
love. You have to excuse me. I am reflecting on my friend who 
passed.
    Mr. Coble. Let me ask you this: We live in a very violent 
era now, as you know. And you mentioned about your picture 
window that affords you a very advantageous vantage point to 
observe various activities that go on. I hope you have not been 
targeted for any threat or anything along that line. Have you 
been? Or if you want to decline to answer that, you may do so 
as well.
    Mr. Patterson. I have gotten angry looks, but other than 
that, not directly. I guess it is because of my association 
with so many people in the District, being involved with 
families, and at some point in time, drug traffickers have been 
in one of our programs over the 28 years I have been involved. 
I have worked in three different programs, so I even know them 
or know their families or have been in some kind of contact 
with them.
    Mr. Coble. Well, you, probably more than anybody in this 
hearing room, know the drastic and terrible effects of drugs. I 
started to say, when Mr. Scott and I were young, but since I'm 
about two decades older than he, that would not be appropriate. 
But when I was a youngster, I guess smoking a cigarette or 
consuming a bottle of beer was about the closest thing to what 
would be drugs today. Someone asked me the other day if I ever 
did drugs. Well, I did not do drugs; they weren't available.
    But I think--well, I'm going to get to that. They weren't 
available. But Mr. Scott wanted to know, would I have if I 
could. I would like to think that I would not have. I think I 
would have had the requisite discipline to have avoided that. 
But, you know, that's easy for me to sit here and conclude 
that. But I appreciate you all being here, folks.
    And I want to recognize Mr. Scott for another round, for 
his second round.
    Mr. Scott. Thank you.
    Mr. Cramer, one of the things we want to look at is how the 
provisions in the bill will actually reduce the illegal 
activities. Sometimes it will state a problem and then present 
a bill without connecting how the bill will actually deal with 
the problem. Were there any activities that you saw that we are 
complaining about that are legal now that would now be--would 
be illegal under the bill? Or is everything that you saw that 
we are complaining of already illegal?
    Mr. Cramer. I haven't done a complete study of the bill in 
preparation for this hearing, so I can't speak with any 
authority to the actual provisions of the bill. Of course, all 
of the illegal drug trafficking that we saw would certainly be 
illegal today.
    Mr. Scott. Well, if it's illegal and they are prosecuted 
and convicted and get the time that is presently available, is 
the problem that people are getting out too soon?
    Mr. Cramer. Well, some might argue that.
    Mr. Scott. But you didn't see any of that? That's not your 
testimony?
    Mr. Cramer. No, that is not my testimony. You know, we have 
come here today basically to provide the Committee with the 
information about our observations.
    Mr. Scott. And that you saw the drug activity going on?
    Mr. Cramer. Yes.
    Mr. Scott. And without any suggestion that the passage of 
the bill will make that any more or less likely?
    Mr. Cramer. I'm not speaking to that issue, sir.
    Mr. Scott. Okay. Mr. Patterson, you know, we have choices 
to make in how we deal with problems. Is it your opinion that 
there would be less drug use going on, less drug use going on 
if we spent money jailing people longer or if we gave you more 
funding for drug treatment?
    Mr. Cramer. Well, let me just say this. It would act as a 
deterrent from--as a deterrent from drug dealers being able to 
sell drugs in front of my program or in a--within a thousand 
feet.
    Mr. Scott. Wait a minute. They can't do that now legally; 
can they?
    Mr. Patterson. What's that?
    Mr. Scott. Sell drugs within a thousand feet.
    Mr. Patterson. Well, yes. But what happens is----
    Mr. Scott. And what's the penalty for them selling drugs 
right now within a thousand feet of your facility?
    Mr. Patterson. I'm not sure what the D.C. Law states.
    Mr. Scott. Well, this isn't going to change D.C. Law.
    Mr. Patterson. Or the Maryland law.
    Mr. Scott. Or the Federal law. Now, after we pass it, are 
people going to know?
    Mr. Patterson. Yes, we will, because we will get the word 
out.
    Mr. Scott. Well, you didn't get the word out the last time 
we passed the bill.
    Mr. Patterson. What? About----
    Mr. Scott. What the penalty is.
    Mr. Patterson. Yes, we did. But when you are addicted or 
when you are out there selling drugs for profit, they don't 
read these bills, they don't really understand what's going on.
    Mr. Scott. You are absolutely right.
    Let me ask you. If you had--if we had, you know, one person 
going from 5 to 10 years would cost about $100,000. If we took 
one person off the street instead of for 5 years for 10 years, 
left everything the same, that would cost us about $100,000. 
Would we be better off spending that $100,000 in drug 
treatment?
    Mr. Patterson. Yes, of course. I mean, any more money 
that----
    Mr. Scott. Of course?
    Mr. Patterson. Of course, any more money that you can give 
us to treat people who have the disease of addiction would 
always be--we would be grateful for. But I can't answer that 
law, whether or not providing a maximum minimum provided in 
this bill would have an effect. I can't tell you that. I don't 
know whether or not, you know, that.
    Mr. Scott. Do you have a waiting list for services?
    Mr. Patterson. No.
    Mr. Scott. Anybody that wants treatment can get it now?
    Mr. Patterson. Yes.
    Mr. Scott. And are you able to treat people as--what kind 
of recidivism rate do you have? When people come to you, how 
successful are you?
    Mr. Patterson. I don't have that figure. I guess we could 
give that back to you later.
    Let me just say this. You know, I'm not really familiar 
with all the legislation, and I'm just here to put a human face 
on what we see every day. I don't know whether or not the bill 
would have a major effect or not because I don't--because 
that's something that's on a broader picture.
    But what I do know is what I see. And I see my folks, after 
they receive treatment, after they receive hope, walk out my 
door--right outside my door on a--and are almost accosted by 
the drug dealers as they leave my facility.
    Mr. Scott. That's illegal now. Right?
    Mr. Patterson. Yes, it is.
    Mr. Scott. It will be illegal after this bill passes.
    Mr. Patterson. Yes, it is. But I can only address what it 
does to my patients and how it affects them. And let me just 
say this, my patients, what we have talked about, this bill and 
what it would do, a lot of them are in favor of having this 
bill pass because it will give them an opportunity to come to 
the clinic and instead of going through a mine field----
    Mr. Scott. Wait a minute. And if it's illegal now, what 
assurance do we have that it's going to be--what is the penalty 
for those drug dealers dealing right in front of your facility 
today? They are facing 5 years mandatory minimum. If the police 
would come arrest them and prosecute them, they would be gone 
for 5 years right now.
    Mr. Patterson. Well, I can't answer that. I cannot answer 
that.
    Mr. Coble. Mr. Goodlatte, does the distinguished gentleman 
from Virginia have a question, Bob?
    You are recognized.
    Mr. Goodlatte. Thank you, Mr. Chairman. I appreciate your 
holding this hearing.
    Mr. Patterson, will all the drug treatment in the world be 
effective if drug traffickers prey on people coming out of 
these clinics or waiting early in the morning to get their 
treatment to go into the clinic? We have had this issue come up 
in my own hometown. The question is, will these facilities work 
if they are a magnet for the drug traffickers who know that 
that's a place that they can go to find people to buy drugs and 
will entice them to get the real thing rather than the 
substitute that's being offered by the drug clinics trying to 
wean them away from the hard core drugs?
    Mr. Patterson. Yes, I'm in agreement with that. What we 
have done at Model Treatment, we started opening up an hour 
early. That has made a difference, because many drug dealers 
are not up at that early in the morning. We open up at 6:30 and 
start medicating at 6:30. It has increased much upon the police 
presence in our area.
    But, again, I'm talking about the person who doesn't really 
look at all that. All they know is that when they come out of 
my facility, people are pushing that--all the drugs that they 
sell--right up into their face. The temptation is great, 
especially when you are just coming into a facility, especially 
when you start to receive the benefits of the treatment, of 
somebody caring for you.
    Mr. Goodlatte. You want to keep those other people away 
from them.
    Mr. Patterson. Absolutely. I mean, you have got to realize 
that people have been doing this for 20 and 30 years. They 
don't know any other life. And when they see that drug dealer 
right outside the door once they come out of treatment, it's--
it's disheartening to me to have to see them have to go through 
that every single day.
    Now, I don't know whether or not the law is going to make a 
difference in that or not. I just don't know. But at least I 
don't have to see that drug dealer. And once the word gets out, 
that drug dealer is going to know that he cannot sell drugs in 
front of my facility. He is going to know that he is going to 
get stiffer penalties if he sells drugs outside my facility.
    Mr. Goodlatte. Thank you.
    Ms. O'Neil, do you believe that this legislation will help 
deter drug traffickers who choose to use children to deliver 
drugs because of the perception that children will receive 
lesser sentences?
    Ms. O'Neil. I do believe that this bill will have an impact 
on people who choose to use children for several reasons. 
Number one, as you noted, there is a perception among drug 
trafficking organizations, or actually a knowledge, that a 
number of juveniles do not get prosecuted, particularly in the 
Federal system. And so, for particular reasons, they will use 
youngsters and juveniles in connection with their drug 
trafficking activity.
    They also know that juveniles make very good decoys. If 
they have an infant traveling with them while they smuggle 
drugs, they are much more likely to get through Customs quicker 
or to draw less attention than if they do not. And right now, 
it's a win-win for the drug dealer. The drug dealer can entice 
the juvenile to become involved in the trafficking activity 
with the suggestion that they won't receive stiff penalties, 
and there is no additional penalty for the trafficker who 
employs him. The penalty is a minimal one, and to a large 
extent, the traffickers believe that that is not going to have 
any major impact on them. This legislation will change that 
perception.
    Mr. Goodlatte. As a former U.S. attorney, have you seen 
many cases where children are exposed to drug manufacturing or 
dealing inside their own homes? Besides the danger of these 
children becoming addicts themselves, what other dangers does 
this activity pose to children?
    Ms. O'Neil. I am sad to say, I guess, that I have during my 
career as an Assistant United States Attorney seen several 
examples of children being involved in drug trafficking. While 
I was in Georgia--though it was not a case I prosecuted 
personally--we had a methamphetamine laboratory in north 
Georgia explode. An infant was living there with its parents, 
and when the lab exploded, the infant was left to burn in the 
laboratory. The child subsequently died. That is probably one 
of the most extreme examples of a child being involved.
    But the Drug-Endangered Children's Program has numerous 
other examples of raids and arrests where they have recovered 
children crawling around in the floors of methamphetamine 
laboratories with their toys scattered next to the dangerous 
chemicals that are being used. So that is a very severe 
problem.
    In addition, I have personally worked on investigations 
where we have found children at the time of a search warrant or 
at the time of an arrest of their parent in the proximity of 
drugs, drug paraphernalia, guns, because those are all tools of 
the trade.
    We have also had a case in the Organized Crime Drug 
Enforcement Task Force Program that I am involved with, an 
operation that was done called Kids for Cover, where they used 
infants to smuggle liquefied cocaine into the country. They 
carried the cocaine in the infant baby formula cans, the same 
identical baby formula cans they used to feed the infants. And 
had they made a mistake, it would have been dreadful for the 
child.
    In addition, I am aware that, in one case, the courier who 
had an infant with her was an addict herself and left the child 
in the arms of a stranger while that courier went to get her 
own heroin fix.
    So these are very serious problems, and unfortunately, this 
is the type of conduct that we must deal with, and it's the 
type of conduct that we are happy this bill will address.
    Mr. Goodlatte. Thank you.
    Thank you, Mr. Chairman.
    Mr. Coble. I thank the gentleman.
    Mr. Scott has one last question.
    Let me mention one subject very quickly to the professor, 
and then I will recognize Bobby.
    Professor, alluding to your diagram of New Haven, the 
various sectors of New Haven. If you could shut down the 
trafficking in one or more of those sectors, that appears to me 
to be a good purpose and been served. Would you not agree?
    Mr. Bowman. That assumes, of course, that passage of a bill 
that would impose minimum mandatory penalties on the entire 
city would achieve the targeted result that you are attempting 
to achieve. I mean, that, I suppose, Mr. Chairman, is the 
difficulty that I have with the entire tenor of this hearing, 
with the greatest respect to my fellow witnesses.
    It's all very well to talk about drug dealers preying on 
drug addicts. It's all very well to talk about children who are 
affected by drug trafficking. Those things are terrible. And 
it--but it would be and is quite easy--first of all, all those 
things are already illegal. But if you want to enhance the 
penalties, it would be quite easy for this Committee to draft 
and forward to Congress, as a whole, targeted provisions that 
deal with those evils. But that is not what this bill does.
    I am a great admirer of Justice Scalia, Mr. Chairman, who 
doesn't think much of congressional intent. Justice Scalia says 
to all of us, ``Look at what the legislation says.'' And the 
legislation that you propose or that is proposed before this 
Committee is not focused on the conceded ills which the other 
witnesses have talked about here. The legislation that this 
Committee is considering would throw a net over every urban 
area and every drug transaction in this country involving urban 
areas regardless of whether those transactions had the 
slightest thing to do with drug treatment, the slightest thing 
to do with children. And that, Mr. Chairman, it seems to me is 
what's wrong with this legislation.
    Mr. Coble. Thank you, sir.
    I recognize Mr. Scott for his final question.
    Mr. Scott. Thank you.
    Ms. O'Neil, dealing with children is already illegal now. 
What is the additional penalty for dealing with children?
    Ms. O'Neil. Well, what this does is increases the mandatory 
minimum that exists for some of the----
    Mr. Scott. What is the present penalty for dealing with 
children?
    Ms. O'Neil. For some of the statutes there is a 1-year 
mandatory minimum sentence.
    Mr. Scott. Wait a minute. What is the penalty?
    Ms. O'Neil. Well, the penalty would be driven by the 
quantity of drugs that is involved. So it's impossible to 
determine----
    Mr. Scott. Is it not twice the normal sentence with a 1-
year minimum?
    Ms. O'Neil. That's correct.
    Mr. Scott. Twice the normal penalty with the 1-year 
minimum?
    Ms. O'Neil. Right. Which would be driven by the quantity 
involved in the offense.
    Mr. Scott. Twice the normal penalty for dealing with 
children.
    Ms. O'Neil. But that would be the maximum penalty. That 
would not be the penalty imposed necessarily under the 
sentencing guidelines.
    Mr. Scott. Twice the maximum penalty.
    Ms. O'Neil. That's right.
    Mr. Scott. Okay. And you are not enforcing the law with 
that. Why would we expect you to enforce the law if we passed 
the bill?
    Ms. O'Neil. Well, Mr. Scott, with all due respect, we are 
enforcing the law. The Justice Department has had a number of 
successful cases----
    Mr. Scott. Mr. Patterson says that people, right outside 
his door every day, that people can't leave his facility 
without running into drug dealers.
    Ms. O'Neil. The difference is that when you set mandatory 
minimum sentences, you send a clear message that this is 
important, this is egregious conduct, this is conduct that will 
not be tolerated. What that translates to----
    Mr. Scott. Are there not minimums now?
    Ms. O'Neil. But they are very weak mandatory minimums. As I 
said in my opening statement, what we have are people involved 
in the drug business who are risk takers. Going to jail is a 
cost of doing business. The potential, perhaps, of a 1-year 
mandatory minimum is a cost of doing business which a number of 
these drug dealers are willing----
    Mr. Scott. You're talking about deterrent effect. I'm 
talking about enforcement of the law. Are you more likely to 
enforce the law if this bill passes than you are now?
    Ms. O'Neil. We enforce all of the laws. But as I said, this 
sends a clear message that this is a priority for Congress and 
for the American people, and we will treat it as such.
    Mr. Scott. Are you more likely to enforce the law if this 
bill passes than you are now? And I think I'm hearing, no, you 
are going to enforce it the same way.
    Ms. O'Neil. What we will do is that, there may be cases 
where it becomes appropriate to make use of--more appropriate 
to make use of this particular statute than it is currently.
    Mr. Scott. Well, this is a sentencing statute. It's not an 
allocation of resource statute. Are you going to allocate more 
resources to Mr. Patterson's front door if this bill passes 
than you are now?
    Ms. O'Neil. I personally can't decide how the resources 
will be allocated. But I can tell you, as I said, that, by 
sending a clear message, that this is important and that this 
is conduct that we are going to take very seriously, our 
resources tend to follow those crimes.
    Mr. Scott. We can send you a message with a resolution. We 
don't have to change the statute.
    Let me ask Mr. Bowman a question. Do you have any evidence 
that increasing penalties has a significant deterrent effect on 
crime? And a follow-up question: Can you talk about the 
overbreadth in terms of how this bill deals with young people, 
college students, fraternity and sorority members? But the 
deterrent effect. If you increase the penalty, what kind of 
deterrent effect, if it's already a 5-year mandatory minimum, 
what deterrent effect would a 10-year mandatory minimum have on 
the--on behavior if there is no increased enforcement?
    Mr. Bowman. Well, if there is no increased enforcement, I 
think the likely additional deterrent effect is nearly zero. 
But even if there were increased enforcement, I think it 
depends on the additional increment of punishment.
    One of the points that strikes me about Mr. Patterson's 
situation is that, I presume, though I certainly do not know, 
that one of the substances which is which is regularly 
trafficked in front of his door is crack cocaine. And if that 
is true, the mere possession of 5 grams of that substance 
already draws a 5-year minimum mandatory penalty. It seems a 
little hard to understand how creating an additional 5-year 
minimum mandatory for essentially the same conduct is going to 
do much.
    Now, with respect to the question of the effect on children 
and minors, one of the significant provisions of this proposed 
bill is that it's at least titled as being directed at the sale 
of drugs by adults to children. But in fact, once again, if we, 
with Justice Scalia, actually look at the text of the bill, 
what we find is something rather more striking.
    Could we have the--could I have the PowerPoint once again? 
Could you--next slide.
    Mr. Coble. Mr. Bowman, if you can sort of accelerate? 
Because I was supposed to be somewhere 5 minutes ago.
    Mr. Bowman. Mr. Chairman, I will be finished in--if you can 
give me 30 seconds.
    All right. Keep going. Another. Another. Another. Another. 
Okay.
    This is what I call rush time at the Delta House. Imagine a 
sorority--this is a little facetious, Mr. Chairman. I hope you 
will forgive a little facetiousness on a serious topic. But 
let's assume a college sorority in which Muffy, an 18-year-old 
freshman, sells 6 grams of marijuana, three or four marijuana 
cigarettes to Sally, who is a 20-year-old junior. Under this 
law, Muffy's mandatory minimum sentence would be 5 years. If we 
assume Buffy, a 21-year-old senior, were to sell one tab of a 
party drug, Ecstasy, to Missy who happens to be 17 years old at 
the time, she is a freshman, Buffy, the 21-year-old, draws a 
minimum mandatory sentence of 10 years.
    Next slide, please.
    And if it were to happen that Buffy just happened to have 
some kind of felony, prior felony drug conviction, like, for 
example, felony possession of marijuana--if she sold that one 
tab of Ecstasy to Missy, the 17-year-old, Buffy's mandatory 
sentence under this bill would be life imprisonment without 
parole. She goes out of prison in a box.
    Now, that, I think, is overbroad legislation.
    Mr. Coble. Okay. I think we are about to wrap up here, 
folks. I think it has been a good hearing.
    Ms. O'Neil, for my information, is there currently 
additional penalties outside drug treatment centers?
    Ms. O'Neil. No. The penalties that I was addressing for Mr. 
Scott's question involved various penalties involving 
distribution to minors. We have no additional penalty for 
distribution within the vicinity of a drug treatment center.
    Mr. Coble. Folks, we appreciate you all being here.
    Mr. Scott. I ask unanimous consent that a letter from the 
ABA opposing the mandatory minimums and this particular 
legislation in particular be introduced for the record.
    [The information referred to follows in the Appendix:]
    Mr. Coble. Without object. And I want to thank each of you 
for being here, folks. We may be visiting with you again.
    The record, by the way, will be open for 1 week, 7 days.
    This concludes the legislative hearing on H.R. 4547, the 
``Defending America's Most Vulnerable: Safe Access to Drug 
Treatment and Child Protection Act of 2004.'' Thank you again 
for your cooperation. The Subcommittee stands adjourned.
    [Whereupon, at 5:23 p.m., the Subcommittee was adjourned.]


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               Material Submitted for the Hearing Record



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