[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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