[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
H.R. 2851, STOP THE IMPORTATION AND TRAFFICKING OF SYNTHETIC ANALOGUES
ACT OF 2017
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
HOMELAND SECURITY, AND INVESTIGATIONS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
JUNE 27, 2017
__________
Serial No. 115-38
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
32-310 WASHINGTON : 2018
COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio LUIS V. GUTIERREZ, Illinois
TED POE, Texas KAREN BASS, California
JASON CHAFFETZ, Utah CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas TED LIEU, California
DOUG COLLINS, Georgia JAMIE RASKIN, Maryland
RON DeSANTIS, Florida PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado BRAD SCHNEIDER, Illinois
JOHN RATCLIFFE, Texas
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
Shelley Husband, Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Crime, Terrorism, Homeland Security and Investigations
TREY GOWDY, South Carolina, Chairman
LOUIE GOHMERT, Texas, Vice-Chairman
JIM SENSENBRENNER, Jr., Wisconsin SHEILA JACKSON LEE, Texas
STEVE CHABOT, Ohio TED DEUTCH, Florida
TED POE, Texas KAREN BASS, California
JASON CHAFFETZ, Utah CEDRIC L. RICHMOND, Louisiana
JOHN RATCLIFFE, Texas HAKEEM JEFFRIES, New York
MARTHA ROBY, Alabama TED LIEU, California
MIKE JOHNSON, Louisiana JAMIE RASKIN, Maryland
C O N T E N T S
----------
JUNE 27, 2017
OPENING STATEMENTS
Page
The Honorable Louis Gohmert, Texas, Vice-Chairman, Subcommittee
on Crime, Terrorism, Homeland Security, and Investigations;
Committee on the Judiciary..................................... 1
The Honorable John Conyers, Jr., Michigan, Ranking Member,
Committee on the Judiciary..................................... 2
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the
Judiciary...................................................... 3
The Honorable Sheila Jackson Lee, Texas, Ranking Member,
Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations; Committee on the Judiciary..................... 5
WITNESSES
The Honorable John Katko, New York's 24th Congressional District,
U.S. House of Representatives
Oral Statement............................................... 8
Ms. Demetra Ashley, Acting Assistant Administrator, U.S. Drug
Enforcement Administration
Oral Statement............................................... 11
Mr. Robert Perez, Acting Executive Assistant Commissioner, U.S.
Customs and Border Protection
Oral Statement............................................... 12
Ms. Marcia Lee Taylor, President and CEO, Partnership for Drug-
Free Kids......................................................
Oral Statement............................................... 22
Ms. Reta Newman, Special Advisor to Drug Free America Foundation,
Chief Chemist and Laboratory Director, Pinellas County Forensic
Laboratory
Oral Statement............................................... 24
Ms. Anglea Pacheco, Commissioner for New York Sentencing
Commission, Former District Attorney, First Judicial District
of Santa Fe, New Mexico
Oral Statement............................................... 26
H.R. 2851, STOP THE IMPORTATION AND TRAFFICKING OF SYNTHETIC ANALOGUES
ACT OF 2017
----------
TUESDAY, JUNE 27, 2017
House of Representatives
Subcommittee on Crime, Terrorism,
Homeland Security, and Investigations
Committee on the Judiciary
Washington, DC
The subcommittee met, pursuant to call, at 11:16 a.m., in
Room 2141, Rayburn House Office Building, Hon. Louie Gohmert
[vice chairman of the subcommittee] presiding.
Present: Representatives Gohmert, Goodlatte, Chabot,
Ratcliffe, Roby, Gowdy, Jackson Lee, Conyers, Deutch, Jeffries,
and Lieu.
Staff Present: Anthony Angeli, Counsel; Scott Johnson,
Clerk; Mauri Gray, Minority Counsel, Minority Crime Detailee;
Joe Graupensperger, Minority Chief Counsel, Subcommittee on
Crime, Terrorism, Homeland Security, and Investigations;
Veronica Eligan, Minority Professional Staff Member; and
Monalisa Dugue, Minority Deputy Chief Counsel for Subcommittee
on Crime, Terrorism, Homeland Security, and Investigations.
Mr. Gohmert. I apologize for the delay in markup in another
room and a lot of breathing room here. But I do not want that,
in any way, to make you think we do not appreciate the
importance of you, your position, and your testimony. So, we
will get the ranking member, and we will be ready to start. Are
we okay if we start?
All right, we have the ranking member of the full
committee. So, at this time, the Subcommittee on Crime,
Terrorism, Homeland Security, and Investigations will come to
order. Without objection, the chair is authorized to declare
recesses of the subcommittee at any time. We welcome everyone
to today's hearing on H.R. 2851, and I will now recognize
myself for an opening statement.
Today's hearing concerns a critical issue: Criminal drug
traffickers and importers are able to circumvent the current
Federal law by modifying a single atom or molecule of a
currently controlled substance in a laboratory. They create a
substance that is technically lawful, but often highly
dangerous, addictive, and even deadly. These synthetic
analogues are being trafficked into the United States, often
from China or Mexico, and pose a grave threat to the health and
safety of our own Americans.
Synthetic drugs have caused a public health epidemic in the
United States. Uncontrolled synthetic analogues have come to
represent the deadly convergence of the synthetic drug problem
with the opioid epidemic. The human toll and the financial
costs are staggering: 52,000 Americans died in 2015 from drug
overdoses. That is 144 people per day. For those who overdose,
they present themselves in emergency rooms with a variety of
issues, many with dangerously high body temperatures.
Doctors must rely on their experience of treating other
patients with similar symptoms because, frequently, there are
no tests to detect the particular type of synthetic drug the
patient overdosed on. Hospital admissions can last days or even
weeks in an intensive care unit, spending huge amounts of
limited resources of our hospitals and healthcare systems.
And then there is the personal toll. Last year, this
committee heard from Devin and Veronica Eckhardt, who lost
their son to one dose of the synthetic drug ``spice.'' On a
Saturday night on July 2014, Connor Eckhardt smoked a synthetic
drug and did not feel well, so he laid down to sleep it off. He
never woke up. Five days later, doctors declared Connor, age
19, braindead. After his organs were donated, Connor was
removed from life support.
The National Institute of Drug Abuse has declared synthetic
drugs a serious public health risk. Manufacturers and retailers
of synthetic drugs disingenuously label them as, ``Not for
human consumption,'' to obey Federal law. They do not identify
the particular drugs they are peddling, nor is there any
quality control over the dosage or the adulterants in the
package. All of this is done in the name of greed.
Neither the products nor their active ingredients have been
approved by the FDA for human consumption or for use in
legitimate medical treatment, causing the purchaser to play
Russian roulette with their lives. Synthetic drug users also
place others at risk. Some become violent while under the
influence, while other abusers, who drive after using these
drugs, place themselves and others in danger.
The U.S. has faced situations like this before, and we have
always responded firmly and decisively. The change to the
Controlled Substances Act contained in H.R. 2851 represents
that decisive response. Federal law, meant to protect
Americans, can no longer be outpaced by resourceful criminals,
whose sole motive is greed, at the expense of families and even
human lives. I thank the witnesses for appearing here before
the subcommittee today and look forward to their participation.
At this time, I recognize the ranking member for an opening
statement.
Mr. Conyers. Thank you, Chairman Gohmert. And welcome to
our witnesses. We look forward to your testimony. I am grateful
that each of you has taken time to participate in this
extremely important conversation about a crucial subject:
synthetic drug legislation, specifically H.R. 2851.
I recognize that analogues to some synthetic drugs are
dangerous and are harming our citizens, particularly young
people. Some of these modified, man-made substances are more
potent, more dangerous, and, oftentimes, more deadly than the
substances they are designed to mimic. However, in responding
to the dangers these drugs pose, I want to caution my
colleagues to be very careful in developing any legislation.
While we will more fully explore these issues today, quite
frankly, I am concerned that H.R. 2851 is a well-intentioned
but flawed bill and raises several concerns that I intend to
discuss with you today.
First, this bill is overbroad in the new authorities it
would grant to the Attorney General. While much of the
conversation surrounding synthetic analogues focuses on the
chemistry of the substances from the process of manufacturing
them to their effects on the human body, H.R. 2851 would
eliminate vital scientific and medical evaluations normally
undertaken by the Department of Health and Human Services and
the Food and Drug Administration and the scheduling of drugs.
Today, it is my intention to explore alternatives to
completely doing away with the collaboration of DOJ, Health and
Human Services, and FDA in scheduling synthetic analogues,
because each of these agencies are equally important to the
scheduling process. Not only would the Attorney General hold
the sole authority to schedule these substances, but he would
also have the power to shape sentencing policy without the
input of the United States Sentencing Commission that is
actually studying the issue of synthetic drugs and penalties
right now.
Secondly, we must be cautious in our response to synthetic
drugs, heeding the lessons we learned and the fear-driven
legislation enacted in response to crime. The bill would
establish lengthy and sometimes mandatory minimum penalties for
offenses when users and sellers of these analogues often may
not even know of the presence of these analogues when combined
with other substances. Over-penalization would be
counterproductive and only contribute to our crisis of over-
incarceration.
In addition, this bill has the potential to chill medical
research into substances that may be beneficial or into
alternatives treatments for drug addiction. This is
particularly so with such a truncated process based solely on
the Attorney General's determination of what is substantially
similar and what the predicted effects of a substance may be.
So, in closing, I want to note that the committee has
received a letter from over 65 advocacy organizations opposing
the bill. And, Mr. Chairman, I ask you now for unanimous
consent to insert the letter with these advocacy organizations
in the record.
Mr. Gohmert. Without objection.
Mr. Conyers. Thank you. Although they are not here to
testify today, we should take their views into account when
reviewing this bill. I thank Chairman Gohmert, and again wanted
to welcome our witnesses, including my friend, Representative
John Katko, the sponsor of the bill as we discuss this
legislation. I thank you, Mr. Chairman.
Mr. Gohmert. Thank you. At this time, I yield to the
chairman of the full committee, Chairman Goodlatte, for 5
minutes.
Chairman Goodlatte. Well, thank you very much, Mr.
Chairman. I am pleased to be here today as the Judiciary
Committee builds on its efforts to stop the epidemic of
synthetic drugs. The Crime Subcommittee held a subject matter
hearing last year on this issue and the groundbreaking piece of
legislation we are discussing today is part of the solution to
that epidemic. I am honored to cosponsor H.R. 2851, the Stop
the Importation and Trafficking of Synthetic Analogues Act.
The Controlled Substances Act expresses Federal U.S. drug
policy by which the manufacture, importation, distribution,
possession, and use of certain substances are regulated.
Synthetic drugs, once called designer drugs, but now known as
new psychoactive substances, are posing a serious public health
threat. And this bill would update Federal law to provide
prompt action to stop the unlawful importation and distribution
of synthetic drugs. This bill maintains the careful balance
that Congress struck when it first enacted the Controlled
Substances Act in 1970 to continue to protect the American
public from harmful and deadly drugs while promoting the safe
research of new substances.
The deadliest drug in Virginia last year was a synthetic
opioid. Fentanyl contributed to more than half of the 1,133
deaths due to opioid overdoses in 2016. In November 2016, the
Virginia health commissioner declared the opioid addiction
crisis a public health emergency in Virginia. As if fentanyl
were not deadly enough, carfentanil, a synthetic opioid about
100 times more potent than fentanyl--by the way, fentanyl is
said to be 100 times more potent than heroin--has been linked
to numerous overdose deaths around the country. Because
synthetic drugs are potent and cheap, greedy criminals are
adding synthetic drugs to cocaine and heroin with deadly
results. These powerful drugs also present a grave danger to
first responders, innocent bystanders, and children.
Last week's China National Narcotics Control Commission
announced scheduling controls against four new synthetic drugs.
This and prior scheduling actions by China have been the
culmination of ongoing cooperative efforts between the DEA and
the Government of China. While I applaud these efforts and
encourage them to continue, it is now clear that our laws to
control synthetic drugs were not designed for the epidemic we
find ourselves in now.
There are presently over 400 known synthetic drugs being
imported and distributed in the United States, many of which
are technically legal. Criminal drug traffickers and their
illicit chemists have learned how to manipulate drug molecules
to completely evade U.S. and international laws solely for
their own greed and financial profit. H.R. 2851 finally gives
U.S. law enforcement nimble tools to react as soon as these
deadly drugs arrive in our country, so we can collectively,
through enforcement, treatment, and education, retake our
communities from the plague of synthetic drugs.
In the 1990s, the U.S. faced a similar situation with
regard to GHB, the date rape drug. It was scheduled and strict
Federal laws were enacted. Not long ago, steroid molecules were
being manipulated much the same way synthetic drugs are now,
and Congress responded with the Designer Anabolic Steroid
Control Act enacted in 2014. Today, a unique class of drugs,
trafficked by highly resourceful criminals, must be confronted
head on, with a unique and agile response. H.R. 2851 is that
response. We have a responsibility to protect the American
people from criminals who exploit misery for profit. It is time
for Congress to act again.
I want to thank Congressman Katko for his tireless work on
this effort, and for introducing the important legislation
before us today. I want to thank all of our witnesses for their
testimony. I look forward to hearing their responses to our
questions. Thank you, Mr. Chairman.
Mr. Gohmert. Thank you, Mr. Chairman. And at this time, I
recognize the ranking member of the Crime Subcommittee, Ms.
Jackson Lee, for her opening statement.
Ms. Jackson Lee. Chairman Gohmert, thank you so very much
for your courtesies. And I am delighted that the chairman and
the ranking member are joining us today along with Mr. Lieu,
who is joining us. And I saw Mr. Chabot and thank him for his
presence here as well. We thank the witnesses, and in
particular, I want to thank my colleague from the Homeland
Security Committee, Mr. Katko, for his presence here. And, of
course, Ms. Ashley is the acting assistant administrator with
the DEA. And Mr. Perez, acting executive assistant,
commissioner with CBP. It seems like we have the meshing of
Judiciary and Homeland Security today. So, you are welcome.
Thank you very much.
As a ranking member of the Crime Subcommittee, I am
committed to finding ways to work collaboratively with the
chairman, my colleagues, and experts like you in order to help
save lives and maybe loss as a result of fentanyl and fentanyl
analogues. Now, let me first make the statement that this
committee has worked in a bipartisan manner in criminal justice
reform, of which I hope we will reignite on listening to and
addressing the question of mandatory amendments, but also the
question of mass incarceration. We also, in a bipartisan
manner, address the question of fentanyl and recognize its
deadly impact.
Last year, the powerful opioid was blamed for hundreds of
overdose deaths on the East Coast and made its way to my
congressional district in Houston. Experts like you help us
save lives that may be lost as a result of fentanyl and
fentanyl analogues. Drug analysts at the Houston Forensic
Science Center found fentanyl 10 times last year in fake
pharmaceuticals and powders. A 2015 investigation found that
the tragic 2012 death of two teenagers from Grand Forks, North
Dakota was linked to the usage of synthetic drugs purchased
from an internet-based company near Houston, Texas.
It is a national epidemic, a national phenomenon, a
national crisis. Just this month, a 22-year-old man charged
with possession of under 2 grams of fentanyl, with intent to
distribute the dangerous and highly addictive drug from China
to young people in West Houston area. Given the effect of
fentanyl and its analogues on our country and in Houston
particularly, and both familiar and acutely concerned by the
dangers they pose, and thus look to do whatever I can to
curtail this alarming epidemic.
And we did do so in the last Congress with a bipartisan
bill of this Judiciary Committee that became part of the
overall Omnibus bill out of Judiciary Committee. I think there
was a great deal of jubilation that we had passed a bill
dealing with treatment and prevention as opposed to
prosecution.
We must, however, do so in a manner that does not enhance
the Attorney General's arbitrary war on drugs. This process
must take into account the scientific analysis as required
currently under the law for scheduling, rather than a one-size-
fits-all approach based on the Attorney General's prediction of
potential abuse. I am hoping that those of us who sympathize
with the author of the bill and have made these indicting
statements about this terrible drug can find a way to work with
this legislation to answer some of our concerns.
This method, as I mentioned, that gives the Attorney
General the one-size-fits-all has the potential for abuse. This
method will undoubtedly have a sweeping effect and will produce
unintended consequences. As we are all aware, oftentimes, we
respond legislatively to the crisis of the moment with well
intentions, where lasting adverse impacts result, albeit
inadvertently. While I am deeply committed to holding
accountable manufacturers and traffickers of deadly drugs that
have a high potential for abuse, I am equally concerned about
the important underlying issues. Let me also say that I am
equally concerned about treatment and the work that we have
done in the bill that was passed in the last Congress.
First, expansion of power. This bill will give the Attorney
General unfettered authority to criminalize and prosecute any
drugs he or she elects to add to schedule A and that he
predicts may generate similar effects or have similar
composition found in fentanyl and other related controlled
substances. As written, this bill is both vague and broad in
scope, likely giving authority to control substances with low
abuse potential based purely on the substance chemical
similarity, that of a schedule-controlled substance. The
Sentencing Commission currently is engaged in an ongoing
investigation on synthetic drugs. This bill provides no
meaningful oversight to penalties prescribed by the A.G.,
absent any input by the Commission on his pending
investigation.
Second, unlike the Senate version of this bill, the House
bill adds mandatory minimums to the Federal goal. This is
particularly problematic given the bipartisan progress this
committee has made relevant to reduction and harsh sentences
for drug offenses related to heroin and crack. Section 4 of
this bill imposes a term of imprisonment of not more than 10
for the first-time offense or not more than 15 if death or
serious bodily injury results from the use of a schedule A
substance, but not more than 20 for a second offense, not more
than 30 years if death or a serious bodily injury.
Additionally, it imposes a term of supervised release of
not less than 3 years and a fine of up to $1 million for first-
time offenders, or not less than 6 years and a fine of up to $2
million for a second offense. Let me be very clear. I have
confidence in our Federal judges, and they have testified
before us on many occasions, asking for the discretion to be
able to make the right decision and the right sentence. For all
I know, it may be longer or may be less. But it does not do
well to have a one-size-fits-all as relates to these kinds of
cases of which there is probably a lot of issues that the court
needs to consider.
Third, this bill disregards the mens rea element that is to
represent or constitute a crime. Given that these drugs enter
the border, U.S. sellers are often unaware of the drug's
composition and potency. Head of DEA Chuck Rosenberg testified
before the Senate Judiciary Committee last year in June and had
listed fentanyl, fentanyl derivatives, and their immediate
precursors are often produced in China. We must be judicious in
our approach as we seek solutions for the opioid epidemic and
not rush to over criminalize, which extirpates the already
overburdened Federal Code and overcrowding prison cells.
Even Mr. Rosenberg stated, in his testimony, that educating
his agents on the drugs' toxicity, in a rollcall video that
warns millions of police officers across the country, is key
because the drug is volatile and changes every day. Hence, this
evidence further supports the need to thoroughly analyze and
educate the public rather than criminalize, prematurely, every
potential lab-induced nuance that may have a predicted
potential for abuse.
I hope that today's hearing will further our efforts in
seeking avenues to improve, where necessary, rather than
criminalize and incarcerate absent due process, but more
importantly, as all of us want to do, to save lives, stop the
siege of drugs in this country, and particularly the epidemic
of fentanyl. Where can we do this better and best? We can do it
when we work together and listen to experts. Thank you, Mr.
Chairman. I yield back the balance of my time.
Mr. Gohmert. Okay, the gentlelady's time has expired. At
this time, we have a very distinguished panel. And without
anything further, we begin by swearing in our witnesses. So, if
you would all please rise and raise your right hand.
Do you and each of you solemnly swear the testimony you are
about to give before this committee will be the truth, the
whole truth, and nothing but the truth, so help you God?
Please be seated. The record will reflect each witness
answered in the affirmative. And, at this time, I will do a
brief introduction.
Of course, Congressman John Katko is the sponsor of H.R.
2851. You heard some criticisms, and I look forward to your
statement and information about that. And I am very grateful
that you took the bold step of moving forward by filing the
bill, so that we could get to this process. It is entitled the
Stop the Importation and Trafficking of Synthetic Analogues Act
of 2017. Our friend, Representative Katko, is the
representative of New York's 24th congressional district since
2015. Thank you for being here.
Ms. Demetra Ashley is the acting assistant administrator
for diversion control at the U.S. Drug Enforcement
Administration. She serves as the principle advisor to the
acting administrator on all diversion enforcement
investigations and all regulatory matters affecting DEA's 1.7
million registrants. Ms. Ashley began her DEA career in 1987 in
the Washington Field Division. She has worked in several
offices to include the Detroit Field Division, two tours in the
Chicago Field Division, and several positions in DEA
headquarters. Ms. Ashley earned a bachelor's degree from Wayne
State University and a master's degree in communications from
Northwestern University.
So, we appreciate your being here, Ms. Ashley. As a State
prosecutor and judge and chief justice, I gained great respect
for our DEA agents with whom I have worked in the State of
Texas, and have even traveled with Mr. Chabot to Colombia and
seen the DEA really doing some remarkable work there as well.
So, we appreciate your being here, representing the DEA.
Mr. Robert Perez is the acting executive assistant
commissioner for operation support in U.S. Customs and Border
Protection. Mr. Perez began his career with U.S. Customs
Services in 1992 as a customs inspector in New Jersey. He has
held several positions in Washington, D.C. and Detroit,
Michigan, where, as the court director, he led the activities
of more than 1,100 CBP employees throughout the State at seven
ports of entry, including the busiest commercial truck border
crossing in North America. Mr. Perez holds a bachelor's degree
in economics from Rutgers University.
And so, we do appreciate your being here, Mr. Perez. Of
course, being the active executive assistant commissioner of
operation support of an organization, they really did not do
much of anything anymore, and I am prone to sarcasm. You have
become more vital than ever to maintaining our little
experiment as a Republic. So, thank you.
At this time, we recognize Representative Katko for your
opening statement.
Ms. Jackson Lee. Mr. Chairman, just one moment, if I might?
Mr. Gohmert. Yes.
Ms. Jackson Lee. Let me tell the witnesses I will be able
to listen to Representative Katko's testimony, and then I will
step away because of the healthcare crisis that we are going
through and will try to be back before you finish. If not, let
me thank you for your testimony. Thank you.
Mr. Gohmert. Thank you. You are recognized.
STATEMENTS OF JOHN KATKO, CONGRESSMAN, NEW YORK'S 24TH
CONGRESSIONAL DISTRICT; DEMETRA ASHLEY, ACTING ASSISTANT
ADMINISTRATOR, U.S. DRUG ENFORCEMENT ADMINISTRATION; AND ROBERT
PEREZ, ACTING EXECUTIVE ASSISTANT COMMISSIONER, U.S. CUSTOMS
AND BORDER PROTECTION
STATEMENT OF JOHN KATKO
Mr. Katko. Thank you, Chairman Gohmert, Ranking Member
Jackson Lee, Ranking Member Conyers, and others in the panel. I
appreciate your allowing me to speak before you today regarding
H.R. 2851, the Stop the Importation and Trafficking of
Synthetic Analogues Act of 2017, a bill I recently introduced
in a bipartisan manner with Congresswoman Kathleen Rice from
New York.
I must say, over my 20-year career as a Federal prosecutor
doing organized crime cases, as well as the last several years
in Congress, it is much different being in the hot seat here
than it is being the one asking questions. And I must say I
enjoy the position I am in right now. I must apologize in
advance, as with Ms. Jackson Lee, that after my testimony, I am
going to have to leave because I have a markup that I have to
deal with that is going on all day.
The synthetic drug epidemic has swept our Nation, and it
has crippled communities in Central New York and across this
great country of ours. Just a week ago, Syracuse Area
Hospitals, which are the heart of my district, saw a record
number of overdoses due to synthetic drug abuse. First
responders across the Nation have seen incredible increases in
calls due to synthetic overdoses. Fire departments, police
officers now, instead of dealing with law enforcement matters,
are often reviving people because of synthetic drug issues.
For example, in June of 2015, Washington, D.C. recorded 439
ambulance trips, resulting in 15 per day related to synthetic
drug abuse. Toxic synthetic drugs are designed to mimic street
drugs that are already illegal like marijuana, LSD, cocaine,
ecstasy, and other hard drugs. They can be more potent than the
real thing and, oftentimes, are far more deadly.
Unfortunately, when law enforcement encounters a specific
drug compound, manufacturers of these substances are able to
simply slightly alter the chemical structure of that drug. This
puts law enforcement at a serious disadvantage and are
constantly one step behind them. As a former U.S. attorney, but
more importantly as a father of teenagers, getting these drugs
off the streets and out of the hands of our loved ones means a
top priority for me.
Two weeks ago, I met with a constituent of my district whom
I first met when I was campaigning for the first time in 2014.
Her name was Theresa Wilson. Her son bought synthetic marijuana
across the counter, and he had a seizure because of it and
ended up dying because of it. He was a good kid, hardworking
kid, going to school and everything, but he was killed by a
synthetic drug that was later identified as XLR11. He purchased
it at a local headshop in Oswego, New York.
Unfortunately for Theresa, the drug that killed her son
managed to remain legal and on the streets for at least 4 years
after his death until it was finally added to the controlled
substances list last year in one of the bulk bills that we
passed identifying controlled substance analogues. While users
of synthetics are certainly at a risk for overdosing, we are
now seeing local law enforcement and first responders put in
harm's way repeatedly by simply coming in contact with these
dangerous substances. Numerous cases across the country have
seen emergency personnel die responding to overdoses. This is
both tragic and unacceptable, and H.R. 2851 is a positive step
in eradicating these harmful substances from our community.
The SITSA Act will give local law enforcement and Federal
law enforcement the necessary tools to target synthetic
substances and the criminals who traffic them. Specifically,
this legislation will create a new schedule to the Controlled
Substances Act and establish a mechanism by which synthetic
drug analogues can be temporarily or permanently added to that
schedule in as little as 30 days after the chemical composition
is determined by the attorney general.
The new schedule, schedule A, will add 13 synthetic
fentanyls that have been identified by the DEA as an immediate
threat to public health and safety. These synthetics have been
confirmed as the cause of death in at least 162 cases in the
United States. But I must digress for a moment and comment upon
the fact that thousands upon thousands upon thousands of heroin
deaths in this country have been caused by heroin that has been
laced with synthetic drugs such as fentanyl, and those drugs
are not accounted for. And as someone spoke earlier, I think it
was Chairman Goodlatte before he left, 144 people a day are
dying of heroin overdoses, 144 a day. And the vast majority of
those heroin overdoses have a component of synthetic drugs
contained within them. That is what we are trying to stop.
Finally, the bill maintains firm penalties for foreign
manufacturers, which is an important component, and
importation. It provides a multistep sentencing process, which
includes application of existing Federal guidelines. The goal
of this legislation is not only to prevent drug abuse, but to
facilitate proper research so that we may better understand
these chemical compounds.
The stories of synthetic drug abuse are in no way limited
to my area of the country. This is a nationwide epidemic, and
some of my colleagues have even called it a pandemic;
colleagues from Ohio, for example. I respectfully ask this
committee to consider the act because every moment we fail to
act, every moment we fail to act, another person is affected by
synthetic drugs. And, think about it: by the time this hearing
is over, several more people will have died because of
synthetic drugs that are laced into the heroin.
I thank you all for allowing me to testify this morning,
but before I conclude, I just want to briefly respond to Mr.
Conyers and Ms. Jackson Lee, some of their concerns. You have
stated, Ranking Member Conyers, that it is going to shape
sentencing policy that is overbroad in its over-penalization.
Now, we respectfully submit that this bill simply operates
within the parameters already set in the Federal statute in 21
U.S.C. 841. And we are simply taking that statute and allowing
the process to be expedited, to get these drugs off the street.
That is very important.
And with respect to Ms. Jackson Lee's comments about the
sentencing reform, we are all for sentencing reform and it is a
bipartisan matter. And I say that from a guy who used to put
people away all the time in these cases. I believe in
sentencing reform, and I believe that low-level criminals
should have safety valves. And I routinely use them in my
cases. But I can tell you that this does not create any harm to
the sentencing reform. The sentencing reform is the 21 U.S.C.
841. This bill is more about process than it is about
sentencing, in my mind. It is operating within existing
parameters, largely.
And with respect to mandatory minimums, the only mandatory
minimum, other than for supervised release issues, is if
someone provides drugs that kill somebody, and I stand by that.
And the bottom line is I respectfully want to continue my
conversation with both of you and try and have more
conversations on this. I think it is an important issue.
Let us not take our eye off the ball here. People are dying
as we speak from the synthetic drugs that are flooding our
country. And the heroin alone is not doing it; it is the drugs
that are laced with these synthetics that are killing them. And
for the Teresa Wilsons of the world and the people in my
district that are losing kids every day, we owe it to them to
do all we can to stop, and that is what this bill attempts to
do. So, I look forward to speaking with colleagues on both
sides of the aisle moving forward to try to reach a solution to
this. I thank you very much, and I appreciate the time for
allowing me to testify.
Mr. Gohmert. All right, thank you. And since you are going
to be stepping away, we will have some flexibility, basically,
in answering issues that have arisen. We know you have got to
get away to a markup, and we appreciate your being here. Thank
you again.
Mr. Katko. Thank you very much.
Mr. Gohmert. Ms. Ashley, you are now recognized for 5
minutes for your opening statement. We look forward to hearing
from you.
STATEMENT OF DEMETRA ASHLEY
Ms. Ashley. Good morning. Acting Chairman Gohmert, Ranking
Member Conyers, Ranking Member Jackson Lee, and distinguished
members of the committee, thank you for the opportunity to be
here today and speak about the dangers of synthetic drug abuse.
I have been a diversion investigator with the Drug Enforcement
Administration for 30 years. Currently, I serve as the acting
assistant administrator for the Diversion Control Division. I
cannot think of a more important topic than what you have
invited this panel to discuss today, specifically how to
address a threat that is deadly and constantly changing.
Last year, the Senate Judiciary Committee held a hearing on
this very topic. The DEA acting administrator, Chuck Rosenberg,
described this threat in three simple words: vile, volatile,
and lethal. I believe these three words are even more relevant
today than they were a year ago.
Vile because of the insidious manner in which traffickers
and manufacturers deliberately exploit the unsuspecting and the
vulnerable, particularly teenagers, the homeless, and those
suffering from addiction.
Volatile because the entire synthetic drug landscape
continues to be more complicated and more dangerous. For every
one substance that is legislatively or administratively
controlled, there are many more that remain uncontrolled. The
challenge for DEA is that this volatile threat requires new and
innovative means in order to respond quickly.
Finally, lethal: lethal because the unsuspecting users
continue to lose their lives at alarming rates. Take, for
example, two 13-year-old boys in Park City, Utah who overdosed
after purchasing a synthetic opioid, U-47700, also known as
pink; they purchased it over the internet. Or an individual
with an opioid misuse disorder who tragically overdoses after
unwittingly consuming counterfeit pills containing fentanyl or
carfentanil. Or a first responder who inadvertently inhales a
white powder during the course of his normal duties and
requires multiple hits of naloxone to recover.
These substances kill people; they kill the unsuspecting
and the vulnerable, so what is DEA's approach to countering
this vile, volatile, and lethal threat? Enforcement and
engagement. DEA will continue to target the most significant
offenders of the Controlled Substances Act. We will continue to
focus on the drug cartels, whose only motive is to make
tremendous profit off of unsuspecting and vulnerable
populations.
Because synthetic drugs are made in the lab, the profit
potential is enormous. One kilogram of fentanyl purchased in
China for $3,500 to $5,000 can generate millions on the illicit
market.
DEA will enforce the rule of law on those criminals who are
pushing these poisons on our public. DEA also continues to
engage with its counterparts both domestically and abroad.
Earlier this month, DEA released an updated video message to
law enforcements nationwide about the dangers of handling
fentanyl and its deadly consequences. We provide numerous
publications to law enforcement and first responders,
communities, and partnered with demand reductions coalitions
nationwide as part of our 360 strategy.
DEA has also been working directly with our law enforcement
counterparts in China. That relationship has been very
productive, and we were extremely happy to learn that China
took action on 116 synthetic substances in October of 2015. In
March of this year, China subsequently scheduled four
additional fentanyl analogues and, earlier this month, moved to
place domestic controls over U-47700. We will continue to
engage all of our partners on this synthetic issue.
Last year, you heard testimony from Devin Eckhardt, father
of Connor Eckhardt, the teenager who tragically lost his life
after just one use of a synthetic drug. Devin asked that we
leverage all our collective power and make changes that are
necessary to eradicate the deadly poisons from our streets. For
those of us who have had the honor of meeting the Eckhardts or
any of the countless families whose lives have been turned
upside down from synthetic drugs, we understand that plea all
too well. Let me ensure the committee that DEA will do
everything possible to eradicate these vile, volatile, and
lethal drugs from our communities.
I want to thank this committee for their ongoing work and
their attention to this subject, and I look forward to
answering any questions you may have.
Mr. Gohmert. Thank you very much, Ms. Ashley. At this time,
Mr. Perez, you are recognized for your opening statement. Thank
you.
STATEMENT OF ROBERT PEREZ
Mr. Perez. Thank you, Chairman Gohmert, Ranking Member
Conyers, and distinguished members of the subcommittee. Thank
you for the opportunity to appear today and discuss the role of
U.S. Customs and Border Protection in combatting the flow of
dangerous synthetic drugs into the United States, including
synthetic opioids such as fentanyl, synthetic cannabinoids, and
synthetic cathinones. The majority of illicit, synthetic drugs
smuggled into the United States has done so through
international mail facilities, expressed consignment carrier
facilities, or through our ports of entry. The dedicated men
and women of CBP----
Mr. Gohmert. Excuse me, was that on? It is now, OK.
Mr. Perez. Thank you. Thank you, Mr. Chairman. The
dedicated men and women of CBP work around the clock to combat
this challenge. In fiscal year 2016, CBP officers and agents
seized or disrupted more than 3.3 million pounds of narcotics.
CBP seizures of fentanyl, the most frequently-seized synthetic
opioid, have significantly increased over the past 3 years from
approximately 2 pounds in 2013 to over 400 pounds in 2016.
Additionally, last year, CBP interdicted more than 1,200
pounds of synthetic cannabinoids and over 1,400 pounds of
synthetic cathinones. Drug trafficking organizations
continually adapt to evade detection and interdiction by law
enforcement. CBP uses the same interdiction methods to seize
synthetic drugs as it uses to detect other illicit substances
coming across the border.
Thanks to the support of Congress, CBP has made significant
investments and improvements to our drug detection technology
and targeting capabilities. For example, at the National
Targeting Center, CBP leverages advanced information alongside
law enforcement intelligence records to identify smuggling
trends and target shipments that may contain illicit substances
or related equipment being diverted for the seduced, such as
pill presses, tablet machines, or precursor chemicals.
The National Targeting Center also serves as a critical
focal point for the daily collaboration between CBP and many
critical law enforcement partners, including the Drug
Enforcement Administration, Immigration and Customs
Enforcement, Homeland Security Investigations, the FBI, and
members of the intelligence community. Drug trafficking
organizations and individual purchasers often move synthetic
drugs in small quantities to try to evade detection. In the
expressed consignment environment, CBP can place an electronic
hold and notify carriers that a parcel needs to be presented
for inspection.
Together with the U.S. Postal Service, CBP is working to
develop the same capability in the international mail
environment through an advanced data pilot program. In addition
to their expertise, training, and intuition, CBP officers and
agents use various forms of technology and equipment to detect
synthetic drugs hidden on people and cargo conveyances and
other containers. Through CBP's Field Triage Infrared Reachback
Program, infrared spectrometers are utilized to collect data
from substances believed to be or contain synthetic drugs,
which is subsequently transmitted for our laboratories for
interpretation. Trained scientists are, then, able to
reasonably identify classes of drugs and flag them for
comprehensive testing, even if the drugs had not been seen
before.
Canine operations are another invaluable component of CBP's
counter narcotic efforts. CBP is currently working to conduct a
pilot course to assess the feasibility of safely and
effectively adding fentanyl as a trained odor to deployed
narcotic detection canine teams. CBP has also implemented a
program to provide training and equipment to keep our frontline
employees safe from accidental opioid exposure.
Through our ongoing pilot, CBP officers and agents are
trained to recognize the signs and symptoms of an opioid
overdose and to administer naloxone, a potentially lifesaving
drug for the treatment of opioid overdoses. CBP will continue
to do all we can to refine and further enhance the
effectiveness of our detection and its addiction of dangerous
synthetic drugs being smuggled into the U.S.
Chairman Gohmert, Ranking Member Conyers, and distinguished
members of the subcommittee, thank you for the opportunity to
testify today. I look forward to answering your questions.
Mr. Gohmert. All right, thank you, Mr. Perez. At this time,
we will begin questioning by members.
Since I am going to be here for the duration of the
hearing, I am going to wait to ask my questions, and therefore,
I will go to Mr. Chabot from Ohio. You have 5 minutes for
questioning.
Mr. Chabot. Thank you very much, Mr. Chairman. Back in the
1980s, I was on Cincinnati City Council, and Ronald Reagan was
President, and the drug scourge in this country had gotten so
bad that we had declared a war on it. We had a program, ``Just
Say No.'' We had about 10,000 overdose deaths nationwide back
in '82. And this year, we think it will be approaching 60,000
overdose deaths, and so it has gotten incredibly bad out there,
as the witnesses of this panel have already testified to, and I
know the next panel will say from different aspects, but much
the same thing, I am sure.
Back, again, in my district, and I represent most of the
city of Cincinnati, during one week last summer, we had 174
reported overdoses just in one week. We had a young girl, a 9-
year-old girl in March just a couple months ago. She called 911
after both of her parents overdosed in their SUV on heroin. She
told the dispatcher that she was scared and that her parents,
``Will not wake up.'' The girl did not know where she was or
what was wrong with her parents. But she did know enough to
call 911 for help, and that call literally saved her parents'
life, but no little girl or boy, 9-years-old or at any age,
should ever have to be placed in that situation. So, it is
terrible out there.
And Ohio has been one of the worst States with respect to
this, you know, horrific drug problem that we have, especially
heroin, and I will get into a question here; I am not just
going to ramble on and on, but especially when it comes to
combining heroin, which is already a terribly dangerous drug,
with these synthetic things like fentanyl, and that is the one
that is been particularly deadly in Ohio because my
understanding is that it is something like 50 to 100 times more
potent than morphine, and then you mix that with the heroin,
and you have a deadly, deadly brew there.
I guess my first question is, and I am supportive of this
legislation, I would welcome you this. I assume you had a
chance to look at the legislation that we are dealing with
here. Could you tell us, how will this legislation make your
jobs easier? How will it make the American people safer right
now with respect to drug overdoses than they are now? And I
would invite either or both. If you could turn the mic on
there? Thank you.
Ms. Ashley. I can say I am a 30-year investigator with DEA.
And it has always been helpful to law enforcement to be
proactive rather than reactive. The situation we are dealing
with now, it is after the fact, after the uptick of E.R.
visits, after the uptick of deaths, frankly. So, new
legislation, more nimble legislation, would give us the
opportunity to be proactive and get in front of these
circumstances.
Mr. Chabot. Thank you. And Mr. Perez.
Mr. Perez. And, Congressman, I would echo Ms. Ashley's
comments and add that, from a CBP perspective, given our focus
on interdiction and the potential deterrent nature of actions
taken by this body that would not only deliver a greater
consequence and provide more agility for all of law enforcement
to apply the law when it comes to these illicit substances, if
we can deter further people from beginning to even consider
trafficking in this type of a scourge, that obviously will
enable us as well and assist us in what it is we do every day.
Mr. Chabot. Thank you. I have got a minute left that I have
got. If I could turn just to a related issue. And you have
already mentioned this, but it is also my understanding, and
you indicated somewhat this in your testimony, that our first
responders who are there to, you know, save lives and protect
people can be now, themselves, at risk because of their
exposure to these drugs. Could you elaborate a little bit on
that, what the risk is and what ought to be done about it?
Mr. Perez. Well, with respect to CBP, again, Congressman,
we recognized early on, as we began to see an uptake,
particularly in the fentanyl, which really is primarily the
most dangerous of the synthetics that we have encountered
today. Several years ago, in recognition, actually working
alongside DEA to understand the dangers for our frontline men
and women, we began to roll out training and awareness training
and musters to those frontline officers and agents who most
would come encountering these substances.
And, in addition to this, being present in about 34
locations. And the locations where we are seizing the most of
these substances is where we have also deployed trained
officers and agents to administer the naloxone, the NARCAN, if
you will, so that, in case there is an accidental opioid
overdose, we can immediately respond to that.
So, that is something that we are continually trying to do
our very best to protect those men and women who are
unquestionably our most treasured resource.
Mr. Chabot. Thank you, my time has expired, Mr. Chairman.
Mr. Gohmert. I thank the gentleman. At this time, the
ranking member of the full committee, Mr. Conyers, is
recognized.
Mr. Conyers. Thank you, Chairman. I thank the witnesses for
their very good contributions here. Let me ask Administrator
Ashley about the eight-factor analysis that is currently being
used. Would you talk with us a little bit about that?
Ms. Ashley. Certainly, sir. The current process for
permanently scheduling controlled substances, the DEA works
jointly with HHS, and they are great partners. The Food and
Drug Administration, and also DEA, conduct an eight-factor
analysis. The issue there is that it is a very extensive
process. It can take anywhere from 18 months to several years
to actually permanently schedule the drug.
We also have the tool of emergency scheduling. Emergency
scheduling, we would conduct a three-factor analysis also
working along with HHS. And HHS would complete an eight-factor.
And, even with all cylinders firing, if everything goes right,
it would still take 3 to 4 months to emergency schedule a
substance. And, as I mentioned a little bit ago, we would want
to be proactive rather than reactive.
Both our emergency scheduling process and our eight-factor
analysis for permanent scheduling is after we have collected
the data, the information, the seizures, the deaths, and the
uptick in emergency room visits.
Mr. Conyers. Well, under this bill, we would eliminate the
eight-factor analysis.
Ms. Ashley. Well, I am not as familiar with the bill. I am
generally familiar with it. But from what I understand, it is a
temporary scheduling. If it is under schedule A, it is
temporary. So, the analysis is still going to take place in
order to permanently schedule, if necessary, the substance that
is encountered.
Mr. Conyers. Well, would you support eliminating the eight-
factor analysis?
Ms. Ashley. The eight-factor analysis, I do not believe it
would be taken away. That is not my understanding. I am not as
familiar with the bill, sir.
And I would like to add, as a practical matter, again, HHS,
they are such great partners with us. Our scientific staff and
their scientific staff, we are typically looking at the same
substances, exchanging information constantly. We have
basically a day-to-day relationship with the scientific staff
at HHS and also at DEA.
Mr. Conyers. Now, let me ask you about the enforcement
power under H.R. 2851. It would give the Attorney General and,
most likely, the Drug Enforcement Administration, the power to
make the law, enforce the law, and then decide the appropriate
sentence for breaking the law. Do you believe that this might
be a little bit too much power to be located into one agency?
Ms. Ashley. Sir, I would have to defer to the department in
speaking about the mandatory minimums or sentencing. As an
investigator, I can tell you that mandatory minimums are
another tool. Historically, they have created a deterrent
effect. Again, I would have to refer back to the department.
Mr. Conyers. Well, let me ask the same question to my good
friend sitting next to you, Mr. Perez.
Mr. Perez. Congressman, I would say from a CBP perspective,
we would absolutely, and I would absolutely, appreciate the
complexities with respect to balancing, again, the actual
consequence delivery. But unquestionably from the interdiction
focus that we have on the frontline, the enabling in any way
the agency to not only interdict, but deter further the
trafficking in these illicit substances is what we would really
appreciate the opportunity to work with the committee on
further.
Mr. Conyers. Well, what about my question, though? I mean,
do you support the whole idea of eliminating eight-factor
analysis or not? Or do you know enough about it to venture a
recommendation?
Mr. Perez. Thank you, Congressman. On the eight-factor
analysis, we certainly would defer to the experts over at the
DEA who really are the frontline in handling those issues.
Mr. Conyers. Let me ask you this, Mr. Perez: does CBP
support this legislation in its current form?
Mr. Perez. Again, Congressman, any effort by this body, we
would welcome the opportunity to work with the committee to
further enable law enforcement to interdict and deter the
trafficking in these substances. Unquestionably, our focus is
national security, is homeland security, and any effort to
enable us to further deliver on that law enforcement mission
and to do so alongside the committee we would welcome that
committee.
Mr. Conyers. Well, could you explain how this legislation
might help CBP in its efforts to stop the flow of synthetic
analogues enter the United States?
Mr. Perez. Thank you, Congressman. So, one of the big
challenges we do have when we encounter these narcotics being
trafficked in the express consignment environment, in the mail
facilities, or even across our ports of entry, is the constant
changes in the chemical structures, the added analogues, the
diversity with which the drug trafficking organizations are
adapting in order to evade detection. And so, it is in that
light and in that vein that, again, we absolutely would welcome
this effort and are greatly appreciative of what it is the
committee is endeavoring.
Mr. Conyers. Thank you. Thank you both for your responses.
Thank you, Mr. Chairman.
Mr. Gohmert. Thank you, Mr. Conyers. At this time, I will
recognize myself for 5 minutes. Ms. Ashley, you were indicating
earlier that fentanyl could be purchased in China for, say,
$5,000 and end up bringing here and making millions, with what
substance would people normally cut that in order to enhance
the value that dramatically?
Ms. Ashley. That is a good question, sir. I do not know
which substance they would cut it with. I am sorry I do not
know the answer to that question.
Mr. Gohmert. Because I know we have heard testimony about
it being added to some other substances and making it more
dangerous, but I was wondering in order to get to millions of
dollars in value it has got to be added to something; it has
got to be cut some way. Mr. Perez, do you have any idea?
Mr. Perez. What we have seen, Mr. Chairman, with respect to
the utilization of fentanyl is that actually being used to cut
heroin along the southern border, in fact. And so, while
present in much lesser quantities as a percentage of what it is
we are seizing, it is in those larger seizes, if you will, that
we are affecting in the southern border that fentanyl itself is
being used to further the quantities of the heroin that is
being smuggled.
Mr. Gohmert. But is it not true that one of the things that
has brought about the, the heroin epidemic, if you will, has
been the price of heroin being comparatively cheaper than some
other drugs. Is that not right?
Mr. Perez. Absolutely. Mr. Chairman, I would add to that
the availability and the volume of which of what is moving in
the elicit markets right now is certainly adding to that as
well.
Mr. Gohmert. Ms. Ashley, did you have some additional
information?
Ms. Ashley. Yes, Mr. Chairman, I just happen to have one of
our scientific staff here in the room. He just passed to me
that fentanyl, as Mr. Perez has already said, is mixed with
heroin, and then pressed into a pill.
Mr. Gohmert. And pressed into a pill.
Ms. Ashley. And pressed into a pill, yes. Also pill presses
are being imported and used to press the heroin and fentanyl
mixture into a pill.
Mr. Gohmert. So, Mr. Perez, what is the primary way in
which synthetic drugs and fentanyl are making their way to
America's teenagers and adults bring about this epidemic?
Mr. Perez. So, originating primarily from China and/or
Mexico, again for the heroin laced with the fentanyl----
Mr. Gohmert. Which is more predominant as a source, China
or Mexico?
Mr. Perez. Quantity wise, from Mexico, Mr. Chairman. As far
as incidents are concerned because the volume of actual seizure
incidence that we are encountering are dominated in both the
mail environment and the expressed consignment environment
those would be from China. And so, those are the routes of the
originating countries as well as the manner with which these
elicit synthetics are being smuggled.
Mr. Gohmert. Do you know if, under this bill, kratom would
be listed as a schedule A drug? Either of you.
Ms. Ashley. Thank you for the opportunity, I can give you
an update on kratom. I can say to you, that is not the track
that kratom is on right now. If I can explain a little, DEA
took action to schedule kratom back in August 2016 and
subsequently withdrew that action. And we withdrew the action
after, you know, concern from stakeholders, concern from
Congress, even, concern from the public, and we decided to take
a more prudent measure there. And right now, kratom is on the
path of eight-factor analysis through the Food and Drug
Administration, and we are currently waiting on that action. We
made the request in 2014, and we are waiting for their
recommendation.
Mr. Gohmert. Well, under this, would marijuana be a
schedule A substance?
Ms. Ashley. Marijuana would not be looked at as a schedule
A, and the reason is it is already scheduled in schedule I, it
is already permanently scheduled. So, there would be no need to
back track that and place it into a temporary sort of
environment.
Mr. Gohmert. Well, this bill propose an entirely new
regulatory scheme where the power is really concentrated in the
Attorney General and the DEA; what aspects of this bill would
allow DEA to act quickly to curb synthetic drug importation?
Ms. Ashley. For importation. So, what it does is as it
comes into CBP, and my colleague here can actually help to join
into the response; as it comes in, sometimes it is mislabeled,
and sometimes it has the accurate label because it is not a
regulated substance, so they would be able to identify it
immediately as it comes in because it is on the bill of lading.
Mr. Gohmert. Thank you. My time has expired. I recognize
the chairman of the full committee, Chairman Goodlatte.
Chairman Goodlatte. Well, thank you, Mr. Chairman. Ms.
Ashley, how many synthetic drugs that would come within the
scope of this bill are being researched right now by how many
registrants? In other words, how many registrants have you
authorized to research synthetic drugs?
Ms. Ashley. Currently, we have a little over 400 DEA
registrants registered to handle schedule I controlled
substance. The thing that is complex about this issue, the U.N.
reported in 2016 that there are approximately 700 additional
ones. They are not under DEA regulatory authority, so there
could be more that are not being tracked and accounted for.
Chairman Goodlatte. And really creative criminal chemists
can come up with new molecular combinations on a daily basis
that would just keep you going through this and going through
this and going through this. You have got to be able to
identify them and act quickly once you do identify them; is
that not----
Ms. Ashley. That is exactly right. They are made in a lab
clandestinely.
Chairman Goodlatte. People who are cutting heroin with
fentanyl or its analogues or importing fentanyl outside the
regular drug process are already breaking the law in myriad
ways; do you believe that this additional layer of deterrents
will stop people who are already breaking the law?
Ms. Ashley. I do; I will give you an example. When China
scheduled the 116 synthetic drugs in October 2015, the amount
of flow of these substances coming into the United States
decreased, we approximate, between 40 to 60 percent. Once they
were identified, Border Control can track them, and there was a
decrease in what is coming into the country.
Chairman Goodlatte. Are you concerned about the driving of
these criminals to the dark Web and seeing more of this simply
delivered by mail to people?
Ms. Ashley. Well, the thing with the dark Web, it is ground
zero for all criminal activity. I do not believe that this sort
of action would make it any worse frankly. It is just ground
zero in the dark Web. So there is going to be that criminal
activity, all aspects of criminal activity in the dark Web no
matter what laws we put in place.
Chairman Goodlatte. And the substance still has to go
through some delivery mechanism. Are there ways to screen for
this? I mean, are there dogs that can smell these types of
drugs, or what is done to try to stop?
Ms. Ashley. It is a very dangerous circumstance, and my
colleague could probably speak to it better. With the dogs, if
they are inhaling the same way any human would inhale, it is
detrimental to their lives.
Chairman Goodlatte. Good point.
Mr. Perez. I will add, Mr. Chairman, that CBP is, in fact,
in the midst of a pilot program where we are testing our canine
handling teams, a finite number of those to potentially detect
the odor of fentanyl. As you may know, it is a menu of sorts of
different odors that the canines are trained on, and so, ever
so safely, we are in the middle of a pilot program to explore
the feasibility of introducing fentanyl as an added odor.
Chairman Goodlatte. So, what is the turnaround time from
seizing a suspected substance and positively identifying the
substance? What does CBP do with the package or shipment that
contains that substance?
Mr. Perez. Thank you, Mr. Chairman. So, upon seizure, we
will typically utilize some of the technology that we have
deployed to the busiest mail facilities, express consignment
facilities, southwest border locations, through the infrared
spectrometers that the officers and agents utilize. That data
is sent directly to our laboratory scientist and, really,
depending on the circumstance we have in front of us, we could
turn around those results within 24 hours, if need be, for
investigative purposes. If we encounter an instance where we
have a subject, for example, in custody and there is a
potential investigative lead interaction that need to take
place.
But if and when we do encounter some of these substances
under the normal course of doing business in the mail
environment, for example, where there is no further
investigation, typically we will queue those up, and it may
take several weeks, given the amount of volume of what actually
gets sent to our laboratories for testing.
Chairman Goodlatte. Is fentanyl the synthetic you are
seizing the most, or are there other things that are not on our
radar?
Mr. Perez. Thank you, Mr. Chairman. As far as quantities
are concerned, the synthetic cannabinoids and cathinone in
quantities still outweigh the fentanyl but unquestionably the
spike and/or increase in the amount of fentanyl that we are
seizing is outpacing any other synthetic drug at the moment.
Chairman Goodlatte. What kind of synthetic drug traffickers
does CBP particularly target?
Mr. Perez. Not unlike any other drug trafficking
organization, Mr. Chairman. We work alongside the entirety of
the law enforcement communities, certainly at the Federal
level, but also at the State and local level and our
international partners. And so, it is not uncommon that those
same organizations that are trafficking in other types of
narcotics are also now moving their business into these
synthetics. And so, the same tools, the same information, the
same intelligence, the same investigative tools that we utilize
to combat all those other drug trafficking organizations are
what we are currently employing to stop this surge.
Chairman Goodlatte. Very good. Thank you, Mr. Chairman.
Mr. Gohmert. Thank you, Mr. Chairman. At this point, let me
just say each of your written statements will be entered into
the record in its entirety, and we appreciate your testimony
today. I would ask if you would review H.R. 2851 again and any
suggestions you may have that would improve it from your
background experience and training, if you would submit those
within the next 10 days then that would be immensely helpful to
us as we go forward. Appreciate that very much. Anything
further that you have thought of that you needed to add to
illuminate on any question that you have already answered? All
right.
Then, we appreciate your being here and, again, thank you
so much for your patience. At this time, panel one will be
excused, and we will ask panel two to please come forward.
All right, thank you; I appreciate your patience as well.
Thank you so much for being here. Obviously, this is a very big
problem.
Could I ask you each to stand and raise your right hand so
I could swear the witnesses in?
Do you, and each of you, solemnly swear that the testimony
you are about to give before this committee will be the truth,
the whole truth, and nothing but the truth, so help you God?
All right, please be seated. The record will reflect each
witness has responded in the affirmative.
I will briefly introduce our distinguished witnesses here
today in our second panel.
Ms. Marcia Lee Taylor is the President and CEO of the
Partnership for Drug-Free Kids, a nonprofit organization which
provides support and guidance to families struggling with their
son or daughter's substance use. Previously, she served as the
senior advisor for drug policy research for the Senate
Judiciary Subcommittee on Crime and Drugs for the Democratic
Staff Director of the Senate Caucus on International Narcotics
Control, working for then-Senator Joe Biden. In that capacity,
she worked on a wide variety of drug policy bills aimed at
curbing the proliferation of methamphetamine, ecstasy, GHB, as
well as drug treatment prevention and enforcement initiatives.
Ms. Taylor is a graduate of the College of the Holy Cross and
holds a master's degree in public policy from Georgetown
University. So, thank you for being here, Ms. Taylor.
I will go ahead and introduce our other witnesses, and then
we can take testimony one after another. Ms. Reta Newman is a
special advisor for the Drug Free America Foundation. She is
also the chief chemist and director at the Pinellas County,
Florida Forensic Laboratory where she manages operations for
analysis of fire debris, controlled substances, and other
chemical components. She has been a forensic chemist since 1989
and holds her certifications in the analysis of drugs as well
as fire debris. Ms. Newman has authored several publications
and offers presentations on a national level. She holds a
bachelor's degree in chemistry from Missouri State University
and a master's degree in management from The University of
Phoenix. Ms. Newman, welcome. We are pleased to have you here,
as well.
Ms. Angela Pacheco was the first woman ever elected to the
first Judicial District Attorney's Office in Santa Fe, New
Mexico and retired in December 2015, but obviously not
completely retired from everything. I had a witness once during
voir dire, and the district attorney said, ``Sir, I see that
you are retired; what are you retired from?'' And he said,
``Everything.'' Obviously, that is not your case; you are still
quite active.
You previously served as assistant district attorney,
deputy district attorney, and supervisor of Family Violence
Unit in that office. Her legal career has consisted primarily
of criminal prosecution in which she has tried a number of high
profiled cases. Prior to becoming an attorney, Ms. Pacheco was
a social worker for 13 years in Northern New Mexico. She
received a bachelor of arts in social work from the College of
Santa Fe and her juris doctorate from the Hamlin University
School of Law.
So, again, your written statements will each be entered in
full into the record. At this time, I ask you each to summarize
your own testimony in 5 minutes or less, and you see how it
works with the lights. When the yellow light illuminates, there
will be 1 minute left, but in any event, we are being a little
less formal here today, and we do appreciate your being here.
We need your input. And so, at this time, Ms. Taylor, I
recognize you for your opening statement for 5 minutes.
STATEMENTS OF MARCIA LEE TAYLOR, PRESIDENT AND CEO, PARTNERSHIP
FOR DRUG-FREE KIDS; RETA NEWMAN, SPECIAL ADVISOR TO DRUG FREE
AMERICA FOUNDATION, CHIEF CHEMIST AND LABORATORY DIRECTOR OF
THE PINELLAS COUNTY FORENSIC LABORATORY; AND ANGELA PACHECO,
FORMER DISTRICT ATTORNEY, FIRST JUDICIAL DISTRICT OF SANTA FE,
NEW MEXICO
STATEMENT OF MARCIA LEE TAYLOR
Ms. Taylor. Chairman Gohmert, Ranking Member Conyers, and
members of the subcommittee, thank you for inviting me to
testify today. My name is Marcia Lee Taylor, and I am President
and CEO of the Partnership for Drug-Free Kids, a 30-year-old
national nonprofit organization dedicated to supporting
families struggling with their son or daughters' substance use.
Created by the advertising industry at the height of the
powder and crack cocaine epidemic, the partnership has run the
largest single-issue PSA campaign in our Nation's history. And
over the course of the past decade, we have developed a number
of resources that go beyond the 30-second PSA for families to
get their arms around the addiction issue.
We empower families with information, support, and guidance
to get the help their loved one needs and deserves in a variety
of ways. Through our national toll-free help line, 1-855-
DRUGFREE, and new online live chat service, we have connected
10,000 families to bilingual, master's-level counselors who
help them develop a plan to address their child's substance
use. And with our national network of parent coaches, with
nearly 200 volunteers in 2017, and our new ``Ask-a-Coach''
feature, we connect parents to others who have been there and
can help them learn how to love their child through this health
crisis and understand that tough love and rock bottom are not
the only viable options.
Through our website, drugfree.org, we provide 5 million
families per year with the latest cutting edge scientific
information distilled into actionable tips and tools to help
them understand the disease of addiction, be better able to
navigate the treatment system, and get their child to accept
help. And thanks to our local and national media partners, we
receive approximately $100 million a year in donated time to
run PSAs to let parents know that there is help for their loved
one and that they can find support at the partnership. And
working with private sector partners like Google and Facebook,
we help reach parents as they actively search for help online.
In all of these tools, we use evidence based concepts such
as community reinforcement and family training, otherwise known
as CRAFT, and motivational interviewing to help parents obtain
the best possible outcomes for getting their child into
treatment and onto the path to recovery.
Among the parents we serve, the fear of fentanyl and its
equally deadly analogues is palpable. Our moms and dads see the
news reports about overdose deaths from adulterated heroin and
now cocaine. They see stories about counterfeit Xanax pills and
other medications that are, in fact, pure fentanyl. They read
accounts of law enforcement officials who overdose from simply
being in proximity to a seizure of drugs that contain some of
these potent alternates, and they are terrified that their
child will be the next statistic.
Our helpline staff and parent coaches cannot reassure these
mothers and fathers that everything will be fine, because they
know that the parent's fears are not overblown. Their kids
could, in fact, be the next fatality. They know that even if
there is a first responder nearby to administer a dose of
NARCAN to reverse the overdose, it may not be enough. In many
cases, people overdosing on fentanyl need multiple doses of
NARCAN to revive them if they can be revived at all.
One mom from New Hampshire, who is in recovery herself from
heroin, commented to me that when she was using heroin in the
1970s overdose was not nearly as common. So, when her son
became addicted, she listened to people who told her to wait
until he hit rock bottom and was ready for treatment.
Unfortunately, her son died from a fatal fentanyl dose before
the elusive rock bottom came to pass. She told me that she
thought that she had time. With the potency of heroin on the
street today and the proliferation of fentanyl analogues,
parents simply do not have time to wait for a child to be ready
to enter treatment. They need to come up with a plan to
intervene and help their child further upstream and the
partnership has resources to help them do just that.
The legislation before the committee today, H.R. 2851, the
Stop the Importation and Trafficking of Synthetic Analogues
Act, takes an important step of classifying 13 fentanyl
analogues as controlled substances as well as creating a
mechanism to make it easier to control substances going
forward. The problem of regulating analogue substances and
other uncontrolled compounds that are abused is not a new one.
Prior to my work at the partnership, I spent 11 years
working on drug policy in the Senate. And during that time, I
worked on two pieces of legislation that are relevant to the
discussion today. The Hilary J. Farias and Samantha Reid Date-
Rape Drug Prohibition Act of 2000, which moved gamma
hydroxybutyric, also known as GHB, from classification as a
dietary supplement to a controlled substance, and the Anabolic
Steroid Control Act of 2004 which classified a number of
substances as steroids and made it easier to control future
analogues.
In the GHB legislation and the bill before us today, a
complicating factor with the possibility that one of the
substances could have potential as an FDA-approved medication.
The GHB legislation took the path of bifurcated scheduling,
whereby the substance was classified as a schedule I control
substance in its illicit form and left the door open to an FDA
approved version being a schedule III substance with the
important caveat that there had to be tight controls and
restricted distribution. XYREM, the FDA-approved version of the
drug, is available through a closed distribution network and
only one pharmacy in the entire country is able to dispense it.
While the GHB bill was narrowly tailored, the bill before us
today addresses a wide swath of substances. We must make sure
when we are crafting the final legislations steps are taken to
ensure that researchers are able to study schedule A substances
for future medical use without the restrictions that come with
studying a schedule I substance.
In the case of the steroid bill, we knew that there was an
incentive for chemist to innovate and stay one step ahead of
law enforcement by making minor alterations to illegal
substances so they evaded the reach of the law. To control
that, the legislation amended the definition of anabolic
steroid in the Controlled Substance Act and removed the
requirement that the substance must be proven to promote muscle
growth so that it was easier for DEA to schedule such analogues
in the future. It is critical the DEA has the ability to act
swiftly to control new substances that violate the spirit of
the law particularly when they are as deadly as the fentanyl
analogues available today.
The balance between scheduling dangerous substances and
allowing research on them for medical purposes is difficult to
get exactly right, but it is critical that we do so in order to
protect both public health and public safety. Thank you again
for inviting me here today, and I am happy to answer any
questions that you might have.
Mr. Gohmert. All right. Thank you very much, Ms. Taylor.
Ms. Newman, you are recognized for 5 minutes for an opening
statement.
STATEMENT OF RETA NEWMAN
Ms. Newman. Good morning, Mr. Gohmert, Ranking Member
Conyers, and members of the subcommittee. Thank you very much
for inviting me to testify today about this proposed
legislation.
My name is Reta Newman, and I am here today representing
Drug Free America Foundation for whom I serve as a special
advisor. Drug Free America is a nonprofit organization
committed to developing, promoting, and sustaining national and
international policies and laws that will reduce either illicit
drug use and drug addiction. I am also the director of the
Pinellas County Forensic Laboratory at the District Six Medical
Examiner's Office in Largo, Florida. I have asked to speak to
you today based on what is going on in our county, which
hopefully could translate to the rest of the country.
In my testimony today, in support of this legislation I
would like to provide an awareness of the impact of synthetic
drug analogues and false labeling of drugs especially, but not
limited to, fentanyl analogues through examples taken from
local drug and death investigations. It should be noted that
while my testimony is based primarily on what is happening in
Pinellas and Pasco Counties, which is significant, we are not
the epicenter of this crisis which makes these statistics all
the more concerning. In 2010, Florida was in the spotlight for
the number of deaths associated with prescription drugs. This
prescription drug crisis was such that the average number of
accidental deaths associated with prescription drugs increased
by almost 100 percent in a 2-year period in my county. The
legislation and enforcement targeting pill mill doctors and
true prescribing practices by physicians and public education
to the crisis, the number of overdose deaths associated with
prescription opioids dropped in 2014 to the lowest rate in 8
years.
Unfortunately, since 2015, the overdose rate has increased
to levels exceeding that over the prescription drug crisis. In
these cases, however, the increase is due to illicit drugs. I
clandestinely produced and distributed synthetic opioids are
the primary drugs of concern death associated with synthetic
cannabinoids, and cathinones have also increased in this time
period.
In 2015, the seize drug unit began to see clandestinely
produced fentanyl in powders and pills. Fentanyl pills were
labeled to mimic other pharmaceutical preparations, most
commonly Xanax and oxycodone. Seven deaths in a 30-day period
were attributed to these counterfeit pills. A 50-milligram dose
of a nonextended release oxycodone can be fatal in most
circumstances. The fentanyl equivalent is less than one half of
a milligram. Given that the users were likely expecting 30
milligram oxycodone dosages in these counterfeit pills and
given the high toxicity of fentanyl, the increase in overdoses
and overdose deaths were inevitable. In a given week our
laboratory sees multiple submissions of pills labeled to mimic
pharmaceutical preparations which contain a wide variety of
clandestine mixtures.
In late 2014, a new fentanyl analogue was introduced to the
clandestine market in Florida. Acetyl fentanyl began appearing
in seized drug DUI and postmortem investigations. The appeal to
the distributors is this is an inexpensive, highly potent,
highly addictive, and noncontrolled drug. When acetyl fentanyl
became controlled federally in May of 2015, it was rapidly
replaced with butyryl and furanyl-fentanyls. Upon scheduling of
those in May 2016, the market shifted in our county to
fluoroisobutyrfentanyl, which is currently not controlled.
By simply changing one ion at a more functional group in
the base structure, a novel drug is created. Because the
chemical structure of the parent compound, there is the
potential to create hundreds of analogues of fentanyl.
Currently approximately 50 have been isolated. The drugs are
quite literally being tested for potency and toxicity on the
street. The current known range of potency for these drugs
varies from 100 to 10,000 times of that of morphine based on
the analogue structure. In several postmortem cases, the
determination of the cause of death has not come from the drugs
identified in this decadence but the drugs in the syringes that
are still decadence arms or hand. The fatal concentrations of
some of the synthetic analogues is such that it is below the
detection limit of the laboratory instrumentation and
processes.
The risk of synthetic analogues is not limited to the drug
user. In the powder form, the drug is easily aerosolized and
can be absorbed through the skin. There have been several
instances of first responder exposure to fentanyl analogues.
Our laboratory also has NARCAN procedures in place to treat our
coworkers should an exposure happen. The potential for a
serious event due to widespread accidental or intentional
exposures do exist.
In the first 5 months of 2017, fentanyl analogues have
contributed to the deaths of 60 people in Pinellas and Paschal
Counties alone. Approximately \1/3\ of those are fentanyl
analogues that are not controlled. While not necessary is
potent similar instances of noncontrolled analogues have
appeared in the forms of multiple other drug classes. Analogs
as synthetic cannabinoids and synthetic cathinones, among
others, have resulted in numerous overdoses and overdose deaths
throughout the country and in our county. As soon as one
chemical structure becomes controlled, it is rapidly replaced
with others. Placing proactive legal controls on these
analogues will not in itself eliminate the drug abuse problem
in this country. However, without this legislation the criminal
justice community is severely hampered in their ability to
attack the problem.
Thank you for your opportunity to speak today and I would
be happy to answer any questions.
Mr. Gohmert. Thank you, Ms. Newman. At this time, Ms.
Pacheco you are recognized for 5 minutes for an opening
statement. Thank you.
STATEMENT OF ANGELA PACHECO
Ms. Pacheco. Thank you, sir. Good afternoon, Mr. Chair,
ranking members. Thank you for the opportunity to testify. My
name is Angela Pacheco, and I served as the district attorney
in northern New Mexico for 7 years, retiring in December 2015.
I am currently a commissioner for the New Mexico Sentencing
Commission.
The idea behind this bill is laudable. It is true that many
synthetic drugs that are substantially similar to drugs like
fentanyl are entering our country and are behind a lot of
overdose deaths. The overdose crisis is a national tragedy. I
have seen its devastating consequences in my home State. We
should all be alarmed and should take action. But the problem
with the bill is that it takes a hammer approach to an issue
that needs a scalpel, resulting in the unattended consequences
of those with opioid addictions.
Fentanyl and its synthetic derivatives are often
manufactured outside the United States. Last June, the head of
the DEA told the Senate that illicit fentanyl, fentanyl
derivatives, and their immediate precursors are often produced
in China. They are often added to heroin high up on the chain
and then sold on the streets of the United States. From a
prosecutorial standpoint, it means that proposals like the ones
contained in this bill to punish every drug seller, regardless
of their role, for the sale of synthetic drugs will be
problematic. Presumably, the harsh sentences in the bill are
supposed to deter drug sellers. But how is the drug seller
supposed to be deterred if they do not know what is in the
substance they sell and believe it to be simply heroin? In
essence, this bill creates a strict liability situation where
position of heroin with a synthetic derivative results in an
enhanced sentence. This would mean the individuals are exposed
to additional lengthy sentences regardless of whether they knew
or not that the drug they were selling contained these
synthetic drugs.
Also, the new charging memo from the Attorney General
encourages Federal prosecutors to charge as much as they can in
drug cases. Similarly, there is a lot of pressure on
prosecutors to do something to slow the opioid epidemic. Should
this bill pass we will likely see Federal prosecutors charging
individuals not simply for the sale of heroin, but also
charging them if the heroin they sell contains the slightest
trace of a synthetic drug which results in harsher sentences
for lower-level users. This situation is like the early years
of the crack epidemic.
Perhaps the most troubling aspect of this bill is the power
it grants the Attorney General. Under current law, the Attorney
General must work with public health officials to decide which
drugs belong in which schedule and, therefore, which penalties
apply. This bill completely circumvents the public health
process, leaving the scheduling decisions almost entirely in
the hands of the Attorney General. Let me be clear, prosecutors
and law enforcement should never be permitted to unilaterally
decide which drug should be made illegal. That is not our role.
We are not public health experts and we are not scientists.
This is clearly a separation of powers issue in which those
decisions should be made by the legislative branch of
government.
We have made great strides as a country in how we treat
drug use. Just last year, this committee worked on the
Comprehensive Addiction Recovery Act. A bill that was
subsequently signed into law and has also recently passed a
Sentencing Reform Act which reduced mandatory minimums. I was
on the front line when this epidemic began. New Mexico's
overdose rate has been one of the highest in the Nation for
over two decades. We have harsh sentences on the books already
at the State and Federal level, and they did nothing to stop
our opioid epidemic.
Our Nation's approach to drugs has failed. We need
investments in public health. We need treatment. We need harm
reduction. But, fundamentally, we must learn from mistakes of
the past and avoid responding to these new challenges by
continuing the failed policies of the war on drugs. Thank you
very much.
Mr. Gohmert. Thank you very much for the testimony. I will
go ahead and do my questioning last and would recognize the
ranking member of the full committee for questions.
Mr. Conyers. Thank you. Thank you, Mr. Chairman. I thank
all the witnesses. Ms. Pacheco, why do you believe that we
should not add more drugs to the Federal scheduling and
sentencing schemes?
Ms. Pacheco. Mr. Chair and members of the committee, if I
may, I am not necessarily saying we should not be adding any
more drugs to the schedulings; what I am saying merely is that
the scientific process should not be bypassed. As prosecutors,
I am not in a position to address, you know, the scientific
aspects of certain drugs. My biggest concern is that,
regardless of the drugs we add or the penalties attached, we
still have not made a difference in dealing with the opioid
epidemic that has existed for the past several years.
Mr. Conyers. So, you think that we need to invest in public
health as it relates to synthetic analogues; is that correct?
Ms. Pacheco. I am sorry, sir, I am not certain I understand
your question.
Mr. Conyers. Do you believe we need to invest in public
health as it relates to synthetic analogues?
Ms. Pacheco. Representative, basically my position is that
addictions basically are a public health issue. And we need to
start addressing addictions as a public health issue, and that
is why money should be going towards dealing with synthetic
addictions as all addictions because strictly it is public
health. Until we can stop the demand for these drugs, the
supply is going to continue so we must address the needs of the
individuals who experience these addictions.
Mr. Conyers. Finally, would you explain, from your point of
view ``harm reduction,'' a term you mentioned in your written
testimony? Why do you believe we need harm reduction as it
relates to synthetic analogues?
Ms. Pacheco. Well, the concept of harm reduction in general
is that when an individual is experiencing or has an addiction,
their main focus is on dealing with their addiction and harm
reduction basically is so that we can assist the individual to
address those issues. I am sorry; that is somewhat circular.
Harm reduction, in its purest form, is, basically, if we
can provide the individual with support as their going through
their addiction process then hopefully that they will do no
other harm such as committing crime, such as continuing to
sell, such as burglary; we are trying it minimize the amount of
criminal activity. And harm reduction is basically supporting
individuals as they're going through their addiction process.
Mr. Conyers. Thank you so much. Mr. Chairman, I yield back.
Mr. Gohmert. Thank you, Mr. Conyers. At this time, I
recognize Mr. Jeffries for 5 minutes.
Mr. Jeffries. I thank the distinguished chairman and, of
course, our ranking member, Mr. Conyers, as well as the
witnesses for your presence here today and the importance of
your testimony in terms of how we approach the drug problem,
the opioid addiction crisis that we have here in America in a
very sensible smart fashion. Ms. Pacheco, the war on drugs, the
phrase was coined at some point over the last 40 years, I think
can be traced to the early 1970s, perhaps 1971, when Richard
Nixon publicly declared drug use in American public enemy
number one; is that correct?
Ms. Pacheco. Correct, sir.
Mr. Jeffries. And at that particular point in time in 1971,
I believe there were less than 350,000 people incarcerated in
America; is that right?
Ms. Pacheco. As to the actual number, I cannot address that
sir.
Mr. Jeffries. Okay, I think the record has previously
reflected here in the Judiciary Committee that that figure is
accurate. In terms of the present number, 40-plus years later,
we currently have over 2.1 million people incarcerated in
America; is that right?
Ms. Pacheco. That is correct, sir.
Mr. Jeffries. And a significant number of those individuals
can be classified as nonviolent drug offenders; is that right?
Ms. Pacheco. That is correct, sir.
Mr. Jeffries. Now in the early 1970s when the war on drugs
began, we were in the midst of a heroin addiction crisis; is
that correct?
Ms. Pacheco. Correct, sir.
Mr. Jeffries. And then, in the 1980s into the early 1990s,
we were suffering through what could be called the crack
cocaine epidemic; is that right?
Ms. Pacheco. Correct, sir.
Mr. Jeffries. And now we are in the midst of the opioid
addiction epidemic; is that right?
Ms. Pacheco. Correct, sir.
Mr. Jeffries. And during that period of time when we
exploded the prison population and careened from addiction
crisis to addiction crisis, increased incarceration of
nonviolent drug offenders, is there any evidence during that
time that this sort of, lock them up, throw away the key, law
and order approach to dealing with our Nation's persistent drug
problem has been effective?
Ms. Pacheco. From my observation and my personal
experience, we have not been successful, sir.
Mr. Jeffries. If you can elaborate, during your testimony,
you spoke of the futility of excessive, long sentences in terms
of dealing with a drug problem; is that correct?
Ms. Pacheco. Correct, sir.
Mr. Jeffries. Can you elaborate on that perspective?
Ms. Pacheco. Originally, sir, if you look at the Federal
law, and again, I may misstate, but I believe it was in the
80's when crack was starting to come into focus, and there were
instances where individual crack is a derivative of cocaine,
and individuals who had large amounts of cocaine were getting
smaller sentences than individuals who had much lesser
possession of crack who were getting higher sentences.
And, again, similar to the situation is because they were
seeing so many deaths and harm to family through crack cocaine
addiction, that the penalties increased substantially. And it
became kind of an unjust system where people, like I say, who
had large amounts of cocaine were serving less sentences than
those with, you know, your individual low-level user who would
sell one or two hits of crack to maintain their addiction,
would receive higher sentences than those with large amounts of
cocaine.
Mr. Jeffries. Now, in connection with the most recent drug
crisis that we, in America, are dealing with as it relates to
opioid addiction, which is impacting people in the inner city
communities that I represent as well as suburban America, rural
America, there is no corner of America that is not impacted by
this. If any of the panelist could comment in the time that I
have remaining, what would be an enlightened approach, perhaps
anchored in tackling this problem from a public health
perspective that we should consider here as members of the
United States Congress determined to tackle this problem on
behalf of the people we represent?
Ms. Taylor. I am happy to field that one. I think that over
the years we have tended to pick a favorite approach to drug
policy and what we have learned, most certainly, is that there
is no silver bullet to this problem. We need to have a
comprehensive solution. We have seen a lot of legislation, most
recently the CARA Act, which passed last year, that addresses
that, and also the money that is invested into treatment as
part of the 21st Century Cures bill, there really needs to be a
comprehensive approach.
But I would argue that we still need to make sure that we
have the controls that so that these fentanyl analogues are
getting off the street. And we really need to make sure that we
are addressing this problem from every possible angle.
Mr. Jeffries. Thank you very much. My time has expired and
I appreciate all the testimony from the witnesses here today. I
yield back.
Mr. Gohmert. I thank the gentleman from New York. Now
recognize myself for 5 minutes. I really do appreciate the
perspective that you each bring from your own experience.
With regard to the crack cocaine, the reference, I was a
bit surprised when Dan Lungren who had been a former attorney
general of California, before that had been in Congress here in
the 1980s. When this issue came up, he pointed out that, in the
1980s, Congressman Charlie Rangel and others member of the
Congressional Black Caucus had pointed out basically that
anyone that opposed having much tougher sentences for crack,
which was an epidemic in the African American communities,
would basically, in essence, be a racist. It meant you did not
care about getting to the heart of the crack cocaine problem in
African American communities.
And so, what Dan had said, and we went back and found
magazine articles, newspaper articles that backed that up,
that, actually, the Judiciary Committee here went along with
that position and agreed to tougher sentences for crack over
powder cocaine at the urging of African Americans in Congress
to try to deal with that. Well, it did not work out so well in
that regard.
But, Ms. Taylor, I noted in your testimony where you
mentioned the fear among the parents we serve, the fear of
fentanyl and its equally deadly analogues, is palpable; you
said they are terrified that their child might be the next
statistic, and that is very understandable in view of the
deaths that we have seen, and we see the numbers rising.
What I am wondering is if we might transfer that fear to
those who are selling these drugs by virtue of the fact we make
a stiff enough penalty if a death or serious bodily injury
results; they do not know whether they are selling something
that is going to end them up in prison for the rest of their
lives because of death or serious bodily injury? It would seem
like that might be a way of transferring the fear from the
parents to the drug dealer if he or she does not actually know
what they are selling. Do you think ignorance should be a
defense in those cases for drug dealers, Ms. Taylor?
Ms. Taylor. Well, no, but what I really think is the heart
of this legislation is taking away the economic incentive for
the chemist to constantly innovate and change a molecule and
violate the spirit of the law, but not the letter of the law.
We have seen this in the steroid world. We have seen this now
in the opioid world. We will continue to see it and just play a
game of Whack-a-mole. You know, the eight-factor analysis is
the ideal, but we need to make sure that DEA is nimble, so
that, when we detect that there is a problem with a substance,
we can make sure that we bring it under the proper controls and
not necessarily as much for what is going on in the street as
the import side of things, when chemicals are being imported.
Mr. Gohmert. Thank you. And in the time I have left, Ms.
Pacheco, how do you feel about making a substantially higher
penalty for if a deal or serious bodily injury were to result
from the sale of a drug?
Ms. Pacheco. Mr. Chair, members of the committee, you know,
as a prosecutor, I have seen so many, so many different
situations. And in reference to your question, sir, as a
prosecutor, if a person knowingly does something to
intentionally cause somebody's death or harm, there should be
some type of consequence. The issue, though, if the individual
does not know what is within the drug that is contained within
the drug, then how can you say that they knowingly should take
responsibility for the results of their action? See, that is
where it gets complicated and, you know----
Mr. Gohmert. It sounds like you are saying it would be in
the best interest of a drug dealer to just say, ``I do not want
to know what is in this; that way I cannot ever be punished if
somebody dies from what I am selling.'' Is that the result we
are looking for?
Ms. Pacheco. No, sir, and most drug dealers that I have
encountered in my career have been your low-level----
Mr. Gohmert. From a professional standpoint.
Ms. Pacheco. From a professional standpoint, of course,
thank you for that clarification, sir. Most of the drug dealers
that I have dealt with have been lower level. These are
individuals who basically are selling to maintain their habits.
It is because of their addiction. The addiction drives them to
continue maintaining their habit, so the best way they do it is
they sell the drug, so they get money, so they can buy more
drugs, so they can continue their addiction.
I mean, all they are trying to do is they are trying to
survive at that level. They are not doing it for monetary
purposes, for the most part; they are just trying to maintain
their addiction. And that is what makes it so difficult when we
talk about drug reform, is that we need to look at it as a
medical situation. They have a medical condition, and that is
why the addiction is continuing.
Mr. Gohmert. Thank you. My time has expired. But, surely,
we can all agree, at least, if we can step up, if not
elimination, substantial reduction in the supply coming from
China and Mexico, would not we all be better off? And I see
from nodding heads, I think we can.
And that is one thing I think is mostly misunderstood about
the President's proposal of the wall: if we can cut down the
amount of poison, drugs, coming into the United States from or
through Mexico that would seem to be the best thing a neighbor
could ever do for Mexico. They have got hardworking people;
they have got natural resources; they ought to be one of the
top 10 economies in the world, but they have got more
corruption than most places because of the drugs. It seems like
it would be a win for both Nations if we can ever bring that to
a crawl.
But we do appreciate so much each of your perspectives. If
you should have any additional information you wanted the
committee to consider, the subcommittee, because then it will
go to the full committee, then please if you could get that to
the committee here within the next 10 days that would be
immensely helpful. You each come from different backgrounds,
and we appreciate having the benefit of your own expertise. Do
you have anything additional?
All right, then, with that, this concludes today's hearing.
We do appreciate your time and, again, your patience.
Without objection, all members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record. If there is nothing
further, then this hearing is adjourned. Thank you so much.
[Whereupon, at 1:08 p.m., the subcommittee was adjourned.]