[Congressional Record Volume 140, Number 25 (Wednesday, March 9, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: March 9, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
THE NEED TO RETAIN THE SENATE CRIME BILL'S DEATH PENALTY FOR DRUG
KINGPINS
Mr. HATCH. Mr. President, I remain deeply concerned that the tough
provisions of the Senate's crime bill will be weakened in conference
between the House and the Senate. This happened in the last Congress. I
believe President Clinton should not be silent on all but a few of the
elements of the crime bill. I believe the President should endorse the
tough-on-crime provisions of the Senate Crime bill.
One such provision is the Senate bill's proposal to extend the death
penalty for drug kingpins to certain cases where death does not
directly result for their activities. This measure passed the Senate by
a strong vote of 74 to 25.
The activities of drug kingpins pose perhaps the gravest risk that we
face today to our health and well-being, both as individuals and as a
nation. In my home State of Utah, the spread of drugs and its attendant
violence is a growing problem. Death by violence and disease,
destruction of minds and bodies, follow in the wake of these unseen
crime barons.
Mr. President, the time has come that we punish these evil purveyors
of death and destruction as they deserve to be punished, and no longer
let them hide behind the hired guns who pull the triggers for them.
This was the position of the prior Republican administration.
I might add that one of the reasons we have so many problems with
guns in our society is because of drugs and because of these drug
kingpins and because of their financing of violence in our society. It
is time to just say, ``Enough is enough. We are going to put you to
death if you keep inflicting this misery on society.''
Their pernicious trade results in the deaths of literally tens of
thousands of people around the world, and certainly thousands of people
in this country.
The Clinton administration, in my opinion, has retreated from the
prior administration's position in the crime war. It has been reported
that its reason is that the death penalty is supposedly cruel and
unusual punishment as applied to these major drug dealers and thus
unconstitutional. As I will explain in a few minutes, the case for the
constitutionality of this provision is very, very strong. An
administration on the side of the American people and the victims of
drug kingpins would support this provision and defend it in the courts.
The drug kingpins will have high-priced lawyers--legal hired guns--
arguing for them. That the Clinton administration feels it has to take
the side of drug kingpins in this matter is a disturbing development. I
hope the President will reverse this apparent position and announce his
support for the Senate bill's drug kingpin proposal.
In 1988, Congress passed legislation to provide the death penalty for
murders by drug kingpins and for drug-related murders of law
enforcement officers. By passing this important legislation as part of
the Anti-Drug Abuse Act of 1988, Congress acknowledged that capital
punishment is a needed and proper weapon in our Nation's effort to
fight the drug war. This action on the part of the 100th Congress was a
valuable first step.
However, we did not go far enough. Drug kingpins are currently not
subject to the Federal death penalty where they themselves are not
directly involved in committing murder. But their nefarious traffic in
drugs causes untold deaths. The death penalty for these drug kingpins
contained in the Senate crime bill sends a signal that our Nation is
prepared to punish appropriately those who cause so many deaths--major
drug kingpins. These drug kingpins are responsible for untold deaths
and are, in a real sense, responsible for many drug-related murders
which occur on our streets every day.
The bill provides that major drug traffickers--organizers, leaders,
or administrators of continuing criminal enterprises--may be subject to
the death penalty if the enterprise traffics in twice the amount of
drugs which would qualify them for mandatory life imprisonment--that
is, 300 kilograms of cocaine; 60 kilograms of heroin; or 70,000
kilograms of marijuana--or if the enterprise makes $20 million or more
in gross receipts during any 12 month period. Additionally, kingpins
who, in order to obstruct justice, attempt to kill any public officer,
juror, witness, or member of the family or household of such person
shall eligible for the death penalty.
The Senate bill also limits the application of the death penalty in
these cases by requiring the jury to find that at least one or more
additional aggravating factors exists and that such aggravating factor
outweighs mitigating factors, if any are found. Specifically, the
defendant must have: a previous conviction or offense for which a
sentence of death or life imprisonment was authorized; or two or more
prior felony convictions; or a previous felony drug conviction; or used
a firearm; or sold drugs to persons under 21 years of age, near a
school, or used minors in selling drugs; or mixed the drugs with a
lethal adulterant.
The imposition of the death penalty is constitutional for drug
kingpins--even for those who do not themselves pull the trigger and in
those cases where no death can be directly attributed to them. First,
Anglo-American law has a long tradition of imposing the ultimate
sanction against those who pose an extremely grave risk to society,
even where no death directly results. A few examples are treason,
certain types of espionage, and airliner hijacking.
Second, because of the enormous magnitude of the public harm drug
trafficking and related violence causes, applying the death penalty to
these cases is wholly consistent with the proportionality requirement
of eighth amendment's cruel and unusual punishment clause.
The eighth amendment's rule of proportionality requires that the
severity of punishment be proportionate to: First, the gravity of the
injury caused by the offense and second, the moral culpability, or
blameworthiness, of the offender. (See, Tison v. Arizona, 481 U.S. 137,
148-49 (1987); Coker v. Georgia, 433 U.S. 584, 598 (1977); Gregg v.
Georgia, 428 U.S. 153, 173 (1976). The death penalty for certain cases
of large scale drug trafficking meets this burden.
In addition to the pernicious effects on the individual who takes
illegal drugs, drugs relate to crime in at least three ways: First, a
drug user may commit crime because of drug-induced changes in
physiological functions, cognitive ability, and mood; second, a drug
user may commit crime in order to obtain money to buy drugs; and third,
a violent crime may occur as part of the drug business or culture. (See
Goldstein, Drugs and Violent Crime, in ``Pathways to Criminal
Violence'' 16, 24-36 (N. Weiner, M. Wolfgang eds., 1989)). Studies bear
out these possibilities, and demonstrate a direct nexus between illegal
drugs and crimes of violence. (See generally id., at 16-48.)
The connection between crime and drugs is unquestionable. For
example, 57 percent of a national sample of males arrested in 1989
for homicide tested positive for illegal drugs. (National Institute of
Justice, ``1989 Drug Use Forecasting Annual Report 9'' (June 1990)).
The comparable statistics for assault, robbery, and weapons arrests
were 55, 73, and 63 percent, respectively. (Ibid.)
Opponents of capital punishment may argue that Coker v. Georgia, 433
U.S. 584 (1976), applies to this legislation. In Coker, a plurality of
the Supreme Court ruled that the death penalty for rape is forbidden by
the eighth amendment as cruel and unusual since it was grossly
disproportionate and excessive punishment. The Court defined punishment
as ``excessive'' if it: First, makes no reasonable contribution to
acceptable goals of punishment and hence has nothing more than the
purposeless and needless imposition of pain and suffering; or second,
is grossly disproportionate to the severity of the crime. In
determining proportionality, the plurality considered three factors:
First, whether the crime is morally depraved; second, the extent of the
injury to the public; and third, the extent of the injury to the
person. The court determined that rape did not compare with murder ``in
terms of moral depravity and of the injury to the person and to the
public.'' Yet, the injury that a drug kingpin inflicts on the public is
often vastly greater than that committed by a single murderer, and the
moral depravity is certainly comparable. Thus, the proportionality test
set forth by the plurality in Coker supports the conclusion that the
death penalty for drug kingpins is constitutional.
Some would have the Congress focus on snippets of Coker that note
that rape, unlike murder, does not involve the taking of human life.
Yet as Coker makes clear, the injury to the person is but one facet of
the proportionality review. The injury to the public and the moral
depravity of the offense must also be considered.
In Tison v. Arizona, 481 U.S. 137 (1987), the Supreme Court found
that reckless indifference to the value of human life may be every bit
as shocking to the moral sense as any specific intent to kill. The
Court held ``that the reckless disregard for human life implicit in
knowingly engaging in criminal activities known to carry a grave risk
of death represents a highly culpable mental state, a mental state that
may be taken into account in making a capital sentencing judgment. * *
*'' (481 U.S. at 157-58.) A specific intent to kill is not required in
imposing a death sentence on an individual. The class of drug kingpins
covered by Senate crime bill do act with reckless disregard for human
life and should be subject to the death penalty.
Large scale drug traffickers threaten millions of people. They engage
in this destructive behavior purely for pecuniary gain. The Supreme
Court in Gregg versus Georgia determined that the issue of whether the
defendant acted for pecuniary gain is a factor to be considered
relevant in determining blameworthiness and the appropriate punishment.
These cases support the argument that the death penalty is
constitutional for major drug traffickers, even when they do not
directly cause a death themselves.
Although the Supreme Court has not directly addressed this issue, in
the context of upholding a sentence of life without parole for drug
possession, a majority of the Court has recently expressed the opinion
that the evils associated with drugs warranted the legislative
imposition of ``the second most severe penalty permitted by law.''
(Harmelin v. Michigan, 111 S. Ct. 2680 (1991) (opinion of Scalia, J.,
2702) (opinion of Kennedy, J., 2705).) Harmelin, the defendant, was
sentenced to life without parole for mere possession of 650 grams of
cocaine. A plurality of the Court explained that--
Possession, use, and distribution of illegal drugs
represents ``one of the greatest problems affecting the
health and welfare of our population.'' Treasury Employees v.
Von Raab, 489 U.S. 656, 668 (1989). Petitioner's suggestion
that his crime was nonviolent and victimless . . . is false
to the point of absurdity. To the contrary, petitioner's
crime threatened to cause grave harm to society.
Id. at 2705-06 (opinion of Kennedy, J.).
The death penalty is wholly proportional to the enormous danger drug
kingpins pose to our society. As Justice Powell noted in Rummel versus
Estelle, ``A professional seller of addictive drugs may inflict greater
bodily harm upon members of society than the person who commits a
single assault.'' Rummel, 445 U.S. 263, 296, n. 12 (1980) (Powell, J.,
dissenting). I agree with Judge Gee of the fifth circuit that whereas
most killers have a discrete and limited number of victims, drug
kingpins are a cancer killing people across our entire country. Writing
for an en banc court, Judge Gee said:
Except in rare cases, the murderer's red hand falls on one
victim only, however grim the blow; but the foul hand of the
drug dealer blights life after life and, like the vampire of
fable, creates others in its owner's evil image--others who
create others still, across our land and down our
generations, sparing not even the unborn.
Terrebonne v. Butler, 848 F.2d 500, 504 (5th Cir. 1988), cert. denied,
109 S.Ct. 1140 (1989).
The line between the activities of large-scale drug enterprises and
death is unquestionable. Reports of bystander deaths due to drug-
related gunfights and drive-by shootings continue. Intravenous drug use
is a major source of HIV infections.
Congress can and should broaden the category of offenses for which
the death penalty can be applied to include those individuals who pose
the greatest threat to our Nation's health and safety--drug kingpins.
The Senate has done its part--by a vote of 74 to 25. President Clinton
should announce his support for this measure so that the House will
pass the measure as well.
If the President does that, all of America, it seems to me, will be
able to express gratitude that somebody in the White House has taken
these problems seriously.
So I encourage the President to do so. It is the right thing to do.
It is an appropriate degree of punishment for those who are wrecking
our society and the youth of America.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Chair recognizes the Republican
leader [Mr. Dole].
Mr. DOLE. Mr. President, is leader's time reserved?
The ACTING PRESIDENT pro tempore. It is.
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