[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



 
DEFENDING AMERICA'S MOST VULNERABLE: SAFE ACCESS TO DRUG TREATMENT AND 
                      CHILD PROTECTION ACT OF 2005

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                                   ON

                               H.R. 1528

                               __________

                             APRIL 12, 2005

                               __________

                           Serial No. 109-41

                               __________

         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
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  ADAM SMITH, Washington
MIKE PENCE, Indiana                  CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             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

DANIEL E. LUNGREN, California        ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin                SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida                  MAXINE WATERS, California
STEVE CHABOT, Ohio                   MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida                  WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas

                      Jay Apperson, Chief Counsel

           Elizabeth Sokul, Special Counsel for Intelligence

                         and Homeland Security

                  Michael Volkov, Deputy Chief Counsel

                 Jason Cervenak, Full Committee Counsel

                     Bobby Vassar, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             APRIL 12, 2005

                           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. Jodi L. Avergun, Chief of Staff, Drug Enforcement 
  Administration, U.S. Department of Justice
  Oral Testimony.................................................     5
  Prepared Statement.............................................     7
Mr. Ronald E. Brooks, President, National Narcotic Officers' 
  Associations' Coalition (NNOAC)
  Oral Testimony.................................................    11
  Prepared Statement.............................................    12
Ms. Lori Moriarty, Thornton Police Department, Thornton, 
  Colorado, Commander, North Metro Drug Task Force, and 
  President, Colorado's Alliance for Drug Endangered Children
  Oral Testimony.................................................    15
  Prepared Statement.............................................    16
Mr. William N. Brownsberger, Associate Director, Public Policy 
  Division on Addictions, Harvard Medical School
  Oral Testimony.................................................    19
  Prepared Statement.............................................    22

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of Catherine M. O'Neil, Associate Deputy 
  Attorney General, and Director, Organized Crime Drug 
  Enforcement Task Forces, United States Department of Justice, 
  before the Subcommittee on Crime, Terrorism, and Homeland 
  Security, July 6, 2004.........................................    57
Article entitled ``Drug Market Thrives By Methadone Clinics,'' 
  Serge F. Kovaleski, Washington Post Staff Writer, The 
  Washington Post, August 12, 2002...............................    61
Article entitled ``Probe Confirms Dealing of Drugs Near D.C. 
  Clinics,'' Monte Reel, Washington Post Staff Writer, The 
  Washington Post, July 7, 2004..................................    65
Article entitled ``Kids Caught in Meth Lab Pressure Cooker,'' 
  Sarah Huntley, News Staff Writer, Rocky Mountain News, March 
  15, 2002.......................................................    67
Supplemental materials from William N. Brownsberger, Associate 
  Director, Public Policy Division on Addictions, Harvard Medical 
  School.........................................................    70
Supplemental material from Lori Moriarty, Thornton Police 
  Department, Thornton, Colorado, Commander, North Metro Drug 
  Task Force, and President, Colorado's Alliance for Drug 
  Endangered Children............................................    89
Brochure submitted by the National Alliance for Drug Endangered 
  Children.......................................................   112
Position Paper of the American Bar Association (ABA).............   116
Letter from coalition of organizations expressing their views on 
  H.R. 1528, ``Defending America's Most Vulnerable: Safe Access 
  to Drug Treatment and Child Protection Act of 2005,'' to the 
  Honorable F. James Sensenbrenner, Jr. and the Honorable John 
  Conyers, Jr....................................................   118
Letter from former United States Attorneys and Department of 
  Justice officials expressing their views on H.R. 1528, 
  ``Defending America's Most Vulnerable: Safe Access to Drug 
  Treatment and Child Protection Act of 2005,'' to the Honorable 
  F. James Sensenbrenner, Jr. and the Honorable Bobby Scott......   121
Letter from Thomas W. Hiller, II, Chair, Legislative Expert 
  Panel, Federal Public and Community Defenders, to the Honorable 
  Howard Coble and the Honorable Bobby Scott.....................   124
Letter from teachers of law expressing their views on H.R. 1528, 
  ``Defending America's Most Vulnerable: Safe Access to Drug 
  Treatment and Child Protection Act of 2005,'' to the Honorable 
  F. James Sensenbrenner, Jr. and the Honorable John Conyers, Jr.   132
Letter from Frank O. Bowman, III, M. Dale Palmer Professor of 
  Law, Indiana University School of Law, to the Honorable Howard 
  Coble and the Honorable Bobby Scott............................   141
Response to post-hearing questions from Lori Moriarty, Thornton 
  Police Department, Thornton, Colorado, Commander, North Metro 
  Drug Task Force, and President, Colorado's Alliance for Drug 
  Endangered Children............................................   146
Response to post-hearing questions from Ronald E. Brooks, 
  President, National Narcotic Officers' Associations' Coalition 
  (NNOAC)........................................................   147


DEFENDING AMERICA'S MOST VULNERABLE: SAFE ACCESS TO DRUG TREATMENT AND 
                      CHILD PROTECTION ACT OF 2005

                              ----------                              


                        TUESDAY, APRIL 12, 2005

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 1:05 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Howard 
Coble (Chair of the Subcommittee) presiding.
    Mr. Coble. Good afternoon, ladies and gentlemen. The 
Subcommittee on Crime, Terrorism, and Homeland Security holds a 
hearing today on H.R. 1528, the ``Defending America's Most 
Vulnerable: Safe Access to Drug Treatment and Child Protection 
Act of 2005,'' introduced by Chairman Sensenbrenner.
    Last year, you will recall, the Subcommittee considered 
H.R. 4547 and examined the problem of drug dealers preying on 
vulnerable individuals, such as recovering addicts and minors. 
The Subcommittee held the compelling--heard the compelling 
testimony of Tyrone Patterson, who was the manager of the model 
treatment center for the D.C. Department of Health, who 
graphically confirmed previous news reports highlighting this 
problem, which is occurring on a daily basis just minutes from 
where we are now here at the Capitol.
    More than 1,000 addicts attend drug treatment in Northeast 
D.C., 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 methadone treatment center in D.C. and 
within three blocks of two other treatment centers. Mr. 
Patterson gave us a firsthand account of the availability of 
drugs and the daily temptations his patients face as they try 
to overcome psychological and physical addiction. We also heard 
the results of an undercover investigation conducted by the 
Government Accountability Office which exposed the revolving 
door of individual dealers arrested for dealing near these 
treatment centers, only to return because they faced little or 
no jail time for their trafficking activities.
    Adult addicts are not the only victims of drug dealers. We 
also learned of cases in which the drug dealers knowingly 
exposed children, including parents who exposed their own kids 
to the seedy and dangerous world of drug trafficking. This 
includes the storage and distribution of drugs for profit in 
their own homes where oftentimes small children reside.
    H.R. 1528 addresses these issues by strengthening the laws 
regarding trafficking to minors and creating criminal penalties 
for individuals who traffick drugs near a drug treatment 
facility. The legislation examined today makes it unlawful to 
distribute to a person enrolled in a drug treatment program or 
to distribute drugs within 1,000 feet of a drug treatment 
facility.
    I have stated previously that the opponents of mandatory 
minimums would have a stronger argument if they could be 
assured that--if they could assure Congress that all Federal 
judges were faithfully adhering to the Federal sentencing 
guidelines, and I think most of them are. But sadly, the 
Supreme Court's recent decision in Booker/Fanfan obliterated 20 
years of national sentencing policy and rendered these 
guidelines advisory. Thus, the bills targeting mandatory 
minimum provisions are all the more important.
    H.R. 1528, while not providing a legislative fix to these 
Supreme Court cases, does provide procedural mandates to ensure 
an adequate sentencing record for appellate courts and for 
Congress and the public as we consider legislation. H.R. 1528 
codifies prior Congressional directives prohibiting the use of 
inappropriate factors in sentencing, as well as others which 
were prohibited or discouraged by the Sentencing Commission and 
the U.S. Court of Appeals that prohibits other such factors 
which have been abused by some sentencing judges.
    I want to thank you, all of the witnesses, for being here 
today and we look forward to your testimony.
    I am now pleased to recognize the ranking Democratic 
Member, the distinguished Member from Virginia, Mr. Bobby 
Scott, for his opening statement.
    Mr. Scott. Thank you, Mr. Chairman, and I'm pleased to join 
you in convening this hearing on H.R. 1528.
    The bill purports to protect drug treatment patients, 
children, and young adults from drug dealers. However, its 
primary focus is on an array of provisions increasing 
sentencing guideline ranges, adding new mandatory minimums, and 
increasing minimum ones by at least five-fold to mandatory life 
without parole, including a ``three strikes and you're out'' 
provision. This latter provision, as with mandatory minimum 
sentences, has been roundly discredited as wasteful, racially 
discriminatory, soundbite-based political pandering which will 
have virtually no impact on reducing crime.
    There's a provision, section 12 of the bill, which would 
appear to be designed to overturn Booker/Fanfan decision 
recently decided by the Supreme Court. Professor Frank Bowman 
testified on last year's version of the bill and is considered 
an expert on this issue. He reads the provision as imposing 
mandatory minimum sentences through the sentencing guidelines 
by making the bottom of the guidelines a minimum sentence in 
all but the narrowest of circumstances, other than substantial 
assistance motions by the Government. Many, including yours 
truly, feel that this provision is not in keeping with the 
representations that the Committee would not be taking up 
Booker--the Booker/Fanfan issue this year.
    Further, the bill provides for conspiracies and attempts to 
be punished in the same manner as actually committing the 
crime. This will only increase disparity in sentencing. As with 
mandatory minimum sentencing, there is no ability to 
distinguish between major players and bit players in a crime. 
One of the primary purposes of establishing the U.S. Sentencing 
Guideline was to remove disparate treatment among like 
offenders. Giving unlike offenders the same sentence for crimes 
just as much--creates just as much sentencing disparity as 
giving like offenders different sentences.
    The other provision of the bill eliminates the drug 
quantity sentencing cap established by the Sentencing 
Commission and restricts the application of the safety valve 
and substantial assistance to the Government sentencing 
reduction provisions.
    I have often cited numerous studies and recommendations of 
researchers, academicians, the judicial branch, including the 
Chief Justice of the Supreme Court, and sentencing 
professionals reflecting the problems created by the 
proliferation of mandatory minimum sentences. They are cited as 
wasteful compared to alternative sentencing and alternatives 
such as drug treatment. They disrupt the ability of the 
Sentencing Commission and the courts to apply orderly, 
proportional, non-disparate sentencing. They are found to be 
discriminatory against minorities and transfer an inordinate 
amount of discretion to prosecutors in an adversarial system. 
They have also been cited in one of the letters we've received 
from the Judicial Conference as violating common sense.
    Practically speaking, there's no reason to believe that 
H.R. 1528 will have an impact on crimes which it is purportedly 
aimed. In its essence, the bill simply increases 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 we enforcing the current 
laws that are on the books today? Adding more laws to the 
current ones that are not being enforced is of very little 
assistance to the problem.
    The suggestion that current Federal illegal drug penalties 
are not severe enough to incentivize law enforcement is 
unfounded, given the long prison sentences now being served by 
drug offenders and the fact that they constitute a growing 
majority of offenders in the Federal system. Just as unfounded 
is the notion that access to drugs by drug treatment patients 
and children will be significantly affected by having harsher 
penalties is, as I indicated, unfounded.
    Studies of drug quantities, quality, and price indicate 
that they are more plentiful and higher qualities and lower 
prices than ever before. Offenders generally have access to 
drugs within their neighborhoods. There is nothing to suggest 
that they obtained the drugs to which they are addicted near 
the drug treatment center at which they are being treated, and 
this bill would mostly affect minorities who live in urban 
areas where the zones will predominate as compared to suburban 
areas where the drug use is--where drug use is no less 
prevalent, but drug-free zones are. And that's, Mr. Chairman, 
because when you draw all the concentric circles around all the 
schools and drug treatment centers and everything else, in some 
urban areas, you will have--you would have covered the entire 
urban area. In suburban areas, obviously, there'll be areas 
that will not be included.
    Having offenders who happen to violate the law within the 
inner edge of one zone who are not selling to children and--who 
are not selling to children and treatment participants 
receiving vastly different sentences from those who violate the 
law a few feet away makes no sense. Jailing parents or 
custodians of children for long mandatory minimum sentences for 
drug activities in their presence and forcing children into 
foster care and other makeshift arrangements is of obviously 
dubious value to the children.
    So, Mr. Chairman, I look forward to our witnesses who can 
comment on this and comment on the mandatory minimums and the 
other initiatives that we have in the bill to see how we can 
actually reduce crime.
    Mr. Coble. I thank the gentleman from Virginia.
    Ladies and gentlemen, it's the practice of the Subcommittee 
to swear in all witnesses appearing before it, so if you would, 
please, stand and raise your right hands.
    Do each of you solemnly swear the testimony you are about 
to give this Subcommittee shall be the truth, the whole truth, 
and nothing but the truth, so help you, God?
    Ms. Avergun. I do.
    Mr. Brooks. I do.
    Ms. Moriarty. I do.
    Mr. Brownsberger. I do.
    Mr. Coble. Let the record show that each of the witnesses 
has answered in the affirmative. You may be seated.
    We have four distinguished witnesses with us today and my 
introduction is somewhat lengthy, but I think it's important 
for those in the audience who are not familiar with the 
backgrounds of our witnesses to know some of their backgrounds, 
which, by the way, are impressive.
    Our first witness is Jodi Avergun, Chief of Staff to the 
Administrator at the Drug Enforcement Administration. Prior to 
joining DEA, Ms. Avergun served as Chief in the Narcotics and 
Dangerous Drugs Section at the Department of Justice. While in 
NDDS, she managed a staff of 47 attorneys in Washington, 
Virginia, and Bogota, Colombia, and exercised general oversight 
of all Federal narcotics prosecutions as well as national drug 
policy decisions. Additionally, Ms. Avergun served as an 
Assistant U.S. Attorney for the Eastern District of New York, 
where she worked as Chief of the Narcotics and Money Laundering 
Section. Ms. Avergun has also received more than 20 awards for 
excellence in law enforcement, including the Director's Award 
for Superior Performance as Assistant U.S. Attorney. She's an 
alumna of Brown University and the Brooklyn Law School.
    Our second witness is Mr. Ronald Brooks, President of the 
National Narcotics Officers' Associations' Coalition. As 
President, he represents the interests of the Nation's narcotic 
officers with the White House, Congress, Federal law 
enforcement agencies, and professional associations. Mr. Brooks 
is a 30-year veteran law enforcement officer with more than 24 
years spent in narcotics enforcement. Additionally, he is 
currently a captain with the San Mateo County, California, 
Sheriff's Office. In this capacity, he is responsible for 
administering a $6 million budget and overseeing grants, 
technical and analytical support for drug enforcement 
operations in the 10-county San Francisco Bay area. He was 
awarded a Bachelor of Public Administration degree from the 
University of San Francisco.
    Our third witness is Ms. Lori Moriarty, Commander of the 
North Metro Task Force, a multi-jurisdictional undercover drug 
unit at the Thornton Police Department. Ms. Moriarty has been 
instrumental in implementing protocols for the safe 
investigation of methamphetamine labs and undercover drug 
operations. Moreover, Ms. Moriarty serves as the President of 
the Colorado Alliance for Drug Endangered Children, which 
rescue, defend, shelter, and support drug endangered children 
in Colorado. She also trains thousands of professionals across 
the State of Colorado on meth lab awareness. Ms. Moriarty was 
recognized by the President of the United States in 2001 when 
she received the Drug Commander of the Year Award. Ms. Moriarty 
attended the University of Colorado and Regis University.
    Our final witness today is Mr. William Brownsberger, 
Associate Director for the Public Policy Division on Addictions 
at the Harvard Medical School. As Associate Director, Mr. 
Brownsberger develops research and education programs on social 
policy issues regarding addictions. Additionally, he serves as 
a Senior Criminal Justice Advisor at Boston University School 
of Public Health, where he directs a national panel on 
substance abuse treatment quality. Previously, Mr. Brownsberger 
served as Assistant Attorney General for the Commonwealth of 
Massachusetts. As Assistant Attorney General, he worked as the 
Asset Forfeiture Chief in the Narcotics and Special 
Investigations Division. Mr. Brownsberger is also the author of 
numerous publications, including ``Drug Addiction and Drug 
Policy'' and ``Profile of Anti-Drug Law Enforcement in Urban 
Poverty Areas in Massachusetts.'' He was awarded his 
undergraduate and J.D. degrees from Harvard.
    We are pleased to have you all with us today. I see we have 
been joined by our friend from Texas, Mr. Gohmert. It is good 
to have you, Mr. Gohmert, with us.
    Ladies and gentlemen, as you all have previously been 
advised, we adhere to the 5-minute rule here. We impose it 
against you all. We impose it against ourselves. So if you all 
could, when you see that amber light illuminate in your faces, 
that is a warning that the ice is becoming thin on which you 
are skating. When the red light appears, that indicates that 
the 5 minutes have elapsed. We have examined your testimony. We 
will reexamine it. So if you could adhere to the 5-minute rule, 
we would be appreciative.
    Ms. Avergun, we will start with you. I'm not sure your 
mike's on. Pull it closer to you, Ms. Avergun.
    Ms. Avergun. I think it's on now?
    Mr. Coble. That's better.

TESTIMONY OF JODI L. AVERGUN, CHIEF OF STAFF, DRUG ENFORCEMENT 
           ADMINISTRATION, U.S. DEPARTMENT OF JUSTICE

    Ms. Avergun. Okay. Chairman Coble and distinguished Members 
of the Subcommittee on Crime, Terrorism, and Homeland Security, 
on behalf of Attorney General Alberto Gonzales and Drug 
Enforcement Administration Administrator Karen Tandy, I 
appreciate your invitation to testify today regarding the 
important issue that affects many of our Nation's children.
    The men and women of DEA and many prosecutors throughout 
the Department of Justice spend each day fighting to protect 
our children from the many harms that drugs cause to each and 
every member of society. Drug trafficking and drug abuse 
unfairly, and in alarming numbers, make children victims. Drug 
trafficking and drug abuse steal our children's health, 
innocence, and security. From a drug-addicted parent who 
neglects a child, to a clandestine methamphetamine cook using a 
child's play area as a laboratory site, to a parent using a 
child to serve as camouflage for their stash, to a child being 
present for a drug transaction, the list goes on and on, but 
the end result remains the same: innocent children suffer from 
being exposed to illegal drugs.
    Mr. Chairman, today, my testimony is a follow-up to that 
presented by Ms. Catherine O'Neil last year to this 
Subcommittee regarding H.R. 4547, the ``Defending America's 
Most Vulnerable: Safe Access to Drug Treatment and Child 
Protection Act of 2004.'' I request that her earlier testimony 
be made part of today's hearing record.
    We are here today to reiterate our support for key parts of 
the legislation that addresses drug trafficking involving 
minors. The endangerment of children through exposure to drug 
activity, sales of drugs to children, the use of minors in drug 
trafficking, and the peddling of pharmaceutical and other 
illicit drugs to drug treatment patients are all significant 
problems today. Sadly, horrific examples of these types of 
incidents are spread across our Nation.
    To take just one example, a DEA investigation in Missouri 
occurring in November 2004 demonstrates this all too frequent 
occurrence. During a raid on a suspected methamphetamine lab 
located in a home, three children, all under 5 years of age, 
were found sleeping on chemical-soaked rugs. The residence was 
filled with insects and rodents and had no electricity or 
running water. Two guard dogs kept by the cooks to fend off law 
enforcement were also found. The dogs were clean, healthy, and 
well-fed.
    The Department of Justice is committed to vigorously 
prosecuting drug trafficking in all of its egregious forms. 
Prosecutions range from high-level international drug 
traffickers to street-level predators who are tempting children 
or addicts with the lure of profit and the promise of 
intoxication. All of these prosecutions are part of the 
Department of Justice's mandate within the National Drug 
Control Strategy to disrupt the sources of and markets for 
drugs.
    The people who target their trafficking activity at those 
with the least ability to resist such offers deserve not only 
our most pointed contempt, but also severe punishment. We stand 
firmly behind the intent of this new legislation to increase 
the punishment meted out to those who would harm us, our 
children, and those seeking to escape the cycle of addiction.
    The Department of Justice supports mandatory minimum 
sentences in appropriate circumstances, such as trafficking 
involving minors and trafficking in and around drug treatment 
centers. Mandatory minimum sentences provide a level of 
uniformity and predictability in sentencing to deter certain 
types of criminal behavior, increase public safety by locking 
away dangerous criminals for long periods of time, and serve as 
important tools used by prosecutors in obtaining cooperation 
from defendants.
    My written testimony addresses several specific provisions 
within H.R. 1528. The Department agrees with the idea that 
individuals who intentionally endanger children, either through 
the distribution, storage, manufacture, or otherwise 
trafficking of drugs, should face appropriate punishments. 
However, we have some reservations about the consequences of 
section 2(m), titled ``Failure to Protect Children from Drug 
Trafficking Activities.''
    Also, we strongly support the proposed amendment to 18 
U.S.C. 3553(f) insofar as it would require Government 
certification that the defendant has timely met the full 
disclosure requirements for the safety valve exemption in 
certain mandatory minimum sentences. However, we are concerned 
that the bill may unnecessarily exclude those who initially 
make a false statement or omit information but later correct 
those statements.
    Additionally, 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 where 
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.
    The Department was pleased to see the addition of language 
asking the Sentencing Commission to make recommendations for an 
increase in the guideline range where there is a substantial 
risk of harm to the life in the manufacture of any controlled 
substance as opposed to simply methamphetamine. We support the 
proposal to widen the guidelines from including only the 
manufacture of meth or amphetamine to include the manufacture 
and distribution of any controlled substances.
    The DEA and Department of Justice are committed to 
aggressively investigating and prosecuting drug traffickers. We 
support measures that will aid in the protection of children 
and enhance our abilities to prosecute those individuals who 
seek to involve them in their illegal drug activities and 
support the Committee's efforts to do the same.
    Mr. Chairman, thank you for your recognition and assistance 
on this important issue and the opportunity to testify here 
today. I will be happy to answer any questions that you may 
have.
    [The prepared statement of Ms. Avergun follows:]

                 Prepared Statement of Jodi L. Avergun

    Chairman Coble, and distinguished Members of the Subcommittee on 
Crime, Terrorism and Homeland Security, on behalf of Attorney General 
Alberto Gonzales and Drug Enforcement Administration (DEA) 
Administrator Karen Tandy, I appreciate your invitation to testify 
today regarding this important issue that affects many of our nation's 
children.

                                OVERVIEW

    The DEA has seen firsthand the devastation that illegal drugs cause 
in the lives of children. Children are our nation's future and our most 
precious resource, and sadly, many of them are having their lives and 
dreams stolen by illegal drugs. This theft takes many forms, from a 
drug addicted parent who neglects a child, to a clandestine 
methamphetamine ``cook'' using a child's play area as a laboratory 
site, to a parent using a child to serve as camouflage for their 
``stash,'' to a child being present during a drug transaction. The list 
goes on and on, but the end result remains the same: innocent children 
needlessly suffer from being exposed to illegal drugs.

                        DRUG ENDANGERED CHILDREN

    The Department of Justice and other law enforcement agencies at all 
levels seek to protect the most vulnerable segments of our society from 
those drug traffickers and drug addicted individuals who exploit those 
individuals least able to protect themselves. In 2003, Congress made 
significant strides in this area by enacting the Prosecutorial Remedies 
and Other Tools to end the Exploitation of Children Today Act, better 
known as the PROTECT Act. This law has proven effective in enabling law 
enforcement to pursue and to punish wrongdoers who threaten the youth 
of America. Last year Chairman Sensenbrenner introduced H.R. 4547, the 
``Defending America's Most Vulnerable: Safe Access to Drug Treatment 
and Child Protection Act of 2004,'' which would have taken these 
efforts even further by focusing on the scourge of drug trafficking in 
some of its most base and dangerous forms: those who use minors to 
commit trafficking offenses, trafficking to minors, trafficking in 
places where minors are present, and trafficking in or near drug 
treatment centers.
    Mr. Chairman, today my testimony is a follow-up to the testimony 
presented in July of last year to this Subcommittee by Ms. Catherine 
O'Neil, Associate Deputy Attorney General, regarding H.R. 4547. We 
request that her earlier testimony be made part of today's hearing 
record. We are here today to reiterate our support for legislation that 
addresses drug-related incidents involving minors.
    The endangerment of children through exposure to drug activity, 
sales of drugs to children, the use of minors in drug trafficking, and 
the peddling of pharmaceutical and other illicit drugs to drug 
treatment patients are all significant problems today. Sadly, the 
horrific examples below are just a few instances where children have 
been found victimized and exploited by people whose lives have been 
taken over by drugs:

          From FY 2000 through the first quarter of FY 2005, 
        over 15,000 children were reported as being affected in 
        clandestine laboratory-related incidents. The term ``affected 
        children'' is defined as a child being present and/or evidence 
        that a child lived at a clandestine laboratory site. This total 
        reflects only those instances where law enforcement was 
        involved. The true number of children affected by clandestine 
        laboratory incidents is unknown, though it is surely much 
        greater.

          In 2004, a defendant from Iowa pled guilty to 
        conspiring to manufacture methamphetamine. Although the meth 
        was not manufactured in the defendant's home, where the 
        defendant's 4-year-old son also lived, was used as the 
        distribution point for large quantities of meth. The son's hair 
        tested positive for extremely high levels of meth, indicating 
        chronic exposure to the drug. In this case, no enhancement 
        could be applied because of the son's exposure, as he had not 
        been endangered during the actual manufacture of the meth.

          In November 2004, the DEA raided a suspected 
        methamphetamine lab located in a home in Missouri. During this 
        operation three children, all under five years of age, were 
        found sleeping on chemical-soaked rugs. The residence was 
        filled with insects and rodents and had no electricity or 
        running water. Two guard dogs kept by the ``cooks'' to fend off 
        law enforcement were also found: clean, healthy, and well-fed. 
        The dogs actually ate off a dinner plate.

    Currently, investigations targeting individuals involved in the 
manufacture of methamphetamine or amphetamine which are prosecuted on a 
federal level have a sentencing enhancement available. This enhancement 
provides a six-level increase and a guidelines floor at level 30 (about 
8-to-10 years for a first offender) when a substantial risk of harm to 
the life of a minor or an incompetent individual is created. 
Unfortunately, investigations targeting traffickers involved in the 
distribution of other illegal drugs, such as heroin or cocaine, do not 
have this same enhancement. For example:

          During October 1999, the DEA's Philadelphia Field 
        Division initiated a heroin investigation targeting an 
        international organization ranging from street level dealers 
        and couriers to a source of supply in South America. This 
        investigation resulted in ``spin-off'' investigations in New 
        York and South America. Indictments and arrests stemming from 
        the Philadelphia portion of this investigation began in early 
        2001, and resulted in over 20 arrests. The most significant 
        charge filed against these defendants was Conspiracy to 
        Distribute Heroin (21 USC Sec. 846). Additionally, seven 
        subjects were charged with Distribution of Heroin within 1,000 
        feet of a School (21 USC Sec. 860).

          During August 2003, fire department personnel and 
        local law enforcement authorities responded to a hotel fire in 
        a family resort in Emmett County, Michigan. The fire was the 
        result of a subject's attempts to manufacture methcathinone. 
        Authorities subsequently seized a small quantity of 
        methcathinone, along with chemistry books, from the room.

          In an investigation initiated by DEA's Philadelphia 
        Field Division, a subject hid approximately 400 grams of heroin 
        under his infant during a buy/bust operation. During the course 
        of his guilty plea in March 2004, the defendant admitted that 
        he stored the drugs under the infant.

                           DRUG PROSECUTIONS

    The Department of Justice is committed to vigorously prosecuting 
drug trafficking in all of its egregious forms. Prosecutions range from 
high-level international drug traffickers to street-level predators who 
are tempting children or addicts with the lure of profit and the 
promise of intoxication.
    We have had some successes. Statistics maintained by the U.S. 
Sentencing Commission indicate that between 1998 and 2002 over 300 
defendants were sentenced annually under the guideline that provides 
for enhanced penalties for drug activity involving protected locations, 
minors, or pregnant individuals. But our tools are limited. And we have 
no specific weapon against those who distribute controlled substances 
within the vicinity of a drug treatment center.
    The people who would sink to the depths of inhumanity by targeting 
their trafficking activity at those with the least ability to resist 
such offers are deserving the most severe punishment. The Department of 
Justice cannot and will not tolerate this conduct in a free and safe 
America, and that is why the Department of Justice stands firmly behind 
the intent of this legislation to increase the punishment meted out to 
those who would harm us, our children, and those seeking to escape the 
cycle of addiction.

                      MANDATORY MINIMUM SENTENCES

    The Department of Justice supports mandatory minimum sentences in 
appropriate circumstances. In a way sentencing guidelines cannot, 
mandatory minimum statutes provide a level of uniformity and 
predictability in sentencing. They deter certain types of criminal 
behavior determined by Congress to be sufficiently egregious as to 
merit harsh penalties by clearly forewarning the potential offender and 
the public at large of the minimum potential consequences of committing 
such an offense. And mandatory minimum sentences can also incapacitate 
dangerous offenders for long periods of time, thereby increasing public 
safety. Equally important, mandatory minimum sentences provide an 
indispensable tool for prosecutors, because they provide the strongest 
incentive to defendants to cooperate against the others who were 
involved in their criminal activity.
    In drug cases, where the ultimate goal is to rid society of the 
entire trafficking enterprise, mandatory minimum statutes are 
especially significant. Unlike a bank robbery, for which a bank teller 
or an ordinary citizen could be a critical witness, often in drug cases 
the critical witnesses are drug users and/or other drug traffickers. 
The offer of relief from a mandatory minimum sentence in exchange for 
truthful testimony allows the Government to move steadily and 
effectively up the chain of supply, using the lesser distributors to 
prosecute the more serious dealers and their leaders and suppliers. 
Mandatory minimum sentences are needed in appropriate circumstances, 
such as trafficking involving minors and trafficking in and around drug 
treatment centers.

                  SPECIFIC PROVISIONS WITHIN H.R. 1528

    I would now like to turn to a few of the specific provisions 
included in H.R. 1528. As I mentioned earlier, the Department stands 
behind the testimony provided last year by Ms. Catherine O'Neil.

Section 2: Protecting Children from Drug Traffickers
    The Department agrees with the idea that individuals who 
intentionally endanger children, either through the distribution, 
storage, manufacture, or otherwise trafficking of drugs, should face 
appropriate punishments.
    However, we do have some reservations about the consequences of 
Section 2(m), titled ``Failure to Protect Children from Drug 
Trafficking Activities.'' As drafted, we have some concerns about the 
enforceability of the section due to the vagueness of the language. In 
addition, we are concerned that it will unintentionally create an 
adversarial parental relationship, and discourage (rather than 
encourage) kids to talk openly with their parents about drug 
trafficking. Certainly, we want to encourage parents and other legal 
guardians to do the right thing, but we would encourage the 
Subcommittee to reconsider this section.

Section 6: Assuring limitation on applicability of statutory minimums 
        to persons who have done everything they can to assist the 
        Government
    We strongly support the proposed amendment to 18 U.S.C. 
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 accept minimal, 
bare-bones confessional disclosures and, in some cases, continue 
sentencing hearings to afford a defendant successive tries at meeting 
even this low standard. The Department of Justice thus is aware that 
some courts and defendants have too liberally construed the safety 
valve and have applied it in circumstances that were clearly 
unwarranted and where no beneficial information was conveyed. For these 
reasons, we strongly support the prosecutor certification requirement.
    Requiring courts to rely on the Government's assessment as to 
whether a defendant's disclosure has been truthful and complete would 
effectively address the problems prosecutors have encountered with 
respect to application of the safety valve.
    However, we are concerned that the bill may unnecessarily exclude 
those who initially make a false statement, but later correct it. We 
expressed this concern informally last year and look forward to working 
with the Subcommittee to address it.

Section 9: Mandatory detention of persons convicted of serious drug 
        trafficking offenses and crimes of violence
    The Department agrees with the principle that, in almost all 
circumstances, a defendant who has been found guilty should be 
immediately detained. We also acknowledge that the circumstances in 
which release pending sentencing or appeal is necessary are extremely 
limited.
    Nevertheless, we cannot support this proposal to the extent it 
requires Government certification as to a defendant's cooperation and 
precludes release pending appeal. Even with sealed pleadings, a 
defendant's intention to cooperate would be much more apparent under 
this provision, and this likely would have an adverse impact on a 
defendant's willingness to cooperate, on the value of the cooperation, 
and on the safety of the defendant. By foreclosing the possibility of 
release for circumstances other than cooperation and, thereby, 
telegraphing a defendant's intention to assist the Government, this 
proposal would severely diminish the value of one of our most useful 
investigative and prosecutorial tools. Moreover, this is a tool that we 
employ not simply post-conviction but, sometimes, pending appeal as 
well. A prosecutor should not be effectively prohibited from seeking 
release after sentencing, if the particular circumstances of the case 
so warrant.
    We look forward to working with the Subcommittee on this issue.
Section 10: Protecting Human Life and Assuring Child Safety
    The Department was pleased to see the addition of language asking 
the Sentencing Commission to make recommendations for an increase in 
the guideline range where there is a substantial risk of harm to the 
life in the manufacture of ANY controlled substance. The case in the 
Western District of Michigan (mentioned earlier) highlights the need to 
expand these guidelines. We support the proposal to widen the 
guidelines from including only the manufacture of methamphetamine or 
amphetamine to include the manufacture of any controlled substance.

                               CONCLUSION

    Children continue to be exposed, exploited and endangered by 
individuals involved at all levels of the illegal drug spectrum. 
Regardless of whether they are high-level traffickers, street-level 
dealers, ``cooks'' or addicts, they all are involved in some fashion in 
stealing away our nation's youth. The Department of Justice is 
committed to aggressively investigating and prosecuting drug 
traffickers. We support measures that will aid in the protection of 
children and enhance our abilities to prosecute those individuals who 
seek to involve them in their illegal drug activities, and support the 
Subcommittee's efforts to do the same.
    Mr. Chairman, thank you for your recognition and assistance on this 
important issue and the opportunity to testify here today. This is an 
ambitious bill with important implications for the work of the Justice 
Department. We continue to study the issues presented by the bill and 
stand ready to discuss the matter with you or the Subcommittee's staff. 
I will be happy to answer any questions you may have.

    Mr. Coble. Mr. Brooks?

  TESTIMONY OF RONALD E. BROOKS, PRESIDENT, NATIONAL NARCOTIC 
           OFFICERS' ASSOCIATIONS' COALITION (NNOAC)

    Mr. Brooks. Chairman Coble, Ranking Member Scott, Members 
of the Subcommittee, thank you for inviting me to testify on 
the importance of protecting America's most vulnerable citizens 
from the dangers posed by illegal drugs.
    The problem of selling drugs to recovering addicts at or 
near drug treatment facilities is the cruelest side of a cruel 
business, preying on our most vulnerable citizens when they're 
at their weakest. Those brave souls who are fighting their 
addiction in treatment and recovery programs are often targets 
of drug traffickers looking for an easy sale.
    Treatment providers throughout California have told me that 
the predatory drug sellers often lurk near drug treatment and 
recovery centers looking for customers who are susceptible to 
relapse. I've seen those predators firsthand in scores of 
investigations that I've conducted and supervised at or near 
treatment centers and methadone clinics.
    Mr. Chairman, police officers are driven to face the danger 
that they do each day because we witness impressionable young 
lives ruined when they are lured into a culture of crime by 
adults promising quick money. The damage this causes to a 
child's life and collectively to society as a whole is 
incalculable and inexcusable.
    I supervised a raid on a rural super lab that was producing 
more than 100 pounds of methamphetamine per production. As we 
approached the house to execute our search warrant, a large 
cloud of highly toxic gas began to vent from the house. Upon 
entry into the dangerous environment, I encountered four armed 
meth cookers and an 8-month pregnant woman with her two small 
children, who had been in the house during the entire 2-day 
reaction.
    In one operation at a large rave event in San Francisco, 
after collecting payments--my apologies. I thought it was off. 
In one operation at a large rave event at San Francisco, after 
collecting the payment on an undercover buy, a 26-year-old gang 
member directed my agent to his 15-year-old girlfriend to get 
the drugs. The adult seller laughed, saying that if the police 
raided the event, the teenage girl would be the one left to 
face prosecution.
    Another investigation conducted by my office targeted 
rampant drug dealing at a rural high school. At the conclusion 
of the investigation, we arrested 27 juveniles and nine adults 
for sales of methamphetamine, marijuana, LSD, and MDMA at or 
near the school. In a raid on a house directly across the 
street from the school, agents seized one-quarter pound of 
methamphetamine and two guns from two of the adults who were 
controlling drug sales at the high school.
    Mr. Chairman, in my mind, there is no question that a 
sustained chemical attack occurs on our streets every day. 
Illegal drugs and their effects kill more than 19,000 Americans 
annually and the impact on our economy is estimated to be more 
than $160 billion each year. This continuous and unrelenting 
attack by international drug cartels, American street gangs, 
meth cookers, and neighborhood drug traffickers is equivalent 
in terms of lost lives to a September 11 tragedy every 2 
months. We must continue our commitment to fighting these 
criminals as aggressively as we fight terrorists who have 
political motives.
    The heroin sold on the street corner in San Francisco began 
as an opium poppy seed in the Mexican highlands. From field to 
vein, there's a network of criminals who know exactly what 
they're doing. This malicious intent must be confronted 
directly up and down the chain.
    Tough drug laws such as the proposed--as those proposed in 
the Defending America's Most Vulnerable: Safe Access to Drug 
Treatment and Child Protection Act of 2005 are essential 
weapons in the arsenal of every law enforcement officer. Strong 
penalties deter would-be sellers while providing the incentive 
for those arrested for drug crimes to cooperate with law 
enforcement, allowing investigators to reach higher into drug 
trafficking organizations in an effort to dismantle them. On a 
daily basis, State and local law enforcement use the threat of 
Federal charges associated with tough penalties to induce the 
cooperation of arrestees who are in positions to expose the 
chain of command of drug trafficking organizations.
    The task force model fostered by Byrne and HIDTA programs 
has dramatically increased the effectiveness of drug 
enforcement strategies over the past 15 years. When combined 
with strong penalties, such as those proposed by the Chairman's 
legislation, we get quality investigations and effective 
deterrents.
    As law enforcement officers, we know that we can't arrest 
our way out of the drug problem. We must do everything we can 
to prevent first use by young people. We must embrace efforts, 
such as the President's Access to Recovery Initiative, to 
ensure treatment is there when it's needed. All children and 
all people in recovery must be protected from the purveyors of 
poison that often lurk in or near our drug treatment centers 
and in our schools.
    That's why the proposal in the Defending America's Most 
Vulnerable: Safe Access to Drug Treatment and Child Protection 
Act of 2005 is critical to the safety of vulnerable Americans. 
This legislation would strengthen deterrence and provide a 
potentially helpful tool for State and local drug 
investigators.
    On behalf of the 60,000 narcotic officers that the National 
Narcotics Officers' Coalition represents, I want to 
congratulate Chairman Sensenbrenner on reintroducing this 
important bill, and Mr. Chairman, I want to congratulate you 
for inviting me here today and for taking the time to hear this 
issue. Thank you.
    Mr. Coble. Thank you, Mr. Brooks.
    [The prepared statement of Mr. Brooks follows:]

                 Prepared Statement of Ronald E. Brooks

                              INTRODUCTION

    Chairman Coble, Ranking Member Scott, members of the subcommittee, 
thank you for inviting me to testify on the importance of protecting 
America's most vulnerable citizens from the dangers posed by illegal 
drug manufacturing, sales and use. My name is Ronald Brooks and I am 
the President of the National Narcotic Officers' Associations' 
Coalition (NNOAC) representing forty-three state narcotic officers 
associations with a combined membership of more than 60,000 law 
enforcement officers across the nation.
    I am an active duty, thirty-year California law enforcement veteran 
with more than twenty-four years spent in drug enforcement. I have 
witnessed the death, disease, violence and devastation that illicit 
drug use regularly brings to individuals, families, and communities, 
and based on my experiences I'm happy to share my thoughts on the 
importance of the ``Safe Access to Drug Treatment and Child Protection 
Act of 2005.''
    Although no one is immune from drug addiction, the lives most often 
destroyed by heroin, cocaine, methamphetamine, marijuana, and other 
poisons are those persons already suffering from the disease of 
addiction who are in recovery, and young people who think that trying 
dangerous drugs is harmless. People in recovery are vulnerable because 
changes in neuro-chemicals brought on by prior chronic drug use make 
them more susceptible to relapse, and because the craving is constant--
especially during the early stages of treatment.
    Dr. Darryl Inaba, CEO of the Haight Ashbury Free Clinic in San 
Francisco told me that the euphoric recall of persons in recovery is 
very strong and that smells, situations, or other temptations will 
often lead to the re-initiation of drug use. Because all drugs of abuse 
are synergistic, even marijuana may serve as the catalyst for a meth, 
coke, or heroin user to slip back into the bonds of a drug lifestyle. 
Because of that danger, the Haight Ashbury Clinic and all other drug 
treatment programs that I am familiar with prohibit drug and alcohol 
use on or near their facilities and by patients who are in treatment.
    Dr. Inaba and Dr. Alex Stallcup of the New Leaf Treatment Center in 
Concord, California have told me that predatory drug sellers often lurk 
near drug treatment and recovery centers looking for customers who are 
susceptible to relapse. I have seen these predators firsthand in scores 
of investigations that I have conducted or supervised at or near 
treatment centers and Methadone clinics.
    Even more vulnerable than recovering addicts are pre-teens and 
teens. Initiation of drug use by young people occurs every day in all 
types of communities without regard for race, gender or socio-economic 
background. Kids are likely to be lured to drug use because they lack 
the perspective of adults and because they feel pressured to identify 
with ``role models'' who glorify drug use and violence. Drug-abusing 
older siblings, friends, and parents are often terrible influences who 
many times even employ young people to act as middle-men in their drug 
trade. The damage this causes to a child's life--and cumulatively to 
society as a whole--is incalculable and inexcusable.
    My civilian friends often worry about the physical and emotional 
impact that thirty years of facing the danger of ruthless drug dealers 
has taken on me. The truth is, danger is not what takes a toll on 
America's law enforcement officers. What haunts police officers is the 
death, fear, economic despair, and ruined lives we see every day that 
is caused by drug abuse and drug-fueled violent crime.

                          JUVENILES IN DANGER

    The most troubling events witnessed by cops involve young people 
suffering from addiction or who are neglected or placed in danger as a 
direct result of illicit drugs. Drug enforcement officers are driven in 
their commitment to fight the scourge of drug abuse by recurring images 
of children languishing in dirty diapers, living in deplorable and 
dangerous conditions and suffering from malnutrition because their 
drug-addicted parents are unable to care for them. We are driven to 
face danger by witnessing impressionable young lives ruined when they 
are lured into a culture of crime by adults promising quick money. We 
see kids become dealers for adults, or lookouts who facilitate the drug 
sales operations of adults. And a disturbing all-too-frequent image is 
a frightened child rescued from the highly toxic and flammable 
environment of a methamphetamine lab.
    I supervised a raid on a rural super-lab that was producing more 
than 100 pounds of methamphetamine per two-day reaction cycle. As we 
approached the house to execute our search warrant, a large cloud of 
highly toxic gas began to vent from the house. Upon entry into that 
dangerous environment, we encountered four armed meth cookers and an 
eight-month pregnant woman who along with her two small children had 
been in the house for the entire two-day reaction cycle.
    During another lab raid, I found a teenage boy, a straight-A 
student, who lived with his father, a meth cooker, in a home where two 
separate chemical fires had flashed through the house threatening their 
lives but which were never be reported to the fire department for fear 
that the meth production would be discovered. That teenager was working 
to survive, despite the daily danger posed by chemical exposure, 
explosion, fire, and armed encounters with rival drug dealers.
    At a large RAVE event at the San Francisco Cow Palace, my agents 
were working undercover purchasing Ecstasy (MDMA) from the dealers that 
were preying upon the mostly teenage attendees. This followed an 
earlier RAVE where two young people had died from Ecstasy overdoses. In 
one drug buy, after collecting the payment, a twenty-five year old gang 
member directed the undercover agent to his fifteen year old girlfriend 
to get the drugs. The adult seller laughed saying that if the police 
raided the event, the teenage girl would be the one left facing 
prosecution while he walked away. In a subsequent undercover buy, a 
twenty-five year old woman directed an undercover agent to her fourteen 
year old brother to get the Ecstasy. She told the undercover agent that 
if the police stopped them, her brother would only go to juvenile hall 
but if she was caught with the drugs, she could face prison.
    In an undercover operation conducted by my agents, a man agreed to 
deliver Ecstasy to an undercover agent. At the time of the arrest, the 
suspect fled in his vehicle and led officers on a high-speed pursuit, 
eventually crashing his car. As officers approached to make the arrest, 
they discovered that the suspect had his eight-month old daughter in 
the car. The man was arrested with more than 20,000 MDMA tablets, 
cocaine, a bullet proof vest and two 9mm pistols.
    One investigation conducted by my office targeted rampant drug 
dealing at a rural high-school. At the conclusion of the investigation 
we arrested twenty-seven juveniles and nine adults for sales of 
methamphetamine, marijuana, LSD, and MDMA at or near the school. In a 
raid on a house directly across the street from the school, agents 
seized one-quarter pound of methamphetamine and two guns from two of 
the adults that were controlling drug sales at the high school.
    In a San Mateo County, California Narcotic Task Force 
investigation, a Burlingame High School groundskeeper was arrested when 
it was discovered that he was befriending students and bringing them to 
his house where he sold them marijuana and cocaine.

                           TREATMENT CENTERS

    The problem of dealing drugs to recovering addicts at or near drug 
treatment facilities is the cruelest side of a cruel business: preying 
on the most vulnerable citizens when they are at their weakest. Those 
brave souls who are fighting their addiction in treatment and recovery 
programs are often targets of drug traffickers looking for an easy 
sale.
    Many people in the Washington, D.C. area are familiar with the 
open-air drug market that existed in the parking lot of a McDonald's 
right next to the Model Treatment Program in Northeast D.C. A 
subsequent GAO investigation found that drug dealing was rampant in the 
immediate vicinity of treatment centers in numerous locations in 
Washington.
    In a recent San Jose, California Police Department case, a city 
employee was fired after beginning to re-use methamphetamine after 
being enticed to do so by a person that was in her drug treatment 
program. This otherwise productive citizen, who was on her way to 
recovery, has again had her life torn apart by an amoral drug seller 
who cared more about making money than allowing the woman to succeed in 
treatment.
    Within the past three weeks, the San Francisco Police Department 
began investigating a convicted drug dealer who served time in San 
Quentin Prison on state drug charges. The dealer is now operating the 
Happy Days Herbal Relief ``medical marijuana'' clinic on the ground 
floor of a hotel subsidized by the city of San Francisco that is being 
used as a halfway house by formerly homeless persons, many of whom are 
in drug treatment programs. This and eight other San Francisco ``pot 
clubs'' are not far from school campuses. San Francisco Police 
officials tell me that it is not uncommon for them to encounter teens 
who have purchased marijuana from one of these pot clubs and who are 
re-selling the marijuana to other school age kids.
    I could give more examples, and these types of stories could be 
multiplied by the 60,000 police officers represented by the NNOAC.

                     THE NEED FOR STRONG PENALTIES

    On September 11, 2001, America was attacked by terrorists based in 
foreign lands. This attack resulted in the murder of almost 3,000 
Americans. Because of the intensity and magnitude of that single 
attack, it is easy to lose sight of the chemical attack that occurs 
daily in cities and towns in every state in the nation. Illegal drugs 
and their effects kill more than 19,000 Americans annually and the 
impact on our economy is estimated to be more than $160 billion each 
year.
    This continuous and unrelenting attack by international drug 
cartels, American street gangs, meth cookers, and neighborhood drug 
traffickers is equivalent to a September 11th tragedy every two months. 
We must continue our commitment to fighting these criminals as 
aggressively as we fight terrorists who have political motives. Tough 
drug laws such as those proposed in the ``Safe Access to Treatment and 
Child Protection Act of 2005'' are essential weapons in our arsenal.
    Vigorous enforcement of drug laws helps to keep families and 
neighborhoods safe from violent criminals and serves as a deterrent to 
first-time drug use for most young people. It also helps many addicts 
reach the road to recovery through drug courts and other corrections-
based treatment programs.
    Strong penalties deter would-be sellers while providing the 
incentive to those arrested for drug crimes to cooperate with law 
enforcement, allowing investigators to reach higher into drug 
trafficking organizations in an effort to dismantle them. On a daily 
basis, state and local law enforcement use the threat federal charges 
associated with tough penalties to induce the cooperation of arrestees 
who are in positions to expose the chain of command of drug trafficking 
organizations.
    The heroin consumed on the corner of a drug-addled neighborhood in 
Washington, D.C. started as a seed capsule of an opium poppy plant in 
the Andes of South America. From field to vein, there was a network of 
criminals who knew exactly what their activities were leading to. When 
the street-level seller of that heroin is arrested, tough federal 
penalties help us climb up the organizational ladder and frequently 
lead to the dismantling of local and regional drug trafficking 
organizations.
    Indispensable components our nation's overall enforcement strategy 
include tough laws and the multi-jurisdictional, intelligence-based 
enforcement approach that has developed under the system of task forces 
funded through the Byrne JAG and HIDTA programs. The task force model 
employed by these programs has dramatically increased the effectiveness 
of drug enforcement strategies over the past fifteen years which, when 
combined with the strong penalties such as those proposed by the 
Chairman's legislation, leads to quality investigations and effective 
deterrence.

                            MAKING PROGRESS

    The problem of drug abuse often seems insurmountable, but it is 
not. The proof of our ability to succeed in this important fight is the 
fifty percent reduction in drug use that occurred between 1979 and 1992 
when America employed a balanced and comprehensive approach of drug 
prevention, treatment, and enforcement. We are once again on the road 
to achieving good results as we embrace a balanced approach and a 
renewed dedication to fighting against drug abuse.
    Although strong penalties for dangerous criminals are important, I 
understand that it is impossible to arrest our way out of America's 
complex drug problem. A strong and consistent education and prevention 
message must reach or kids early and often; and because addicts often 
love the drugs that consume their lives more than they fear prison, 
effective treatment must be readily available. But we must do 
everything we can to prevent first use by young people. And persons in 
recovery must be protected from the purveyors of poison that often lurk 
in our near drug treatment centers and sober living environments.
    That is why the proposals in the ``Safe Access to Drug Treatment 
and Child Protection Act of 2005'' are critical to the safety of all 
citizens. This important legislation would strengthen deterrents and 
provide a potentially helpful tool for state and local drug 
investigators. The 60,000 members of the National Narcotic Officers' 
Associations' Coalition congratulate the Chairman on reintroducing the 
important bill and we stand ready to lend our support. Thank you for 
inviting me to share my thoughts.

    Mr. Coble. Ms. Moriarty?

    TESTIMONY OF LORI MORIARTY, THORNTON POLICE DEPARTMENT, 
THORNTON, COLORADO, COMMANDER, NORTH METRO DRUG TASK FORCE, AND 
  PRESIDENT, COLORADO'S ALLIANCE FOR DRUG ENDANGERED CHILDREN

    Ms. Moriarty. Mr. Chairman and Subcommittee Members, first 
of all, thank you very much for the invite here.
    I am a Drug Unit Commander in Colorado, and I do represent 
the National Alliance for Drug Endangered Children, and I am 
the President of the Colorado Alliance for Drug Endangered 
Children, and I can tell you from a Drug Task Force Commander's 
point of view, I've been in law enforcement for 18 years, and I 
can't tell you how many times I've heard people tell me that 
drug use is a victimless crime, and I'm here to tell you that 
it is the crime that creates the most victims. In all of my 
time in law enforcement, I didn't recognize this until I got 
into the drug investigations unit.
    I actually did homicide crimes and crimes against children 
as a detective, and it was easy to recognize the bruises and 
the broken bones and call that child abuse. And when I got into 
investigation, it wasn't until I walked into some of these drug 
homes and recognized the violence that was occurring day in and 
day out in these children's lives.
    As you mentioned earlier in my introduction, I've spent the 
last 2 years educating people across the State and actually 
across the Nation on meth lab awareness and the dangers, and 
the award that I actually won for ONDCP and HIDTA was for 
protecting law enforcement officers who actually went into labs 
day in and day out because of the toxic environment that it 
created. And throughout that time, my guys were wearing 
chemical protective clothing gear and self-contained breathing 
apparatus and we pulled out children wearing diapers. And it 
wasn't until then that I realized that the drug endangered 
environment that these children were living in was just 
horrific.
    I speak to you today by telling you that it is really 
critical to have penalties that are severe enough to have 
people change their behavior. It is never acceptable to expose 
children to drug endangered environments.
    As I speak with you here today, my task force is out at a 
hotel, and we are raiding the entire hotel as an open market, 
and in the hotel are families that live there with their 
children, distributing drugs every day, and there are guns. 
We're also--it's a RICO case and it has three homicides 
associated with that environment, and at no time did any of the 
drug dealers ever pay attention to the children that were 
living in that environment. Additionally, we had a grandfather, 
who every day when we watched him in surveillance going to do 
his drug trafficking, picked up his grandson and used the 
grandson as a decoy during his drug trafficking operations.
    So the areas where people put children in harm is--in drug 
trafficking is serious, and we need to pay attention to the 
environment that we're allowing these children to grow up in.
    As a member of the National Alliance for Drug Endangered 
Children, we have a mission to bring disciplines together to 
work on these exact issues, and accountability is a huge part 
of making the system work. If we can hold the caregivers and 
the parents who traffick around their children and put their 
children in dangerous environments, then it will assist in the 
totality of what we're trying to do to protect the children.
    Thank you, Mr. Chairman and Subcommittee Members.
    Mr. Coble. Thank you, Ms. Moriarty.
    [The prepared statement of Ms. Moriarty follows:]

                  Prepared Statement of Lori Moriarty

    Mr. Chairman and Members of the Subcommittee:
    I am pleased to appear before you today on behalf of The National 
Alliance for Drug Endangered Children as a Committee Member and as the 
President of The Colorado Alliance for Drug Endangered Children to 
speak on the important issue of ``Defending America's Most Vulnerable: 
Safe Access to Drug Treatment and Child Protection Act of 2005.'' 
Though I cannot speak on all points covered in H.R. 1528, as a drug 
unit commander I can say that I have seen children of substance abusing 
parents suffer extreme neglect, physical, sexual and psychological 
abuse. The time has come to take notice and take action, not only in 
the law enforcement community but all professionals involved in the 
welfare of children.

                               BACKGROUND

    When law enforcement officers in Colorado were just beginning to 
appreciate the devastating effects methamphetamine was having on 
communities and the users, the focus was to develop safe procedures to 
locate and seize methamphetamine labs. As law enforcement became 
sophisticated in the detection, seizure and arrest of these clandestine 
labs and their operators, what became astoundingly apparent was that 
the real victims of the crime were the children. Law enforcement 
quickly realized they were not equipped to address the special needs of 
the children found in these homes where the manufacturing was taking 
place and realized that other agencies should be involved to address 
the needs of the voiceless and innocent victims. In 2002, public and 
private agencies in Colorado came together to discuss the unique and 
pressing problems facing these children. The professionals agreed the 
issue was a crisis and required an immediate, multi-disciplinary 
response. Colorado reached out to California, where the first Alliance 
for Drug Endangered Children committee was established. Based on the 
Drug Endangered Children Program developed in Butte County California, 
members of the private and public agencies initiated, for the first 
time in Colorado, a group of professionals willing to assess and 
establish the best methods of collectively meeting the needs of the 
children. In 2003, Colorado established a non-profit organization, 
Colorado's Alliance for Drug Endangered Children and quickly 
collaborated with California and several other states where similar 
initiatives were being developed. Through these efforts The National 
Alliance was formed in 2003 to promote public awareness regarding the 
plight of drug endangered children and to link and support the many 
professionals that rescue, defend, shelter and support these children 
including law enforcement, child protective services, first responders, 
medical and mental health professionals, prosecutors and county 
attorneys, substance abuse treatment providers, community leaders and 
concerned members of the public.
    The National Alliance for Drug Endangered Children recognized the 
scope of child endangerment went beyond children living where 
manufacturing was taking place but also included environments where 
children were exposed to drug trafficking and the drug subculture 
associated with the use, sale and possession of illegal drugs. The 
desperate plight of these children left behind must be addressed. The 
abuse and neglect of these children is not marginal but real and 
significant. These children are innocent, tragic victims who require 
special and immediate attention.

                         NATIONAL ALLIANCE GOAL

    The National Alliance believes drug endangered children are victims 
who, when discovered during law enforcement actions or recognized by 
others to be in danger, require immediate intervention and support. We 
promote the concept of using collaborative, multi-disciplinary teams 
whose primary interest is the health and welfare of the child found in 
a dangerous drug situation. Thus, our goal is to ensure long term care 
as the child moves from the arms of law enforcement, to child welfare 
services and is medically and psychologically evaluated, and thereafter 
placed in an appropriate and safe living situation.
    Over the last eighteen months, the National Alliance has focused 
most of its efforts on causing everyone to understand the harm posed to 
children in many different drug scenarios--ranging from methamphetamine 
or other clandestine labs, environments in which drugs are dealt, 
stored or packaged and in some instances, guarded with guns and other 
weapons, and those which are controlled by caregivers who are addicted 
to or so influenced by drugs that they lose their ability to provide 
even a minimum standard of care often neglecting and in many instances, 
actually abusing children. The National Alliance supports and endorses 
the National Drug Endangered Children Training Program. We also provide 
support and guidance to states as they form individual alliances and 
begin to form multi-disciplinary teams in their communities.

                        CHILD ABUSE AND NEGLECT

    There are several aspects of child abuse and neglect in drug-
endangered homes. The environments themselves are frequently so 
dangerous that simply allowing a child to live there constitutes child 
endangerment. Substance abuse also affects the caregiver's ability to 
parent, placing the child at additional risk for abuse and neglect.
    Children whose caregivers are substance abusers are frequently 
neglected. They often do not have enough food, are not adequately 
groomed, do not have appropriate sleeping conditions, and usually have 
not had adequate medical or dental care. These children are frequently 
not well supervised, placing them at additional risk of injury. 
Children raised by substance-abusing caregivers are often exposed to 
pornographic material, often emotionally abused and have a heightened 
risk for sexual abuse. Additionally, they frequently do not get the 
appropriate amount of support, encouragement, discipline, and guidance 
they need to thrive.
    Specific hazards to children living in these labs are numerous. The 
children are exposed to toxic chemicals and are at risk on inhalation 
of toxic fumes. Clothing and skin contact of improperly stored 
chemicals, chemical waste dumped in play areas, and potential 
explosions and fires (the specific risks of the different chemicals are 
outlined in the Clandestine Lab section) are also possible. They are 
frequently exposed to a hazardous environment which often includes 
accessible drugs, exposure to drug users, cooks and dealers, hypodermic 
needles within reach of children, accessible glass smoking pipes, razor 
blades and other drug paraphernalia, weapons left accessible and booby 
traps placed to ``protect'' the clandestine laboratory and its contents 
from intruders.
    The use of illegal drugs affects the caregiver's judgment, 
rendering them unable to provide the consistent, supervision and 
guidance that children need for appropriate development. Therefore, 
substance abuse in adults is a critical factor in the child welfare 
system. With specific reference to methamphetamine, children are 
frequently neglected during their caregiver's long periods of sleep 
while ``crashing'' from a drug binge. The caregiver's also frequently 
display inconsistent and paranoid behavior, especially if they are 
using methamphetamine. They are often irritable and have a ``short 
fuse'' which may ultimately lead to physical abuse. Children in these 
homes are often exposed to violence as well as unsavory individuals. 
Unfortunately, these caregivers were often not parented well themselves 
and therefore did not learn effective parenting skills. Finally, the 
caregiver's ability to provide a nurturing home for a child is 
complicated by the caregiver's own mental health issues which may have 
contributed to or resulted from substance abuse.

                          TESTIMONY OF A CHILD

    It was five o'clock in the morning on October 23, and the street 
was empty. The house was dark where five undercover detectives were 
conducting surveillance, preparing for the execution of a search 
warrant on a drug lab. The traffic on the police radio had been silent. 
Suddenly, as SWAT officers began their initial approached from several 
blocks away, one of the detectives watching the house keyed the 
microphone of his radio and yelled for everyone to stop. As he spoke, 
everyone could hear the uncertainty and hesitation in his voice as he 
tried to describe what he was seeing. When the words finally came out 
he stated, ``There is a skeleton coming out the front door.'' As we 
processed the information, wondering if the detective was hallucinating 
after the long hours of surveillance, he went on to explain that the 
skeleton figure appeared to be the four-year-old child we knew was in 
this particular drug house. He further described how the boy was out 
onto the front porch looking up and down the street. As we discussed 
the child's behavior, he came back out onto the porch and began looking 
up and down the street again. Being narcotics officers the only 
explanation we could come up with was the possibility that he was 
counter surveillance and acting as a look out for his parents. With 
this information, we told the SWAT officers to move forward and execute 
the search warrant, using extreme caution.
    After the raid was over, the SWAT team placed several adults into 
custody and removed the four-year-old boy and another eight-year-old 
girl. During my interview with the boy I explained that I was curious 
why he was dressed in a skeleton outfit, standing on his front porch 
and looking up and down the street so early in the morning. His eyes 
lit up and he got excited as he explained that today was his Halloween 
party at school. His shoulders then slumped when he went on to tell me 
that he really wanted to go to the party but he hasn't been able to 
wake his mom up for the last few days and he didn't know where the bus 
stop was. He said that he thought if he got up early enough in the 
morning and put his costume on, he could just watch up and down the 
street and catch the bus as it drove by. I couldn't imagine at that 
moment that this child could educate me any more until I realized that 
he couldn't count to ten, but he could draw a picture, in detail, of an 
entire operational meth lab. To this day, my mind cannot erase the 
visual this four-year-old child left me with. I realized we had a 
responsibility to identify these children and work with other 
disciplines to meet their needs. Early identification can activate a 
multi-disciplinary response within our communities where all of us must 
work together as partners to rescue, defend, shelter and support the 
children.

                                RESEARCH

    In the year 2002 the National Clandestine Laboratory Database 
reported 8,911 clandestine laboratory seizures. Over ninety percent of 
these were methamphetamine production and over 2,078 incidents involved 
children. First responders and children alike are exposed to toxic and 
hazardous chemical exposure. Many of the hazards of this illicit 
process and the type of exposure have not been studied extensively, and 
are therefore unknown. According to the El Paso Intelligence Center, 
the increase of methamphetamine production has resulted in at least one 
methamphetamine laboratory in every state of the union in 2002. In 
January 2003, National Jewish Hospital and Research center began to 
study the harmful effects of methamphetamine labs to first responders 
and children through various methodologies, including: controlled lab 
studies, field controlled lab studies and surveys. The study expanded 
its scope throughout the year with results that may impact the way in 
which first responders and investigators perform their duties. 
Throughout the duration of this study, the spirit of collaboration and 
cooperation has been a predominant factor.
    The initial study concerns included the potential, exposures, 
related health concerns, medical monitoring, and the comprehensive use 
of personal protective equipment. Throughout the study additional 
questions arose regarding the airborne properties of methamphetamine, 
the decontamination process and the degree of danger to children.
    The standards used for measuring exposure were those utilized for 
an occupational setting. These guidelines and standards are formulated 
based on a predominantly male workforce, 20-30 years of age and 
healthy. These standards are not applicable to children, those with 
health conditions or pregnant women. To date, there are no suitable 
standards established regarding exposures to children during the 
production of methamphetamine. Therefore, a significant amount of 
future research is still needed in order to accurately determine the 
degree of dangers to children.
    During the study, a teddy bear was placed in a room where chemists 
from DEA manufactured methamphetamine to determine the amounts a 
contamination produced. When the teddy bear was tested the results were 
alarming. The bear tested highly positive for methamphetamine and was 
extremely acidic. The methamphetamine levels on the bear were 3,100 ug/
100 cm2 on the outer portion of the sweater and 2,100 ug/100 cm2 under 
the sweater, compared to the ``clean'' standard in Colorado, used to 
determine if a residence where a lab was discovered is acceptable for 
re-occupancy, which is .5ug/100 cm2. The pH level of the bear was 1.
    For a full report on the results of the National Jewish Medical and 
Research Methamphetamine Study go to www.nationaldec.org

                           CONCLUDING REMARKS

    For decades, law enforcement teams across America have been 
fighting ``the war on drugs'' by arresting those responsible for the 
use, possession, trafficking and manufacturing of illegal substances. 
However, at no time during these battles did we recognize the neglect, 
the physical, sexual and emotional abuse to include the developmental 
and psychosocial issues our children were suffering at the hands of 
their drug-abusing parents.
    It is most important that we send a clear message to those that 
chose to endanger children: It is never acceptable to expose children 
to drug environments and drug dealing and that there will be an 
additional price to pay if they do.

    Mr. Coble. Mr. Brownsberger?

   TESTIMONY OF WILLIAM N. BROWNSBERGER, ASSOCIATE DIRECTOR, 
  PUBLIC POLICY DIVISION ON ADDICTIONS, HARVARD MEDICAL SCHOOL

    Mr. Brownsberger. Thank you, Mr. Chairman. Thank you, Mr. 
Chairman. Thank you, Members of the Committee.
    Mr. Coble. Mr. Brownsberger, a little closer to you, if you 
will, and activate it.
    Mr. Brownsberger. Let me try that again. Thank you, Mr. 
Chairman. Thank you, Mr. Scott. And thank you, Members of the 
Committee. I appreciate the invitation to be here.
    I'm the father of three daughters, a 10-year-old, a 13-
year-old, and a 16-year-old, and proud to tell you they're all 
growing up sober. I'm a member of the governing board of the 
community in which I reside and I'm committed to addressing the 
problems of youth substance abuse. I've been an Assistant 
Attorney General in the Special Investigations and Narcotics 
Division of the Commonwealth of Massachusetts and there 
prosecuted drug dealers. I have done a good amount of research, 
and I guess that's what I owe my honor to be here today, is the 
research I've done on school zone sentencing and the profile of 
anti-drug law enforcement in Massachusetts.
    I've also today practice as a defense attorney. I worked a 
lot in drug courts and I know what the damage of drug addiction 
is, what it does to people's lives, what it does to the lives 
of families. I'm also a defense attorney and I have the 
occasion to represent drug dealers who are charged with 
violations of these laws. All of these experiences have given 
me insight, and some of that insight may be helpful to the 
Committee.
    The first issue I'd like to speak to is the issue of the 
geographic provisions of this bill, the provisions which would 
enhance penalties within certain geographic areas. You can call 
those areas drug-free zones. And the bill would expand the 
radius around zones, these zones that are protected, from 100 
to 1,000 feet for some kinds of facilities, and then it would 
add a whole lot of new facilities in the form of drug treatment 
facilities, including, by the way, take note, individual drug 
treatment providers. So if a psychologist is providing drug 
treatment, there will be a 1,000-foot radius around that 
psychologist's facility.
    Now, I understand that a lot of what we have to do in 
making legislative policy is to respond to rhetoric and to 
anecdotes because that's all we have, but this is a case, Mr. 
Chairman, in which we actually have the ability to put some 
fine numbers on what we're doing here and make a decision based 
on information.
    I have some slides, which I guess are not available to be 
up on the screens, but the first slide just shows an aerial 
view of the town of--city of New Bedford, Massachusetts. And 
the second slide dots onto that using the geographic 
information from that community, the schools and parks. The 
green are the parks and the blue are the schools. As you can 
see, there are a number of them within this large downtown 
area.
    When you put the 1,000-foot radii on them--that's the third 
slide showing the yellow--that shows the school zones, the 
drug-free zones around these facilities, and as you can see, 
they cover most of the downtown area of that community. Take 
note to the far left, the green plot there is a park and has a 
relatively small zone around it. That's because it's a 100-foot 
zone around parks in Massachusetts, whereas it's a 1,000-foot 
zone around schools. That's the way the structure of our law is 
in Massachusetts.
    Now, you can imagine that if you add drug treatment 
facilities and video arcades and individual psychologists' 
offices to this map, the whole map will be yellow. That's a 
conjecture because we don't have that data. But it would be 
easy, in fact, for you to acquire that data before passing this 
legislation. It would be easy to identify a number of 
communities and see how this would actually work. But based on 
my experience, my knowledge of the density of these 
communities, my conjecture would be with a lot of confidence 
that every major metropolitan area in this Nation would be 
yellow, would be covered within these drug-free zones.
    So the consequence of that legislation is not to push 
people away from any particular place but simply to multiply 
the penalties. If you wanted, Mr. Chairman, to protect drug 
treatment facilities, you'd be much better advised to use a 
much narrower radius, for example, 100 feet, and then people 
would know where they needed to stay away from. But this 
legislation will just serve to elevate the penalties generally.
    And I hope that's not the goal of the Committee because I 
do believe that these penalties are, in fact, high enough, if 
not too high. The impact of these penalties is, in fact, to 
raise the incarceration rate of young African American and 
Hispanic males. That's who is involved in the drug trade 
predominately in this country. That is, unfortunately, the 
reality. That's the color and the ethnicity behind that 
business today, just as every other business commonly may have 
an ethnicity that's more heavily involved in it. And if we put 
this law in place, you're just putting more of those young men 
in jail.
    As a defense attorney, it's been my privilege to get to 
know some of these young men and they're not the animals that 
you might imagine. We're characterizing them as drug dealers. 
We're caricaturing these people. These are people that just 
have led into a role which they have no concept of what their 
other options in life are. I've talked to young defendants who 
say, well, it was stealing cars, robbery, or drugs, and I 
actually was kind of--I'm not the kind to rob people, so I went 
into drugs. That's the kind of conversation people have. They 
have no concept of where they can go.
    And so this legislation is damaging legislation and I hope 
the Committee will study it a great deal further before taking 
any action on it.
    Mr. Coble. Thank you, Mr. Brownsberger.
    [The prepared statement of Mr. Brownsberger follows:]

             Prepared Statement of William N. Brownsberger



                               ATTACHMENT



    Mr. Coble. And thanks to each of the witnesses.
    We have been joined, ladies and gentlemen, by the 
distinguished gentleman from California, the distinguished 
gentleman from Florida, and the distinguished gentleman from 
Virginia. It's good to have you all with us.
    As I told you all at the outset, we will begin our 
questioning and we comply with the 5-minute rule, as well, so 
if you all could keep your questions terse, we would be 
appreciative.
    Ms. Avergun, provide the Subcommittee with additional case 
information, if you will, regarding the hotel fire case 
involving meth cat, sometimes called cat. Was there a 
sentencing enhancement applied, A, and B, was there a 
sentencing enhancement available? Pull that a little closer to 
you.
    Ms. Avergun. I'll just keep it on. I can tell you a little 
bit more about that case. In August of 2003, at a family 
resort, there was a fire involving a particular hotel room. The 
local department responded to the hotel. They discovered the 
defendant had started the fire while manufacturing a substance 
called methcathanone. There was a lab actually in his hotel 
room. The hotel room--the hotel was part of a family resort. 
There were chemistry books and a jar of methcathanone already 
made.
    The defendant pled guilty in that case. He was sentenced to 
151 months in prison and 3 years supervised release and 
restitution for costs of the fire. The defendant received a 
significant sentencing enhancement due to his criminal history. 
However, he did not receive any kind of sentencing enhancement 
due to the fact that he had endangered children or families in 
the hotel room, in the hotel where he was. There were no 
guideline enhancements available because, right now, the law 
only provides for enhancements for the manufacture of 
methamphetamine or amphetamine. This is a completely different 
substance.
    And any substance can be--many substances can be produced. 
Synthetic drugs are more prevalent now, and they can all be 
produced with relative ease by looking up recipes in commonly 
available places. This----
    Mr. Coble. Okay. I don't mean to cut you off, but I need to 
get to other witnesses.
    Ms. Avergun. That's okay.
    Mr. Coble. Thank you.
    Mr. Brooks, drug trafficking, as we all know, is violent 
business. Share with us, if you will, any experience you may 
have had with drug dealers employing violence, that is, that 
included the possession of firearms to protect the operation, 
to enforce the collection of drug debts, how kids may simply 
get in the way.
    Mr. Brooks. Mr. Chairman, I think it goes without saying 
that drug dealing is a violent profession. It's one where 
firearms, bulletproof vests, and other methods are readily 
employed. The biggest threat in drug dealing is in turf battles 
and in the collection of debts and in ensuring that people 
don't cooperate with law enforcement. That's frequently done by 
homicide or other violent means and kids do get in the way.
    There is no discrimination against hurting children when 
there is violence in a home. We have had children caught in the 
crossfire of drug turf battles. And I could rely on one of my 
own personal experiences. A young gal that I went to high 
school with, shortly after I was a narcotic officer, she had 
decided to live with a drug trafficker. There was a rip-off, a 
theft at the home. She crawled under the mattress as the rip-
off was occurring. Three shotgun blasts into the bed, killing 
her. This wasn't a person that chose to live--and she was an 
adult, she had made her own choice, but it wasn't somebody that 
had chose to involve themselves in the drug trafficking 
business. That can happen just as easily to any child caught in 
a drug house.
    Mr. Coble. Thank you, Mr. Brooks.
    Mr. Brownsberger, if I read you correctly, you seem to 
suggest that the goal of school zones is to move the drug 
dealing somewhere else. Would you not also recognize that the 
goal is to assure that traffickers who do engage, you know, ply 
their wares in a school zone will likely be awarded an active 
prison sentence?
    Mr. Brownsberger. I'm not sure, Mr. Chairman. I would 
assume the goal is to protect children. That's our overall 
goal, and the goal of punishing drug dealers is to keep them 
from endangering children.
    Now, my work showed that about 80 percent of the cases in 
which the school zone statute was used involved transactions 
that occurred at night, on the weekend, or in the summer. They 
just didn't have anything to do with children, Mr. Chairman.
    Mr. Coble. Ms. Moriarty, I think I have time for one quick 
question. What promoted you to become a member of the Steering 
Committee of the National Alliance?
    Ms. Moriarty. When law enforcement started finding the 
children living in these environments, we realized that we 
couldn't do it alone, that just removing the children and then 
placing the caregiver in custody and, you know, holding them 
accountable for the position that they're putting the children 
in wasn't enough. We had to actually focus on the child. And so 
we realized that all of the disciplines need to come together--
medical, psychological, the social services, just a multitude 
of multi-disciplines, to actually be with the child and take 
him through the process.
    In Colorado, I can give you an example, we have 68,000 
parents who are in some kind of treatment. I won't necessarily 
say recovery, but in treatment. And of those 68,000, there are 
114,000 children. And so somewhere along the line, all of us 
disciplines need to come together to support the children.
    Mr. Coble. Thank you. I see my red light.
    I want to recognize the gentleman from Virginia.
    Mr. Scott. Thank you, Mr. Chairman.
    Ms. Avergun, the DEA is supporting the bill?
    Ms. Avergun. The DEA supports certain provisions of the 
bill, yes.
    Mr. Scott. And opposes certain provisions of the bill?
    Ms. Avergun. We'd like to work with the Committee to fix 
certain provisions of the bill, yes.
    Mr. Scott. Okay. Now, do you know what the prison impact 
would be, what the additional costs in prisons would be?
    Ms. Avergun. Mr. Scott, there would probably be some 
incremental costs which are fixed based on a fixed cost that 
Bureau of Prisons estimates of the costs of incarceration. 
However, two things that I would point out. The first is that 
we don't anticipate arresting entirely new classes of people as 
a result of this. These are people who would already be in 
jail. They are drug trafficking. Drug trafficking is already 
illegal, and much of this bill amends things that are already 
prohibited.
    The second thing I would like----
    Mr. Scott. Wait. On that point, so you would not be 
arresting any new people, you would just be giving enhanced 
penalties to those who you already would have arrested anyway?
    Ms. Avergun. There are some new provisions in this bill. 
For instance, distributing drugs in the presence of children is 
a new provision. But by and large----
    Mr. Scott. You could have gotten them for distribution of 
the drugs, period. If you know they've distributed the drugs in 
front of a child, you knew they'd distributed the drugs, so you 
would have gotten them anyway.
    Ms. Avergun. Perhaps.
    Mr. Scott. Perhaps?
    Ms. Avergun. Yes.
    Mr. Scott. I mean, can you prove beyond a reasonable--have 
you got evidence beyond a reasonable doubt that they 
distributed drugs and that's an offense.
    Ms. Avergun. That is an offense, depending on the quantity 
and the circumstances and whether law enforcement knew about 
it. But----
    Mr. Scott. Well, but if you don't know about it, you 
wouldn't know about it in front of a child.
    Ms. Avergun. That's true.
    Mr. Scott. So you've acknowledged that, basically, you're 
going to be giving enhanced penalties to those you would have 
arrested anyway. My question is, how much more is that going to 
cost in prisons?
    Ms. Avergun. I don't think that the incremental costs are 
that great. Those are fixed costs as estimated by the Bureau of 
Prisons. But I would like to add----
    Mr. Scott. Wait. Are they going to be in prison longer?
    Ms. Avergun. May I finish my point? The costs to society 
for not incarcerating these people for longer sentences are far 
greater than the costs that it would impose on society for 
keeping them in jail for incrementally longer terms.
    Mr. Scott. So I understand your answer to be, you don't 
know how much more we're going to be spending in prisons if the 
bill passes?
    Ms. Avergun. I don't have the exact number, but that is a 
number that the Bureau of Prisons has estimated across the 
board.
    Mr. Scott. What number?
    Ms. Avergun. The amount that it costs, the cost of 
incarceration in a Federal prison across the board.
    Mr. Scott. How much more would the implementation--if we 
passed the bill, how much more are we going to be on the hook 
for, do you know?
    Ms. Avergun. No, I don't.
    Mr. Scott. Does it matter?
    Ms. Avergun. Yes, it matters, but we have to weigh the 
costs to society of not protecting----
    Mr. Scott. Well, actually, we have to weigh the costs in 
spending it somewhere else, because all of the studies that 
we've seen have shown that if you put the money in prevention, 
you'll have less drug use going on and society will be better 
off than if you just increase the penalty for others. So we've 
got to know what our choices are.
    Ms. Avergun. I don't think that in passing this bill or 
enacting legislation that imposes additional penalties that 
that vitiates any efforts or any spending that the Government 
does on prevention or treatment. There are three parts to the 
President's National Drug Control Strategy, each an equal part.
    Mr. Scott. Well, let me ask you, on that hotel case that 
you were talking about, what penalties were available to law 
enforcement for the people you caught?
    Ms. Avergun. The defendant received a sentence of 151 
months based largely on his criminal history.
    Mr. Scott. And how much would he get if this bill had 
passed?
    Ms. Avergun. I don't know the quantities of the drugs 
involved. That would determine largely the amount of the 
sentence.
    Mr. Scott. Well, he would have gotten 15 years under 
present law.
    Ms. Avergun. He got 151 months, yes.
    Mr. Scott. There's a provision in here, misprision of a 
felony, where you don't report a felony and you go to jail for 
it. That would include parents not turning in the children, if 
the children had purchased the drugs, they would be also guilty 
of a crime and they would be turned in with the rest. Has that 
ever been--that's present law.
    Ms. Avergun. There is a crime called misprision of a felony 
and the section that you're referring to, 2(m), is one of those 
that the Department has concerns with and that we seek to work 
with the Committee to address.
    Mr. Scott. Okay. Well, my time is just about up, Mr. 
Chairman.
    Mr. Coble. If time permits, we may have a second round, as 
well.
    In order of their appearance, I recognize the gentleman 
from Texas, the distinguished gentleman from Texas, Mr. 
Gohmert, for 5 minutes.
    Mr. Gohmert. Well, thanks, Mr. Chairman, and I appreciate 
not only being considered a gentleman but being considered 
distinguished. That was distinguished and not ex, wasn't it? I 
wasn't sure.
    Mr. Coble. If the gentleman will suspend, I even recognize 
myself that way sometimes, Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman.
    Just curious, are they still using pseudoephedrine in the 
cooks for meth? Anybody?
    Ms. Avergun. Yes, sir.
    Mr. Gohmert. Okay. I was hoping they'd found another way, 
because pseudoephedrine keeps me from snoring at night and it's 
harder and harder to get, but anyway, with regard to the drug 
treatment facilities and schools provision, I realize the 
importance of protecting our children, the importance of drug-
free zones, just like the importance of gun-free zones to 
protect our children. Let me direct this to Ms. Avergun.
    You obviously are familiar, I'm sure, with the Supreme 
Court case of Lopez where the U.S. Supreme Court struck down 
the Federal gun-free zone around the school and said that 
that's the State right. The Feds don't have a right to come in. 
That's State law.
    And, of course, understanding that with this Supreme Court 
that they have shown that they routinely may vote for something 
before they vote against it, or vote against it before they 
turn around and vote for it, they have a real problem with 
precedent, including their own precedent--a little editorial 
comment there--but I'm curious. Do you see or even anticipate 
any Lopez-type problems with a drug-free zone around the school 
or a drug treatment facility?
    Ms. Avergun. I regret to tell you that I'm not familiar 
enough with the Lopez case and haven't performed an analysis of 
the statute vis-a-vis Lopez, but I would be happy to get back 
to you and provide our position on that.
    Mr. Gohmert. Well, I'd be very curious about your position. 
When we're talking about cost and passing a law like this, we 
don't want to be just spinning our wheels, so I'd be very 
curious to see if you feel there's sufficient Federal nexus.
    With regard to comments about drug treatment and saving 
money from people being incarcerated, you folks have obviously 
a tremendous amount of experience, and we appreciate all your 
testimony. My own experience from handling thousands of 
criminal cases as a judge showed me that, if you just lock 
somebody up without any treatment and they have a drug problem 
or alcohol problem, you're going to probably see them again--
some judge I am if I didn't. If you just treat somebody in a 
30-day program, somebody was 99 percent likely to see them 
again as a judge, even up to 120 days.
    It seemed that the most effective way to avoid my having to 
resentence somebody that I sentenced once, it was to make sure 
they were locked down for an extended period of time and forced 
to deal with their drug or alcohol problem. It seemed to me 
that the combination of those two working together were the 
best things we could do to ensure, number one, protection of 
society, children, and others being lured into that kind of 
life, and also punishment. You know the scenario.
    But does anybody have any statistical evidence regarding 
these things we've been talking about to show that, in your 
opinion, or in your opinion, they justify not having 
incarceration in conjunction with drug treatment or having 
incarceration with drug treatment? Does anybody have any 
statistical evidence? I know we've been talking a lot about 
anecdotal evidence that each of you have.
    Mr. Brownsberger. Mr. Gohmert, there's good statistical 
evidence showing the relative cost effectiveness of a dollar 
spent on treatment as compared to a dollar spent on 
incarceration. Is that responsive to your question?
    Mr. Gohmert. No.
    Mr. Brownsberger. I'm sorry. Then maybe I'm not 
understanding the question well enough, then.
    Mr. Gohmert. Okay, thank you. But with regard to the number 
of people who are sent to incarceration and have drug treatment 
compared to the recidivism rate of someone who simply gets 
treatment, because what you're talking about is different.
    Mr. Brooks. I don't have all of the--probably the level of 
statistics that you would like, but I could tell you overall 
that effective treatment programs are effective at the rate of 
about 55 percent. Those treatment programs that we have seen to 
be most effective are those administered by the drug courts 
that use sanctions, graduated sanctions, to keep their people 
in treatment, to incentive treatment, and when they use the 
power of the bench to do so.
    And so we think--my organization thinks this bill is 
particularly important for that regard, but it's also important 
for another reason, and it's a little hard to put a dollar 
figure on it, and that reason is that we use these tools, then, 
to try to compel people to cooperate with law enforcement, to 
try to then allow us to reach up into these organizations, very 
complex, multi-State, multi-national organizations that, quite 
frankly, even though it's a seedy side of law enforcement, the 
use of informants, if we didn't have the tough Federal 
incentive to compel these informants, we would not reach in and 
break drug dealing organizations.
    When you go after the targets of opportunity on the street, 
you're cleaning up a street corner. But if you're going to 
really have an impact, in my 30 years of experience in drug 
enforcement, the way to truly have an impact is to hit the 
organizations, and to hit the organizations, you need 
information, and to get the information, you need the 
incentive.
    Mr. Gohmert. Carrot and a stick.
    Mr. Brooks. That's correct, sir.
    Mr. Gohmert. Okay. Thank you very much, Mr. Chairman.
    Mr. Coble. The gentleman's time has expired. I thank the 
gentleman.
    The gentlelady from California, the distinguished Ms. 
Waters, for 5 minutes.
    Ms. Waters. Mr. Chairman and Members, I came in a little 
late, but I rushed to get here because I think this is such an 
important subject that we're dealing with here today. I think 
all Members of this Committee, both sides of the aisle, are 
more than frustrated with the level of drug activity and the 
lack of effectiveness of our laws and our policies as they 
relate to drugs, those who abuse drugs, and those who sell 
drugs.
    I would like very much to be able to join with my 
colleagues in limiting as much as we possibly can the sale of 
drugs near drug treatment centers, the exploitation of 
children, and the sale and transport of drugs, et cetera, et 
cetera. However, I think we may be mixing apples and oranges 
here as we deal with this issue. There needs to be, I suppose, 
a lot more discussion about mandatory minimum sentencing and 
the fact that mandatory minimum sentencing has proven to be 
just a terribly ineffective way of dealing with the violation 
of drug laws.
    We in California, I suppose in other places around the 
country, are involved with drug courts and they are proving to 
be extremely effective. We have learned that with mandatory 
minimum sentencing, we find a lot of low-level drug dealers, 
young people who are not criminals, they're just stupid, and 
they think they're going to make some money dealing in a few 
rock crack cocaines. They end up in prison because the judges 
have no discretion, can't take into consideration first-time 
offense, can't divert them from the criminal justice system, 
cannot do anything to make sure that these young people don't 
become real drug dealers. And so this bill that we are 
discussing does not appear to take all of this into 
consideration.
    Having said all of that, too, I suppose it's Ms. Avergun, 
in your written testimony, you stated that mandatory minimum 
sentences provide a level of uniformity and predictability in 
sentencing. Given what I've said, I want to address you and 
ask, is this what we really want in our sentencing policies? 
Doesn't uniformity and predictability impede on the role of the 
judge? Isn't it the judge's role to serve as a disinterested 
enforcer of justice, who at his discretion can consider 
mitigating circumstances and determine--determining the 
appropriate sentencing for defendants? We've heard from a lot 
of judges. They don't like mandatory minimum sentencing.
    And don't you think we should be involved in prevention and 
diverting people away from the criminal justice system, first-
time offenders, young, 19 years old, first mistake, five grams 
of crack cocaine? Why do they deserve to have 5 years mandatory 
minimum sentence in a Federal penitentiary where they'll be 
thrown in with hard-core traffickers who probably will 
certainly divert them to being involved in drugs? Can you give 
me some insight on why----
    Mr. Coble. The gentlelady's time has expired, but you may 
answer the question.
    Ms. Avergun. Thank you, Mr. Chairman. Ms. Waters, thank you 
very much for your question. There are situations where drug 
treatment is more appropriate than incarceration, and Mr. 
Brooks has testified that a combination of sanction-based 
demand reduction, that's what we call it in the Department, 
coupled with the threat of incarceration is one effective way 
to go.
    However, mandatory minimums do provide uniformity. There 
are studies, one recently cited by Judge Cassell in the Wilson 
case, that said that there are a variety of studies that 
suggest that a drop in crime rate is attributable to mandatory 
minimums, and the Department of Justice abides by that--by 
those studies. That is a critical part of drug enforcement, 
and, in the drug cases, the Department of Justice believes that 
mandatory minimums are appropriate.
    That's not to say that judges should never have discretion. 
That's not to say that treatment and prevention are not both 
critical components of the drug control strategy of which drug 
enforcement is the third part. But all play a part. In the 
majority of cases, the Department of Justice does believe, 
however, that mandatory minimums are appropriate and there are 
studies that suggest that they do deter crime.
    Ms. Waters. Thank you, Mr. Chairman. I'd like to see those 
studies, if we could have a formal request for them.
    Mr. Coble. Ms. Avergun, can you respond to that and make 
that information available to the Subcommittee?
    Ms. Avergun. I certainly can.
    Mr. Coble. I appreciate that.
    The distinguished gentleman from Virginia, Mr. Forbes, is 
recognized for 5 minutes.
    Mr. Forbes. No questions.
    Mr. Coble. The distinguished gentleman from Massachusetts 
is recognized, Mr. Delahunt.
    Mr. Delahunt. I'll just pick up on my colleague from 
California. You know, that there are, I would suggest, Ms. 
Avergun, that there are more studies, of a substantial order of 
magnitude, that indicate that the relationship between minimum 
mandatories and their efficacy in terms of dealing with the 
drug issue is probably negative.
    You know, I think that most people on this panel would 
seriously consider supporting this legislation but for, you 
know, implicating into this--excuse me, Mr. Ranking Member, 
except implicating minimum mandatory sentencing. You know, this 
Committee is going to have to deal, you know, at some point in 
time with the whole issue of sentencing guidelines. You know, a 
good prosecutor is able to target, you know, those at the upper 
level, if you will, in terms of a drug syndicate. A good police 
officer knows who the individual is and in terms of presenting 
a sentencing report that the vast majority of judges would 
comply with and accept. It's just part of the job.
    You know, I just think it's unfortunate, you know, and I 
think that there's going to come a point in time when it will 
be opportune to take a look and see what's happened in the 
aftermath of Booker. That will give us some idea in terms of 
the guidelines. But, to shift everything now into minimum 
mandatories, I just don't think it's practical. I just really 
don't think it makes a lot of sense and doesn't get us anywhere 
in what I think is an objective that we all share.
    So, you know, I think that's a message you can take back. I 
mean, at some point in time, Congress is going to be faced, 
too, I presume, with a request for more monies for the war on 
drugs as it is defined in Plan Colombia. What are we seeing in 
the--let me address this probably to Officer Brooks. How many 
addicts do we have in the country today, hard-core addicts that 
are responsible for a disproportionate number--how many hard-
core addicts----
    Mr. Brooks. You know, when I was 40, I knew the answer to 
that question, but somehow after I turned 50, it's somewhere up 
in the recesses here, but I can't tell you.
    Mr. Delahunt. Mr. Brownsberger?
    Mr. Brownsberger. The truth is that no one knows because 
this is a hidden behavior and it depends on the model that one 
chooses and there are parameters in that model that are very 
hard to estimate. But the numbers that we've seen are anywhere 
between two and six million.
    Mr. Delahunt. Okay. I want to--I think we all want results, 
whatever the mechanism is, and I think it's really important 
that the Department of Justice, working with academia, give us 
an idea before we continue to spend a lot of money in a 
wasteful way. Are we making a difference in terms of reducing 
the number of addicts in this country?
    I agree with you, Mr. Brooks. I mean, I think I have, and I 
would hope at some point in time to convince the Chairman to 
come to Cape Cod, probably around the summertime, and sit and 
observe a drug court that we have there and a treatment center 
that we have there that is incredibly effective. We know the 
answers at this point in time. But you know, we need--we need 
some accurate data and empirical information, because we can't 
keep pouring money into initiatives that will not end up--will 
not allow us to sufficiently gauge whether we're winning. We 
don't know whether we're winning.
    But I'm going to start asking that question on every dollar 
that we spend in terms of--on both sides of the equation, both 
the supply and the demand reduction side. We're going to start 
to need some good statistics. My memory was three million. 
Maybe it's just cocaine addicts. But, you know, we need to know 
that. We need to have benchmarks. And if we start to see a 
reduction in the number of addicts, we're going to see, I dare 
say, a huge reduction in terms of the incidence of drug-related 
crime.
    Mr. Coble. I thank the gentleman, and I thank you for your 
invitation to go to Cape Cod, Bill. I'll talk to you about that 
later.
    Folks, with the indulgence of the witnesses and the 
indulgence of my members, let me make this proposal. We have 
two bills to mark up today and a reporting quorum is nine warm 
bodies. We have those nine. Often times, it's easier to get 
into Fort Knox than it is to get a working quorum--a reporting 
quorum here, so if no one objects, I want to go ahead and mark 
these two bills up while we have the nine members here, and 
then we'll get back to the witnesses.
    Mr. Lungren. Mr. Chairman, reserving the right to object?
    Mr. Coble. The gentleman is recognized.
    Mr. Lungren. Mr. Chairman, I reserve the right to object 
only to suggest that I understand what the Chairman is going to 
do. But with my experience both as Attorney General of the 
State of California, serving on the national commission 
established by the first President Bush on model State drug 
laws, and having, in my position as Attorney General, run the 
Bureau of Narcotics Enforcement of the State of California, I 
feel inadequately prepared to vote on the bill today. So I'm 
just telling the Chairman that I would have some difficulty on 
this.
    The Chairman must proceed as he must proceed. But frankly, 
Mr. Chairman, when Mr. Brooks, who used to be one of my top 
agents, testifies that the most effective thing we have done in 
California is with drug courts and I'm being asked to vote on a 
bill that largely occupies the field with no reference to the 
Federal courts for drug courts, I, frankly, have grave 
difficulty doing that.
    So with that, I'll be happy to----
    Mr. Coble. The gentleman from----
    Mr. Lungren. I'll be happy to yield.
    Mr. Coble. Mr. Lungren, I will--let me float this out. You 
are referring, I presume, to the bill before us now, 1528.
    Mr. Lungren. Yes, sir, I am.
    Mr. Coble. All right. We also have scheduled to mark up the 
gang bill. Do you have any problem with that, Mr. Lungren?
    Mr. Lungren. I do not have----
    Mr. Coble. Or does anyone have any problems with that? All 
right, why don't we move----
    Mr. Scott. I have problems with it, but I don't know if---- 
[Laughter.]
    Mr. Coble. And by the way, and this is a pertinent point 
that I failed to mention, I am told that there are no 
amendments to be submitted to either of these bills. Otherwise, 
I wouldn't have done this.
    Well, let's move along, then, on the gang bill, and we will 
hold the bill before us, and I thank you, Mr. Lungren, for your 
comments.
    [Whereupon, the Subcommittee proceeded to other business.]
    [Hearing resumed after markup of H.R. 1528.]
    Mr. Coble. We can now return to business at hand and the 
gentleman from Florida, Mr. Keller, is recognized for 5 
minutes.
    Mr. Keller. Thank you, Mr. Chairman. I have no questions.
    Mr. Coble. The gentleman from Ohio, Mr. Chabot.
    Mr. Chabot. Thank you, Mr. Chairman. I'll be brief, and I 
want to apologize to the panel for just arriving from my 
district a little while ago. I will review the testimony in 
full. I just have one question for Ms. Avergun, if I could.
    We've heard a great deal about sentencing guidelines, but 
in terms of deterring drug trafficking and distribution, in 
your opinion, do you believe the mandatory minimums included in 
H.R. 1528 will be more effective than the sentencing 
guidelines, and if so, why?
    Ms. Avergun. Thank you, Representative Chabot. The 
Department of Justice is happy to use all the tools in its 
arsenal to deter crime. Mandatory minimums deter crime and the 
guidelines, advisory though they are, deter crime. The threat 
of high sentences causes people to cooperate. There is no two 
ways about it. I was a line prosecutor for 12 years in New York 
and the threat of both the high guideline sentences and the 
mandatory minimums are what worked for a prosecutor. So there 
is no either/or here. They are both critical tools in a 
prosecutor's arsenal.
    Mr. Chabot. Thank you very much. I have no further 
questions, Mr. Chairman.
    Mr. Coble. I thank the gentleman.
    The gentleman from California, Mr.--oh, I haven't 
recognized you, Dan? I'm sorry. The gentleman from California 
is recognized for 5 minutes.
    Mr. Lungren. Thank you, Mr. Chairman. First of all, I want 
to welcome all the panelists here, particularly Mr. Brooks, 
with whom I had a working relationship for 8 years and who's an 
outstanding member of the Bureau of Narcotics Enforcement in 
the State of California and was involved in many different law 
enforcement enterprises and is very knowledgeable on this 
subject.
    I happen to agree with him that we have an effective means 
by which we deal with a significant number of people that we 
find who are violating our drug laws, and that's the drug 
courts. I was one of those who was not in support of drug 
courts initially, but after reviewing them and seeing their 
successes and personally visiting a number of drug courts in 
California, I'm convinced of their utility. And I have some 
concern about the bill that's before us because I don't 
understand, frankly, how the drug court proposition fits into 
the Federal model currently, and maybe the representative from 
DEA could give me some advice on that.
    Ms. Avergun. I don't think that we read this bill to 
preclude or exclude the applicability of drug courts. Drug 
courts are generally for users, people who need treatment----
    Mr. Lungren. I understand that, but what I'm asking you is, 
do we have drug courts on the Federal level?
    Ms. Avergun. There certainly are drug courts on the Federal 
level. There is sanction-based demand reduction as a critical 
component of the Federal drug strategy.
    Mr. Lungren. And are the Federal drug courts available 
throughout the United States?
    Ms. Avergun. I don't have an exact number of where they are 
available, but they are available throughout the country. I 
just couldn't tell you in which Federal districts they are 
currently available.
    Mr. Lungren. Okay. Mr. Brownsberger, as I understand it 
from the map that you've shown us, virtually that entire 
community would be covered if we extended it 1,000 feet, that 
is, locating schools, parks, and treatment centers.
    Mr. Brownsberger. Yes.
    Mr. Lungren. My question to you is, do you find a utility 
in us having at least some measure of additional penalty, and 
therefore deterrent, around such places as parks, schools, and 
treatment centers?
    Mr. Brownsberger. I think it makes sense, but it has to be 
at a much narrower radius.
    Mr. Lungren. What would you suggest? You said you don't 
agree with 1,000.
    Mr. Brownsberger. A hundred feet would be reasonable. 
That's a----
    Mr. Lungren. What would that take us in terms of blocks?
    Mr. Brownsberger. Half a block, a block. It depends on the 
size of the block. But that's sort of the area--that would keep 
people well off the premises. That would be a meaningful 
deterrent for preying on the people involved in those 
institutions.
    Mr. Lungren. Well, if we're talking about schools, we're 
talking about--or parks, we're talking about young people not 
only there but close to there, that is, on their way to and 
from. Does 100 feet make more sense than 1,000 feet if what 
we're trying to do is protect our children?
    Mr. Brownsberger. It does, because 1,000 feet--this is just 
the schools. It doesn't include all those other things on that 
laundry list. But that covers most of the community. So the 
effect of 1,000 feet is to create the whole world as a drug-
free zone, and, therefore, you're not giving any particular 
protection to your children. Your goal is to give particular 
protection to children, as I understand it.
    Mr. Lungren. Okay. Let me ask Commander Moriarty on that. 
Is there something in the notion that we should give enhanced 
protection to children by designating certain zones in 
communities that will allow us to give them additional 
protection by virtue of our definition, or would you support 
such a broad scope that an entire community would be covered, 
as is suggested by Mr. Brownsberger?
    Ms. Moriarty. Well, I think he's right when he states that 
the goal is to protect the children in the areas of the schools 
and the drug treatment facilities, and so, when we are doing 
our enforcement, it's actually more of an enhancement for the 
penalties to actually meet some of the sentencing enhancements 
to put some of the people in jail that we're using it for.
    Mr. Lungren. Right, but what I'm asking you, conceptually, 
do you think that's a good notion? Is that a good enforcement 
tool that you do have certain defined areas you're telling the 
drug dealers to stay out of?
    Ms. Moriarty. I do. I do believe that that's important. I 
don't know that 100 feet is enough----
    Mr. Lungren. What if you have 1,000 feet and by application 
of the map----
    Ms. Moriarty. Then you have everything----
    Mr. Lungren.--it covers everything. Does that defeat the 
proposition or do you think that still is worthy? I'm trying to 
figure this out and I'm trying to ask your help, because you're 
there doing it all the time.
    Ms. Moriarty. Well, sir, I can only answer that when we are 
within 1,000 feet of a school, it is a deterrence because the 
children are walking up and down that area. I mean, I see what 
we're saying as far as then the whole entire neighborhood 
becomes, or the whole city becomes covered under his map. But 
it is a tool that we use to keep people off of the property, 
and I do believe it is a deterrence.
    Mr. Lungren. What do you think about drug courts?
    Ms. Moriarty. I think drug courts are an exceptional 
option.
    Mr. Lungren. I don't know what that means. Does that mean 
good or bad?
    Ms. Moriarty. Good. In the State level for us in Colorado, 
I mean, there are times when we go into Federal sentencing, but 
more so when we get a chance to stay State and local, drug 
courts are a huge part of what the National Alliance is because 
it eventually can help the user and maybe bring the families 
back together.
    Mr. Lungren. This bill has a mandatory minimum life 
sentence for someone who is over 21 convicted on the second 
time of dealing drugs to someone under 18, mandatory minimum 
life sentence. Ms. Avergun, is that appropriate? Would that 
help or not help us in our ratcheting up? I'm one of those who 
wants to ratchet up, but I want to know how far I should 
ratchet up.
    Ms. Avergun. I think it depends on a case-by-case basis 
whether it's appropriate.
    Mr. Lungren. Mr. Brooks?
    Mr. Brooks. I also agree, it is very appropriate in some 
instances where the person, where these drug dealers are 
extremely predatory and where they have a history of being 
predators, of using juveniles to facilitate, to be lookouts, to 
be sellers, putting them in harm's way, taking advantage of 
their vulnerability, their lack of sophistication, their lack 
of maturity. And so I think that's a decision for the 
prosecutor and the courts to decide when it's appropriate, and 
law enforcement, I also think it helps us.
    Thinking back to many cases we did when I worked for you, 
where we used the threat of Federal sanctions, the threat of 
the tough penalties that we can impose if the case were filed 
federally, to then get cooperation, to develop informants, to 
get people to enter into pleas and to really be effective, it's 
a great tool for us.
    There are studies in California and New Jersey that have 
shown that 76 percent of the kids that choose not to use drugs 
consider as part of that choice the fact that there are tough 
drug laws and tough sanctions. When they look at that, I mean, 
having drug laws aren't going to keep people from using drugs 
that are going to use drugs anyway, but they may help make 
people make good choices, those people that are willing to 
weigh their decision. So I think it is appropriate to have 
those sanctions available.
    Mr. Lungren. Mr. Brownsberger?
    Mr. Brownsberger. Mr. Lungren, thank you. I just wanted to 
add a little bit on that notion of 100 feet. These laws say 100 
feet from the real property comprising the school, where 
comprise means enclosing the school. So you have a property in 
which there's a school sitting. Sitting 100 feet off of that 
property is pushing people off of all of the streets that 
surround that property. So 100 feet from the real property 
comprising the institution really does set people back quite a 
ways.
    Ms. Avergun. May I supplement my answer on the drug courts? 
We were able to gather something quickly. There is one drug 
court in the Federal system. It is largely a State court 
product. However, there are 1,600 federally-funded drug courts. 
So the Federal involvement is on the funding level rather than 
on the option for incarceration----
    Mr. Lungren. No, I understand that. My concern is if I am 
here as a legislator making a decision as to what I'm going to 
tell the courts to do and this is in the Federal system and in 
the Federal system, I'm saying to the judge, there is one or 
two things you can do, but we don't have a Federal drug court, 
I don't know how I work that out, how I transfer that court to 
State and have them work it out.
    Ms. Avergun. That can be done. In many instances, the Drug 
Enforcement Administration, for instance, works with State or 
Federal prosecutors. It's a matter up to the agency as to which 
way they steer their cases. If a case is more appropriate once 
it's in Federal court, there are mechanisms to dismiss a 
complaint in favor of a drug court option.
    Mr. Lungren. Would you object to us having more Federal 
drug courts? If we were to raise these penalties but at the 
same time have an option under certain circumstances that you 
could have a drug court option, would you object to that?
    Ms. Avergun. I don't think that anybody objects to the 
concept of drug courts. They are proven. I think that they are 
good for a limited class of people----
    Mr. Lungren. Right.
    Ms. Avergun.--most of whom are not targeted under this 
statute. This statute is really targeting those who violate our 
kids and who prey on our kids.
    Mr. Lungren. Thank you.
    Mr. Coble. The gentleman's time has expired, and I 
recognize Ms. Sheila Jackson Lee, the distinguished lady from 
Texas. And after her questioning, then we will go for a second 
round, if there are other questions that need to be put to the 
panel. So the gentlelady from Texas, you are recognized for 5 
minutes.
    Ms. Jackson Lee. I thank the Chairman very much for his 
charity and I apologize for being in another meeting or 
discussion dealing with our position in Iraq. I thank the 
Ranking Member, as well.
    Let me--I was listening to my colleague from California 
raise a question of, I think I heard, unreadiness. I don't want 
to put any words in his mouth. I know that there is a degree of 
unreadiness certainly on my part on this--on several issues, 
and I know that we've already marked up the legislation dealing 
with the gang deterrence. Let me speak generally, Mr. Chairman, 
about these. I have amendments, but we may have to look toward 
doing these either tomorrow or on the floor.
    I have supported mandatory minimums in the past on certain 
heinous and horrific acts against children. At the same time, I 
am cautious about the implementation of mandatory minimums by 
statute inasmuch as it does not allow the discretion that I 
think is appropriate to a court. It's unfortunate when the 
Supreme Court has questioned the mandatory minimums, which I 
find really wear out their welcome on non-violent criminals 
after a period of time, because after a period of time on non-
violent criminals, all you do when you go to the Federal 
prisons is see individuals on 10-, 15-, 25-, 30-year sentencing 
based upon an action they did when they were 20 and they're now 
35, 45, 55. They're filling up beds when they could be with 
their family, be rehabilitated. And so mandatory minimums does 
not cause me a great deal of excitement.
    I think when we started looking at the methamphetamine 
issue and we were trying to clean that up in certain regions, 
it certainly gives us a reason to deal with that in a 
legislative manner.
    What I see here, however, gives me pause because seemingly, 
what it does is if two individuals in a non-violent manner are 
engaging in some sort of drug trade, no matter how small it is, 
they wind up in a Federal system and under a mandatory minimum. 
And to me, that seems to be unreasonable inasmuch as we've seen 
crime go down. It does not respond to those who are really 
addicted, both the seller and the buyer, because the seller can 
be addicted, too, seeking to get some money. It has a heavy 
burden on minorities, particularly African Americans. We still 
have not cured, I think, the disease of incarcerating more 
African Americans than others as it relates to drug offenses, 
particularly under crack, and that's still the drug of 
proliferation.
    I don't see the rush to go forward with this without--and I 
heard my colleague talk about Federal drug courts. I don't 
think we have any. I do know that in the Southern District, for 
example, the Federal court system is completely overloaded with 
immigration cases and criminal cases so that the civil cases in 
the Federal system cannot even get inside the courtroom door 
beyond four, five, or six years.
    Crime, as I understand it, has gone down. But treatment 
beds have gone down, as well. So, we're not curing the problem. 
And we have legislation here that now adds an additional 
Congressional--excuse me, criminal parameter, and, therefore, 
does not, to me, answer the solution.
    I'm going to go back with Mr. Brownsberger. You were 
showing us the geographics. I'm raising some points that 
probably have been raised by my colleagues already, and I 
apologize, but I really want you to pinpoint the issue of a 
problem and then a solution. Are we at such a heightened 
problem that the legislation that is before us really answers 
the concern, or by passing the legislation, are we now creating 
enhanced offenses and then more incarceration and really not 
getting to the problem? Are we so devastated by individual drug 
dealers on street corners attempting to influence either those 
leaving a drug location or a treatment center or school that we 
need to put this heavy-handed legislation in place?
    Mr. Brownsberger. Thank you, Representative Lee. In my 
view, the law is very heavy already. We have very, very heavy 
penalties already. You have a lot of people spending a long 
time in jail. We have to remember that these are children. 
We're talking about protecting children, but a lot of these 
young men are children when they get into this trouble. They 
are 16, 17, 18, 19 years old. They are children still. And so 
the law is already heavy-handed enough. That's my general view.
    I've allowed as much as to say that if you targeted 
narrowly certain facilities, perhaps you could address a 
problem. I do believe it's a problem, the problem of drug 
dealers coming on the premises of methadone maintenance 
facilities, in particular. That's an issue.
    By the way, I'd like to say, if the Committee were to go in 
this direction of passing this bill, it would have to 
dramatically narrow the definition of facilities involved. The 
definition of facilities here would include individual 
providers. It would be very hard to identify those and for 
anybody to know that they were anywhere near a psychologist's 
office who was providing drug treatment. So it wouldn't really 
have any benefit in that context.
    But a methadone maintenance facility, that's something you 
have people lining up outside. That's something you might want 
to keep people away from. That's a reasonable thing to try to 
do.
    I don't want to suggest that this is necessary to do that, 
though. I do believe that the task of enforcement is the task 
that people face and the laws are already heavy enough. They 
have mandatory minimums. They have heavy penalties and they can 
put these people in jail. The challenge is to put the police 
resources in place to move people away from those facilities. 
And I think, if you don't put those police resources in place, 
then you're just putting laws on the books. You're not actually 
doing anything. So, I think it's really a question of having 
the police resources in place to protect those facilities as 
opposed to locking people up for a longer period of time.
    Ms. Jackson Lee. May I, Mr. Chairman? Ms. Avergun, why 
don't you respond to that. Isn't it more reasonable, what Mr. 
Brownsberger has just said? It makes common sense to me. 
Enforcement is really the issue. What you're doing is, and 
you've got some outstanding staff persons down in Texas that I 
work with all the time. Let me applaud them, the DEA unit 
that's down in Houston, Texas, in particular. And they've got a 
big job. They're dealing with smugglers coming across the 
border. They're dealing with drug cartels, really major issues, 
and, of course, certainly they're dealing with sometimes street 
crime.
    But, the point is, wouldn't it be more effective to give 
the resources to local law enforcement so that they know who is 
scouting out the methadone clinic, who is scouting out the 
school, as opposed to hampering us again with more time, more 
incarceration, and more one-time petty criminals selling 
whatever ounce it is and then they're locked up in the Federal 
system, which burdens the Federal system and allows them to be 
there for 30, 40 years?
    Ms. Avergun. Certainly, more resources to the State and 
locals would be welcome to police these kinds of crimes. These 
people need our protection. But again, it's not an either/or 
proposition. There are cases where people prey on people coming 
out of clinics. It's not just a one-time deal. And, for those 
types of cases where we are dealing with organizational targets 
or higher-level suppliers who are taking the most opportunity 
of the most vulnerable victims, then that would be an 
appropriate Federal resource and appropriate use of the 
statute.
    But it's not that we only have mandatory minimums and we 
target the one-time seller. It is a spectrum, a broad array of 
enforcement options starting from State and local resources up 
to careful targeting at the Federal level. But we do feel that 
these tools are needed in our arsenal.
    Ms. Jackson Lee. I don't think we've changed any of our 
drug laws over the past 20 years, and my understanding is that 
we really have a sufficient series of mandatory minimums on 
drug laws. In fact, we have, a number of us for a number of 
years, have been trying to bring equity to the mandatory 
minimums between cocaine and crack. That has not changed. So, 
apparently, these strictures are still in place. I can't 
imagine that they cannot be utilized for an indictment against 
those who would be part of a cartel. First of all, you have 
conspiracy, the ability for conspiracy.
    You are going to wind up roping in, looping in addicted 
persons who need treatment as well as the one-times along with 
the two times and the three times, and these persons are known 
to be either with no alternative, which I'm not giving as an 
unilateral excuse, but no alternatives in areas where the 
educational system is at a near collapse, that these young 
people are out on the streets with no educational resources and 
background and left to their own devices. That's what we should 
be looking at and funding, alternatives to--or as opposed to 
what we're talking about today.
    Mr. Coble. The gentlelady's time has expired.
    Ms. Jackson Lee. I yield back. Thank you.
    Mr. Coble. Ladies and gentlemen, let me divert one more 
time.
    [Whereupon, the Committee proceeded to other business.]
    [Hearing resumed for second round of questions, after 
markup of H.R. 1279.]
    Mr. Coble. Now we will return to regular order at the bill 
at hand. Folks, we're going to start a second round. I notice 
that Mr.--well, Mr. Green has already gone. Mr. Scott, why 
don't you start on our second round.
    Mr. Scott. Thank you.
    Mr. Coble. And let me ask the Members, folks, if you will, 
try to adhere to the 5-minute rule because we've kept our 
witnesses here probably longer than they expected, but it's 
still good to have you.
    Mr. Scott?
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Brownsberger, you had said that you had some numbers on 
relative cost effectiveness of investing in--the little money 
we have with the result of reducing drug use. Do you want to 
just quickly recite some of those numbers?
    Mr. Brownsberger. Yes. There's a study that was----
    Mr. Scott. Just in general.
    Mr. Brownsberger. Thank you. There's a study that was done 
by Carnegie Mellon--actually, I guess it was by Rand, Jonathan 
Calkins, Peter Reuter, a quantitative study that came out 
several years ago that made an estimate of the quantitative 
reduction in drug use associated with a million dollars spent 
on incarceration, a million dollars spent on treatment and so 
forth, and the ratio of benefits was about 7 to 1, as I recall, 
the treatment benefits to the incarceration benefits.
    Mr. Scott. And mandatory minimums came in last place in 
that study?
    Mr. Brownsberger. Well, that's right, mandatory minimums 
that cause incarceration.
    Mr. Scott. You said mandatory minimums was the least cost 
effective, then regular sentencing came in next, and far ahead 
was drug treatment for heavy users?
    Mr. Brownsberger. Actually, I have to--as I recall the 
study, it didn't distinguish between mandatory minimums and 
incarceration generally. It just grouped those together, unless 
I----
    Mr. Scott. If you could provide that study, it would be 
helpful.
    Mr. Brownsberger. I will do that. Could I just follow that 
just for one moment? It's been said that this bill is 
compatible with drug courts, but really, this bill, it poses 
incarcerations which are so long that they make drug courts 
substantially irrelevant and they do that for crimes which 
really may have--that may be really committed by people who 
should be in drug courts.
    Mr. Scott. But we also have, I think, ascertained that 
there are no drug courts in Federal court, so if you use a 
Federal statute, you've got to be in Federal court to implement 
the Federal statute. So if you use the provisions of the bill, 
you're not going to be able to access drug courts anyway.
    Mr. Brownsberger. Exactly.
    Mr. Scott. Let me--Mr. Brooks, you indicated the importance 
of treatment. Isn't it true there's no treatment in the bill?
    Mr. Brooks. I did not see any treatment in the bill.
    Mr. Scott. Okay. And the present penalties that you have 
available to you ought to be sufficient to hold over somebody's 
head if they're in State court to go to a drug court, to go to 
rehab?
    Mr. Brooks. Well, no, I think that these more aggressive 
penalties do give us a greater tool to incent--as an incentive. 
But more importantly----
    Mr. Scott. Yes, but if you give them that incentive, you 
can't use drug courts because you're in Federal court under 
this bill without drug courts.
    Mr. Brooks. That's correct, sir, but mostly because this 
bill and the Federal drug prosecution statutes don't 
generally--aren't generally aimed at the persons that are 
eligible for drug courts anyway. Drug courts are more of a 
State court initiative because they are focused on drug users 
and persons that are on the fringe of the drug selling arena, 
not on persons that have met Federal thresholds and are fully 
involved in drug trafficking, drug manufacturing, drug 
smuggling.
    These Federal drug laws, including the tough sentences in 
this bill, these are for people that are predators that put 
children at great risk, that put their lives at great risk, and 
not people that are just using or addicted.
    Mr. Scott. If you go get some for yourself and then you go 
get some for your friend, and as an accommodation, no profit, 
that's included in this, too, isn't it?
    Mr. Brooks. You know what, I'm not a lawyer, sir. I'm not 
sure.
    Mr. Scott. Okay. Ms. Avergun, there are provisions in here 
for second offenses?
    Ms. Avergun. Yes.
    Mr. Scott. Is it a second offense if you have--if you're 
charged with a couple of crimes? In our localities, they have a 
sweep, you get caught in Newport News and also in the adjoining 
jurisdiction in Hampton, and you're tried in Newport News, this 
first offense. If you're tried in Hampton without having gone 
to jail in between, is that a second offense?
    Ms. Avergun. I don't know how that would work under this 
statute, Mr. Scott. It would----
    Mr. Scott. Well, you've got life imprisonment if you get 
busted for that second offense.
    Ms. Avergun. Yes. There are very complex rules for what 
counts as a prior conviction to trigger these second offense--
--
    Mr. Scott. Okay. Since we're talking about life without--
life imprisonment without parole, is marijuana a controlled 
substance under this bill?
    Ms. Avergun. Marijuana is a controlled substance 
everywhere.
    Mr. Scott. So if you're in a circle and they're passing it 
around, that's all distribution. Get caught twice, what 
happens?
    Ms. Avergun. Theoretically, that would be--if you were 
convicted both times under this statute, that would be the 
mandatory life.
    Mr. Scott. Well, how do you get a predicate offense to 
start off with that second offense? What are the predicate 
offenses?
    Ms. Avergun. I can't tell you what all the predicate 
offenses are----
    Mr. Scott. Is marijuana a predicate offense?
    Ms. Avergun. Any drug felony--for purposes of the predicate 
felony statutes, any drug felony is an initial offense.
    Mr. Scott. Is it other felonies? It's not a misdemeanor?
    Ms. Avergun. Not a misdemeanor, no. It would have to be----
    Mr. Scott. Where is that?
    Ms. Avergun. I think it's in section 851 of title 21, not 
in this statute.
    Mr. Scott. Not in this bill, because this bill just talks 
about controlled substances.
    Ms. Avergun. That's what the law is.
    Mr. Scott. Okay. So if I could, Mr. Chairman, I just want 
to know, if you are distributing marijuana or distributing 
cocaine amongst friends and get busted, that's first offense. 
And, if the arrests come in two different busts or two 
different jurisdictions, you're not sure whether or not the 
second conviction would give you life without parole or not 
under the bill?
    Ms. Avergun. I can't tell you under your facts whether the 
first counts as a conviction that would count as a first 
conviction to trigger the second conviction. I'm just not--I 
don't think that that's been thought through enough by any of 
us at the Department of Justice to tell you----
    Mr. Scott. Well, you don't have to worry. What we've 
thought through is we took a poll, and this bill will help us 
get elected. That's about all we need to know.
    Mr. Coble. I thank the gentleman.
    The gentleman from California, Mr. Lungren.
    Mr. Lungren. Thank you, Mr. Chairman.
    If I understand the gentleman from Virginia's question, 
it's the life--mandatory life sentence----
    Mr. Scott. Two strikes and you're out.
    Mr. Lungren.--on two strikes. But as I understand it, as I 
read the bill, it would have to be the same offense. That is, a 
21-year-old, someone over 21 selling to someone under 18. So 
not other----
    Mr. Scott. Two fraternity brothers.
    Mr. Lungren. Two fraternity brothers, one over 21 and one 
under 18. I hope we wouldn't have Federal prosecutors going 
after that.
    Mr. Scott. I think they----
    Mr. Lungren. But let me ask a question. Ms. Moriarty, you 
talked about meth and how it was an eye opener to you, what it 
meant to children. When I was out in California, we had an 
expression which was meth use equals child abuse. Some of the 
worst child abuse cases I ever saw or read about were those 
involving meth users.
    And then the other thing was what you had mentioned was 
that there wasn't direct physical abuse by the parent to the 
child. We found great levels of exposure to methamphetamine or 
its predecessor elements in the children when they did physical 
examinations.
    What have you found to be the most effective way of dealing 
with that? In other words, and I know this generalizes, but in 
these cases where you find children on the premises with their 
parents who are dealing meth, do you find any sense of 
responsibility with those parents, any remorse, any--what I'm 
trying to get at is what do you think, from your experience, 
would be the most effective means of deterrence to those 
parents when they're exposing their children to the meth 
environment?
    Ms. Moriarty. I would say, Mr. Lungren, on the onset of 
that, when we first arrest them, exactly what you said. We call 
methamphetamine the walk-away drug, that they literally walk 
away from everything in their life, to include their own life. 
They don't--I mean, incarceration at that point isn't even an 
issue. I have had several of those that we arrested actually 
thank law enforcement for taking the first step in changing 
their life by putting them into custody, and it does go hand-
in-hand with what we're trying to do with the National 
Alliance, is to, you know, drug court is important, and if 
they're going to be part of a family again and get clean, there 
needs to be consequences at the same time. So we have found 
that consequences have actually meant something.
    But at the very beginning, I've never seen an environment 
that is more dangerous than those of meth users. The paranoia 
alone, the fact that they don't eat. I've walked into homes 
where they haven't fed their children for weeks, and so it's 
really--it's just a sad, hideous, hazardous environment. But 
like I said, at the beginning, there's no recognition to 
anything. They've literally--we've had addicts give their 
children away, and so that's what we see.
    Mr. Lungren. See, my biggest concern is the kids. I would 
hope that we could salvage the parents, but it seems to me in 
those cases the chances are better that we can salvage the kids 
than salvage the parents. I would love to salvage the whole 
family unit. My question is, what tools do you think we need to 
have in the Federal system to try and do that, first to save 
the kids, and then second--well, first of all, do you think 
it's important, is it possible in your experience to salvage a 
family unit under those circumstances?
    Ms. Moriarty. I do believe that it's important to always 
try to salvage a family unit. I think that the children--you 
know, because they're not great parents, they're still their 
parents, and I think that that's a significant impact that we 
need to have on their lives is as to how to bring the family 
back together. I think----
    Mr. Lungren. So what tools do we need? What tools would you 
recommend, based on your experience, that have been effective 
from the Government's standpoint to help achieve that?
    Mr. Coble. Ms. Moriarty, as brief as you can because the 
time has expired, but go ahead.
    Mr. Lungren. Mr. Chairman, my red light was on as soon as I 
started questioning. I don't know what happened, but anyway----
    Ms. Moriarty. I think that we need to bring, I don't know 
if--I speak from a local level and from doing law enforcement 
and from the Alliance for Children, but I think bringing multi-
disciplines together. These children need some psychological 
help. I mean, medical, they need treatment themselves. They 
need to understand that this is not their fault, and they're 
our next generation of users. And so I think that that's part 
of our prevention, that is, if we don't put some effort and 
energy into the children, we're just creating, like I said 
earlier, the next 114,000 that are high-risk at use for using 
drugs, if we don't start intervening in their lives and get 
them socially connected and put somebody in their lives who can 
help change that.
    Mr. Coble. Dan, you are correct. Your light was on, so I 
think you still have a couple minutes.
    Mr. Lungren. Thank you, sir.
    Mr. Coble. I stand corrected.
    Mr. Lungren. Mr. Brownsberger?
    Mr. Brownsberger. I'd appreciate the opportunity to respond 
to that, as well. I mean, I, as a drug court attorney, work 
with a lot of mothers and fathers who are addicted and have 
lost their children and have neglected their children and 
deeply regret that they neglected their children. Clearly, 
their children are victims.
    Number one, as a response, this isn't primarily a Federal 
problem. This is a problem for the State and local social 
services, number one.
    Mr. Lungren. But given the fact we're going to have a 
Federal presence.
    Mr. Brownsberger. Well, I'm not--if you take that as a 
given, I'm not sure that's the right given.
    Mr. Lungren. Okay, but let me tell you, we're going to have 
a Federal presence----
    Mr. Brownsberger. Okay. Well, in that----
    Mr. Lungren. --and I'd like to know what the best one is.
    Mr. Brownsberger. I would advocate that presence include 
active support for treatment for children and for treatment for 
parents and for treatment facilities in which children can be 
with their parents, because believe it or not, a lot of these 
children still love their parents. Ripping those parents away, 
sending them for 10 years for the neglect that they've 
committed really isn't necessarily part of the solution.
    Mr. Lungren. Mr. Brooks?
    Mr. Brooks. I agree with Commander Moriarty. It's really 
important that we have the tools to intervene, and it's 
important that we keep the family unit together, but we're not 
always going to keep the family unit together. That's the 
ultimate goal. But, first and foremost, we have to protect 
those kids. So we have to get the child protective services 
folks in. We need to get the psychological folks in. We have to 
get the medical folks in and make sure that we're taking care 
of--I mean, these are ticking time bombs. We don't really know 
yet what the full effect of having these children unprotected 
in these toxic environments for years and years, what the full 
medical effect is on them. We might have sentenced them to 
death and not even known it yet.
    And so it has to be a multi-disciplinary approach triggered 
by law enforcement when they enter that lab site, bringing 
psychological services in, bringing child protective services 
in, helping to reintegrate the family, but understanding that 
we're not always going to reintegrate the family and sometimes 
we just have to then salvage those children.
    Mr. Lungren. Thank you.
    Mr. Coble. And I apologize to you, Dan. I didn't realize 
the clock was defective.
    The gentlelady from California is recognized for 5 minutes.
    Ms. Jackson Lee. Mr. Chairman, point of personal privilege.
    Mr. Coble. The gentlelady is recognized.
    Ms. Jackson Lee. The gentlelady was kind enough to allow me 
just to--I was unavoidably detained when the Committee voted 
on, I believe, H.R. 1528, and I would like to ask unanimous 
consent that my vote of ``no'' be placed in the record at the 
appropriate place.
    Mr. Coble. Without objection, it will be done.
    Ms. Jackson Lee. And I was unavoidably detained on H.R. 
1279, the ``Gang Deterrence and Community Protection Act of 
2005,'' and I'd like to have my vote of ``present'' be 
acknowledged and placed in the appropriate place for H.R. 1279. 
I ask unanimous consent.
    Mr. Coble. Without objection, it will be done.
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    Mr. Coble. And the gentlelady from California is recognized 
for 5 minutes. Let's get the clock working. Set that clock at 5 
minutes. Thank you, Mike.
    Ms. Waters. Thank you very much, Mr. Chairman.
    Sometimes, I think we really don't know what's going on out 
there in the streets of America, both in our cities and our 
towns. We talk about these children of drug-addicted parents, 
and I heard some references to the children of parents who are 
addicted on meth. But whether it is meth or crack cocaine, 
these children are extremely vulnerable. They are neglected. 
Oftentimes--well, there is nothing like seeing children who 
actually live in a crack house. I've seen it. There's nothing 
like seeing children who are living with a mother who is crack 
addicted. In the streets, they refer to them as strawberries, 
and they're capable of committing almost any unimaginable act 
in order to get crack cocaine, they're so addicted.
    I have seen many of these children grow up in these 
environments, and many of them are gang members. And I think 
the most dangerous gang member in America is one who has 
experienced their mother on crack cocaine and have seen what 
happens to her in that environment. All the safety nets are 
pulled out from under them and, really, there's nowhere for the 
children to turn. Nobody really cares. Nobody does anything for 
these children.
    When the mother ends up dead or in prison, and if there's a 
mate involved, both of them dead or in prison, if they're 
lucky, there is a grandmother. The grandmother gets no support 
from the State to help with these children, and many of the 
gang members end up being young people who gather together and 
live in vacant houses or with each other and they become the 
family, and they're very, very dangerous. They are capable of 
killing because their rejection and their pain is so profound, 
so difficult. But America doesn't understand any of this and 
does nothing about it.
    So it's almost a joke as we sit here and we talk about 
mandatory minimum sentencing and we talk about whether or not 
we lock up parents who abuse their children who are drug 
addicts. I mean, come on. There's a great disconnect here about 
what really goes on out there.
    I've seen it. I understand it. I'm extremely frustrated 
about it. And this kind of legislation does nothing to help it. 
There needs to be support for children whose parents are drug 
addicted in several ways, and you're absolutely right. Many of 
them love their parents until they die, until the parents die 
before their very eyes, are taken away to prison, and they 
don't know what to do about that.
    Where do we see anything that will provide the kind of 
support for children of crack-addicted parents dealing with 
them while they're still in the houses with some of them, or 
when they have been removed, or when the parents die or go to 
prison? There's just nothing in the system that I see.
    Foster care, maybe, when children are taken away, and when 
they're thrown into these foster care settings, basically, they 
end up perhaps still vulnerable to what is happening in the 
neighborhoods that they are relegated to in these foster care 
situations where they have these kind of problems.
    So I know my time is up, but let me just try and talk 
about, if I may indulge for one moment, about these HIDTAs, or 
the drug areas that are supposed to be targeting resources to 
deal with drug trafficking and all of that. Can anybody here 
explain to me what a HIDTA is, and how it works, and how they 
get formed, and how they get chosen, and what they're doing? 
Yes, sir, Mr. Brooks?
    Mr. Brooks. Yes, ma'am, I can. The HIDTAs, there are 28 
around the country. They are Congressionally designated and 
certified by the Director of the Office of the National Drug 
Control Policy. It brings together, using some Federal dollars 
and State and local dollars, Federal, State, and local law 
enforcement officers in a collocated setting with a strategy 
mostly to focus on drug trafficking organizations, those 
organizations at the upper end. But it also provides support to 
State and local law enforcement working street and mid-level 
traffickers, as well.
    Every HIDTA has an intelligence center so that the law 
enforcement officers there work smarter and better. Every HIDTA 
has technical equipment available. But the biggest thing is, 
the HIDTAs are managed by balanced boards, eight State and 
local officers and eight Federal officers. That balanced 
approach gives the State and local law enforcement agencies the 
feeling of partnership, and what the HIDTA really does, what it 
has truly succeeded in doing is it's brought together law 
enforcement agencies that traditionally would never talk 
together, never work together----
    Ms. Waters. Are they successful in reducing drug 
trafficking and drug addiction in, let's say, Los Angeles, in 
the South Los Angeles area? You're from that area.
    Mr. Brooks. Actually, I'm from San Francisco, but I am from 
California----
    Ms. Waters. Okay.
    Mr. Brooks. It absolutely is.
    Ms. Waters. It is. How?
    Mr. Brooks. Because when you're able to drive price up, 
drive availability down, drive the social stigma, and take--
HIDTAs are focused at the organizational level, not at the 
street level but at the organizational level, where they're 
able to take down cartel-based, using a partnership between DEA 
and the other Federal law enforcement agencies, in your area 
the LAPD and the L.A. Sheriffs, Hawthorne Police Department, 
you know, all of the 44 agencies in Los Angeles County. They 
come together in big initiatives like L.A. Impact, using 
information run through the L.A. clearing center, and are able 
to focus, then, on those big organizations.
    Tom Constantine, who was the DEA Administrator for a number 
of years, 6 years, just told me over dinner the other night the 
biggest cases that they were able to do in the Los Angeles 
area, big organizations, started, although DEA often managed 
those cases, they started out of one of the L.A. HIDTA-run 
initiatives.
    And so, ma'am, it brings together a disparate group of 
agencies. It makes them all talk the same language under the 
same roof with a coordinated strategy, and they truly do work, 
in my opinion.
    Ms. Waters. Thank you, Mr. Chairman, and I just want to 
tell you this. For those of us who are watching what I 
described to you, don't feel the effectiveness of these 
bureaucratic agency HIDTAs that you just described. We don't 
feel it. We don't see the drug dealers being taken off the 
streets. We don't see you stopping the flow of drugs into these 
communities.
    Crack cocaine has destroyed and devastated--and continues 
to do so--communities throughout this country, and many of the 
gangs survive based on dealing drugs, and you guys don't know 
anything about it--not you guys, but that's a generic ``you 
guys.'' There's nothing happening to break it up. There's no 
undercover operation that's helping to identify where these 
drugs are coming from and how they're getting in there, and we 
suffer. We suffer throughout these communities. We're so damned 
tired of it.
    Mr. Coble. The----
    Ms. Waters. And when I sit in these Committees and listen 
to us talk to each other, it just blows my mind that we don't 
know what the heck we're doing. I'm just--I've had it up to 
here.
    Mr. Coble. The gentlelady's time has expired.
    Mr. Brooks, there are 28, do you say----
    Mr. Brooks. Twenty-eight HIDTAs with and counting the 
partnerships along the Southwest border. Thirty-three 
divisions, but 28 designated HIDTAs.
    Mr. Coble. The gentleman from Massachusetts, Mr. Delahunt.
    Mr. Delahunt. I mean, clearly, you can see the frustration 
that I know we all share.
    I want to go back to my earlier point about the number of 
addicts in the country, and I think it was you, Ms. Avergun, 
that indicated two to six million.
    Ms. Avergun. That was Mr. Brownsberger.
    Mr. Delahunt. It was Mr. Brownsberger.
    Ms. Avergun. But he's right.
    Mr. Delahunt. But he's right, two to six million. I think 
that what we heard, the frustration of my friend from 
California, is we're operating in the dark. Let me put a 
premise out, that the vast majority of drug-related crime is 
committed by drug addicts. I don't see how we can effectively 
measure whether we're succeeding unless we develop a 
methodology that allows us to more accurately assess whether 
we're successful through a combined coherent strategy--supply, 
demand. There are great programs out there. We know that 
because we know it anecdotally.
    But, I mean, I believe the first place to start, and I 
would hope that the chair and this Committee at some point in 
time would just simply seek to have a panel--and this is an 
excellent panel--that would talk about the methodologies of how 
we measure success or lack thereof so that we can pass and 
support a coherent legislative approach and appropriate the 
necessary funding as opposed to simply just taking a stab.
    I mean, you know, heroin use is up in the Northeast. We 
can't use just simply the standards of availability and price. 
We've got to get to the heart and soul of the matter, which is 
reducing the number of individuals that are addicted to drugs. 
That's the heart and soul, in my opinion. I'd be interested in 
hearing--Ms. Moriarty?
    Ms. Moriarty. Mr. Delahunt, if I might, I think you bring 
up a great question, and that is something that the National 
Alliance for Drug Endangered Children and all of the States 
that have alliances are looking at, as well, is how are we 
measuring success and how do we know if we're doing anything to 
change the lives of these children.
    So when we sat down as a group of multi-disciplines, to 
include treatment, law enforcement, social services, the 
judicial system, psychologists, we started trying to determine 
how do you measure if a child is coming successfully or safely 
out of these environments and not growing up to be our next 
drug addicts and falling into the same system. And part of the 
measurement that we were feeling could be something that we 
could look into is obviously that that's being taken into 
consideration is the reduction of recidivism into the system.
    You know, if drug courts are working, and, therefore, when 
they're under arrest and they've been put into a court and then 
they don't get back, or the education, kids that are now 
graduating from high school instead of dropping out in school, 
and the reduction of recidivism into the social services 
system, because social services is carrying the huge burden of 
all of this----
    Mr. Delahunt. Correct, but that's the beginning of 
establishing a set of criteria to measure if we're effective.
    Ms. Moriarty. Correct.
    Mr. Delahunt. Okay? I mean, that's the issue. If we have 
six million addicts in this country today and we can reduce 
that figure to 500,000, we will see a tremendous decline in the 
number or the incidence of all violent crime in the country.
    Ms. Moriarty. Absolutely.
    Mr. Brownsberger. I'd just like to endorse absolutely what 
you're saying. There's a strong argument that the amount of 
crime--if you multiply the number of crimes that drug addicts, 
who are interviewed, admit committing, times any estimate of 
the number of drug addicts, you get more than the total number 
of crimes that are reported in this country, and so there's 
every reason to believe that drug addiction accounts for the 
vast majority of acquisitive crimes--larceny, robbery, 
prostitution, all those crimes that generate income. And so 
they are the best community-level measure, perhaps, of the 
success of an anti-drug program.
    Mr. Delahunt. Well, we have a Drug Czar, and I asked our 
other panelists in the--you'll indulge me just for another 
minute, Howard. I mean, we have a Drug Czar. We've had a series 
of Drug Czars under both Administrations. I'm not going to--
this is absolutely non-partisan. But I would hope that within 
that office, there would be an effort, okay, to establish 
criteria, and the one that you allude to, Commander Moriarty, I 
think makes really good sense, the recidivism rate, and 
tracking. We should have long-term studies going on, and we 
should be able in real time, on an annual basis, we should have 
a report, Mr. Chairman, from the Drug Czar on an annual basis 
to come before this Committee to report on the number of 
addicts in this country. That is a single statistic that 
translates into so much. We can talk mandatory sentences. We 
can talk prevention. We can talk treatment. But you know what? 
We're going on our gut. We're going on our gut.
    Ms. Avergun. May I add something?
    Mr. Delahunt. Sure.
    Ms. Avergun. The Drug Czar puts out the National Drug 
Control Strategy, and part of the National Drug Control 
Strategy is reporting results of the President's and the 
Administration's drug strategy. One of the important factors 
that is measured in the Monitoring the Future Survey, which is 
a survey done of eighth, tenth, and 12th graders and drug use. 
And, as you may know, in 2002, the President established 
national goals for reduction of drug use, and, in fact, we all 
together, working together in all our different areas--law 
enforcement, treatment, prevention--have achieved success in 
that. There is a measure of success.
    The survey showed that since 2002, there's been an 11 
percent decline in drug use, and this year, up to 17 percent 
decline----
    Mr. Delahunt. Okay, and that's important, but again, 
getting back--this is the Subcommittee on Crime.
    Ms. Avergun. Yes.
    Mr. Delahunt. Crime--drug crime is committed by drug 
addicts in this country, and that has to be--if we're going to 
make our streets safer, let me suggest this. That has to be the 
target population that we deal with in terms of a substantial 
reduction in the level of violence. I know there's all kinds of 
social reasons, et cetera, for that. I mean, we can talk about 
future use and that.
    But I would like--I would hope, okay, that the 
Administration, and I would hope, Mr. Chairman, that we could 
just have a panel on the methodologies. You know, Mr. Lungren 
asked some very good questions. I think this is--I mean, 
everybody is saying here, give us parameters. Give us some 
hard--because, if you listen closely to Congresswoman Waters, 
she's not feeling it. She wants to see hard data. We can't talk 
just about availability with driving the price down. We're 
going to be asking this Congress, what's your opinion? Should 
we vote to support what's happening in Colombia or should we 
better spend it on drug treatment programs or social services 
or building more prisons here? I don't know.
    But I want to--you know, I spent 20-plus years myself in 
law enforcement, so I understand the problems of law 
enforcement and the need to do something on the supply side. 
But you know what? We don't really know, and we're not going to 
know until we're in a better position to ascertain the number 
of addicts.
    Mr. Coble. The gentleman's time has expired.
    Folks, as you can tell, this hearing today has generated 
much interest.
    Mr. Scott. Did you want to answer that?
    Mr. Brownsberger. Only if the----
    Mr. Coble. Go ahead, Mr. Brownsberger.
    Mr. Brownsberger. Thank you. I really just wanted to 
emphasize, the number of addicts is a very, very hard number to 
measure and it's not one that we will ever achieve consensus on 
because it is a hidden behavior. And I would just suggest to 
the Committee that the best measure of the number of addicts in 
a community is the property crime rate. That's how you see 
them, is through property crime, and so that is a very good 
metric and one that I have recommended to the use of the 
fighting back communities, the communities that had community 
projects to develop strategies against--to reduce drug use. I 
consulted those communities to develop their methodologies to 
measure their success, and that was my recommendation to those 
communities----
    Mr. Coble. Well, as I said earlier, and I thank you, Mr. 
Brownsberger, this has attracted much attention. Oftentimes, 
Mr. Scott and I will be the only Members here, and I don't say 
that critically because there are other hearings conducted 
simultaneously. But this has promoted much interest, and I'm 
sure it will not expire after we adjourn.
    This problem, folks, and I think every Member has expressed 
it, I think illegal drugs has the potential of bringing this 
country to its knees unless we can get a firm handle on it.
    I thank the witnesses for your testimony. The Subcommittee 
very much appreciates your contribution.
    In order to assure a full record and adequate consideration 
of this important issue, the record will be left open for an 
additional submission for 7 days from you all. By the same 
token, if Members have written questions, they need to submit 
their questions also within that same 7-day time frame.
    This concludes the hearing----
    Ms. Waters. Mr. Chairman?
    Mr. Coble. The gentlelady is recognized.
    Ms. Waters. I'd like to also request--I requested Ms. 
Avergun to give us the information from those studies. She also 
talked about an 11 percent success rate. It just blows my mind. 
I don't believe it. But I'd like to have that study, also. I 
want to know where that information came from.
    Ms. Avergun. Surely, Representative Waters.
    Mr. Coble. That'll be forthcoming.
    Ms. Avergun. Yes, that will.
    Mr. Scott. And Mr. Chairman, we can put--do we have time to 
put items in the record by unanimous--do we need to do that 
now, or is the record open?
    Mr. Coble. The record will be open for 7 days.
    The Subcommittee stands adjourned.
    [Whereupon, at 3:16 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of Catherine M. O'Neil, Associate Deputy Attorney 
 General, and Director, Organized Crime Drug Enforcement Task Forces, 
United States Department of Justice, before the Subcommittee on Crime, 
             Terrorism, and Homeland Security, July 6, 2004

    Mr. Chairman, Representative Scott, and Members of the 
Subcommittee, thank you for inviting me to testify before you today 
regarding the Justice Department's views on H.R. 4547, Defending 
America' 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.
Article entitled ``Drug Market Thrives By Methadone Clinics,'' Serge F. 
 Kovaleski, Washington Post Staff Writer, The Washington Post, August 
                                12, 2002



Article entitled ``Probe Confirms Dealing of Drugs Near D.C. Clinics,'' 
Monte Reel, Washington Post Staff Writer, The Washington Post, July 7, 
                                  2004



  Article entitled ``Kids Caught in Meth Lab Pressure Cooker,'' Sarah 
    Huntley, News Staff Writer, Rocky Mountain News, March 15, 2002



Supplemental material from William N. Brownsberger, Associate Director, 
      Public Policy Division on Addictions, Harvard Medical School



 Supplemental material from Lori Moriarty, Thornton Police Department, 
    Thornton, Colorado, Commander, North Metro Drug Task Force, and 
      President, Colorado's Alliance for Drug Endangered Children



            Brochure submitted by the National Alliance for 
                        Drug Endangered Children



          Position Paper of the American Bar Association (ABA)



 Letter from coalition of organizations expressing their views on H.R. 
   1528, ``Defending America's Most Vulnerable: Safe Access to Drug 
Treatment and Child Protection Act of 2005,'' to the Honorable F. James 
        Sensenbrenner, Jr., and the Honorable John Conyers, Jr.



 Letter from former United States Attorneys and Department of Justice 
 officials expressing their views on H.R. 1528, ``Defending America's 
Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act 
   of 2005,'' to the Honorable F. James Sensenbrenner, Jr., and the 
                         Honorable Bobby Scott



  Letter from Thomas W. Hiller, II, Chair, Legislative Expert Panel, 
Federal Public and Community Defenders, to the Honorable Howard Coble, 
                     and the Honorable Bobby Scott



   Letter from teachers of law expressing their views on H.R. 1528, 
 ``Defending America's Most Vulnerable: Safe Access to Drug Treatment 
     and Child Protection Act of 2005,'' to the Honorable F. James 
        Sensenbrenner, Jr., and the Honorable John Conyers, Jr.



  Letter from Frank O. Bowman, III, M. Dale Palmer Professor of Law, 
 Indiana University School of Law, to the Honorable Howard Coble, and 
                       the Honorable Bobby Scott



Response to post-hearing questions from Lori Moriarty, Thornton Police 
Department, Thornton, Colorado, Commander, North Metro Drug Task Force, 
    and President, Colorado's Alliance for Drug Endangered Children



 Response to post-hearing questions from Ronald E. Brooks, President, 
      National Narcotic Officers' Associations' Coalition (NNOAC)




                                 
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