[Congressional Record Volume 146, Number 121 (Tuesday, October 3, 2000)]
[House]
[Pages H8694-H8697]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




AMENDING IMMIGRATION AND NATIONALITY ACT WITH REGARD TO BRINGING IN AND 
                        HARBORING CERTAIN ALIENS

  Mr. ROGAN. Mr. Speaker, I move to suspend the rules and pass the bill 
(H.R. 238) to amend section 274 of the Immigration and Nationality Act 
to impose mandatory minimum sentences, and increase certain sentences, 
for bringing in and harboring certain aliens, and to amend title 18, 
United States Code, to provide enhanced penalties for persons 
committing such offenses while armed, as amended.
  The Clerk read as follows:

                                H.R. 238

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. INCREASED PERSONNEL FOR INVESTIGATING AND 
                   COMBATING ALIEN SMUGGLING.

       The Attorney General in each of the fiscal years 2001, 
     2002, 2003, 2004, and 2005 shall increase the number of 
     positions for full-time, active duty investigators or other 
     enforcement personnel within the Immigration and 
     Naturalization Service who are assigned to combating alien 
     smuggling by not less than 50 positions above the number of 
     such positions for which funds were allotted for the 
     preceding fiscal year.

     SEC. 2. INCREASING CRIMINAL SENTENCES AND FINES FOR ALIEN 
                   SMUGGLING.

       (a) In General.--Subject to subsection (b), pursuant to its 
     authority under section 994(p) of title 28, United States 
     Code, the United States Sentencing Commission shall 
     promulgate sentencing guidelines or amend existing sentencing 
     guidelines for smuggling, transporting, harboring, or 
     inducing aliens under sections 274(a)(1)(A) of the 
     Immigration and Nationality Act (8 U.S.C. 1324(a)(1)(A)) so 
     as to--
       (1) double the minimum term of imprisonment under that 
     section for offenses involving the smuggling, transporting, 
     harboring, or inducing of--
       (A) 1 to 5 aliens from 10 months to 20 months;
       (B) 6 to 24 aliens from 18 months to 36 months;
       (C) 25 to 100 aliens from 27 months to 54 months; and
       (D) 101 aliens or more from 37 months to 74 months;
       (2) increase the minimum level of fines for each of the 
     offenses described in subparagraphs (A) through (D) of 
     paragraph (1) to the greater of the current minimum level or 
     twice the amount the defendant received or expected to 
     receive as compensation for the illegal activity; and
       (3) increase by at least 2 offense levels above the 
     applicable enhancement in effect on the date of enactment of 
     this Act the sentencing enhancements for intentionally or 
     recklessly creating a substantial risk of serious bodily 
     injury or causing bodily injury, serious injury, permanent or 
     life threatening injury, or death.
       (b) Exceptions.--Subsection (a) shall not apply to an 
     offense that--
       (1) was committed other than for profit; or
       (2) involved the smuggling, transporting, or harboring only 
     of the defendant's spouse or child (or both the defendant's 
     spouse and child).

     SEC. 3. ELIMINATION OF PENALTY ON PERSONS RENDERING EMERGENCY 
                   ASSISTANCE.

       (a) In General.--Section 274(a)(1) of the Immigration and 
     Nationality Act (8 U.S.C. 1324(a)(1)) is amended by adding at 
     the end the following:
       ``(C) In no case may any penalty for a violation of 
     subparagraph (A) be imposed on any person based on actions 
     taken by the person to render emergency assistance to an 
     alien found physically present in the United States in life 
     threatening circumstances.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall take effect 90 days after the date of the enactment of 
     this Act, and shall apply to offenses committed after the 
     termination of such 90-day period.

     SEC. 4. AMENDMENTS TO SENTENCING GUIDELINES REGARDING THE 
                   EFFECT OF PROSECUTORIAL POLICIES.

       In the exercise of its authority under section 994 of title 
     28, United States Code, the United States Sentencing 
     Commission shall amend the Federal sentencing guidelines to 
     include the following:

     ``Sec. 5H1.14. Plea bargaining and other prosecutorial 
       policies.

       ``Plea bargaining and other prosecutorial policies, and 
     differences in those policies among different districts, are 
     not a ground for imposing a sentence outside the applicable 
     guidelines range.''.

     SEC. 5. ENHANCED PENALTIES FOR PERSONS COMMITTING OFFENSES 
                   WHILE ARMED.

       (a) In General.--Section 924(c)(1) of title 18, United 
     States Code, is amended--
       (1) in subparagraph (A)--
       (A) by inserting after ``device)'' the following: ``or any 
     violation of section 274(a)(1)(A) of the Immigration and 
     Nationality Act''; and
       (B) by striking ``or drug trafficking crime--'' and 
     inserting ``, drug trafficking crime, or violation of section 
     274(a)(1)(A) of the Immigration and Nationality Act--''; and
       (2) in subparagraph (D)(ii), by striking ``or drug 
     trafficking crime'' and inserting ``, drug trafficking crime, 
     or violation of section 274(a)(1)(A) of the Immigration and 
     Nationality Act''.
       (b) Effective Date.--The amendments made by subsection (a) 
     shall take effect 90 days after the date of the enactment of 
     this Act, and shall apply to offenses committed after the 
     termination of such 90-day period.

     SEC. 6. AUTHORIZATION OF APPROPRIATIONS.

       (a) In General.--In addition to funds otherwise available 
     for such purpose, there are authorized to be appropriated to 
     the Immigration and Naturalization Service of the Department 
     of Justice such sums as may be necessary to carry out section 
     1 and to cover the operating expenses of the Service and the 
     Department in conducting undercover investigations of alien 
     smuggling activities and in prosecuting violations of section 
     274(a)(1)(A) of the Immigration and Nationality Act (relating 
     to alien smuggling), resulting from the increase in personnel 
     under section 1.
       (b) Availability of Funds.--Amounts appropriated pursuant 
     to subsection (a) are authorized to remain available until 
     expended.

     SEC. 7. ALIEN SMUGGLING DEFINED.

       In sections 1 and 6, the term ``alien smuggling'' means any 
     act prohibited by paragraph (1) or (2) of section 274(a) of 
     the Immigration and Nationality Act (8 U.S.C. 1324(a)).

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
California (Mr. Rogan) and the gentleman from Michigan (Mr. Conyers) 
each will control 20 minutes.
  The Chair recognizes the gentleman from California (Mr. Rogan).


                             General Leave

  Mr. ROGAN. Mr. Speaker, I ask unanimous consent that all Members

[[Page H8695]]

may have 5 legislative days within which to revise and extend their 
remarks and include extraneous material on H.R. 238, as amended.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from California?
  There was no objection.
  Mr. ROGAN. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise today to offer legislation that will curb the 
inhuman trafficking in human lives known as alien smuggling. In areas 
like my home State of California, the impact of alien smuggling is felt 
at all levels. With the passage of this bill we can take a major step 
toward eliminating this despicable trade.
  The problem of alien smuggling is widespread. From each of our 
southern border States to the northern border States and along the 
ports of the East and West Coast, aliens are traded like commodities 
often with deadly consequences. Stories of aliens packed like produce 
into shipping containers and moving vans abound, as do reports of 
corpses found throughout the desert as aliens are abandoned by their 
smugglers.
  What was once a trickle of aliens transported by smugglers has today 
grown into an international trade ring, comparable in size and scope to 
the drug trade, generating vast revenue and crowning new kings of 
crime. Making the trade more deadly is the toll in human lives. Media 
reports describe in gruesome detail how aliens paid the large sums to 
be transported across our southern border, only to be abandoned in the 
desert, where many are robbed, raped, and sometimes murdered.
  Sadly, current law permits minimal penalties for convicted smugglers. 
To criminals who generate millions of dollars in revenue each year from 
this trade, a small fine is the equivalent of paying for a parking 
ticket. This is wrong.
  Mr. Speaker, this bill, H.R. 238, will strengthen the punishment for 
smugglers convicted in our courts. As amended, it will double the 
minimum sentence recommended by the sentencing commission for alien 
smuggling crimes and increase sentences for those who cause serious 
bodily injury or threaten a life. Specifically, the Alien Smuggler 
Enforcement Act, as amended, puts in place five key changes to current 
law.
  First, the bill will add an additional 50 officers per year for 5 
years to enforce our antismuggling laws.
  Second, the legislation will double criminal sentences for alien 
smugglers through direction to the Federal sentencing commission. An 
increase in sentences will act as an additional deterrent. It also will 
guarantee that those who traffic in human lives are severely punished 
for this unjust crime.
  Third, the bill will increase fines for those convicted of smuggling 
aliens to twice the amount the smuggler received for the original 
crime. The current minimum fine of $3,000 is deceptively small, 
considering the frequency of the crime and the amount of money 
generated in smuggling fees.
  Fourth, the legislation will authorize additional funds to expand 
undercover investigation and enforcement programs through the 
Immigration and Naturalization Service.
  Finally, H.R. 238 will add alien smuggling to the list of Federal 
crimes that receive an increased sentence if a firearm is involved, 
putting this crime on par with drug smuggling and other violent crimes. 
Our bill would add 5 additional years to a sentence and will keep 
smugglers off the streets.
  Mr. Speaker, the focus of this legislation is professional alien 
smugglers and those who knowingly aid and abet professional alien 
smuggling for commercial or financial gain. The legislation is not 
designed against the unwitting employers of illegal aliens.
  Mr. Speaker, our country is strengthened by the diversity of its 
people; our heritage of immigration is what makes us whole. However, 
alien smuggling chips away at both the rule of law and at human 
dignity. We owe it to the families of the countless victims of 
smugglers to enact serious penalties for this serious offense. We also 
owe it to the legal residents of this country to enforce strict laws 
against illegal immigration.
  We can meet both needs by passing this bill.
  Finally, Mr. Speaker, I want to thank Jim Willen, our very 
distinguished attorney on the House Committee on the Judiciary for his 
work on this. And I also especially want to thank Grayson Wolfe, an 
attorney on my staff, who has done just a yeoman's job in working on 
this bill over the many months that it has been proceeding.
  I want to thank the gentleman from Michigan (Mr. Conyers), the 
ranking member of the committee, and the minority members of the 
committee for their valuable input which has helped to shape this bill. 
I thank my colleagues for their consideration on this.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, this is a mandatory minimum sentences bill for bringing 
in and harboring certain aliens, and the bill to me does not pass 
muster because experience and numerous studies have shown that 
mandatory minimum sentences which are spread throughout our Federal 
statutes or blindly increasing sentences, as the managers amendment 
does, creates an unfairness and requires judicial and correctional 
expenditures that are disproportionate to any deterrent or 
rehabilitative effect that they might have.
  Studies have also highlighted the very high costs of the unnecessary 
incarceration resulting from mandatory minimums and increased 
sentences. In fact, scientific study has found that no empirical 
evidence linking increased sentences to reductions in crime. No 
empirical evidence linking increased sentences to reductions in crime 
have been found by scientific studies. Instead, we know that they 
distort the sentencing process, discriminate against minorities in 
their application and waste money.
  A Rand commission study has concluded that mandatory minimum 
sentences were less effective than either discretionary sentencing or 
drug treatment in reducing drug-related crime and far more costly than 
either.
  Mr. Speaker, and for the twelfth time, the Judicial Conference of the 
United States has once again reiterated its opposition to mandatory 
minimum sentencing. Many conservatives have joined us in recognizing 
the policy problems caused by mandatory minimums and increased 
sentences. Thus, for example, after realizing the damage and 
ineffectiveness of mandatory minimums at reducing crime, Democrats and 
Republicans, in a bipartisan effort repealed Federal mandatory minimum 
sentencing in 1970.
  Similarly, Chief Justice Rehnquist, who is not known to be lenient on 
criminals, has observed that mandatory minimums are frequently the 
result of floor amendments to demonstrate emphatically that legislators 
want to get tough on crime. Just as frequently, they do not involve any 
careful consideration of the effect that they might have on sentencing 
guidelines as a whole.
  Proliferation of harsh sentencing policies has inhibited the ability 
of the courts to sentence offenders in a way that permits a more 
problem-solving approach to crime.
  By limiting consideration of factors contributing to crime or to a 
range of responses, as the measure H.R. 238 does, such sentencing 
policies fail to provide justice for either victims or offenders. In 
light of these concerns, a less Draconian approach than H.R. 238 would 
be to enact a legislative directive to the United States Sentencing 
Commission to revise their existing sentencing guidelines to increase 
sentences for alien smuggling offenses. This would at least permit more 
informed consideration of aggravating and mitigating circumstances.

                              {time}  1800

  Whatever the political benefits of increased sentences, they simply 
do not do what they purport to do. They do not deter criminal behavior 
by guaranteeing that a particular penalty will be imposed for a 
particular crime. Instead, they impose unfair and harsh results and 
unnecessarily increase the prison costs to all of us.
  Mr. Speaker, I am happy to yield such time as she may consume to the 
distinguished gentlewoman from California (Ms. Lofgren).
  Ms. LOFGREN. Mr. Speaker, I thank the gentleman from Michigan for 
yielding time to me.

[[Page H8696]]

  Mr. Speaker, I support the bill before us. While I certainly respect 
our ranking member, the gentleman from Michigan (Mr. Conyers), and the 
ranking member on the Subcommittee on Crime, the gentleman from 
Virginia (Mr. Scott), I do not always share their viewpoint on 
mandatory minimums, but I do respect their thinking.
  I do believe that even if one concurs in their overall approach on 
the issue of mandatory minimums, this is an exception to that general 
rule.
  Smuggling of aliens is a very serious and I would add very dangerous 
thing to do. It is something that criminals are making vast fortunes 
doing, and we know that the body count in the desert between the United 
States and Mexico is rising as the coyotes are taking more money but 
also abandoning people in the desert.
  A fine for a coyote is just part of the cost of doing business. It is 
like a license. I think the only way to add to the cost of doing 
business in a way that will be meaningful to people who would abuse 
helpless people in this way is to have an actual strong sentence that 
puts that abusive person out of business and behind bars for a 
deterrent period of time.
  I would also like to note that the gentleman from California (Mr. 
Rogan) in committee did agree to several amendments that make this bill 
targeted towards what it is aimed at. For example, family members were 
excluded from the bill. Good samaritans who might become involved in 
saving people who were abandoned were excluded.
  Finally, we excluded people who were not involved in anything such as 
this, for example, people in the sanctuary movement who were not 
profiting or in the business of being a coyote, because the idea is to 
make a real constraint on those who are smuggling in aliens and who are 
endangering so many men, women, and even small children as they do it.
  So I respect very much my colleague, the gentleman from Michigan, and 
his comments, but I do think this bill is worth voting for. I 
enthusiastically support it and plan to vote for it.
  I thank the gentleman for his great courtesy in recognizing me.
  Mr. ROGAN. Mr. Speaker, I yield myself such time as I may consume.
  First, I want to thank my friend and colleague, the gentlewoman from 
California, for her statement, and also for her valuable input, both in 
committee and as this bill has been progressing, as we have amended it.
  Once again, I want to publicly thank her for her support of the 
measure.
  Mr. Speaker, I am pleased to yield such time as he may consume to our 
good friend, the gentleman from Utah (Mr. Cannon).
  Mr. CANNON. Mr. Speaker, I thank the gentleman for yielding time to 
me.
  Mr. Speaker, I rise today in support of H.R. 238, sponsored by my 
good friend, the distinguished gentleman from California.
  The Alien Smuggling Prevention and Enforcement Act addresses the 
serious and growing problem of professional smugglers who violate our 
Nation's borders carrying not illegal drugs or bootleg alcohol, but 
human cargo. These alien smugglers are active throughout our country, 
not just in the border States, but in my home State of Utah and many 
others.
  We have tightened our Nation's borders in recent years, making it 
more difficult for people to enter the United States illegally. The 
demand for entry, however, has not decreased because of tighter border 
controls, but the desperation of those seeking to get in has increased. 
Worldwide, people yearning to be free are willing to pay a tremendous 
price to gain entry to this great country by whatever means necessary.
  The situation has produced a new, contemptible breed of predatory 
smuggler who specializes in taking advantage of people in exchange for 
the promise to get to America. Those people who put their hopes for new 
life in America into the hands of an alien smuggler often find their 
fondest dreams have turned to their worst nightmare.
  Inhumane conditions are the norm as aliens find themselves packed 
into cargo containers for days or weeks, abandoned in the desert 
without basic supplies, or dumped in the sea miles from shore. Some 
media reports have produced a portrait of conditions which sometimes 
rival those imposed by slave traders during the ``middle passage'' two 
centuries ago.
  For this misery, aliens pay smugglers exorbitant fees, whether they 
are successful or not. Some of those who are successful in entering 
America must pay off their admission through years of indentured 
servitude in sweatshops, or are forced to live lives of crimes or 
prostitution.
  Many find themselves robbed, raped, brutalized, or even murdered by 
the smugglers to whom they have entrusted their lives without ever 
reaching our shores. This legislation today is not aimed at the poor, 
tired huddled masses of aliens seeking freedom, but at those who take 
advantage of those same aliens by preying upon their misery. The bill 
increases enforcement efforts against alien smugglers, and increases 
penalties for those who are caught.
  Today's vote can help bring some truly despicable criminals to 
justice. I thank my friend, again, the gentleman from California (Mr. 
Rogan), for taking the lead on yet another important issue and working 
hard to move it to completion. He is truly a tremendous asset to this 
body.
  I urge my colleagues to support this fine effort to address a serious 
problem and vote for this bill.
  Mr. CONYERS. Mr. Speaker, I yield such time as he may consume to the 
distinguished gentleman from Virginia (Mr. Scott), a member of the 
Committee on the Judiciary.
  Mr. SCOTT. Mr. Speaker, I thank the gentleman for yielding time to 
me.
  Mr. Speaker, I recognize the seriousness of this offense, but I must 
oppose the bill because Congress should not be dictating and mandating 
sentences to the Sentencing Commission.
  As we know, the Sentencing Commission was established to determine 
the appropriate sentencing guidelines based on the severity of the 
offense and after giving consideration to all other relevant factors, 
including the proportionality of the sentence to other offenses.
  The review needs to be thorough and thoughtful. But this review, 
however, has not been thorough and thoughtful, because without the 
Sentencing Commission, crimes are considered out of context, and as a 
result, we have sentencing disparities.
  For example, this bill provides for a sentence of 1\1/2\ to 3 years 
for getting caught smuggling 24 aliens, while Congress has required a 
5-year mandatory minimum sentence for possession of a weekend's worth 
of crack cocaine.
  It seems to me that an enterprise involved in smuggling 24 aliens is 
far more serious than an offense of smoking crack at home, but we would 
be better served with the Sentencing Commission considering all of 
those offenses in context and avoid such disparities.
  The bill before us takes that responsibility from the Sentencing 
Commission and simply mandates that the sentences be doubled, a process 
which was neither thoughtful nor thorough. If Congress must dictate to 
the Sentencing Commission, we must at least assess the full effect of 
the sentencing changes Congress has already directed the Sentencing 
Commission to implement.
  In the 1996 Illegal Immigration Reform and Immigration Responsibility 
Act, Congress required the United States Sentencing Commission to 
substantially increase the sentences for alien smuggling. The revised 
sentencing guidelines have resulted in a 300 percent increase in the 
median sentence for immigrant smuggling from 1997 to 1998.
  Without taking the time to evaluate the impact of such an increase in 
sentencing for immigrant smuggling, Congress cannot know whether 
doubling the sentence is appropriate.
  In addition to doubling the base offense level for alien smuggling, 
the bill includes mandatory minimums if the defendant used a firearm. 
Unfortunately, here we are again with Congress' favorite solution to 
crime: the mandatory minimum sentence. This is despite the fact that 
research has shown that mandatory minimum sentences are both 
ineffective and unduly harsh.
  A 1997 study by the Rand Corporation on drug sentencing found that in 
all cases, conventional enforcement is more cost-effective than 
mandatory minimums, and treatment is more than

[[Page H8697]]

twice as cost-effective as mandatory minimums.
  Furthermore, in March of this year in a letter to the gentleman from 
Illinois (Chairman Hyde), the Judicial Conference of the United States 
set forth the problems with mandatory minimums as follows:
  ``The reason for our opposition is manifest: Mandatory minimums 
severely distort and damage the Federal sentencing system. . .. Far 
from fostering certainty in punishment, mandatory minimums result in 
unwarranted sentencing disparity. Mandatories also treat dissimilar 
offenders in a similar manner, offenders who can be quite different 
with respect to the seriousness of their conduct or their danger to 
society. Mandatories require the sentencing court to impose the same 
sentence on offenders when sound policy and common sense call for 
reasonable differences in punishment.''
  Based on these facts, it is clear that we should not be expanding 
mandatory minimums. The better approach would be directing the 
Sentencing Commission to review and to rationally consider increasing 
the offense level for alien smuggling to reflect the seriousness of the 
offense.
  To this end, I offered an amendment to H.R. 238 which would have 
referred the issue to the Sentencing Commission for further 
consideration in light of the seriousness of the offense. 
Unfortunately, the amendment was not adopted. As a result, we are here 
today preventing the Sentencing Commission from doing its job.
  I therefore must oppose this legislation, because we are dictating 
new sentences out of context of other crimes 6 weeks before an 
election.
  I urge my colleagues to vote no on H.R. 238.
  Mr. CONYERS. Mr. Speaker, I have no further requests for time, and I 
yield back the balance of my time.
  Mr. ROGAN. Mr. Speaker, I have no further requests for time, and I 
yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from California (Mr. Rogan) that the House suspend the rules 
and pass the bill, H.R. 238, as amended.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the bill, as amended, was passed.
  The title was amended so as to read:

       ``A bill to improve the prevention and punishment of 
     criminal smuggling, transporting, and harboring of aliens, 
     and for other purposes.''.

  A motion to reconsider was laid on the table.

                          ____________________