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20–527 PDF 2005

DEFENDING AMERICA’S MOST VULNERABLE: SAFE

ACCESS TO DRUG TREATMENT AND CHILD

PROTECTION ACT OF 2005

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

H.R. 1528

APRIL 12, 2005

Serial No. 109–41

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

ADAM SMITH, Washington 

CHRIS VAN HOLLEN, Maryland

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California 

MARK GREEN, Wisconsin 

TOM FEENEY, Florida 

STEVE CHABOT, Ohio 

RIC KELLER, Florida 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

ROBERT C. SCOTT, Virginia 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

JAY APPERSON, Chief Counsel 

ELIZABETH SOKUL, Special Counsel for Intelligence 

and Homeland Security 

MICHAEL VOLKOV, Deputy Chief Counsel 

JASON CERVENAK, Full Committee Counsel 

BOBBY VASSAR, Minority Counsel 

(III)

C O N T E N T S 

APRIL 12, 2005

OPENING STATEMENT 

Page 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 1

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 2

WITNESSES 

Ms. Jodi L. Avergun, Chief of Staff, Drug Enforcement Administration, U.S. 

Department of Justice 

Oral Testimony ..................................................................................................... 5

Prepared Statement ............................................................................................. 7

Mr. Ronald E. Brooks, President, National Narcotic Officers’ Associations’

Coalition (NNOAC) 

Oral Testimony ..................................................................................................... 11

Prepared Statement ............................................................................................. 12

Ms. Lori Moriarty, Thornton Police Department, Thornton, Colorado, Commander, North Metro Drug Task Force, and President, Colorado’s Alliance 

for Drug Endangered Children 

Oral Testimony ..................................................................................................... 15

Prepared Statement ............................................................................................. 16

Mr. William N. Brownsberger, Associate Director, Public Policy Division on 

Addictions, Harvard Medical School 

Oral Testimony ..................................................................................................... 19

Prepared Statement ............................................................................................. 22

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of Catherine M. O’Neil, Associate Deputy Attorney General, and Director, Organized Crime Drug Enforcement Task Forces, United 

States Department of Justice, before the Subcommittee on Crime, Terrorism, and Homeland Security, July 6, 2004 ................................................... 57

Article entitled ‘‘Drug Market Thrives By Methadone Clinics,’’ Serge F. 

Kovaleski, Washington Post Staff Writer, The Washington Post, August 

12, 2002 ................................................................................................................. 61

Article entitled ‘‘Probe Confirms Dealing of Drugs Near D.C. Clinics,’’ Monte 

Reel, Washington Post Staff Writer, The Washington Post, July 7, 2004 ....... 65

Article entitled ‘‘Kids Caught in Meth Lab Pressure Cooker,’’ Sarah Huntley, 

News Staff Writer, Rocky Mountain News, March 15, 2002 ............................ 67

Supplemental materials from William N. Brownsberger, Associate Director, 

Public Policy Division on Addictions, Harvard Medical School ........................ 70

Supplemental material from Lori Moriarty, Thornton Police Department, 

Thornton, Colorado, Commander, North Metro Drug Task Force, and President, Colorado’s Alliance for Drug Endangered Children ................................ 89

Brochure submitted by the National Alliance for Drug Endangered Children .. 112

Position Paper of the American Bar Association (ABA) ....................................... 116

Page

IV

Letter from coalition of organizations expressing their views on H.R. 1528, 

‘‘Defending America’s Most Vulnerable: Safe Access to Drug Treatment 

and Child Protection Act of 2005,’’ to the Honorable F. James Sensenbrenner, Jr. and the Honorable John Conyers, Jr. ........................................... 118

Letter from former United States Attorneys and Department of Justice officials expressing their views on H.R. 1528, ‘‘Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005,’’

to the Honorable F. James Sensenbrenner, Jr. and the Honorable Bobby 

Scott ...................................................................................................................... 121

Letter from Thomas W. Hiller, II, Chair, Legislative Expert Panel, Federal 

Public and Community Defenders, to the Honorable Howard Coble and 

the Honorable Bobby Scott .................................................................................. 124

Letter from teachers of law expressing their views on H.R. 1528, ‘‘Defending 

America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005,’’ to the Honorable F. James Sensenbrenner, Jr. and 

the Honorable John Conyers, Jr. ........................................................................ 132

Letter from Frank O. Bowman, III, M. Dale Palmer Professor of Law, Indiana 

University School of Law, to the Honorable Howard Coble and the Honorable Bobby Scott ................................................................................................... 141

Response to post-hearing questions from Lori Moriarty, Thornton Police Department, Thornton, Colorado, Commander, North Metro Drug Task Force, 

and President, Colorado’s Alliance for Drug Endangered Children ................ 146

Response to post-hearing questions from Ronald E. Brooks, President, National Narcotic Officers’ Associations’ Coalition (NNOAC) ............................... 147

(1)

DEFENDING AMERICA’S MOST VULNERABLE: 

SAFE ACCESS TO DRUG TREATMENT AND 

CHILD PROTECTION ACT OF 2005

TUESDAY, APRIL 12, 2005

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 1:05 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Howard Coble 

(Chair of the Subcommittee) presiding. 

Mr. COBLE. Good afternoon, ladies and gentlemen. The Subcommittee on Crime, Terrorism, and Homeland Security holds a 

hearing today on H.R. 1528, the ‘‘Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act 

of 2005,’’ introduced by Chairman Sensenbrenner. 

Last year, you will recall, the Subcommittee considered H.R. 

4547 and examined the problem of drug dealers preying on vulnerable individuals, such as recovering addicts and minors. The Subcommittee held the compelling—heard the compelling testimony of 

Tyrone Patterson, who was the manager of the model treatment 

center for the D.C. Department of Health, who graphically confirmed previous news reports highlighting this problem, which is 

occurring on a daily basis just minutes from where we are now 

here at the Capitol. 

More than 1,000 addicts attend drug treatment in Northeast 

D.C., receiving care at three public methadone centers in the area. 

Drug dealers operate out of a nearby McDonald’s parking lot next 

to the largest methadone treatment center in D.C. and within three 

blocks of two other treatment centers. Mr. Patterson gave us a 

firsthand account of the availability of drugs and the daily temptations his patients face as they try to overcome psychological and 

physical addiction. We also heard the results of an undercover investigation conducted by the Government Accountability Office 

which exposed the revolving door of individual dealers arrested for 

dealing near these treatment centers, only to return because they 

faced little or no jail time for their trafficking activities. 

Adult addicts are not the only victims of drug dealers. We also 

learned of cases in which the drug dealers knowingly exposed children, including parents who exposed their own kids to the seedy 

and dangerous world of drug trafficking. This includes the storage 

2

and distribution of drugs for profit in their own homes where oftentimes small children reside. 

H.R. 1528 addresses these issues by strengthening the laws regarding trafficking to minors and creating criminal penalties for individuals who traffick drugs near a drug treatment facility. The 

legislation examined today makes it unlawful to distribute to a person enrolled in a drug treatment program or to distribute drugs 

within 1,000 feet of a drug treatment facility. 

I have stated previously that the opponents of mandatory minimums would have a stronger argument if they could be assured 

that—if they could assure Congress that all Federal judges were 

faithfully adhering to the Federal sentencing guidelines, and I 

think most of them are. But sadly, the Supreme Court’s recent decision in Booker/Fanfan obliterated 20 years of national sentencing 

policy and rendered these guidelines advisory. Thus, the bills targeting mandatory minimum provisions are all the more important. 

H.R. 1528, while not providing a legislative fix to these Supreme 

Court cases, does provide procedural mandates to ensure an adequate sentencing record for appellate courts and for Congress and 

the public as we consider legislation. H.R. 1528 codifies prior Congressional directives prohibiting the use of inappropriate factors in 

sentencing, as well as others which were prohibited or discouraged 

by the Sentencing Commission and the U.S. Court of Appeals that 

prohibits other such factors which have been abused by some sentencing judges. 

I want to thank you, all of the witnesses, for being here today 

and we look forward to your testimony. 

I am now pleased to recognize the ranking Democratic Member, 

the distinguished Member from Virginia, Mr. Bobby Scott, for his 

opening statement. 

Mr. SCOTT. Thank you, Mr. Chairman, and I’m pleased to join 

you in convening this hearing on H.R. 1528. 

The bill purports to protect drug treatment patients, children, 

and young adults from drug dealers. However, its primary focus is 

on an array of provisions increasing sentencing guideline ranges, 

adding new mandatory minimums, and increasing minimum ones 

by at least five-fold to mandatory life without parole, including a 

‘‘three strikes and you’re out’’ provision. This latter provision, as 

with mandatory minimum sentences, has been roundly discredited 

as wasteful, racially discriminatory, soundbite-based political pandering which will have virtually no impact on reducing crime. 

There’s a provision, section 12 of the bill, which would appear to 

be designed to overturn Booker/Fanfan decision recently decided 

by the Supreme Court. Professor Frank Bowman testified on last 

year’s version of the bill and is considered an expert on this issue. 

He reads the provision as imposing mandatory minimum sentences 

through the sentencing guidelines by making the bottom of the 

guidelines a minimum sentence in all but the narrowest of circumstances, other than substantial assistance motions by the Government. Many, including yours truly, feel that this provision is 

not in keeping with the representations that the Committee would 

not be taking up Booker—the Booker/Fanfan issue this year. 

Further, the bill provides for conspiracies and attempts to be 

punished in the same manner as actually committing the crime. 

3

This will only increase disparity in sentencing. As with mandatory 

minimum sentencing, there is no ability to distinguish between 

major players and bit players in a crime. One of the primary purposes of establishing the U.S. Sentencing Guideline was to remove 

disparate treatment among like offenders. Giving unlike offenders 

the same sentence for crimes just as much—creates just as much 

sentencing disparity as giving like offenders different sentences. 

The other provision of the bill eliminates the drug quantity sentencing cap established by the Sentencing Commission and restricts the application of the safety valve and substantial assistance to the Government sentencing reduction provisions. 

I have often cited numerous studies and recommendations of researchers, academicians, the judicial branch, including the Chief 

Justice of the Supreme Court, and sentencing professionals reflecting the problems created by the proliferation of mandatory minimum sentences. They are cited as wasteful compared to alternative sentencing and alternatives such as drug treatment. They 

disrupt the ability of the Sentencing Commission and the courts to 

apply orderly, proportional, non-disparate sentencing. They are 

found to be discriminatory against minorities and transfer an inordinate amount of discretion to prosecutors in an adversarial system. They have also been cited in one of the letters we’ve received 

from the Judicial Conference as violating common sense. 

Practically speaking, there’s no reason to believe that H.R. 1528 

will have an impact on crimes which it is purportedly aimed. In its 

essence, the bill simply increases penalties for drug trafficking. Yet 

the problem seems to be a law enforcement problem, not a sentencing problem. With the GAO, the treatment centers, and now 

the Judiciary Committee, reporting illegal drug activity in and 

around drug treatment centers in specific detail, the question is, 

why aren’t we enforcing the current laws that are on the books 

today? Adding more laws to the current ones that are not being enforced is of very little assistance to the problem. 

The suggestion that current Federal illegal drug penalties are 

not severe enough to incentivize law enforcement is unfounded, 

given the long prison sentences now being served by drug offenders 

and the fact that they constitute a growing majority of offenders in 

the Federal system. Just as unfounded is the notion that access to 

drugs by drug treatment patients and children will be significantly 

affected by having harsher penalties is, as I indicated, unfounded. 

Studies of drug quantities, quality, and price indicate that they 

are more plentiful and higher qualities and lower prices than ever 

before. Offenders generally have access to drugs within their neighborhoods. There is nothing to suggest that they obtained the drugs 

to which they are addicted near the drug treatment center at which 

they are being treated, and this bill would mostly affect minorities 

who live in urban areas where the zones will predominate as compared to suburban areas where the drug use is—where drug use 

is no less prevalent, but drug-free zones are. And that’s, Mr. Chairman, because when you draw all the concentric circles around all 

the schools and drug treatment centers and everything else, in 

some urban areas, you will have—you would have covered the entire urban area. In suburban areas, obviously, there’ll be areas that 

will not be included. 

4

Having offenders who happen to violate the law within the inner 

edge of one zone who are not selling to children and—who are not 

selling to children and treatment participants receiving vastly different sentences from those who violate the law a few feet away 

makes no sense. Jailing parents or custodians of children for long 

mandatory minimum sentences for drug activities in their presence 

and forcing children into foster care and other makeshift arrangements is of obviously dubious value to the children. 

So, Mr. Chairman, I look forward to our witnesses who can comment on this and comment on the mandatory minimums and the 

other initiatives that we have in the bill to see how we can actually 

reduce crime. 

Mr. COBLE. I thank the gentleman from Virginia. 

Ladies and gentlemen, it’s the practice of the Subcommittee to 

swear in all witnesses appearing before it, so if you would, please, 

stand and raise your right hands. 

Do each of you solemnly swear the testimony you are about to 

give this Subcommittee shall be the truth, the whole truth, and 

nothing but the truth, so help you, God? 

Ms. AVERGUN. I do. 

Mr. BROOKS. I do. 

Ms. MORIARTY. I do. 

Mr. BROWNSBERGER. I do. 

Mr. COBLE. Let the record show that each of the witnesses has 

answered in the affirmative. You may be seated. 

We have four distinguished witnesses with us today and my introduction is somewhat lengthy, but I think it’s important for those 

in the audience who are not familiar with the backgrounds of our 

witnesses to know some of their backgrounds, which, by the way, 

are impressive. 

Our first witness is Jodi Avergun, Chief of Staff to the Administrator at the Drug Enforcement Administration. Prior to joining 

DEA, Ms. Avergun served as Chief in the Narcotics and Dangerous 

Drugs Section at the Department of Justice. While in NDDS, she 

managed a staff of 47 attorneys in Washington, Virginia, and Bogota, Colombia, and exercised general oversight of all Federal narcotics prosecutions as well as national drug policy decisions. Additionally, Ms. Avergun served as an Assistant U.S. Attorney for the 

Eastern District of New York, where she worked as Chief of the 

Narcotics and Money Laundering Section. Ms. Avergun has also received more than 20 awards for excellence in law enforcement, including the Director’s Award for Superior Performance as Assistant 

U.S. Attorney. She’s an alumna of Brown University and the 

Brooklyn Law School. 

Our second witness is Mr. Ronald Brooks, President of the National Narcotics Officers’ Associations’ Coalition. As President, he 

represents the interests of the Nation’s narcotic officers with the 

White House, Congress, Federal law enforcement agencies, and 

professional associations. Mr. Brooks is a 30-year veteran law enforcement officer with more than 24 years spent in narcotics enforcement. Additionally, he is currently a captain with the San 

Mateo County, California, Sheriff’s Office. In this capacity, he is responsible for administering a $6 million budget and overseeing 

grants, technical and analytical support for drug enforcement operVerDate 0ct 09 2002 14:24 Sep 01, 2005 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\041205\20527.000 HJUD1 PsN: 20527
5

ations in the 10-county San Francisco Bay area. He was awarded 

a Bachelor of Public Administration degree from the University of 

San Francisco. 

Our third witness is Ms. Lori Moriarty, Commander of the North 

Metro Task Force, a multi-jurisdictional undercover drug unit at 

the Thornton Police Department. Ms. Moriarty has been instrumental in implementing protocols for the safe investigation of 

methamphetamine labs and undercover drug operations. Moreover, 

Ms. Moriarty serves as the President of the Colorado Alliance for 

Drug Endangered Children, which rescue, defend, shelter, and support drug endangered children in Colorado. She also trains thousands of professionals across the State of Colorado on meth lab 

awareness. Ms. Moriarty was recognized by the President of the 

United States in 2001 when she received the Drug Commander of 

the Year Award. Ms. Moriarty attended the University of Colorado 

and Regis University. 

Our final witness today is Mr. William Brownsberger, Associate 

Director for the Public Policy Division on Addictions at the Harvard Medical School. As Associate Director, Mr. Brownsberger develops research and education programs on social policy issues regarding addictions. Additionally, he serves as a Senior Criminal 

Justice Advisor at Boston University School of Public Health, 

where he directs a national panel on substance abuse treatment 

quality. Previously, Mr. Brownsberger served as Assistant Attorney 

General for the Commonwealth of Massachusetts. As Assistant Attorney General, he worked as the Asset Forfeiture Chief in the 

Narcotics and Special Investigations Division. Mr. Brownsberger is 

also the author of numerous publications, including ‘‘Drug Addiction and Drug Policy’’ and ‘‘Profile of Anti-Drug Law Enforcement 

in Urban Poverty Areas in Massachusetts.’’ He was awarded his 

undergraduate and J.D. degrees from Harvard. 

We are pleased to have you all with us today. I see we have been 

joined by our friend from Texas, Mr. Gohmert. It is good to have 

you, Mr. Gohmert, with us. 

Ladies and gentlemen, as you all have previously been advised, 

we adhere to the 5-minute rule here. We impose it against you all. 

We impose it against ourselves. So if you all could, when you see 

that amber light illuminate in your faces, that is a warning that 

the ice is becoming thin on which you are skating. When the red 

light appears, that indicates that the 5 minutes have elapsed. We 

have examined your testimony. We will reexamine it. So if you 

could adhere to the 5-minute rule, we would be appreciative. 

Ms. Avergun, we will start with you. I’m not sure your mike’s on. 

Pull it closer to you, Ms. Avergun. 

Ms. AVERGUN. I think it’s on now? 

Mr. COBLE. That’s better. 

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

Ms. AVERGUN. Okay. Chairman Coble and distinguished Members of the Subcommittee on Crime, Terrorism, and Homeland Security, on behalf of Attorney General Alberto Gonzales and Drug 

Enforcement Administration Administrator Karen Tandy, I appreVerDate 0ct 09 2002 14:24 Sep 01, 2005 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\041205\20527.000 HJUD1 PsN: 20527
6

ciate your invitation to testify today regarding the important issue 

that affects many of our Nation’s children. 

The men and women of DEA and many prosecutors throughout 

the Department of Justice spend each day fighting to protect our 

children from the many harms that drugs cause to each and every 

member of society. Drug trafficking and drug abuse unfairly, and 

in alarming numbers, make children victims. Drug trafficking and 

drug abuse steal our children’s health, innocence, and security. 

From a drug-addicted parent who neglects a child, to a clandestine 

methamphetamine cook using a child’s play area as a laboratory 

site, to a parent using a child to serve as camouflage for their 

stash, to a child being present for a drug transaction, the list goes 

on and on, but the end result remains the same: innocent children 

suffer from being exposed to illegal drugs. 

Mr. Chairman, today, my testimony is a follow-up to that presented by Ms. Catherine O’Neil last year to this Subcommittee regarding H.R. 4547, the ‘‘Defending America’s Most Vulnerable: Safe 

Access to Drug Treatment and Child Protection Act of 2004.’’ I request that her earlier testimony be made part of today’s hearing 

record. 

We are here today to reiterate our support for key parts of the 

legislation that addresses drug trafficking involving minors. The 

endangerment of children through exposure to drug activity, sales 

of drugs to children, the use of minors in drug trafficking, and the 

peddling of pharmaceutical and other illicit drugs to drug treatment patients are all significant problems today. Sadly, horrific examples of these types of incidents are spread across our Nation. 

To take just one example, a DEA investigation in Missouri occurring in November 2004 demonstrates this all too frequent occurrence. During a raid on a suspected methamphetamine lab located 

in a home, three children, all under 5 years of age, were found 

sleeping on chemical-soaked rugs. The residence was filled with insects and rodents and had no electricity or running water. Two 

guard dogs kept by the cooks to fend off law enforcement were also 

found. The dogs were clean, healthy, and well-fed. 

The Department of Justice is committed to vigorously prosecuting drug trafficking in all of its egregious forms. Prosecutions 

range from high-level international drug traffickers to street-level 

predators who are tempting children or addicts with the lure of 

profit and the promise of intoxication. All of these prosecutions are 

part of the Department of Justice’s mandate within the National 

Drug Control Strategy to disrupt the sources of and markets for 

drugs. 

The people who target their trafficking activity at those with the 

least ability to resist such offers deserve not only our most pointed 

contempt, but also severe punishment. We stand firmly behind the 

intent of this new legislation to increase the punishment meted out 

to those who would harm us, our children, and those seeking to escape the cycle of addiction. 

The Department of Justice supports mandatory minimum sentences in appropriate circumstances, such as trafficking involving 

minors and trafficking in and around drug treatment centers. Mandatory minimum sentences provide a level of uniformity and predictability in sentencing to deter certain types of criminal behavior, 

7

increase public safety by locking away dangerous criminals for long 

periods of time, and serve as important tools used by prosecutors 

in obtaining cooperation from defendants. 

My written testimony addresses several specific provisions within 

H.R. 1528. The Department agrees with the idea that individuals 

who intentionally endanger children, either through the distribution, storage, manufacture, or otherwise trafficking of drugs, should 

face appropriate punishments. However, we have some reservations about the consequences of section 2(m), titled ‘‘Failure to Protect Children from Drug Trafficking Activities.’’ Also, we strongly support the proposed amendment to 18 U.S.C. 

3553(f) insofar as it would require Government certification that 

the defendant has timely met the full disclosure requirements for 

the safety valve exemption in certain mandatory minimum sentences. However, we are concerned that the bill may unnecessarily 

exclude those who initially make a false statement or omit information but later correct those statements. 

Additionally, the Department agrees with the principle that in 

almost all circumstances, a defendant who has been found guilty 

should be immediately detained. We also acknowledge that the circumstances in which release pending sentencing where appeal is 

necessary are extremely limited. Nevertheless, we cannot support 

this proposal to the extent it requires Government certification as 

to a defendant’s cooperation and precludes release pending appeal. 

The Department was pleased to see the addition of language asking the Sentencing Commission to make recommendations for an 

increase in the guideline range where there is a substantial risk of 

harm to the life in the manufacture of any controlled substance as 

opposed to simply methamphetamine. We support the proposal to 

widen the guidelines from including only the manufacture of meth 

or amphetamine to include the manufacture and distribution of any 

controlled substances. 

The DEA and Department of Justice are committed to aggressively investigating and prosecuting drug traffickers. We support 

measures that will aid in the protection of children and enhance 

our abilities to prosecute those individuals who seek to involve 

them in their illegal drug activities and support the Committee’s 

efforts to do the same. 

Mr. Chairman, thank you for your recognition and assistance on 

this important issue and the opportunity to testify here today. I 

will be happy to answer any questions that you may have. 

[The prepared statement of Ms. Avergun follows:]

PREPARED STATEMENT OF JODI L. AVERGUN

Chairman Coble, and distinguished Members of the Subcommittee on Crime, Terrorism and Homeland Security, on behalf of Attorney General Alberto Gonzales and 

Drug Enforcement Administration (DEA) Administrator Karen Tandy, I appreciate 

your invitation to testify today regarding this important issue that affects many of 

our nation’s children. 

OVERVIEW

The DEA has seen firsthand the devastation that illegal drugs cause in the lives 

of children. Children are our nation’s future and our most precious resource, and 

sadly, many of them are having their lives and dreams stolen by illegal drugs. This 

theft takes many forms, from a drug addicted parent who neglects a child, to a clandestine methamphetamine ‘‘cook’’ using a child’s play area as a laboratory site, to 

8

a parent using a child to serve as camouflage for their ‘‘stash,’’ to a child being 

present during a drug transaction. The list goes on and on, but the end result remains the same: innocent children needlessly suffer from being exposed to illegal 

drugs. 

DRUG ENDANGERED CHILDREN

The Department of Justice and other law enforcement agencies at all levels seek 

to protect the most vulnerable segments of our society from those drug traffickers 

and drug addicted individuals who exploit those individuals least able to protect 

themselves. In 2003, Congress made significant strides in this area by enacting the 

Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today 

Act, better known as the PROTECT Act. This law has proven effective in enabling 

law enforcement to pursue and to punish wrongdoers who threaten the youth of 

America. Last year Chairman Sensenbrenner introduced H.R. 4547, the ‘‘Defending 

America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act 

of 2004,’’ which would have taken these efforts even further by focusing on the 

scourge of drug trafficking in some of its most base and dangerous forms: those who 

use minors to commit trafficking offenses, trafficking to minors, trafficking in places 

where minors are present, and trafficking in or near drug treatment centers. 

Mr. Chairman, today my testimony is a follow-up to the testimony presented in 

July of last year to this Subcommittee by Ms. Catherine O’Neil, Associate Deputy 

Attorney General, regarding H.R. 4547. We request that her earlier testimony be 

made part of today’s hearing record. We are here today to reiterate our support for 

legislation that addresses drug-related incidents involving minors. 

The endangerment of children through exposure to drug activity, sales of drugs 

to children, the use of minors in drug trafficking, and the peddling of pharmaceutical and other illicit drugs to drug treatment patients are all significant problems today. Sadly, the horrific examples below are just a few instances where children have been found victimized and exploited by people whose lives have been 

taken over by drugs:

• From FY 2000 through the first quarter of FY 2005, over 15,000 children 

were reported as being affected in clandestine laboratory-related incidents. 

The term ‘‘affected children’’ is defined as a child being present and/or evidence that a child lived at a clandestine laboratory site. This total reflects 

only those instances where law enforcement was involved. The true number 

of children affected by clandestine laboratory incidents is unknown, though 

it is surely much greater.

• In 2004, a defendant from Iowa pled guilty to conspiring to manufacture 

methamphetamine. Although the meth was not manufactured in the defendant’s home, where the defendant’s 4-year-old son also lived, was used as the 

distribution point for large quantities of meth. The son’s hair tested positive 

for extremely high levels of meth, indicating chronic exposure to the drug. In 

this case, no enhancement could be applied because of the son’s exposure, as 

he had not been endangered during the actual manufacture of the meth.

• In November 2004, the DEA raided a suspected methamphetamine lab located in a home in Missouri. During this operation three children, all under 

five years of age, were found sleeping on chemical-soaked rugs. The residence 

was filled with insects and rodents and had no electricity or running water. 

Two guard dogs kept by the ‘‘cooks’’ to fend off law enforcement were also 

found: clean, healthy, and well-fed. The dogs actually ate off a dinner plate.

Currently, investigations targeting individuals involved in the manufacture of 

methamphetamine or amphetamine which are prosecuted on a federal level have a 

sentencing enhancement available. This enhancement provides a six-level increase 

and a guidelines floor at level 30 (about 8-to-10 years for a first offender) when a 

substantial risk of harm to the life of a minor or an incompetent individual is created. Unfortunately, investigations targeting traffickers involved in the distribution 

of other illegal drugs, such as heroin or cocaine, do not have this same enhancement. For example:

• During October 1999, the DEA’s Philadelphia Field Division initiated a heroin 

investigation targeting an international organization ranging from street level 

dealers and couriers to a source of supply in South America. This investigation resulted in ‘‘spin-off’’ investigations in New York and South America. Indictments and arrests stemming from the Philadelphia portion of this investigation began in early 2001, and resulted in over 20 arrests. The most significant charge filed against these defendants was Conspiracy to Distribute 

9

Heroin (21 USC § 846). Additionally, seven subjects were charged with Distribution of Heroin within 1,000 feet of a School (21 USC § 860).

• During August 2003, fire department personnel and local law enforcement authorities responded to a hotel fire in a family resort in Emmett County, 

Michigan. The fire was the result of a subject’s attempts to manufacture 

methcathinone. Authorities subsequently seized a small quantity of 

methcathinone, along with chemistry books, from the room.

• In an investigation initiated by DEA’s Philadelphia Field Division, a subject 

hid approximately 400 grams of heroin under his infant during a buy/bust operation. During the course of his guilty plea in March 2004, the defendant admitted that he stored the drugs under the infant. 

DRUG PROSECUTIONS

The Department of Justice is committed to vigorously prosecuting drug trafficking 

in all of its egregious forms. Prosecutions range from high-level international drug 

traffickers to street-level predators who are tempting children or addicts with the 

lure of profit and the promise of intoxication. 

We have had some successes. Statistics maintained by the U.S. Sentencing Commission indicate that between 1998 and 2002 over 300 defendants were sentenced 

annually under the guideline that provides for enhanced penalties for drug activity 

involving protected locations, minors, or pregnant individuals. But our tools are limited. And we have no specific weapon against those who distribute controlled substances within the vicinity of a drug treatment center. 

The people who would sink to the depths of inhumanity by targeting their trafficking activity at those with the least ability to resist such offers are deserving the 

most severe punishment. The Department of Justice cannot and will not tolerate 

this conduct in a free and safe America, and that is why the Department of Justice 

stands firmly behind the intent of this legislation to increase the punishment meted 

out to those who would harm us, our children, and those seeking to escape the cycle 

of addiction. 

MANDATORY MINIMUM SENTENCES

The Department of Justice supports mandatory minimum sentences in appropriate circumstances. In a way sentencing guidelines cannot, mandatory minimum 

statutes provide a level of uniformity and predictability in sentencing. They deter 

certain types of criminal behavior determined by Congress to be sufficiently egregious as to merit harsh penalties by clearly forewarning the potential offender and 

the public at large of the minimum potential consequences of committing such an 

offense. And mandatory minimum sentences can also incapacitate dangerous offenders for long periods of time, thereby increasing public safety. Equally important, 

mandatory minimum sentences provide an indispensable tool for prosecutors, because they provide the strongest incentive to defendants to cooperate against the 

others who were involved in their criminal activity. 

In drug cases, where the ultimate goal is to rid society of the entire trafficking 

enterprise, mandatory minimum statutes are especially significant. Unlike a bank 

robbery, for which a bank teller or an ordinary citizen could be a critical witness, 

often in drug cases the critical witnesses are drug users and/or other drug traffickers. The offer of relief from a mandatory minimum sentence in exchange for 

truthful testimony allows the Government to move steadily and effectively up the 

chain of supply, using the lesser distributors to prosecute the more serious dealers 

and their leaders and suppliers. Mandatory minimum sentences are needed in appropriate circumstances, such as trafficking involving minors and trafficking in and 

around drug treatment centers. 

SPECIFIC PROVISIONS WITHIN H.R. 1528

I would now like to turn to a few of the specific provisions included in H.R. 1528. 

As I mentioned earlier, the Department stands behind the testimony provided last 

year by Ms. Catherine O’Neil. 

Section 2: Protecting Children from Drug Traffickers 

The Department agrees with the idea that individuals who intentionally endanger 

children, either through the distribution, storage, manufacture, or otherwise trafficking of drugs, should face appropriate punishments. 

However, we do have some reservations about the consequences of Section 2(m), 

titled ‘‘Failure to Protect Children from Drug Trafficking Activities.’’ As drafted, we 

have some concerns about the enforceability of the section due to the vagueness of 

10

the language. In addition, we are concerned that it will unintentionally create an 

adversarial parental relationship, and discourage (rather than encourage) kids to 

talk openly with their parents about drug trafficking. Certainly, we want to encourage parents and other legal guardians to do the right thing, but we would encourage 

the Subcommittee to reconsider this section. 

Section 6: Assuring limitation on applicability of statutory minimums to persons who 

have done everything they can to assist the Government 

We strongly support the proposed amendment to 18 U.S.C. § 3553(f), insofar as 

it would require Government certification that the defendant has timely met the full 

disclosure requirement for the safety valve exemption from certain mandatory minimum sentences. 

We certainly understand the concerns that prompted this proposal. Our prosecutors rightfully complain that courts often accept minimal, bare-bones confessional 

disclosures and, in some cases, continue sentencing hearings to afford a defendant 

successive tries at meeting even this low standard. The Department of Justice thus 

is aware that some courts and defendants have too liberally construed the safety 

valve and have applied it in circumstances that were clearly unwarranted and 

where no beneficial information was conveyed. For these reasons, we strongly support the prosecutor certification requirement. 

Requiring courts to rely on the Government’s assessment as to whether a defendant’s disclosure has been truthful and complete would effectively address the problems prosecutors have encountered with respect to application of the safety valve. 

However, we are concerned that the bill may unnecessarily exclude those who initially make a false statement, but later correct it. We expressed this concern informally last year and look forward to working with the Subcommittee to address it. 

Section 9: Mandatory detention of persons convicted of serious drug trafficking offenses and crimes of violence 

The Department agrees with the principle that, in almost all circumstances, a defendant who has been found guilty should be immediately detained. We also acknowledge that the circumstances in which release pending sentencing or appeal is 

necessary are extremely limited. 

Nevertheless, we cannot support this proposal to the extent it requires Government certification as to a defendant’s cooperation and precludes release pending appeal. Even with sealed pleadings, a defendant’s intention to cooperate would be 

much more apparent under this provision, and this likely would have an adverse 

impact on a defendant’s willingness to cooperate, on the value of the cooperation, 

and on the safety of the defendant. By foreclosing the possibility of release for circumstances other than cooperation and, thereby, telegraphing a defendant’s intention to assist the Government, this proposal would severely diminish the value of 

one of our most useful investigative and prosecutorial tools. Moreover, this is a tool 

that we employ not simply post-conviction but, sometimes, pending appeal as well. 

A prosecutor should not be effectively prohibited from seeking release after sentencing, if the particular circumstances of the case so warrant. 

We look forward to working with the Subcommittee on this issue. 

Section 10: Protecting Human Life and Assuring Child Safety 

The Department was pleased to see the addition of language asking the Sentencing Commission to make recommendations for an increase in the guideline 

range where there is a substantial risk of harm to the life in the manufacture of 

ANY controlled substance. The case in the Western District of Michigan (mentioned 

earlier) highlights the need to expand these guidelines. We support the proposal to 

widen the guidelines from including only the manufacture of methamphetamine or 

amphetamine to include the manufacture of any controlled substance. 

CONCLUSION

Children continue to be exposed, exploited and endangered by individuals involved 

at all levels of the illegal drug spectrum. Regardless of whether they are high-level 

traffickers, street-level dealers, ‘‘cooks’’ or addicts, they all are involved in some 

fashion in stealing away our nation’s youth. The Department of Justice is committed 

to aggressively investigating and prosecuting drug traffickers. We support measures 

that will aid in the protection of children and enhance our abilities to prosecute 

those individuals who seek to involve them in their illegal drug activities, and support the Subcommittee’s efforts to do the same. 

Mr. Chairman, thank you for your recognition and assistance on this important 

issue and the opportunity to testify here today. This is an ambitious bill with important implications for the work of the Justice Department. We continue to study the 

11

issues presented by the bill and stand ready to discuss the matter with you or the 

Subcommittee’s staff. I will be happy to answer any questions you may have.

Mr. COBLE. Mr. Brooks? 

TESTIMONY OF RONALD E. BROOKS, PRESIDENT, NATIONAL 

NARCOTIC OFFICERS’ ASSOCIATIONS’ COALITION (NNOAC) 

Mr. BROOKS. Chairman Coble, Ranking Member Scott, Members 

of the Subcommittee, thank you for inviting me to testify on the 

importance of protecting America’s most vulnerable citizens from 

the dangers posed by illegal drugs. 

The problem of selling drugs to recovering addicts at or near 

drug treatment facilities is the cruelest side of a cruel business, 

preying on our most vulnerable citizens when they’re at their 

weakest. Those brave souls who are fighting their addiction in 

treatment and recovery programs are often targets of drug traffickers looking for an easy sale. 

Treatment providers throughout California have told me that the 

predatory drug sellers often lurk near drug treatment and recovery 

centers looking for customers who are susceptible to relapse. I’ve 

seen those predators firsthand in scores of investigations that I’ve 

conducted and supervised at or near treatment centers and methadone clinics. 

Mr. Chairman, police officers are driven to face the danger that 

they do each day because we witness impressionable young lives 

ruined when they are lured into a culture of crime by adults promising quick money. The damage this causes to a child’s life and collectively to society as a whole is incalculable and inexcusable. 

I supervised a raid on a rural super lab that was producing more 

than 100 pounds of methamphetamine per production. As we approached the house to execute our search warrant, a large cloud of 

highly toxic gas began to vent from the house. Upon entry into the 

dangerous environment, I encountered four armed meth cookers 

and an 8-month pregnant woman with her two small children, who 

had been in the house during the entire 2-day reaction. 

In one operation at a large rave event in San Francisco, after collecting payments—my apologies. I thought it was off. In one operation at a large rave event at San Francisco, after collecting the 

payment on an undercover buy, a 26-year-old gang member directed my agent to his 15-year-old girlfriend to get the drugs. The 

adult seller laughed, saying that if the police raided the event, the 

teenage girl would be the one left to face prosecution. 

Another investigation conducted by my office targeted rampant 

drug dealing at a rural high school. At the conclusion of the investigation, we arrested 27 juveniles and nine adults for sales of methamphetamine, marijuana, LSD, and MDMA at or near the school. 

In a raid on a house directly across the street from the school, 

agents seized one-quarter pound of methamphetamine and two 

guns from two of the adults who were controlling drug sales at the 

high school. 

Mr. Chairman, in my mind, there is no question that a sustained 

chemical attack occurs on our streets every day. Illegal drugs and 

their effects kill more than 19,000 Americans annually and the impact on our economy is estimated to be more than $160 billion each 

year. This continuous and unrelenting attack by international drug 

12

cartels, American street gangs, meth cookers, and neighborhood 

drug traffickers is equivalent in terms of lost lives to a September 

11 tragedy every 2 months. We must continue our commitment to 

fighting these criminals as aggressively as we fight terrorists who 

have political motives. 

The heroin sold on the street corner in San Francisco began as 

an opium poppy seed in the Mexican highlands. From field to vein, 

there’s a network of criminals who know exactly what they’re 

doing. This malicious intent must be confronted directly up and 

down the chain. 

Tough drug laws such as the proposed—as those proposed in the 

Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2005 are essential weapons in the 

arsenal of every law enforcement officer. Strong penalties deter 

would-be sellers while providing the incentive for those arrested for 

drug crimes to cooperate with law enforcement, allowing investigators to reach higher into drug trafficking organizations in an effort 

to dismantle them. On a daily basis, State and local law enforcement use the threat of Federal charges associated with tough penalties to induce the cooperation of arrestees who are in positions to 

expose the chain of command of drug trafficking organizations. 

The task force model fostered by Byrne and HIDTA programs 

has dramatically increased the effectiveness of drug enforcement 

strategies over the past 15 years. When combined with strong penalties, such as those proposed by the Chairman’s legislation, we get 

quality investigations and effective deterrents. 

As law enforcement officers, we know that we can’t arrest our 

way out of the drug problem. We must do everything we can to prevent first use by young people. We must embrace efforts, such as 

the President’s Access to Recovery Initiative, to ensure treatment 

is there when it’s needed. All children and all people in recovery 

must be protected from the purveyors of poison that often lurk in 

or near our drug treatment centers and in our schools. 

That’s why the proposal in the Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 

2005 is critical to the safety of vulnerable Americans. This legislation would strengthen deterrence and provide a potentially helpful 

tool for State and local drug investigators. 

On behalf of the 60,000 narcotic officers that the National Narcotics Officers’ Coalition represents, I want to congratulate Chairman Sensenbrenner on reintroducing this important bill, and Mr. 

Chairman, I want to congratulate you for inviting me here today 

and for taking the time to hear this issue. Thank you. 

Mr. COBLE. Thank you, Mr. Brooks. 

[The prepared statement of Mr. Brooks follows:]

PREPARED STATEMENT OF RONALD E. BROOKS

INTRODUCTION

Chairman Coble, Ranking Member Scott, members of the subcommittee, thank 

you for inviting me to testify on the importance of protecting America’s most vulnerable citizens from the dangers posed by illegal drug manufacturing, sales and use. 

My name is Ronald Brooks and I am the President of the National Narcotic Officers’

Associations’ Coalition (NNOAC) representing forty-three state narcotic officers associations with a combined membership of more than 60,000 law enforcement officers across the nation. 

13

I am an active duty, thirty-year California law enforcement veteran with more 

than twenty-four years spent in drug enforcement. I have witnessed the death, disease, violence and devastation that illicit drug use regularly brings to individuals, 

families, and communities, and based on my experiences I’m happy to share my 

thoughts on the importance of the ‘‘Safe Access to Drug Treatment and Child Protection Act of 2005.’’

Although no one is immune from drug addiction, the lives most often destroyed 

by heroin, cocaine, methamphetamine, marijuana, and other poisons are those persons already suffering from the disease of addiction who are in recovery, and young 

people who think that trying dangerous drugs is harmless. People in recovery are 

vulnerable because changes in neuro-chemicals brought on by prior chronic drug use 

make them more susceptible to relapse, and because the craving is constant—especially during the early stages of treatment. 

Dr. Darryl Inaba, CEO of the Haight Ashbury Free Clinic in San Francisco told 

me that the euphoric recall of persons in recovery is very strong and that smells, 

situations, or other temptations will often lead to the re-initiation of drug use. Because all drugs of abuse are synergistic, even marijuana may serve as the catalyst 

for a meth, coke, or heroin user to slip back into the bonds of a drug lifestyle. Because of that danger, the Haight Ashbury Clinic and all other drug treatment programs that I am familiar with prohibit drug and alcohol use on or near their facilities and by patients who are in treatment. 

Dr. Inaba and Dr. Alex Stallcup of the New Leaf Treatment Center in Concord, 

California have told me that predatory drug sellers often lurk near drug treatment 

and recovery centers looking for customers who are susceptible to relapse. I have 

seen these predators firsthand in scores of investigations that I have conducted or 

supervised at or near treatment centers and Methadone clinics. 

Even more vulnerable than recovering addicts are pre-teens and teens. Initiation 

of drug use by young people occurs every day in all types of communities without 

regard for race, gender or socio-economic background. Kids are likely to be lured to 

drug use because they lack the perspective of adults and because they feel pressured 

to identify with ‘‘role models’’ who glorify drug use and violence. Drug-abusing older 

siblings, friends, and parents are often terrible influences who many times even employ young people to act as middle-men in their drug trade. The damage this causes 

to a child’s life—and cumulatively to society as a whole—is incalculable and inexcusable. 

My civilian friends often worry about the physical and emotional impact that thirty years of facing the danger of ruthless drug dealers has taken on me. The truth 

is, danger is not what takes a toll on America’s law enforcement officers. What 

haunts police officers is the death, fear, economic despair, and ruined lives we see 

every day that is caused by drug abuse and drug-fueled violent crime. 

JUVENILES IN DANGER

The most troubling events witnessed by cops involve young people suffering from 

addiction or who are neglected or placed in danger as a direct result of illicit drugs. 

Drug enforcement officers are driven in their commitment to fight the scourge of 

drug abuse by recurring images of children languishing in dirty diapers, living in 

deplorable and dangerous conditions and suffering from malnutrition because their 

drug-addicted parents are unable to care for them. We are driven to face danger by 

witnessing impressionable young lives ruined when they are lured into a culture of 

crime by adults promising quick money. We see kids become dealers for adults, or 

lookouts who facilitate the drug sales operations of adults. And a disturbing all-toofrequent image is a frightened child rescued from the highly toxic and flammable 

environment of a methamphetamine lab. 

I supervised a raid on a rural super-lab that was producing more than 100 pounds 

of methamphetamine per two-day reaction cycle. As we approached the house to 

execute our search warrant, a large cloud of highly toxic gas began to vent from the 

house. Upon entry into that dangerous environment, we encountered four armed 

meth cookers and an eight-month pregnant woman who along with her two small 

children had been in the house for the entire two-day reaction cycle. 

During another lab raid, I found a teenage boy, a straight-A student, who lived 

with his father, a meth cooker, in a home where two separate chemical fires had 

flashed through the house threatening their lives but which were never be reported 

to the fire department for fear that the meth production would be discovered. That 

teenager was working to survive, despite the daily danger posed by chemical exposure, explosion, fire, and armed encounters with rival drug dealers. 

At a large RAVE event at the San Francisco Cow Palace, my agents were working 

undercover purchasing Ecstasy (MDMA) from the dealers that were preying upon 

14

the mostly teenage attendees. This followed an earlier RAVE where two young people had died from Ecstasy overdoses. In one drug buy, after collecting the payment, 

a twenty-five year old gang member directed the undercover agent to his fifteen 

year old girlfriend to get the drugs. The adult seller laughed saying that if the police 

raided the event, the teenage girl would be the one left facing prosecution while he 

walked away. In a subsequent undercover buy, a twenty-five year old woman directed an undercover agent to her fourteen year old brother to get the Ecstasy. She 

told the undercover agent that if the police stopped them, her brother would only 

go to juvenile hall but if she was caught with the drugs, she could face prison. 

In an undercover operation conducted by my agents, a man agreed to deliver Ecstasy to an undercover agent. At the time of the arrest, the suspect fled in his vehicle and led officers on a high-speed pursuit, eventually crashing his car. As officers 

approached to make the arrest, they discovered that the suspect had his eightmonth old daughter in the car. The man was arrested with more than 20,000 

MDMA tablets, cocaine, a bullet proof vest and two 9mm pistols. 

One investigation conducted by my office targeted rampant drug dealing at a 

rural high-school. At the conclusion of the investigation we arrested twenty-seven 

juveniles and nine adults for sales of methamphetamine, marijuana, LSD, and 

MDMA at or near the school. In a raid on a house directly across the street from 

the school, agents seized one-quarter pound of methamphetamine and two guns 

from two of the adults that were controlling drug sales at the high school. 

In a San Mateo County, California Narcotic Task Force investigation, a Burlingame High School groundskeeper was arrested when it was discovered that he 

was befriending students and bringing them to his house where he sold them marijuana and cocaine. 

TREATMENT CENTERS

The problem of dealing drugs to recovering addicts at or near drug treatment facilities is the cruelest side of a cruel business: preying on the most vulnerable citizens when they are at their weakest. Those brave souls who are fighting their addiction in treatment and recovery programs are often targets of drug traffickers looking 

for an easy sale. 

Many people in the Washington, D.C. area are familiar with the open-air drug 

market that existed in the parking lot of a McDonald’s right next to the Model 

Treatment Program in Northeast D.C. A subsequent GAO investigation found that 

drug dealing was rampant in the immediate vicinity of treatment centers in numerous locations in Washington. 

In a recent San Jose, California Police Department case, a city employee was fired 

after beginning to re-use methamphetamine after being enticed to do so by a person 

that was in her drug treatment program. This otherwise productive citizen, who was 

on her way to recovery, has again had her life torn apart by an amoral drug seller 

who cared more about making money than allowing the woman to succeed in treatment. 

Within the past three weeks, the San Francisco Police Department began investigating a convicted drug dealer who served time in San Quentin Prison on state 

drug charges. The dealer is now operating the Happy Days Herbal Relief ‘‘medical 

marijuana’’ clinic on the ground floor of a hotel subsidized by the city of San Francisco that is being used as a halfway house by formerly homeless persons, many of 

whom are in drug treatment programs. This and eight other San Francisco ‘‘pot 

clubs’’ are not far from school campuses. San Francisco Police officials tell me that 

it is not uncommon for them to encounter teens who have purchased marijuana 

from one of these pot clubs and who are re-selling the marijuana to other school 

age kids. 

I could give more examples, and these types of stories could be multiplied by the 

60,000 police officers represented by the NNOAC. 

THE NEED FOR STRONG PENALTIES

On September 11, 2001, America was attacked by terrorists based in foreign 

lands. This attack resulted in the murder of almost 3,000 Americans. Because of the 

intensity and magnitude of that single attack, it is easy to lose sight of the chemical 

attack that occurs daily in cities and towns in every state in the nation. Illegal 

drugs and their effects kill more than 19,000 Americans annually and the impact 

on our economy is estimated to be more than $160 billion each year. 

This continuous and unrelenting attack by international drug cartels, American 

street gangs, meth cookers, and neighborhood drug traffickers is equivalent to a 

September 11th tragedy every two months. We must continue our commitment to 

fighting these criminals as aggressively as we fight terrorists who have political moVerDate 0ct 09 2002 14:24 Sep 01, 2005 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\041205\20527.000 HJUD1 PsN: 20527
15

tives. Tough drug laws such as those proposed in the ‘‘Safe Access to Treatment and 

Child Protection Act of 2005’’ are essential weapons in our arsenal. 

Vigorous enforcement of drug laws helps to keep families and neighborhoods safe 

from violent criminals and serves as a deterrent to first-time drug use for most 

young people. It also helps many addicts reach the road to recovery through drug 

courts and other corrections-based treatment programs. 

Strong penalties deter would-be sellers while providing the incentive to those arrested for drug crimes to cooperate with law enforcement, allowing investigators to 

reach higher into drug trafficking organizations in an effort to dismantle them. On 

a daily basis, state and local law enforcement use the threat federal charges associated with tough penalties to induce the cooperation of arrestees who are in positions 

to expose the chain of command of drug trafficking organizations. 

The heroin consumed on the corner of a drug-addled neighborhood in Washington, 

D.C. started as a seed capsule of an opium poppy plant in the Andes of South America. From field to vein, there was a network of criminals who knew exactly what 

their activities were leading to. When the street-level seller of that heroin is arrested, tough federal penalties help us climb up the organizational ladder and frequently lead to the dismantling of local and regional drug trafficking organizations. 

Indispensable components our nation’s overall enforcement strategy include tough 

laws and the multi-jurisdictional, intelligence-based enforcement approach that has 

developed under the system of task forces funded through the Byrne JAG and 

HIDTA programs. The task force model employed by these programs has dramatically increased the effectiveness of drug enforcement strategies over the past fifteen 

years which, when combined with the strong penalties such as those proposed by 

the Chairman’s legislation, leads to quality investigations and effective deterrence. 

MAKING PROGRESS

The problem of drug abuse often seems insurmountable, but it is not. The proof 

of our ability to succeed in this important fight is the fifty percent reduction in drug 

use that occurred between 1979 and 1992 when America employed a balanced and 

comprehensive approach of drug prevention, treatment, and enforcement. We are 

once again on the road to achieving good results as we embrace a balanced approach 

and a renewed dedication to fighting against drug abuse. 

Although strong penalties for dangerous criminals are important, I understand 

that it is impossible to arrest our way out of America’s complex drug problem. A 

strong and consistent education and prevention message must reach or kids early 

and often; and because addicts often love the drugs that consume their lives more 

than they fear prison, effective treatment must be readily available. But we must 

do everything we can to prevent first use by young people. And persons in recovery 

must be protected from the purveyors of poison that often lurk in our near drug 

treatment centers and sober living environments. 

That is why the proposals in the ‘‘Safe Access to Drug Treatment and Child Protection Act of 2005’’ are critical to the safety of all citizens. This important legislation would strengthen deterrents and provide a potentially helpful tool for state and 

local drug investigators. The 60,000 members of the National Narcotic Officers’ Associations’ Coalition congratulate the Chairman on reintroducing the important bill 

and we stand ready to lend our support. Thank you for inviting me to share my 

thoughts.

Mr. COBLE. Ms. Moriarty? 

TESTIMONY OF LORI MORIARTY, THORNTON POLICE DEPARTMENT, THORNTON, COLORADO, COMMANDER, NORTH 

METRO DRUG TASK FORCE, AND PRESIDENT, COLORADO’S 

ALLIANCE FOR DRUG ENDANGERED CHILDREN 

Ms. MORIARTY. Mr. Chairman and Subcommittee Members, first 

of all, thank you very much for the invite here. 

I am a Drug Unit Commander in Colorado, and I do represent 

the National Alliance for Drug Endangered Children, and I am the 

President of the Colorado Alliance for Drug Endangered Children, 

and I can tell you from a Drug Task Force Commander’s point of 

view, I’ve been in law enforcement for 18 years, and I can’t tell you 

how many times I’ve heard people tell me that drug use is a 

victimless crime, and I’m here to tell you that it is the crime that 

16

creates the most victims. In all of my time in law enforcement, I 

didn’t recognize this until I got into the drug investigations unit. 

I actually did homicide crimes and crimes against children as a 

detective, and it was easy to recognize the bruises and the broken 

bones and call that child abuse. And when I got into investigation, 

it wasn’t until I walked into some of these drug homes and recognized the violence that was occurring day in and day out in these 

children’s lives. 

As you mentioned earlier in my introduction, I’ve spent the last 

2 years educating people across the State and actually across the 

Nation on meth lab awareness and the dangers, and the award 

that I actually won for ONDCP and HIDTA was for protecting law 

enforcement officers who actually went into labs day in and day out 

because of the toxic environment that it created. And throughout 

that time, my guys were wearing chemical protective clothing gear 

and self-contained breathing apparatus and we pulled out children 

wearing diapers. And it wasn’t until then that I realized that the 

drug endangered environment that these children were living in 

was just horrific. 

I speak to you today by telling you that it is really critical to 

have penalties that are severe enough to have people change their 

behavior. It is never acceptable to expose children to drug endangered environments. 

As I speak with you here today, my task force is out at a hotel, 

and we are raiding the entire hotel as an open market, and in the 

hotel are families that live there with their children, distributing 

drugs every day, and there are guns. We’re also—it’s a RICO case 

and it has three homicides associated with that environment, and 

at no time did any of the drug dealers ever pay attention to the 

children that were living in that environment. Additionally, we had 

a grandfather, who every day when we watched him in surveillance 

going to do his drug trafficking, picked up his grandson and used 

the grandson as a decoy during his drug trafficking operations. 

So the areas where people put children in harm is—in drug trafficking is serious, and we need to pay attention to the environment 

that we’re allowing these children to grow up in. 

As a member of the National Alliance for Drug Endangered Children, we have a mission to bring disciplines together to work on 

these exact issues, and accountability is a huge part of making the 

system work. If we can hold the caregivers and the parents who 

traffick around their children and put their children in dangerous 

environments, then it will assist in the totality of what we’re trying 

to do to protect the children. 

Thank you, Mr. Chairman and Subcommittee Members. 

Mr. COBLE. Thank you, Ms. Moriarty. 

[The prepared statement of Ms. Moriarty follows:]

PREPARED STATEMENT OF LORI MORIARTY

Mr. Chairman and Members of the Subcommittee: 

I am pleased to appear before you today on behalf of The National Alliance for 

Drug Endangered Children as a Committee Member and as the President of The 

Colorado Alliance for Drug Endangered Children to speak on the important issue 

of ‘‘Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child 

Protection Act of 2005.’’ Though I cannot speak on all points covered in H.R. 1528, 

as a drug unit commander I can say that I have seen children of substance abusing 

parents suffer extreme neglect, physical, sexual and psychological abuse. The time 

17

has come to take notice and take action, not only in the law enforcement community 

but all professionals involved in the welfare of children. 

BACKGROUND

When law enforcement officers in Colorado were just beginning to appreciate the 

devastating effects methamphetamine was having on communities and the users, 

the focus was to develop safe procedures to locate and seize methamphetamine labs. 

As law enforcement became sophisticated in the detection, seizure and arrest of 

these clandestine labs and their operators, what became astoundingly apparent was 

that the real victims of the crime were the children. Law enforcement quickly realized they were not equipped to address the special needs of the children found in 

these homes where the manufacturing was taking place and realized that other 

agencies should be involved to address the needs of the voiceless and innocent victims. In 2002, public and private agencies in Colorado came together to discuss the 

unique and pressing problems facing these children. The professionals agreed the 

issue was a crisis and required an immediate, multi-disciplinary response. Colorado 

reached out to California, where the first Alliance for Drug Endangered Children 

committee was established. Based on the Drug Endangered Children Program developed in Butte County California, members of the private and public agencies initiated, for the first time in Colorado, a group of professionals willing to assess and 

establish the best methods of collectively meeting the needs of the children. In 2003, 

Colorado established a non-profit organization, Colorado’s Alliance for Drug Endangered Children and quickly collaborated with California and several other states 

where similar initiatives were being developed. Through these efforts The National 

Alliance was formed in 2003 to promote public awareness regarding the plight of 

drug endangered children and to link and support the many professionals that rescue, defend, shelter and support these children including law enforcement, child protective services, first responders, medical and mental health professionals, prosecutors and county attorneys, substance abuse treatment providers, community leaders 

and concerned members of the public. 

The National Alliance for Drug Endangered Children recognized the scope of child 

endangerment went beyond children living where manufacturing was taking place 

but also included environments where children were exposed to drug trafficking and 

the drug subculture associated with the use, sale and possession of illegal drugs. 

The desperate plight of these children left behind must be addressed. The abuse and 

neglect of these children is not marginal but real and significant. These children are 

innocent, tragic victims who require special and immediate attention. 

NATIONAL ALLIANCE GOAL

The National Alliance believes drug endangered children are victims who, when 

discovered during law enforcement actions or recognized by others to be in danger, 

require immediate intervention and support. We promote the concept of using collaborative, multi-disciplinary teams whose primary interest is the health and welfare of the child found in a dangerous drug situation. Thus, our goal is to ensure 

long term care as the child moves from the arms of law enforcement, to child welfare services and is medically and psychologically evaluated, and thereafter placed 

in an appropriate and safe living situation. 

Over the last eighteen months, the National Alliance has focused most of its efforts on causing everyone to understand the harm posed to children in many different drug scenarios—ranging from methamphetamine or other clandestine labs, 

environments in which drugs are dealt, stored or packaged and in some instances, 

guarded with guns and other weapons, and those which are controlled by caregivers 

who are addicted to or so influenced by drugs that they lose their ability to provide 

even a minimum standard of care often neglecting and in many instances, actually 

abusing children. The National Alliance supports and endorses the National Drug 

Endangered Children Training Program. We also provide support and guidance to 

states as they form individual alliances and begin to form multi-disciplinary teams 

in their communities. 

CHILD ABUSE AND NEGLECT

There are several aspects of child abuse and neglect in drug-endangered homes. 

The environments themselves are frequently so dangerous that simply allowing a 

child to live there constitutes child endangerment. Substance abuse also affects the 

caregiver’s ability to parent, placing the child at additional risk for abuse and neglect. 

Children whose caregivers are substance abusers are frequently neglected. They 

often do not have enough food, are not adequately groomed, do not have appropriate 

18

sleeping conditions, and usually have not had adequate medical or dental care. 

These children are frequently not well supervised, placing them at additional risk 

of injury. Children raised by substance-abusing caregivers are often exposed to pornographic material, often emotionally abused and have a heightened risk for sexual 

abuse. Additionally, they frequently do not get the appropriate amount of support, 

encouragement, discipline, and guidance they need to thrive. 

Specific hazards to children living in these labs are numerous. The children are 

exposed to toxic chemicals and are at risk on inhalation of toxic fumes. Clothing and 

skin contact of improperly stored chemicals, chemical waste dumped in play areas, 

and potential explosions and fires (the specific risks of the different chemicals are 

outlined in the Clandestine Lab section) are also possible. They are frequently exposed to a hazardous environment which often includes accessible drugs, exposure 

to drug users, cooks and dealers, hypodermic needles within reach of children, accessible glass smoking pipes, razor blades and other drug paraphernalia, weapons left 

accessible and booby traps placed to ‘‘protect’’ the clandestine laboratory and its contents from intruders. 

The use of illegal drugs affects the caregiver’s judgment, rendering them unable 

to provide the consistent, supervision and guidance that children need for appropriate development. Therefore, substance abuse in adults is a critical factor in the 

child welfare system. With specific reference to methamphetamine, children are frequently neglected during their caregiver’s long periods of sleep while ‘‘crashing’’

from a drug binge. The caregiver’s also frequently display inconsistent and paranoid 

behavior, especially if they are using methamphetamine. They are often irritable 

and have a ‘‘short fuse’’ which may ultimately lead to physical abuse. Children in 

these homes are often exposed to violence as well as unsavory individuals. Unfortunately, these caregivers were often not parented well themselves and therefore did 

not learn effective parenting skills. Finally, the caregiver’s ability to provide a nurturing home for a child is complicated by the caregiver’s own mental health issues 

which may have contributed to or resulted from substance abuse. 

TESTIMONY OF A CHILD

It was five o’clock in the morning on October 23, and the street was empty. The 

house was dark where five undercover detectives were conducting surveillance, preparing for the execution of a search warrant on a drug lab. The traffic on the police 

radio had been silent. Suddenly, as SWAT officers began their initial approached 

from several blocks away, one of the detectives watching the house keyed the microphone of his radio and yelled for everyone to stop. As he spoke, everyone could hear 

the uncertainty and hesitation in his voice as he tried to describe what he was seeing. When the words finally came out he stated, ‘‘There is a skeleton coming out 

the front door.’’ As we processed the information, wondering if the detective was hallucinating after the long hours of surveillance, he went on to explain that the skeleton figure appeared to be the four-year-old child we knew was in this particular 

drug house. He further described how the boy was out onto the front porch looking 

up and down the street. As we discussed the child’s behavior, he came back out onto 

the porch and began looking up and down the street again. Being narcotics officers 

the only explanation we could come up with was the possibility that he was counter 

surveillance and acting as a look out for his parents. With this information, we told 

the SWAT officers to move forward and execute the search warrant, using extreme 

caution. 

After the raid was over, the SWAT team placed several adults into custody and 

removed the four-year-old boy and another eight-year-old girl. During my interview 

with the boy I explained that I was curious why he was dressed in a skeleton outfit, 

standing on his front porch and looking up and down the street so early in the 

morning. His eyes lit up and he got excited as he explained that today was his Halloween party at school. His shoulders then slumped when he went on to tell me that 

he really wanted to go to the party but he hasn’t been able to wake his mom up 

for the last few days and he didn’t know where the bus stop was. He said that he 

thought if he got up early enough in the morning and put his costume on, he could 

just watch up and down the street and catch the bus as it drove by. I couldn’t imagine at that moment that this child could educate me any more until I realized that 

he couldn’t count to ten, but he could draw a picture, in detail, of an entire operational meth lab. To this day, my mind cannot erase the visual this four-year-old 

child left me with. I realized we had a responsibility to identify these children and 

work with other disciplines to meet their needs. Early identification can activate a 

multi-disciplinary response within our communities where all of us must work together as partners to rescue, defend, shelter and support the children. 

19

RESEARCH

In the year 2002 the National Clandestine Laboratory Database reported 8,911 

clandestine laboratory seizures. Over ninety percent of these were methamphetamine production and over 2,078 incidents involved children. First responders and 

children alike are exposed to toxic and hazardous chemical exposure. Many of the 

hazards of this illicit process and the type of exposure have not been studied extensively, and are therefore unknown. According to the El Paso Intelligence Center, the 

increase of methamphetamine production has resulted in at least one methamphetamine laboratory in every state of the union in 2002. In January 2003, National 

Jewish Hospital and Research center began to study the harmful effects of methamphetamine labs to first responders and children through various methodologies, 

including: controlled lab studies, field controlled lab studies and surveys. The study 

expanded its scope throughout the year with results that may impact the way in 

which first responders and investigators perform their duties. Throughout the duration of this study, the spirit of collaboration and cooperation has been a predominant factor. 

The initial study concerns included the potential, exposures, related health concerns, medical monitoring, and the comprehensive use of personal protective equipment. Throughout the study additional questions arose regarding the airborne properties of methamphetamine, the decontamination process and the degree of danger 

to children. 

The standards used for measuring exposure were those utilized for an occupational setting. These guidelines and standards are formulated based on a predominantly male workforce, 20–30 years of age and healthy. These standards are not applicable to children, those with health conditions or pregnant women. To date, there 

are no suitable standards established regarding exposures to children during the 

production of methamphetamine. Therefore, a significant amount of future research 

is still needed in order to accurately determine the degree of dangers to children. 

During the study, a teddy bear was placed in a room where chemists from DEA 

manufactured methamphetamine to determine the amounts a contamination produced. When the teddy bear was tested the results were alarming. The bear tested 

highly positive for methamphetamine and was extremely acidic. The methamphetamine levels on the bear were 3,100 ug/100 cm2 on the outer portion of the sweater 

and 2,100 ug/100 cm2 under the sweater, compared to the ‘‘clean’’ standard in Colorado, used to determine if a residence where a lab was discovered is acceptable for 

re-occupancy, which is .5ug/100 cm2. The pH level of the bear was 1. 

For a full report on the results of the National Jewish Medical and Research 

Methamphetamine Study go to www.nationaldec.org 

CONCLUDING REMARKS

For decades, law enforcement teams across America have been fighting ‘‘the war 

on drugs’’ by arresting those responsible for the use, possession, trafficking and 

manufacturing of illegal substances. However, at no time during these battles did 

we recognize the neglect, the physical, sexual and emotional abuse to include the 

developmental and psychosocial issues our children were suffering at the hands of 

their drug-abusing parents. 

It is most important that we send a clear message to those that chose to endanger 

children: It is never acceptable to expose children to drug environments and drug 

dealing and that there will be an additional price to pay if they do.

Mr. COBLE. Mr. Brownsberger? 

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

Mr. BROWNSBERGER. Thank you, Mr. Chairman. Thank you, Mr. 

Chairman. Thank you, Members of the Committee. 

Mr. COBLE. Mr. Brownsberger, a little closer to you, if you will, 

and activate it. 

Mr. BROWNSBERGER. Let me try that again. Thank you, Mr. 

Chairman. Thank you, Mr. Scott. And thank you, Members of the 

Committee. I appreciate the invitation to be here. 

I’m the father of three daughters, a 10-year-old, a 13-year-old, 

and a 16-year-old, and proud to tell you they’re all growing up 

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sober. I’m a member of the governing board of the community in 

which I reside and I’m committed to addressing the problems of 

youth substance abuse. I’ve been an Assistant Attorney General in 

the Special Investigations and Narcotics Division of the Commonwealth of Massachusetts and there prosecuted drug dealers. I have 

done a good amount of research, and I guess that’s what I owe my 

honor to be here today, is the research I’ve done on school zone sentencing and the profile of anti-drug law enforcement in Massachusetts. 

I’ve also today practice as a defense attorney. I worked a lot in 

drug courts and I know what the damage of drug addiction is, what 

it does to people’s lives, what it does to the lives of families. I’m 

also a defense attorney and I have the occasion to represent drug 

dealers who are charged with violations of these laws. All of these 

experiences have given me insight, and some of that insight may 

be helpful to the Committee. 

The first issue I’d like to speak to is the issue of the geographic 

provisions of this bill, the provisions which would enhance penalties within certain geographic areas. You can call those areas 

drug-free zones. And the bill would expand the radius around 

zones, these zones that are protected, from 100 to 1,000 feet for 

some kinds of facilities, and then it would add a whole lot of new 

facilities in the form of drug treatment facilities, including, by the 

way, take note, individual drug treatment providers. So if a psychologist is providing drug treatment, there will be a 1,000-foot radius around that psychologist’s facility. 

Now, I understand that a lot of what we have to do in making 

legislative policy is to respond to rhetoric and to anecdotes because 

that’s all we have, but this is a case, Mr. Chairman, in which we 

actually have the ability to put some fine numbers on what we’re 

doing here and make a decision based on information. 

I have some slides, which I guess are not available to be up on 

the screens, but the first slide just shows an aerial view of the 

town of—city of New Bedford, Massachusetts. And the second slide 

dots onto that using the geographic information from that community, the schools and parks. The green are the parks and the blue 

are the schools. As you can see, there are a number of them within 

this large downtown area. 

When you put the 1,000-foot radii on them—that’s the third slide 

showing the yellow—that shows the school zones, the drug-free 

zones around these facilities, and as you can see, they cover most 

of the downtown area of that community. Take note to the far left, 

the green plot there is a park and has a relatively small zone 

around it. That’s because it’s a 100-foot zone around parks in Massachusetts, whereas it’s a 1,000-foot zone around schools. That’s 

the way the structure of our law is in Massachusetts. 

Now, you can imagine that if you add drug treatment facilities 

and video arcades and individual psychologists’ offices to this map, 

the whole map will be yellow. That’s a conjecture because we don’t 

have that data. But it would be easy, in fact, for you to acquire 

that data before passing this legislation. It would be easy to identify a number of communities and see how this would actually 

work. But based on my experience, my knowledge of the density of 

these communities, my conjecture would be with a lot of confidence 

21

that every major metropolitan area in this Nation would be yellow, 

would be covered within these drug-free zones. 

So the consequence of that legislation is not to push people away 

from any particular place but simply to multiply the penalties. If 

you wanted, Mr. Chairman, to protect drug treatment facilities, 

you’d be much better advised to use a much narrower radius, for 

example, 100 feet, and then people would know where they needed 

to stay away from. But this legislation will just serve to elevate the 

penalties generally. 

And I hope that’s not the goal of the Committee because I do believe that these penalties are, in fact, high enough, if not too high. 

The impact of these penalties is, in fact, to raise the incarceration 

rate of young African American and Hispanic males. That’s who is 

involved in the drug trade predominately in this country. That is, 

unfortunately, the reality. That’s the color and the ethnicity behind 

that business today, just as every other business commonly may 

have an ethnicity that’s more heavily involved in it. And if we put 

this law in place, you’re just putting more of those young men in 

jail. 

As a defense attorney, it’s been my privilege to get to know some 

of these young men and they’re not the animals that you might 

imagine. We’re characterizing them as drug dealers. We’re caricaturing these people. These are people that just have led into a role 

which they have no concept of what their other options in life are. 

I’ve talked to young defendants who say, well, it was stealing cars, 

robbery, or drugs, and I actually was kind of—I’m not the kind to 

rob people, so I went into drugs. That’s the kind of conversation 

people have. They have no concept of where they can go. 

And so this legislation is damaging legislation and I hope the 

Committee will study it a great deal further before taking any action on it. 

Mr. COBLE. Thank you, Mr. Brownsberger. 

[The prepared statement of Mr. Brownsberger follows:]

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PREPARED STATEMENT OF WILLIAM N. BROWNSBERGER


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ATTACHMENT


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Mr. COBLE. And thanks to each of the witnesses. 

We have been joined, ladies and gentlemen, by the distinguished 

gentleman from California, the distinguished gentleman from Florida, and the distinguished gentleman from Virginia. It’s good to 

have you all with us. 

As I told you all at the outset, we will begin our questioning and 

we comply with the 5-minute rule, as well, so if you all could keep 

your questions terse, we would be appreciative. 

Ms. Avergun, provide the Subcommittee with additional case information, if you will, regarding the hotel fire case involving meth 

cat, sometimes called cat. Was there a sentencing enhancement applied, A, and B, was there a sentencing enhancement available? 

Pull that a little closer to you. 

Ms. AVERGUN. I’ll just keep it on. I can tell you a little bit more 

about that case. In August of 2003, at a family resort, there was 

a fire involving a particular hotel room. The local department responded to the hotel. They discovered the defendant had started 

the fire while manufacturing a substance called methcathanone. 

There was a lab actually in his hotel room. The hotel room—the 

hotel was part of a family resort. There were chemistry books and 

a jar of methcathanone already made. 

The defendant pled guilty in that case. He was sentenced to 151 

months in prison and 3 years supervised release and restitution for 

costs of the fire. The defendant received a significant sentencing 

enhancement due to his criminal history. However, he did not receive any kind of sentencing enhancement due to the fact that he 

had endangered children or families in the hotel room, in the hotel 

where he was. There were no guideline enhancements available because, right now, the law only provides for enhancements for the 

manufacture of methamphetamine or amphetamine. This is a completely different substance. 

And any substance can be—many substances can be produced. 

Synthetic drugs are more prevalent now, and they can all be produced with relative ease by looking up recipes in commonly available places. This—— Mr. COBLE. Okay. I don’t mean to cut you off, but I need to get 

to other witnesses. 

Ms. AVERGUN. That’s okay. 

Mr. COBLE. Thank you. 

Mr. Brooks, drug trafficking, as we all know, is violent business. 

Share with us, if you will, any experience you may have had with 

drug dealers employing violence, that is, that included the possession of firearms to protect the operation, to enforce the collection 

of drug debts, how kids may simply get in the way. 

Mr. BROOKS. Mr. Chairman, I think it goes without saying that 

drug dealing is a violent profession. It’s one where firearms, bulletproof vests, and other methods are readily employed. The biggest 

threat in drug dealing is in turf battles and in the collection of 

debts and in ensuring that people don’t cooperate with law enforcement. That’s frequently done by homicide or other violent means 

and kids do get in the way. 

There is no discrimination against hurting children when there 

is violence in a home. We have had children caught in the crossfire 

of drug turf battles. And I could rely on one of my own personal 

31

experiences. A young gal that I went to high school with, shortly 

after I was a narcotic officer, she had decided to live with a drug 

trafficker. There was a rip-off, a theft at the home. She crawled 

under the mattress as the rip-off was occurring. Three shotgun 

blasts into the bed, killing her. This wasn’t a person that chose to 

live—and she was an adult, she had made her own choice, but it 

wasn’t somebody that had chose to involve themselves in the drug 

trafficking business. That can happen just as easily to any child 

caught in a drug house. 

Mr. COBLE. Thank you, Mr. Brooks. 

Mr. Brownsberger, if I read you correctly, you seem to suggest 

that the goal of school zones is to move the drug dealing somewhere else. Would you not also recognize that the goal is to assure 

that traffickers who do engage, you know, ply their wares in a 

school zone will likely be awarded an active prison sentence? 

Mr. BROWNSBERGER. I’m not sure, Mr. Chairman. I would assume the goal is to protect children. That’s our overall goal, and 

the goal of punishing drug dealers is to keep them from endangering children. 

Now, my work showed that about 80 percent of the cases in 

which the school zone statute was used involved transactions that 

occurred at night, on the weekend, or in the summer. They just 

didn’t have anything to do with children, Mr. Chairman. 

Mr. COBLE. Ms. Moriarty, I think I have time for one quick question. What promoted you to become a member of the Steering Committee of the National Alliance? 

Ms. MORIARTY. When law enforcement started finding the children living in these environments, we realized that we couldn’t do 

it alone, that just removing the children and then placing the caregiver in custody and, you know, holding them accountable for the 

position that they’re putting the children in wasn’t enough. We had 

to actually focus on the child. And so we realized that all of the 

disciplines need to come together—medical, psychological, the social services, just a multitude of multi-disciplines, to actually be 

with the child and take him through the process. 

In Colorado, I can give you an example, we have 68,000 parents 

who are in some kind of treatment. I won’t necessarily say recovery, but in treatment. And of those 68,000, there are 114,000 children. And so somewhere along the line, all of us disciplines need 

to come together to support the children. 

Mr. COBLE. Thank you. I see my red light. 

I want to recognize the gentleman from Virginia. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Ms. Avergun, the DEA is supporting the bill? 

Ms. AVERGUN. The DEA supports certain provisions of the bill, 

yes. 

Mr. SCOTT. And opposes certain provisions of the bill? 

Ms. AVERGUN. We’d like to work with the Committee to fix certain provisions of the bill, yes. 

Mr. SCOTT. Okay. Now, do you know what the prison impact 

would be, what the additional costs in prisons would be? 

Ms. AVERGUN. Mr. Scott, there would probably be some incremental costs which are fixed based on a fixed cost that Bureau of 

Prisons estimates of the costs of incarceration. However, two things 

32

that I would point out. The first is that we don’t anticipate arresting entirely new classes of people as a result of this. These are people who would already be in jail. They are drug trafficking. Drug 

trafficking is already illegal, and much of this bill amends things 

that are already prohibited. 

The second thing I would like——

Mr. SCOTT. Wait. On that point, so you would not be arresting 

any new people, you would just be giving enhanced penalties to 

those who you already would have arrested anyway? 

Ms. AVERGUN. There are some new provisions in this bill. For instance, distributing drugs in the presence of children is a new provision. But by and large——

Mr. SCOTT. You could have gotten them for distribution of the 

drugs, period. If you know they’ve distributed the drugs in front of 

a child, you knew they’d distributed the drugs, so you would have 

gotten them anyway. 

Ms. AVERGUN. Perhaps. 

Mr. SCOTT. Perhaps? 

Ms. AVERGUN. Yes. 

Mr. SCOTT. I mean, can you prove beyond a reasonable—have 

you got evidence beyond a reasonable doubt that they distributed 

drugs and that’s an offense. 

Ms. AVERGUN. That is an offense, depending on the quantity and 

the circumstances and whether law enforcement knew about it. 

But——

Mr. SCOTT. Well, but if you don’t know about it, you wouldn’t 

know about it in front of a child. 

Ms. AVERGUN. That’s true. 

Mr. SCOTT. So you’ve acknowledged that, basically, you’re going 

to be giving enhanced penalties to those you would have arrested 

anyway. My question is, how much more is that going to cost in 

prisons? 

Ms. AVERGUN. I don’t think that the incremental costs are that 

great. Those are fixed costs as estimated by the Bureau of Prisons. 

But I would like to add——

Mr. SCOTT. Wait. Are they going to be in prison longer? 

Ms. AVERGUN. May I finish my point? The costs to society for not 

incarcerating these people for longer sentences are far greater than 

the costs that it would impose on society for keeping them in jail 

for incrementally longer terms. 

Mr. SCOTT. So I understand your answer to be, you don’t know 

how much more we’re going to be spending in prisons if the bill 

passes? 

Ms. AVERGUN. I don’t have the exact number, but that is a number that the Bureau of Prisons has estimated across the board. 

Mr. SCOTT. What number? 

Ms. AVERGUN. The amount that it costs, the cost of incarceration 

in a Federal prison across the board. 

Mr. SCOTT. How much more would the implementation—if we 

passed the bill, how much more are we going to be on the hook for, 

do you know? 

Ms. AVERGUN. No, I don’t. 

Mr. SCOTT. Does it matter? 

33

Ms. AVERGUN. Yes, it matters, but we have to weigh the costs to 

society of not protecting—— Mr. SCOTT. Well, actually, we have to weigh the costs in spending it somewhere else, because all of the studies that we’ve seen 

have shown that if you put the money in prevention, you’ll have 

less drug use going on and society will be better off than if you just 

increase the penalty for others. So we’ve got to know what our 

choices are. 

Ms. AVERGUN. I don’t think that in passing this bill or enacting 

legislation that imposes additional penalties that that vitiates any 

efforts or any spending that the Government does on prevention or 

treatment. There are three parts to the President’s National Drug 

Control Strategy, each an equal part. 

Mr. SCOTT. Well, let me ask you, on that hotel case that you were 

talking about, what penalties were available to law enforcement for 

the people you caught? 

Ms. AVERGUN. The defendant received a sentence of 151 months 

based largely on his criminal history. 

Mr. SCOTT. And how much would he get if this bill had passed? 

Ms. AVERGUN. I don’t know the quantities of the drugs involved. 

That would determine largely the amount of the sentence. 

Mr. SCOTT. Well, he would have gotten 15 years under present 

law. 

Ms. AVERGUN. He got 151 months, yes. 

Mr. SCOTT. There’s a provision in here, misprision of a felony, 

where you don’t report a felony and you go to jail for it. That would 

include parents not turning in the children, if the children had purchased the drugs, they would be also guilty of a crime and they 

would be turned in with the rest. Has that ever been—that’s 

present law. 

Ms. AVERGUN. There is a crime called misprision of a felony and 

the section that you’re referring to, 2(m), is one of those that the 

Department has concerns with and that we seek to work with the 

Committee to address. 

Mr. SCOTT. Okay. Well, my time is just about up, Mr. Chairman. 

Mr. COBLE. If time permits, we may have a second round, as 

well. 

In order of their appearance, I recognize the gentleman from 

Texas, the distinguished gentleman from Texas, Mr. Gohmert, for 

5 minutes. 

Mr. GOHMERT. Well, thanks, Mr. Chairman, and I appreciate not 

only being considered a gentleman but being considered distinguished. That was distinguished and not ex, wasn’t it? I wasn’t 

sure. 

Mr. COBLE. If the gentleman will suspend, I even recognize myself that way sometimes, Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

Just curious, are they still using pseudoephedrine in the cooks 

for meth? Anybody? 

Ms. AVERGUN. Yes, sir. 

Mr. GOHMERT. Okay. I was hoping they’d found another way, because pseudoephedrine keeps me from snoring at night and it’s 

harder and harder to get, but anyway, with regard to the drug 

treatment facilities and schools provision, I realize the importance 

34

of protecting our children, the importance of drug-free zones, just 

like the importance of gun-free zones to protect our children. Let 

me direct this to Ms. Avergun. 

You obviously are familiar, I’m sure, with the Supreme Court 

case of Lopez where the U.S. Supreme Court struck down the Federal gun-free zone around the school and said that that’s the State 

right. The Feds don’t have a right to come in. That’s State law. 

And, of course, understanding that with this Supreme Court that 

they have shown that they routinely may vote for something before 

they vote against it, or vote against it before they turn around and 

vote for it, they have a real problem with precedent, including their 

own precedent—a little editorial comment there—but I’m curious. 

Do you see or even anticipate any Lopez-type problems with a 

drug-free zone around the school or a drug treatment facility? 

Ms. AVERGUN. I regret to tell you that I’m not familiar enough 

with the Lopez case and haven’t performed an analysis of the statute vis-a`-vis Lopez, but I would be happy to get back to you and 

provide our position on that. 

Mr. GOHMERT. Well, I’d be very curious about your position. 

When we’re talking about cost and passing a law like this, we don’t 

want to be just spinning our wheels, so I’d be very curious to see 

if you feel there’s sufficient Federal nexus. 

With regard to comments about drug treatment and saving 

money from people being incarcerated, you folks have obviously a 

tremendous amount of experience, and we appreciate all your testimony. My own experience from handling thousands of criminal 

cases as a judge showed me that, if you just lock somebody up 

without any treatment and they have a drug problem or alcohol 

problem, you’re going to probably see them again—some judge I am 

if I didn’t. If you just treat somebody in a 30-day program, somebody was 99 percent likely to see them again as a judge, even up 

to 120 days. 

It seemed that the most effective way to avoid my having to resentence somebody that I sentenced once, it was to make sure they 

were locked down for an extended period of time and forced to deal 

with their drug or alcohol problem. It seemed to me that the combination of those two working together were the best things we 

could do to ensure, number one, protection of society, children, and 

others being lured into that kind of life, and also punishment. You 

know the scenario. 

But does anybody have any statistical evidence regarding these 

things we’ve been talking about to show that, in your opinion, or 

in your opinion, they justify not having incarceration in conjunction 

with drug treatment or having incarceration with drug treatment? 

Does anybody have any statistical evidence? I know we’ve been 

talking a lot about anecdotal evidence that each of you have. 

Mr. BROWNSBERGER. Mr. Gohmert, there’s good statistical evidence showing the relative cost effectiveness of a dollar spent on 

treatment as compared to a dollar spent on incarceration. Is that 

responsive to your question? 

Mr. GOHMERT. No. 

Mr. BROWNSBERGER. I’m sorry. Then maybe I’m not understanding the question well enough, then. 

35

Mr. GOHMERT. Okay, thank you. But with regard to the number 

of people who are sent to incarceration and have drug treatment 

compared to the recidivism rate of someone who simply gets treatment, because what you’re talking about is different. 

Mr. BROOKS. I don’t have all of the—probably the level of statistics that you would like, but I could tell you overall that effective 

treatment programs are effective at the rate of about 55 percent. 

Those treatment programs that we have seen to be most effective 

are those administered by the drug courts that use sanctions, graduated sanctions, to keep their people in treatment, to incentive 

treatment, and when they use the power of the bench to do so. 

And so we think—my organization thinks this bill is particularly 

important for that regard, but it’s also important for another reason, and it’s a little hard to put a dollar figure on it, and that reason is that we use these tools, then, to try to compel people to cooperate with law enforcement, to try to then allow us to reach up 

into these organizations, very complex, multi-State, multi-national 

organizations that, quite frankly, even though it’s a seedy side of 

law enforcement, the use of informants, if we didn’t have the tough 

Federal incentive to compel these informants, we would not reach 

in and break drug dealing organizations. 

When you go after the targets of opportunity on the street, you’re 

cleaning up a street corner. But if you’re going to really have an 

impact, in my 30 years of experience in drug enforcement, the way 

to truly have an impact is to hit the organizations, and to hit the 

organizations, you need information, and to get the information, 

you need the incentive. 

Mr. GOHMERT. Carrot and a stick. 

Mr. BROOKS. That’s correct, sir. 

Mr. GOHMERT. Okay. Thank you very much, Mr. Chairman. 

Mr. COBLE. The gentleman’s time has expired. I thank the gentleman. 

The gentlelady from California, the distinguished Ms. Waters, for 

5 minutes. 

Ms. WATERS. Mr. Chairman and Members, I came in a little late, 

but I rushed to get here because I think this is such an important 

subject that we’re dealing with here today. I think all Members of 

this Committee, both sides of the aisle, are more than frustrated 

with the level of drug activity and the lack of effectiveness of our 

laws and our policies as they relate to drugs, those who abuse 

drugs, and those who sell drugs. 

I would like very much to be able to join with my colleagues in 

limiting as much as we possibly can the sale of drugs near drug 

treatment centers, the exploitation of children, and the sale and 

transport of drugs, et cetera, et cetera. However, I think we may 

be mixing apples and oranges here as we deal with this issue. 

There needs to be, I suppose, a lot more discussion about mandatory minimum sentencing and the fact that mandatory minimum 

sentencing has proven to be just a terribly ineffective way of dealing with the violation of drug laws. 

We in California, I suppose in other places around the country, 

are involved with drug courts and they are proving to be extremely 

effective. We have learned that with mandatory minimum sentencing, we find a lot of low-level drug dealers, young people who 

36

are not criminals, they’re just stupid, and they think they’re going 

to make some money dealing in a few rock crack cocaines. They 

end up in prison because the judges have no discretion, can’t take 

into consideration first-time offense, can’t divert them from the 

criminal justice system, cannot do anything to make sure that 

these young people don’t become real drug dealers. And so this bill 

that we are discussing does not appear to take all of this into consideration. 

Having said all of that, too, I suppose it’s Ms. Avergun, in your 

written testimony, you stated that mandatory minimum sentences 

provide a level of uniformity and predictability in sentencing. Given 

what I’ve said, I want to address you and ask, is this what we really want in our sentencing policies? Doesn’t uniformity and predictability impede on the role of the judge? Isn’t it the judge’s role to 

serve as a disinterested enforcer of justice, who at his discretion 

can consider mitigating circumstances and determine—determining 

the appropriate sentencing for defendants? We’ve heard from a lot 

of judges. They don’t like mandatory minimum sentencing. 

And don’t you think we should be involved in prevention and diverting people away from the criminal justice system, first-time offenders, young, 19 years old, first mistake, five grams of crack cocaine? Why do they deserve to have 5 years mandatory minimum 

sentence in a Federal penitentiary where they’ll be thrown in with 

hard-core traffickers who probably will certainly divert them to 

being involved in drugs? Can you give me some insight on why—— Mr. COBLE. The gentlelady’s time has expired, but you may answer the question. 

Ms. AVERGUN. Thank you, Mr. Chairman. Ms. Waters, thank you 

very much for your question. There are situations where drug 

treatment is more appropriate than incarceration, and Mr. Brooks 

has testified that a combination of sanction-based demand reduction, that’s what we call it in the Department, coupled with the 

threat of incarceration is one effective way to go. 

However, mandatory minimums do provide uniformity. There are 

studies, one recently cited by Judge Cassell in the Wilson case, that 

said that there are a variety of studies that suggest that a drop in 

crime rate is attributable to mandatory minimums, and the Department of Justice abides by that—by those studies. That is a critical part of drug enforcement, and, in the drug cases, the Department of Justice believes that mandatory minimums are appropriate. 

That’s not to say that judges should never have discretion. That’s 

not to say that treatment and prevention are not both critical components of the drug control strategy of which drug enforcement is 

the third part. But all play a part. In the majority of cases, the Department of Justice does believe, however, that mandatory minimums are appropriate and there are studies that suggest that they 

do deter crime. 

Ms. WATERS. Thank you, Mr. Chairman. I’d like to see those 

studies, if we could have a formal request for them. 

Mr. COBLE. Ms. Avergun, can you respond to that and make that 

information available to the Subcommittee? 

Ms. AVERGUN. I certainly can. 

Mr. COBLE. I appreciate that. 

37

The distinguished gentleman from Virginia, Mr. Forbes, is recognized for 5 minutes. 

Mr. FORBES. No questions. 

Mr. COBLE. The distinguished gentleman from Massachusetts is 

recognized, Mr. Delahunt. 

Mr. DELAHUNT. I’ll just pick up on my colleague from California. 

You know, that there are, I would suggest, Ms. Avergun, that there 

are more studies, of a substantial order of magnitude, that indicate 

that the relationship between minimum mandatories and their efficacy in terms of dealing with the drug issue is probably negative. 

You know, I think that most people on this panel would seriously 

consider supporting this legislation but for, you know, implicating 

into this—excuse me, Mr. Ranking Member, except implicating 

minimum mandatory sentencing. You know, this Committee is 

going to have to deal, you know, at some point in time with the 

whole issue of sentencing guidelines. You know, a good prosecutor 

is able to target, you know, those at the upper level, if you will, 

in terms of a drug syndicate. A good police officer knows who the 

individual is and in terms of presenting a sentencing report that 

the vast majority of judges would comply with and accept. It’s just 

part of the job. 

You know, I just think it’s unfortunate, you know, and I think 

that there’s going to come a point in time when it will be opportune 

to take a look and see what’s happened in the aftermath of Booker.

That will give us some idea in terms of the guidelines. But, to shift 

everything now into minimum mandatories, I just don’t think it’s 

practical. I just really don’t think it makes a lot of sense and 

doesn’t get us anywhere in what I think is an objective that we all 

share. 

So, you know, I think that’s a message you can take back. I 

mean, at some point in time, Congress is going to be faced, too, I 

presume, with a request for more monies for the war on drugs as 

it is defined in Plan Colombia. What are we seeing in the—let me 

address this probably to Officer Brooks. How many addicts do we 

have in the country today, hard-core addicts that are responsible 

for a disproportionate number—how many hard-core addicts——

Mr. BROOKS. You know, when I was 40, I knew the answer to 

that question, but somehow after I turned 50, it’s somewhere up in 

the recesses here, but I can’t tell you. 

Mr. DELAHUNT. Mr. Brownsberger? 

Mr. BROWNSBERGER. The truth is that no one knows because this 

is a hidden behavior and it depends on the model that one chooses 

and there are parameters in that model that are very hard to estimate. But the numbers that we’ve seen are anywhere between two 

and six million. 

Mr. DELAHUNT. Okay. I want to—I think we all want results, 

whatever the mechanism is, and I think it’s really important that 

the Department of Justice, working with academia, give us an idea 

before we continue to spend a lot of money in a wasteful way. Are 

we making a difference in terms of reducing the number of addicts 

in this country? 

I agree with you, Mr. Brooks. I mean, I think I have, and I would 

hope at some point in time to convince the Chairman to come to 

Cape Cod, probably around the summertime, and sit and observe 

38

a drug court that we have there and a treatment center that we 

have there that is incredibly effective. We know the answers at this 

point in time. But you know, we need—we need some accurate data 

and empirical information, because we can’t keep pouring money 

into initiatives that will not end up—will not allow us to sufficiently gauge whether we’re winning. We don’t know whether we’re 

winning. 

But I’m going to start asking that question on every dollar that 

we spend in terms of—on both sides of the equation, both the supply and the demand reduction side. We’re going to start to need 

some good statistics. My memory was three million. Maybe it’s just 

cocaine addicts. But, you know, we need to know that. We need to 

have benchmarks. And if we start to see a reduction in the number 

of addicts, we’re going to see, I dare say, a huge reduction in terms 

of the incidence of drug-related crime. 

Mr. COBLE. I thank the gentleman, and I thank you for your invitation to go to Cape Cod, Bill. I’ll talk to you about that later. 

Folks, with the indulgence of the witnesses and the indulgence 

of my members, let me make this proposal. We have two bills to 

mark up today and a reporting quorum is nine warm bodies. We 

have those nine. Often times, it’s easier to get into Fort Knox than 

it is to get a working quorum—a reporting quorum here, so if no 

one objects, I want to go ahead and mark these two bills up while 

we have the nine members here, and then we’ll get back to the witnesses. 

Mr. LUNGREN. Mr. Chairman, reserving the right to object? 

Mr. COBLE. The gentleman is recognized. 

Mr. LUNGREN. Mr. Chairman, I reserve the right to object only 

to suggest that I understand what the Chairman is going to do. 

But with my experience both as Attorney General of the State of 

California, serving on the national commission established by the 

first President Bush on model State drug laws, and having, in my 

position as Attorney General, run the Bureau of Narcotics Enforcement of the State of California, I feel inadequately prepared to vote 

on the bill today. So I’m just telling the Chairman that I would 

have some difficulty on this. 

The Chairman must proceed as he must proceed. But frankly, 

Mr. Chairman, when Mr. Brooks, who used to be one of my top 

agents, testifies that the most effective thing we have done in California is with drug courts and I’m being asked to vote on a bill that 

largely occupies the field with no reference to the Federal courts 

for drug courts, I, frankly, have grave difficulty doing that. 

So with that, I’ll be happy to——

Mr. COBLE. The gentleman from——

Mr. LUNGREN. I’ll be happy to yield. 

Mr. COBLE. Mr. Lungren, I will—let me float this out. You are 

referring, I presume, to the bill before us now, 1528. 

Mr. LUNGREN. Yes, sir, I am. 

Mr. COBLE. All right. We also have scheduled to mark up the 

gang bill. Do you have any problem with that, Mr. Lungren? 

Mr. LUNGREN. I do not have——

Mr. COBLE. Or does anyone have any problems with that? All 

right, why don’t we move——

39

Mr. SCOTT. I have problems with it, but I don’t know if——

[Laughter.] 

Mr. COBLE. And by the way, and this is a pertinent point that 

I failed to mention, I am told that there are no amendments to be 

submitted to either of these bills. Otherwise, I wouldn’t have done 

this. 

Well, let’s move along, then, on the gang bill, and we will hold 

the bill before us, and I thank you, Mr. Lungren, for your comments. 

[Whereupon, the Subcommittee proceeded to other business.] 

[Hearing resumed after markup of H.R. 1528.] 

Mr. COBLE. We can now return to business at hand and the gentleman from Florida, Mr. Keller, is recognized for 5 minutes. 

Mr. KELLER. Thank you, Mr. Chairman. I have no questions. 

Mr. COBLE. The gentleman from Ohio, Mr. Chabot. 

Mr. CHABOT. Thank you, Mr. Chairman. I’ll be brief, and I want 

to apologize to the panel for just arriving from my district a little 

while ago. I will review the testimony in full. I just have one question for Ms. Avergun, if I could. 

We’ve heard a great deal about sentencing guidelines, but in 

terms of deterring drug trafficking and distribution, in your opinion, do you believe the mandatory minimums included in H.R. 1528 

will be more effective than the sentencing guidelines, and if so, 

why? 

Ms. AVERGUN. Thank you, Representative Chabot. The Department of Justice is happy to use all the tools in its arsenal to deter 

crime. Mandatory minimums deter crime and the guidelines, advisory though they are, deter crime. The threat of high sentences 

causes people to cooperate. There is no two ways about it. I was 

a line prosecutor for 12 years in New York and the threat of both 

the high guideline sentences and the mandatory minimums are 

what worked for a prosecutor. So there is no either/or here. They 

are both critical tools in a prosecutor’s arsenal. 

Mr. CHABOT. Thank you very much. I have no further questions, 

Mr. Chairman. 

Mr. COBLE. I thank the gentleman. 

The gentleman from California, Mr.—oh, I haven’t recognized 

you, Dan? I’m sorry. The gentleman from California is recognized 

for 5 minutes. 

Mr. LUNGREN. Thank you, Mr. Chairman. First of all, I want to 

welcome all the panelists here, particularly Mr. Brooks, with whom 

I had a working relationship for 8 years and who’s an outstanding 

member of the Bureau of Narcotics Enforcement in the State of 

California and was involved in many different law enforcement enterprises and is very knowledgeable on this subject. 

I happen to agree with him that we have an effective means by 

which we deal with a significant number of people that we find 

who are violating our drug laws, and that’s the drug courts. I was 

one of those who was not in support of drug courts initially, but 

after reviewing them and seeing their successes and personally visiting a number of drug courts in California, I’m convinced of their 

utility. And I have some concern about the bill that’s before us because I don’t understand, frankly, how the drug court proposition 

40

fits into the Federal model currently, and maybe the representative 

from DEA could give me some advice on that. 

Ms. AVERGUN. I don’t think that we read this bill to preclude or 

exclude the applicability of drug courts. Drug courts are generally 

for users, people who need treatment—— Mr. LUNGREN. I understand that, but what I’m asking you is, do 

we have drug courts on the Federal level? 

Ms. AVERGUN. There certainly are drug courts on the Federal 

level. There is sanction-based demand reduction as a critical component of the Federal drug strategy. 

Mr. LUNGREN. And are the Federal drug courts available 

throughout the United States? 

Ms. AVERGUN. I don’t have an exact number of where they are 

available, but they are available throughout the country. I just 

couldn’t tell you in which Federal districts they are currently available. 

Mr. LUNGREN. Okay. Mr. Brownsberger, as I understand it from 

the map that you’ve shown us, virtually that entire community 

would be covered if we extended it 1,000 feet, that is, locating 

schools, parks, and treatment centers. 

Mr. BROWNSBERGER. Yes. 

Mr. LUNGREN. My question to you is, do you find a utility in us 

having at least some measure of additional penalty, and therefore 

deterrent, around such places as parks, schools, and treatment centers? 

Mr. BROWNSBERGER. I think it makes sense, but it has to be at 

a much narrower radius. 

Mr. LUNGREN. What would you suggest? You said you don’t agree 

with 1,000. 

Mr. BROWNSBERGER. A hundred feet would be reasonable. That’s 

a——

Mr. LUNGREN. What would that take us in terms of blocks? 

Mr. BROWNSBERGER. Half a block, a block. It depends on the size 

of the block. But that’s sort of the area—that would keep people 

well off the premises. That would be a meaningful deterrent for 

preying on the people involved in those institutions. 

Mr. LUNGREN. Well, if we’re talking about schools, we’re talking 

about—or parks, we’re talking about young people not only there 

but close to there, that is, on their way to and from. Does 100 feet 

make more sense than 1,000 feet if what we’re trying to do is protect our children? 

Mr. BROWNSBERGER. It does, because 1,000 feet—this is just the 

schools. It doesn’t include all those other things on that laundry 

list. But that covers most of the community. So the effect of 1,000 

feet is to create the whole world as a drug-free zone, and, therefore, 

you’re not giving any particular protection to your children. Your 

goal is to give particular protection to children, as I understand it. 

Mr. LUNGREN. Okay. Let me ask Commander Moriarty on that. 

Is there something in the notion that we should give enhanced protection to children by designating certain zones in communities 

that will allow us to give them additional protection by virtue of 

our definition, or would you support such a broad scope that an entire community would be covered, as is suggested by Mr. 

Brownsberger? 

41

Ms. MORIARTY. Well, I think he’s right when he states that the 

goal is to protect the children in the areas of the schools and the 

drug treatment facilities, and so, when we are doing our enforcement, it’s actually more of an enhancement for the penalties to actually meet some of the sentencing enhancements to put some of 

the people in jail that we’re using it for. 

Mr. LUNGREN. Right, but what I’m asking you, conceptually, do 

you think that’s a good notion? Is that a good enforcement tool that 

you do have certain defined areas you’re telling the drug dealers 

to stay out of? 

Ms. MORIARTY. I do. I do believe that that’s important. I don’t 

know that 100 feet is enough—— Mr. LUNGREN. What if you have 1,000 feet and by application of 

the map——

Ms. MORIARTY. Then you have everything——

Mr. LUNGREN.—it covers everything. Does that defeat the proposition or do you think that still is worthy? I’m trying to figure this 

out and I’m trying to ask your help, because you’re there doing it 

all the time. 

Ms. MORIARTY. Well, sir, I can only answer that when we are 

within 1,000 feet of a school, it is a deterrence because the children 

are walking up and down that area. I mean, I see what we’re saying as far as then the whole entire neighborhood becomes, or the 

whole city becomes covered under his map. But it is a tool that we 

use to keep people off of the property, and I do believe it is a deterrence. 

Mr. LUNGREN. What do you think about drug courts? 

Ms. MORIARTY. I think drug courts are an exceptional option. 

Mr. LUNGREN. I don’t know what that means. Does that mean 

good or bad? 

Ms. MORIARTY. Good. In the State level for us in Colorado, I 

mean, there are times when we go into Federal sentencing, but 

more so when we get a chance to stay State and local, drug courts 

are a huge part of what the National Alliance is because it eventually can help the user and maybe bring the families back together. 

Mr. LUNGREN. This bill has a mandatory minimum life sentence 

for someone who is over 21 convicted on the second time of dealing 

drugs to someone under 18, mandatory minimum life sentence. Ms. 

Avergun, is that appropriate? Would that help or not help us in our 

ratcheting up? I’m one of those who wants to ratchet up, but I want 

to know how far I should ratchet up. 

Ms. AVERGUN. I think it depends on a case-by-case basis whether 

it’s appropriate. 

Mr. LUNGREN. Mr. Brooks? 

Mr. BROOKS. I also agree, it is very appropriate in some instances where the person, where these drug dealers are extremely 

predatory and where they have a history of being predators, of 

using juveniles to facilitate, to be lookouts, to be sellers, putting 

them in harm’s way, taking advantage of their vulnerability, their 

lack of sophistication, their lack of maturity. And so I think that’s 

a decision for the prosecutor and the courts to decide when it’s appropriate, and law enforcement, I also think it helps us. 

Thinking back to many cases we did when I worked for you, 

where we used the threat of Federal sanctions, the threat of the 

42

tough penalties that we can impose if the case were filed federally, 

to then get cooperation, to develop informants, to get people to 

enter into pleas and to really be effective, it’s a great tool for us. 

There are studies in California and New Jersey that have shown 

that 76 percent of the kids that choose not to use drugs consider 

as part of that choice the fact that there are tough drug laws and 

tough sanctions. When they look at that, I mean, having drug laws 

aren’t going to keep people from using drugs that are going to use 

drugs anyway, but they may help make people make good choices, 

those people that are willing to weigh their decision. So I think it 

is appropriate to have those sanctions available. 

Mr. LUNGREN. Mr. Brownsberger? 

Mr. BROWNSBERGER. Mr. Lungren, thank you. I just wanted to 

add a little bit on that notion of 100 feet. These laws say 100 feet 

from the real property comprising the school, where comprise 

means enclosing the school. So you have a property in which 

there’s a school sitting. Sitting 100 feet off of that property is pushing people off of all of the streets that surround that property. So 

100 feet from the real property comprising the institution really 

does set people back quite a ways. 

Ms. AVERGUN. May I supplement my answer on the drug courts? 

We were able to gather something quickly. There is one drug court 

in the Federal system. It is largely a State court product. However, 

there are 1,600 federally-funded drug courts. So the Federal involvement is on the funding level rather than on the option for incarceration—— Mr. LUNGREN. No, I understand that. My concern is if I am here 

as a legislator making a decision as to what I’m going to tell the 

courts to do and this is in the Federal system and in the Federal 

system, I’m saying to the judge, there is one or two things you can 

do, but we don’t have a Federal drug court, I don’t know how I 

work that out, how I transfer that court to State and have them 

work it out. 

Ms. AVERGUN. That can be done. In many instances, the Drug 

Enforcement Administration, for instance, works with State or Federal prosecutors. It’s a matter up to the agency as to which way 

they steer their cases. If a case is more appropriate once it’s in 

Federal court, there are mechanisms to dismiss a complaint in 

favor of a drug court option. 

Mr. LUNGREN. Would you object to us having more Federal drug 

courts? If we were to raise these penalties but at the same time 

have an option under certain circumstances that you could have a 

drug court option, would you object to that? 

Ms. AVERGUN. I don’t think that anybody objects to the concept 

of drug courts. They are proven. I think that they are good for a 

limited class of people——

Mr. LUNGREN. Right. 

Ms. AVERGUN.—most of whom are not targeted under this statute. This statute is really targeting those who violate our kids and 

who prey on our kids. 

Mr. LUNGREN. Thank you. 

Mr. COBLE. The gentleman’s time has expired, and I recognize 

Ms. Sheila Jackson Lee, the distinguished lady from Texas. And 

after her questioning, then we will go for a second round, if there 

43

are other questions that need to be put to the panel. So the 

gentlelady from Texas, you are recognized for 5 minutes. 

Ms. JACKSON LEE. I thank the Chairman very much for his charity and I apologize for being in another meeting or discussion dealing with our position in Iraq. I thank the Ranking Member, as 

well. 

Let me—I was listening to my colleague from California raise a 

question of, I think I heard, unreadiness. I don’t want to put any 

words in his mouth. I know that there is a degree of unreadiness 

certainly on my part on this—on several issues, and I know that 

we’ve already marked up the legislation dealing with the gang deterrence. Let me speak generally, Mr. Chairman, about these. I 

have amendments, but we may have to look toward doing these either tomorrow or on the floor. 

I have supported mandatory minimums in the past on certain 

heinous and horrific acts against children. At the same time, I am 

cautious about the implementation of mandatory minimums by 

statute inasmuch as it does not allow the discretion that I think 

is appropriate to a court. It’s unfortunate when the Supreme Court 

has questioned the mandatory minimums, which I find really wear 

out their welcome on non-violent criminals after a period of time, 

because after a period of time on non-violent criminals, all you do 

when you go to the Federal prisons is see individuals on 10-, 15-

, 25-, 30-year sentencing based upon an action they did when they 

were 20 and they’re now 35, 45, 55. They’re filling up beds when 

they could be with their family, be rehabilitated. And so mandatory 

minimums does not cause me a great deal of excitement. 

I think when we started looking at the methamphetamine issue 

and we were trying to clean that up in certain regions, it certainly 

gives us a reason to deal with that in a legislative manner. 

What I see here, however, gives me pause because seemingly, 

what it does is if two individuals in a non-violent manner are engaging in some sort of drug trade, no matter how small it is, they 

wind up in a Federal system and under a mandatory minimum. 

And to me, that seems to be unreasonable inasmuch as we’ve seen 

crime go down. It does not respond to those who are really addicted, both the seller and the buyer, because the seller can be addicted, too, seeking to get some money. It has a heavy burden on 

minorities, particularly African Americans. We still have not cured, 

I think, the disease of incarcerating more African Americans than 

others as it relates to drug offenses, particularly under crack, and 

that’s still the drug of proliferation. 

I don’t see the rush to go forward with this without—and I heard 

my colleague talk about Federal drug courts. I don’t think we have 

any. I do know that in the Southern District, for example, the Federal court system is completely overloaded with immigration cases 

and criminal cases so that the civil cases in the Federal system 

cannot even get inside the courtroom door beyond four, five, or six 

years. 

Crime, as I understand it, has gone down. But treatment beds 

have gone down, as well. So, we’re not curing the problem. And we 

have legislation here that now adds an additional Congressional—

excuse me, criminal parameter, and, therefore, does not, to me, answer the solution. 

44

I’m going to go back with Mr. Brownsberger. You were showing 

us the geographics. I’m raising some points that probably have 

been raised by my colleagues already, and I apologize, but I really 

want you to pinpoint the issue of a problem and then a solution. 

Are we at such a heightened problem that the legislation that is 

before us really answers the concern, or by passing the legislation, 

are we now creating enhanced offenses and then more incarceration and really not getting to the problem? Are we so devastated 

by individual drug dealers on street corners attempting to influence 

either those leaving a drug location or a treatment center or school 

that we need to put this heavy-handed legislation in place? 

Mr. BROWNSBERGER. Thank you, Representative Lee. In my view, 

the law is very heavy already. We have very, very heavy penalties 

already. You have a lot of people spending a long time in jail. We 

have to remember that these are children. We’re talking about protecting children, but a lot of these young men are children when 

they get into this trouble. They are 16, 17, 18, 19 years old. They 

are children still. And so the law is already heavy-handed enough. 

That’s my general view. 

I’ve allowed as much as to say that if you targeted narrowly certain facilities, perhaps you could address a problem. I do believe it’s 

a problem, the problem of drug dealers coming on the premises of 

methadone maintenance facilities, in particular. That’s an issue. 

By the way, I’d like to say, if the Committee were to go in this 

direction of passing this bill, it would have to dramatically narrow 

the definition of facilities involved. The definition of facilities here 

would include individual providers. It would be very hard to identify those and for anybody to know that they were anywhere near 

a psychologist’s office who was providing drug treatment. So it 

wouldn’t really have any benefit in that context. 

But a methadone maintenance facility, that’s something you have 

people lining up outside. That’s something you might want to keep 

people away from. That’s a reasonable thing to try to do. 

I don’t want to suggest that this is necessary to do that, though. 

I do believe that the task of enforcement is the task that people 

face and the laws are already heavy enough. They have mandatory 

minimums. They have heavy penalties and they can put these people in jail. The challenge is to put the police resources in place to 

move people away from those facilities. And I think, if you don’t 

put those police resources in place, then you’re just putting laws on 

the books. You’re not actually doing anything. So, I think it’s really 

a question of having the police resources in place to protect those 

facilities as opposed to locking people up for a longer period of time. 

Ms. JACKSON LEE. May I, Mr. Chairman? Ms. Avergun, why 

don’t you respond to that. Isn’t it more reasonable, what Mr. 

Brownsberger has just said? It makes common sense to me. Enforcement is really the issue. What you’re doing is, and you’ve got 

some outstanding staff persons down in Texas that I work with all 

the time. Let me applaud them, the DEA unit that’s down in Houston, Texas, in particular. And they’ve got a big job. They’re dealing 

with smugglers coming across the border. They’re dealing with 

drug cartels, really major issues, and, of course, certainly they’re 

dealing with sometimes street crime. 

45

But, the point is, wouldn’t it be more effective to give the resources to local law enforcement so that they know who is scouting 

out the methadone clinic, who is scouting out the school, as opposed to hampering us again with more time, more incarceration, 

and more one-time petty criminals selling whatever ounce it is and 

then they’re locked up in the Federal system, which burdens the 

Federal system and allows them to be there for 30, 40 years? 

Ms. AVERGUN. Certainly, more resources to the State and locals 

would be welcome to police these kinds of crimes. These people 

need our protection. But again, it’s not an either/or proposition. 

There are cases where people prey on people coming out of clinics. 

It’s not just a one-time deal. And, for those types of cases where 

we are dealing with organizational targets or higher-level suppliers 

who are taking the most opportunity of the most vulnerable victims, then that would be an appropriate Federal resource and appropriate use of the statute. 

But it’s not that we only have mandatory minimums and we target the one-time seller. It is a spectrum, a broad array of enforcement options starting from State and local resources up to careful 

targeting at the Federal level. But we do feel that these tools are 

needed in our arsenal. 

Ms. JACKSON LEE. I don’t think we’ve changed any of our drug 

laws over the past 20 years, and my understanding is that we really have a sufficient series of mandatory minimums on drug laws. 

In fact, we have, a number of us for a number of years, have been 

trying to bring equity to the mandatory minimums between cocaine 

and crack. That has not changed. So, apparently, these strictures 

are still in place. I can’t imagine that they cannot be utilized for 

an indictment against those who would be part of a cartel. First 

of all, you have conspiracy, the ability for conspiracy. 

You are going to wind up roping in, looping in addicted persons 

who need treatment as well as the one-times along with the two 

times and the three times, and these persons are known to be either with no alternative, which I’m not giving as an unilateral excuse, but no alternatives in areas where the educational system is 

at a near collapse, that these young people are out on the streets 

with no educational resources and background and left to their own 

devices. That’s what we should be looking at and funding, alternatives to—or as opposed to what we’re talking about today. 

Mr. COBLE. The gentlelady’s time has expired. 

Ms. JACKSON LEE. I yield back. Thank you. 

Mr. COBLE. Ladies and gentlemen, let me divert one more time. 

[Whereupon, the Committee proceeded to other business.] 

[Hearing resumed for second round of questions, after markup of 

H.R. 1279.] 

Mr. COBLE. Now we will return to regular order at the bill at 

hand. Folks, we’re going to start a second round. I notice that 

Mr.—well, Mr. Green has already gone. Mr. Scott, why don’t you 

start on our second round. 

Mr. SCOTT. Thank you. 

Mr. COBLE. And let me ask the Members, folks, if you will, try 

to adhere to the 5-minute rule because we’ve kept our witnesses 

here probably longer than they expected, but it’s still good to have 

you. 

46

Mr. Scott? 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Brownsberger, you had said that you had some numbers on 

relative cost effectiveness of investing in—the little money we have 

with the result of reducing drug use. Do you want to just quickly 

recite some of those numbers? 

Mr. BROWNSBERGER. Yes. There’s a study that was—— Mr. SCOTT. Just in general. 

Mr. BROWNSBERGER. Thank you. There’s a study that was done 

by Carnegie Mellon—actually, I guess it was by Rand, Jonathan 

Calkins, Peter Reuter, a quantitative study that came out several 

years ago that made an estimate of the quantitative reduction in 

drug use associated with a million dollars spent on incarceration, 

a million dollars spent on treatment and so forth, and the ratio of 

benefits was about 7 to 1, as I recall, the treatment benefits to the 

incarceration benefits. 

Mr. SCOTT. And mandatory minimums came in last place in that 

study? 

Mr. BROWNSBERGER. Well, that’s right, mandatory minimums 

that cause incarceration. 

Mr. SCOTT. You said mandatory minimums was the least cost effective, then regular sentencing came in next, and far ahead was 

drug treatment for heavy users? 

Mr. BROWNSBERGER. Actually, I have to—as I recall the study, it 

didn’t distinguish between mandatory minimums and incarceration 

generally. It just grouped those together, unless I—— Mr. SCOTT. If you could provide that study, it would be helpful. 

Mr. BROWNSBERGER. I will do that. Could I just follow that just 

for one moment? It’s been said that this bill is compatible with 

drug courts, but really, this bill, it poses incarcerations which are 

so long that they make drug courts substantially irrelevant and 

they do that for crimes which really may have—that may be really 

committed by people who should be in drug courts. 

Mr. SCOTT. But we also have, I think, ascertained that there are 

no drug courts in Federal court, so if you use a Federal statute, 

you’ve got to be in Federal court to implement the Federal statute. 

So if you use the provisions of the bill, you’re not going to be able 

to access drug courts anyway. 

Mr. BROWNSBERGER. Exactly. 

Mr. SCOTT. Let me—Mr. Brooks, you indicated the importance of 

treatment. Isn’t it true there’s no treatment in the bill? 

Mr. BROOKS. I did not see any treatment in the bill. 

Mr. SCOTT. Okay. And the present penalties that you have available to you ought to be sufficient to hold over somebody’s head if 

they’re in State court to go to a drug court, to go to rehab? 

Mr. BROOKS. Well, no, I think that these more aggressive penalties do give us a greater tool to incent—as an incentive. But more 

importantly——

Mr. SCOTT. Yes, but if you give them that incentive, you can’t use 

drug courts because you’re in Federal court under this bill without 

drug courts. 

Mr. BROOKS. That’s correct, sir, but mostly because this bill and 

the Federal drug prosecution statutes don’t generally—aren’t generally aimed at the persons that are eligible for drug courts anyVerDate 0ct 09 2002 14:24 Sep 01, 2005 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\041205\20527.000 HJUD1 PsN: 20527
47

way. Drug courts are more of a State court initiative because they 

are focused on drug users and persons that are on the fringe of the 

drug selling arena, not on persons that have met Federal thresholds and are fully involved in drug trafficking, drug manufacturing, 

drug smuggling. 

These Federal drug laws, including the tough sentences in this 

bill, these are for people that are predators that put children at 

great risk, that put their lives at great risk, and not people that 

are just using or addicted. 

Mr. SCOTT. If you go get some for yourself and then you go get 

some for your friend, and as an accommodation, no profit, that’s included in this, too, isn’t it? 

Mr. BROOKS. You know what, I’m not a lawyer, sir. I’m not sure. 

Mr. SCOTT. Okay. Ms. Avergun, there are provisions in here for 

second offenses? 

Ms. AVERGUN. Yes. 

Mr. SCOTT. Is it a second offense if you have—if you’re charged 

with a couple of crimes? In our localities, they have a sweep, you 

get caught in Newport News and also in the adjoining jurisdiction 

in Hampton, and you’re tried in Newport News, this first offense. 

If you’re tried in Hampton without having gone to jail in between, 

is that a second offense? 

Ms. AVERGUN. I don’t know how that would work under this statute, Mr. Scott. It would—— Mr. SCOTT. Well, you’ve got life imprisonment if you get busted 

for that second offense. 

Ms. AVERGUN. Yes. There are very complex rules for what counts 

as a prior conviction to trigger these second offense—— Mr. SCOTT. Okay. Since we’re talking about life without—life imprisonment without parole, is marijuana a controlled substance 

under this bill? 

Ms. AVERGUN. Marijuana is a controlled substance everywhere. 

Mr. SCOTT. So if you’re in a circle and they’re passing it around, 

that’s all distribution. Get caught twice, what happens? 

Ms. AVERGUN. Theoretically, that would be—if you were convicted both times under this statute, that would be the mandatory 

life. 

Mr. SCOTT. Well, how do you get a predicate offense to start off 

with that second offense? What are the predicate offenses? 

Ms. AVERGUN. I can’t tell you what all the predicate offenses 

are——

Mr. SCOTT. Is marijuana a predicate offense? 

Ms. AVERGUN. Any drug felony—for purposes of the predicate felony statutes, any drug felony is an initial offense. 

Mr. SCOTT. Is it other felonies? It’s not a misdemeanor? 

Ms. AVERGUN. Not a misdemeanor, no. It would have to be——

Mr. SCOTT. Where is that? 

Ms. AVERGUN. I think it’s in section 851 of title 21, not in this 

statute. 

Mr. SCOTT. Not in this bill, because this bill just talks about controlled substances. 

Ms. AVERGUN. That’s what the law is. 

Mr. SCOTT. Okay. So if I could, Mr. Chairman, I just want to 

know, if you are distributing marijuana or distributing cocaine 

48

amongst friends and get busted, that’s first offense. And, if the arrests come in two different busts or two different jurisdictions, 

you’re not sure whether or not the second conviction would give you 

life without parole or not under the bill? 

Ms. AVERGUN. I can’t tell you under your facts whether the first 

counts as a conviction that would count as a first conviction to trigger the second conviction. I’m just not—I don’t think that that’s 

been thought through enough by any of us at the Department of 

Justice to tell you—— Mr. SCOTT. Well, you don’t have to worry. What we’ve thought 

through is we took a poll, and this bill will help us get elected. 

That’s about all we need to know. 

Mr. COBLE. I thank the gentleman. 

The gentleman from California, Mr. Lungren. 

Mr. LUNGREN. Thank you, Mr. Chairman. 

If I understand the gentleman from Virginia’s question, it’s the 

life—mandatory life sentence——

Mr. SCOTT. Two strikes and you’re out. 

Mr. LUNGREN.—on two strikes. But as I understand it, as I read 

the bill, it would have to be the same offense. That is, a 21-yearold, someone over 21 selling to someone under 18. So not other——

Mr. SCOTT. Two fraternity brothers. 

Mr. LUNGREN. Two fraternity brothers, one over 21 and one 

under 18. I hope we wouldn’t have Federal prosecutors going after 

that. 

Mr. SCOTT. I think they—— Mr. LUNGREN. But let me ask a question. Ms. Moriarty, you 

talked about meth and how it was an eye opener to you, what it 

meant to children. When I was out in California, we had an expression which was meth use equals child abuse. Some of the worst 

child abuse cases I ever saw or read about were those involving 

meth users. 

And then the other thing was what you had mentioned was that 

there wasn’t direct physical abuse by the parent to the child. We 

found great levels of exposure to methamphetamine or its predecessor elements in the children when they did physical examinations. 

What have you found to be the most effective way of dealing with 

that? In other words, and I know this generalizes, but in these 

cases where you find children on the premises with their parents 

who are dealing meth, do you find any sense of responsibility with 

those parents, any remorse, any—what I’m trying to get at is what 

do you think, from your experience, would be the most effective 

means of deterrence to those parents when they’re exposing their 

children to the meth environment? 

Ms. MORIARTY. I would say, Mr. Lungren, on the onset of that, 

when we first arrest them, exactly what you said. We call methamphetamine the walk-away drug, that they literally walk away 

from everything in their life, to include their own life. They don’t— I mean, incarceration at that point isn’t even an issue. I have had 

several of those that we arrested actually thank law enforcement 

for taking the first step in changing their life by putting them into 

custody, and it does go hand-in-hand with what we’re trying to do 

with the National Alliance, is to, you know, drug court is imporVerDate 0ct 09 2002 14:24 Sep 01, 2005 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\041205\20527.000 HJUD1 PsN: 20527
49

tant, and if they’re going to be part of a family again and get clean, 

there needs to be consequences at the same time. So we have found 

that consequences have actually meant something. 

But at the very beginning, I’ve never seen an environment that 

is more dangerous than those of meth users. The paranoia alone, 

the fact that they don’t eat. I’ve walked into homes where they 

haven’t fed their children for weeks, and so it’s really—it’s just a 

sad, hideous, hazardous environment. But like I said, at the beginning, there’s no recognition to anything. They’ve literally—we’ve 

had addicts give their children away, and so that’s what we see. 

Mr. LUNGREN. See, my biggest concern is the kids. I would hope 

that we could salvage the parents, but it seems to me in those 

cases the chances are better that we can salvage the kids than salvage the parents. I would love to salvage the whole family unit. My 

question is, what tools do you think we need to have in the Federal 

system to try and do that, first to save the kids, and then second—

well, first of all, do you think it’s important, is it possible in your 

experience to salvage a family unit under those circumstances? 

Ms. MORIARTY. I do believe that it’s important to always try to 

salvage a family unit. I think that the children—you know, because 

they’re not great parents, they’re still their parents, and I think 

that that’s a significant impact that we need to have on their lives 

is as to how to bring the family back together. I think——

Mr. LUNGREN. So what tools do we need? What tools would you 

recommend, based on your experience, that have been effective 

from the Government’s standpoint to help achieve that? 

Mr. COBLE. Ms. Moriarty, as brief as you can because the time 

has expired, but go ahead. 

Mr. LUNGREN. Mr. Chairman, my red light was on as soon as I 

started questioning. I don’t know what happened, but anyway——

Ms. MORIARTY. I think that we need to bring, I don’t know if—

I speak from a local level and from doing law enforcement and from 

the Alliance for Children, but I think bringing multi-disciplines together. These children need some psychological help. I mean, medical, they need treatment themselves. They need to understand 

that this is not their fault, and they’re our next generation of users. 

And so I think that that’s part of our prevention, that is, if we don’t 

put some effort and energy into the children, we’re just creating, 

like I said earlier, the next 114,000 that are high-risk at use for 

using drugs, if we don’t start intervening in their lives and get 

them socially connected and put somebody in their lives who can 

help change that. 

Mr. COBLE. Dan, you are correct. Your light was on, so I think 

you still have a couple minutes. 

Mr. LUNGREN. Thank you, sir. 

Mr. COBLE. I stand corrected. 

Mr. LUNGREN. Mr. Brownsberger? 

Mr. BROWNSBERGER. I’d appreciate the opportunity to respond to 

that, as well. I mean, I, as a drug court attorney, work with a lot 

of mothers and fathers who are addicted and have lost their children and have neglected their children and deeply regret that they 

neglected their children. Clearly, their children are victims. 

50

Number one, as a response, this isn’t primarily a Federal problem. This is a problem for the State and local social services, number one. 

Mr. LUNGREN. But given the fact we’re going to have a Federal 

presence. 

Mr. BROWNSBERGER. Well, I’m not—if you take that as a given, 

I’m not sure that’s the right given. 

Mr. LUNGREN. Okay, but let me tell you, we’re going to have a 

Federal presence—— Mr. BROWNSBERGER. Okay. Well, in that—— Mr. LUNGREN. —and I’d like to know what the best one is. 

Mr. BROWNSBERGER. I would advocate that presence include active support for treatment for children and for treatment for parents and for treatment facilities in which children can be with their 

parents, because believe it or not, a lot of these children still love 

their parents. Ripping those parents away, sending them for 10 

years for the neglect that they’ve committed really isn’t necessarily 

part of the solution. 

Mr. LUNGREN. Mr. Brooks? 

Mr. BROOKS. I agree with Commander Moriarty. It’s really important that we have the tools to intervene, and it’s important that 

we keep the family unit together, but we’re not always going to 

keep the family unit together. That’s the ultimate goal. But, first 

and foremost, we have to protect those kids. So we have to get the 

child protective services folks in. We need to get the psychological 

folks in. We have to get the medical folks in and make sure that 

we’re taking care of—I mean, these are ticking time bombs. We 

don’t really know yet what the full effect of having these children 

unprotected in these toxic environments for years and years, what 

the full medical effect is on them. We might have sentenced them 

to death and not even known it yet. 

And so it has to be a multi-disciplinary approach triggered by 

law enforcement when they enter that lab site, bringing psychological services in, bringing child protective services in, helping to 

reintegrate the family, but understanding that we’re not always 

going to reintegrate the family and sometimes we just have to then 

salvage those children. 

Mr. LUNGREN. Thank you. 

Mr. COBLE. And I apologize to you, Dan. I didn’t realize the clock 

was defective. 

The gentlelady from California is recognized for 5 minutes. 

Ms. JACKSON LEE. Mr. Chairman, point of personal privilege. 

Mr. COBLE. The gentlelady is recognized. 

Ms. JACKSON LEE. The gentlelady was kind enough to allow me 

just to—I was unavoidably detained when the Committee voted on, 

I believe, H.R. 1528, and I would like to ask unanimous consent 

that my vote of ‘‘no’’ be placed in the record at the appropriate 

place. 

Mr. COBLE. Without objection, it will be done. 

Ms. JACKSON LEE. And I was unavoidably detained on H.R. 1279, 

the ‘‘Gang Deterrence and Community Protection Act of 2005,’’ and 

I’d like to have my vote of ‘‘present’’ be acknowledged and placed 

in the appropriate place for H.R. 1279. I ask unanimous consent. 

Mr. COBLE. Without objection, it will be done. 

51

Ms. JACKSON LEE. Thank you, Mr. Chairman. 

Mr. COBLE. And the gentlelady from California is recognized for 

5 minutes. Let’s get the clock working. Set that clock at 5 minutes. 

Thank you, Mike. 

Ms. WATERS. Thank you very much, Mr. Chairman. 

Sometimes, I think we really don’t know what’s going on out 

there in the streets of America, both in our cities and our towns. 

We talk about these children of drug-addicted parents, and I heard 

some references to the children of parents who are addicted on 

meth. But whether it is meth or crack cocaine, these children are 

extremely vulnerable. They are neglected. Oftentimes—well, there 

is nothing like seeing children who actually live in a crack house. 

I’ve seen it. There’s nothing like seeing children who are living 

with a mother who is crack addicted. In the streets, they refer to 

them as strawberries, and they’re capable of committing almost 

any unimaginable act in order to get crack cocaine, they’re so addicted. 

I have seen many of these children grow up in these environments, and many of them are gang members. And I think the most 

dangerous gang member in America is one who has experienced 

their mother on crack cocaine and have seen what happens to her 

in that environment. All the safety nets are pulled out from under 

them and, really, there’s nowhere for the children to turn. Nobody 

really cares. Nobody does anything for these children. 

When the mother ends up dead or in prison, and if there’s a 

mate involved, both of them dead or in prison, if they’re lucky, 

there is a grandmother. The grandmother gets no support from the 

State to help with these children, and many of the gang members 

end up being young people who gather together and live in vacant 

houses or with each other and they become the family, and they’re 

very, very dangerous. They are capable of killing because their rejection and their pain is so profound, so difficult. But America 

doesn’t understand any of this and does nothing about it. 

So it’s almost a joke as we sit here and we talk about mandatory 

minimum sentencing and we talk about whether or not we lock up 

parents who abuse their children who are drug addicts. I mean, 

come on. There’s a great disconnect here about what really goes on 

out there. 

I’ve seen it. I understand it. I’m extremely frustrated about it. 

And this kind of legislation does nothing to help it. There needs to 

be support for children whose parents are drug addicted in several 

ways, and you’re absolutely right. Many of them love their parents 

until they die, until the parents die before their very eyes, are 

taken away to prison, and they don’t know what to do about that. 

Where do we see anything that will provide the kind of support 

for children of crack-addicted parents dealing with them while 

they’re still in the houses with some of them, or when they have 

been removed, or when the parents die or go to prison? There’s just 

nothing in the system that I see. 

Foster care, maybe, when children are taken away, and when 

they’re thrown into these foster care settings, basically, they end 

up perhaps still vulnerable to what is happening in the neighborhoods that they are relegated to in these foster care situations 

where they have these kind of problems. 

52

So I know my time is up, but let me just try and talk about, if 

I may indulge for one moment, about these HIDTAs, or the drug 

areas that are supposed to be targeting resources to deal with drug 

trafficking and all of that. Can anybody here explain to me what 

a HIDTA is, and how it works, and how they get formed, and how 

they get chosen, and what they’re doing? Yes, sir, Mr. Brooks? 

Mr. BROOKS. Yes, ma’am, I can. The HIDTAs, there are 28 

around the country. They are Congressionally designated and certified by the Director of the Office of the National Drug Control 

Policy. It brings together, using some Federal dollars and State and 

local dollars, Federal, State, and local law enforcement officers in 

a collocated setting with a strategy mostly to focus on drug trafficking organizations, those organizations at the upper end. But it 

also provides support to State and local law enforcement working 

street and mid-level traffickers, as well. 

Every HIDTA has an intelligence center so that the law enforcement officers there work smarter and better. Every HIDTA has 

technical equipment available. But the biggest thing is, the 

HIDTAs are managed by balanced boards, eight State and local officers and eight Federal officers. That balanced approach gives the 

State and local law enforcement agencies the feeling of partnership, 

and what the HIDTA really does, what it has truly succeeded in 

doing is it’s brought together law enforcement agencies that traditionally would never talk together, never work together—— Ms. WATERS. Are they successful in reducing drug trafficking and 

drug addiction in, let’s say, Los Angeles, in the South Los Angeles 

area? You’re from that area. 

Mr. BROOKS. Actually, I’m from San Francisco, but I am from 

California—— Ms. WATERS. Okay. 

Mr. BROOKS. It absolutely is. 

Ms. WATERS. It is. How? 

Mr. BROOKS. Because when you’re able to drive price up, drive 

availability down, drive the social stigma, and take—HIDTAs are 

focused at the organizational level, not at the street level but at the 

organizational level, where they’re able to take down cartel-based, 

using a partnership between DEA and the other Federal law enforcement agencies, in your area the LAPD and the L.A. Sheriffs, 

Hawthorne Police Department, you know, all of the 44 agencies in 

Los Angeles County. They come together in big initiatives like L.A. 

Impact, using information run through the L.A. clearing center, 

and are able to focus, then, on those big organizations. 

Tom Constantine, who was the DEA Administrator for a number 

of years, 6 years, just told me over dinner the other night the biggest cases that they were able to do in the Los Angeles area, big 

organizations, started, although DEA often managed those cases, 

they started out of one of the L.A. HIDTA-run initiatives. 

And so, ma’am, it brings together a disparate group of agencies. 

It makes them all talk the same language under the same roof 

with a coordinated strategy, and they truly do work, in my opinion. 

Ms. WATERS. Thank you, Mr. Chairman, and I just want to tell 

you this. For those of us who are watching what I described to you, 

don’t feel the effectiveness of these bureaucratic agency HIDTAs 

that you just described. We don’t feel it. We don’t see the drug 

53

dealers being taken off the streets. We don’t see you stopping the 

flow of drugs into these communities. 

Crack cocaine has destroyed and devastated—and continues to 

do so—communities throughout this country, and many of the 

gangs survive based on dealing drugs, and you guys don’t know 

anything about it—not you guys, but that’s a generic ‘‘you guys.’’ There’s nothing happening to break it up. There’s no undercover 

operation that’s helping to identify where these drugs are coming 

from and how they’re getting in there, and we suffer. We suffer 

throughout these communities. We’re so damned tired of it. 

Mr. COBLE. The—— Ms. WATERS. And when I sit in these Committees and listen to 

us talk to each other, it just blows my mind that we don’t know 

what the heck we’re doing. I’m just—I’ve had it up to here. 

Mr. COBLE. The gentlelady’s time has expired. 

Mr. Brooks, there are 28, do you say——

Mr. BROOKS. Twenty-eight HIDTAs with and counting the partnerships along the Southwest border. Thirty-three divisions, but 28 

designated HIDTAs. 

Mr. COBLE. The gentleman from Massachusetts, Mr. Delahunt. 

Mr. DELAHUNT. I mean, clearly, you can see the frustration that 

I know we all share. 

I want to go back to my earlier point about the number of addicts 

in the country, and I think it was you, Ms. Avergun, that indicated 

two to six million. 

Ms. AVERGUN. That was Mr. Brownsberger. 

Mr. DELAHUNT. It was Mr. Brownsberger. 

Ms. AVERGUN. But he’s right. 

Mr. DELAHUNT. But he’s right, two to six million. I think that 

what we heard, the frustration of my friend from California, is 

we’re operating in the dark. Let me put a premise out, that the 

vast majority of drug-related crime is committed by drug addicts. 

I don’t see how we can effectively measure whether we’re succeeding unless we develop a methodology that allows us to more accurately assess whether we’re successful through a combined coherent strategy—supply, demand. There are great programs out there. 

We know that because we know it anecdotally. 

But, I mean, I believe the first place to start, and I would hope 

that the chair and this Committee at some point in time would just 

simply seek to have a panel—and this is an excellent panel—that 

would talk about the methodologies of how we measure success or 

lack thereof so that we can pass and support a coherent legislative 

approach and appropriate the necessary funding as opposed to simply just taking a stab. 

I mean, you know, heroin use is up in the Northeast. We can’t 

use just simply the standards of availability and price. We’ve got 

to get to the heart and soul of the matter, which is reducing the 

number of individuals that are addicted to drugs. That’s the heart 

and soul, in my opinion. I’d be interested in hearing—Ms. 

Moriarty? 

Ms. MORIARTY. Mr. Delahunt, if I might, I think you bring up a 

great question, and that is something that the National Alliance for 

Drug Endangered Children and all of the States that have alliances 

are looking at, as well, is how are we measuring success and how 

54

do we know if we’re doing anything to change the lives of these 

children. 

So when we sat down as a group of multi-disciplines, to include 

treatment, law enforcement, social services, the judicial system, 

psychologists, we started trying to determine how do you measure 

if a child is coming successfully or safely out of these environments 

and not growing up to be our next drug addicts and falling into the 

same system. And part of the measurement that we were feeling 

could be something that we could look into is obviously that that’s 

being taken into consideration is the reduction of recidivism into 

the system. 

You know, if drug courts are working, and, therefore, when 

they’re under arrest and they’ve been put into a court and then 

they don’t get back, or the education, kids that are now graduating 

from high school instead of dropping out in school, and the reduction of recidivism into the social services system, because social 

services is carrying the huge burden of all of this—— Mr. DELAHUNT. Correct, but that’s the beginning of establishing 

a set of criteria to measure if we’re effective. 

Ms. MORIARTY. Correct. 

Mr. DELAHUNT. Okay? I mean, that’s the issue. If we have six 

million addicts in this country today and we can reduce that figure 

to 500,000, we will see a tremendous decline in the number or the 

incidence of all violent crime in the country. 

Ms. MORIARTY. Absolutely. 

Mr. BROWNSBERGER. I’d just like to endorse absolutely what 

you’re saying. There’s a strong argument that the amount of 

crime—if you multiply the number of crimes that drug addicts, who 

are interviewed, admit committing, times any estimate of the number of drug addicts, you get more than the total number of crimes 

that are reported in this country, and so there’s every reason to believe that drug addiction accounts for the vast majority of acquisitive crimes—larceny, robbery, prostitution, all those crimes that 

generate income. And so they are the best community-level measure, perhaps, of the success of an anti-drug program. 

Mr. DELAHUNT. Well, we have a Drug Czar, and I asked our 

other panelists in the—you’ll indulge me just for another minute, 

Howard. I mean, we have a Drug Czar. We’ve had a series of Drug 

Czars under both Administrations. I’m not going to—this is absolutely non-partisan. But I would hope that within that office, there 

would be an effort, okay, to establish criteria, and the one that you 

allude to, Commander Moriarty, I think makes really good sense, 

the recidivism rate, and tracking. We should have long-term studies going on, and we should be able in real time, on an annual 

basis, we should have a report, Mr. Chairman, from the Drug Czar 

on an annual basis to come before this Committee to report on the 

number of addicts in this country. That is a single statistic that 

translates into so much. We can talk mandatory sentences. We can 

talk prevention. We can talk treatment. But you know what? We’re 

going on our gut. We’re going on our gut. 

Ms. AVERGUN. May I add something? 

Mr. DELAHUNT. Sure. 

Ms. AVERGUN. The Drug Czar puts out the National Drug Control Strategy, and part of the National Drug Control Strategy is reVerDate 0ct 09 2002 14:24 Sep 01, 2005 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\041205\20527.000 HJUD1 PsN: 20527
55

porting results of the President’s and the Administration’s drug 

strategy. One of the important factors that is measured in the 

Monitoring the Future Survey, which is a survey done of eighth, 

tenth, and 12th graders and drug use. And, as you may know, in 

2002, the President established national goals for reduction of drug 

use, and, in fact, we all together, working together in all our different areas—law enforcement, treatment, prevention—have 

achieved success in that. There is a measure of success. 

The survey showed that since 2002, there’s been an 11 percent 

decline in drug use, and this year, up to 17 percent decline——

Mr. DELAHUNT. Okay, and that’s important, but again, getting 

back—this is the Subcommittee on Crime. 

Ms. AVERGUN. Yes. 

Mr. DELAHUNT. Crime—drug crime is committed by drug addicts 

in this country, and that has to be—if we’re going to make our 

streets safer, let me suggest this. That has to be the target population that we deal with in terms of a substantial reduction in the 

level of violence. I know there’s all kinds of social reasons, et 

cetera, for that. I mean, we can talk about future use and that. 

But I would like—I would hope, okay, that the Administration, 

and I would hope, Mr. Chairman, that we could just have a panel 

on the methodologies. You know, Mr. Lungren asked some very 

good questions. I think this is—I mean, everybody is saying here, 

give us parameters. Give us some hard—because, if you listen 

closely to Congresswoman Waters, she’s not feeling it. She wants 

to see hard data. We can’t talk just about availability with driving 

the price down. We’re going to be asking this Congress, what’s your 

opinion? Should we vote to support what’s happening in Colombia 

or should we better spend it on drug treatment programs or social 

services or building more prisons here? I don’t know. 

But I want to—you know, I spent 20-plus years myself in law enforcement, so I understand the problems of law enforcement and 

the need to do something on the supply side. But you know what? 

We don’t really know, and we’re not going to know until we’re in 

a better position to ascertain the number of addicts. 

Mr. COBLE. The gentleman’s time has expired. 

Folks, as you can tell, this hearing today has generated much interest. 

Mr. SCOTT. Did you want to answer that? 

Mr. BROWNSBERGER. Only if the——

Mr. COBLE. Go ahead, Mr. Brownsberger. 

Mr. BROWNSBERGER. Thank you. I really just wanted to emphasize, the number of addicts is a very, very hard number to measure 

and it’s not one that we will ever achieve consensus on because it 

is a hidden behavior. And I would just suggest to the Committee 

that the best measure of the number of addicts in a community is 

the property crime rate. That’s how you see them, is through property crime, and so that is a very good metric and one that I have 

recommended to the use of the fighting back communities, the communities that had community projects to develop strategies 

against—to reduce drug use. I consulted those communities to develop their methodologies to measure their success, and that was 

my recommendation to those communities——

56

Mr. COBLE. Well, as I said earlier, and I thank you, Mr. 

Brownsberger, this has attracted much attention. Oftentimes, Mr. 

Scott and I will be the only Members here, and I don’t say that 

critically because there are other hearings conducted simultaneously. But this has promoted much interest, and I’m sure it will 

not expire after we adjourn. 

This problem, folks, and I think every Member has expressed it, 

I think illegal drugs has the potential of bringing this country to 

its knees unless we can get a firm handle on it. 

I thank the witnesses for your testimony. The Subcommittee very 

much appreciates your contribution. 

In order to assure a full record and adequate consideration of 

this important issue, the record will be left open for an additional 

submission for 7 days from you all. By the same token, if Members 

have written questions, they need to submit their questions also 

within that same 7-day time frame. 

This concludes the hearing—— Ms. WATERS. Mr. Chairman? 

Mr. COBLE. The gentlelady is recognized. 

Ms. WATERS. I’d like to also request—I requested Ms. Avergun 

to give us the information from those studies. She also talked about 

an 11 percent success rate. It just blows my mind. I don’t believe 

it. But I’d like to have that study, also. I want to know where that 

information came from. 

Ms. AVERGUN. Surely, Representative Waters. 

Mr. COBLE. That’ll be forthcoming. 

Ms. AVERGUN. Yes, that will. 

Mr. SCOTT. And Mr. Chairman, we can put—do we have time to 

put items in the record by unanimous—do we need to do that now, 

or is the record open? 

Mr. COBLE. The record will be open for 7 days. 

The Subcommittee stands adjourned. 

[Whereupon, at 3:16 p.m., the Subcommittee was adjourned.] 

(57)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF CATHERINE M. O’NEIL, ASSOCIATE DEPUTY ATTORNEY

GENERAL, AND DIRECTOR, ORGANIZED CRIME DRUG ENFORCEMENT TASK FORCES, UNITED STATES DEPARTMENT OF JUSTICE, BEFORE THE SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY, JULY 6, 2004

Mr. Chairman, Representative Scott, and Members of the Subcommittee, thank 

you for inviting me to testify before you today regarding the Justice Department’s views on H.R. 4547, Defending America’ Most Vulnerable: Safe Access to Drug 

Treatment and Child Protection Act of 2004. 

Protecting vulnerable victims from drug dealing predators, particularly those who 

would exploit human weakness by preying on persons afflicted with addictions to 

drugs or on those who, because of their youth and immaturity, are particularly susceptible to influence, is a laudable goal and one the Department of Justice fully endorses. Last year, Congress made significant strides by enacting the PROTECT Act, 

a law that has proved effective in enabling law enforcement to pursue and to punish 

wrongdoers who threaten the youth of America. 

The Act now under consideration takes Congress’commendable efforts even further by focusing on the scourge of drug trafficking in some of its most base and dangerous forms: trafficking to minors or in places where they may congregate, and 

trafficking in or near drug treatment centers. 

Endangerment of children through exposure to drug activity, sales of drugs to 

children, the use of minors in drug trafficking, and the peddling of pharmaceutical 

and other illicit drugs to drug treatment patients are all significant problems today. 

One need only consider the following few examples:

• In 2003, 3,625 children were found in the approximately 9,000 methamphetamine laboratories seized nationwide. Of those, 1,040 children were physically 

present at the clandestine labs and 906 actually resided at the lab site premises. Forty-one children found were injured. Law enforcement referred 501 

children to child protective services following the enforcement activity.

• According to the BBC, a 12-year-old drug mule living in Nigeria swallowed 

87 condoms full of heroin before boarding a flight from London to New York. 

He was offered $1,900 to make the trip.

• In ‘‘Operation Paris Express,’’ an investigation led by the former U.S. Customs Service, agents learned that members of the targeted international drug 

trafficking organization specifically instructed couriers to use juveniles for 

smuggling trips to allay potential suspicions by U.S. Customs. On one smuggling trip, two couriers, posing as a couple, brought a mentally handicapped 

teenager with them while they carried 200,000 Ecstasy pills concealed in 

socks in their luggage.

• More recently, ‘‘Operation Kids for Cover,’’ an Organized Crime Drug Enforcement Task Force (OCDETF) investigation in Chicago and elsewhere, uncovered a cocaine smuggling group that ‘‘rented’’ infants to accompany couriers, 

many of whom were drug addicts themselves, who were transporting liquified 

cocaine in baby formula containers.

• In Vermont, prosecutors convicted drug dealer, Michael Baker, for selling cocaine to, among others, high-schoolers. A sophomore honors student who got 

cocaine from Baker began using extensively and started referring friends from 

his peer group to Baker in exchange for drugs. This honors student never returned to high school for his junior year.

• As reported in the Washington Post, between 2000 and 2002, more than 200 

persons were arrested here in Washington, D.C., for distributing diverted preVerDate 0ct 09 2002 14:24 Sep 01, 2005 Jkt 000000 PO 00000 Frm 00061 Fmt 6601 Sfmt 6621 G:\WORK\CRIME\041205\20527.000 HJUD1 PsN: 20527
58

scription drugs and other illicit drugs in a parking lot that abuts one of D.C.’s 

largest methadone clinics and is within three blocks of several other treatment facilities. The dealers in that open air market took advantage of the 

drug treatment patients—enticing them with illicit substances and undermining any progress that had been made on their road to recovery.

The Department of Justice is committed to vigorously prosecuting drug trafficking 

in all of its egregious forms, whether it be a top-level international narcotics supplier or a street-level predator who tempts a child or an addict with the lure of intoxication or the promise of profit. 

We have had some successes. Statistics maintained by the Department of Justice 

Executive Office for United States Attorneys indicate that, in the last two years 

alone, we have had over 400 convictions under Title 21, Sections 859, 860 and 861, 

of persons engaged in drug activity involving minors. Moreover, statistics maintained by the U.S. Sentencing Commission indicate that, between 1998 and 2002, 

approximately 300 defendants were sentenced annually under the guideline that 

provides for enhanced penalties for drug activity involving minors or in protected 

locations. But our tools are limited. And we have no specific weapon against those 

who distribute controlled substances within the vicinity of a drug treatment center. 

The people who would sink to the depths of inhumanity by targeting their trafficking activity at those with the least ability to resist such offers are deserving not 

only of our most pointed contempt, but, more importantly, of severe punishment. 

The Department of Justice cannot and will not tolerate this conduct in a free and 

safe America, and that is why the Department of Justice stands firmly behind the 

intent of this legislation to increase the punishment meted out to those who would 

harm us, our children, and those seeking to escape the cycle of addiction. 

I would like to spend a few minutes talking specifically about mandatory minimum sentences and, in particular, the mandatory minimum sentence provisions of 

H.R. 4547. 

The Justice Department supports mandatory minimum sentences in appropriate 

circumstances. In a way sentencing guidelines cannot, mandatory minimum statutes 

provide a level of uniformity and predictability in sentencing. They deter certain 

types of criminal behavior determined by Congress to be sufficiently egregious as 

to merit harsh penalties by clearly forewarning the potential offender and the public 

at large of the minimum potential consequences of committing such an offense. And 

mandatory minimum sentences can also incapacitate dangerous offenders for long 

periods of time, thereby increasing public safety. Equally importantly, mandatory 

minimum sentences provide an indispensable tool for prosecutors, because they provide the strongest incentive to defendants to cooperate against the others who were 

involved in their criminal activity. 

In drug cases, where the ultimate goal is to rid society of the entire trafficking 

enterprise, mandatory minimum statutes are especially significant. Unlike a bank 

robbery, for which a bank teller or an ordinary citizen could be a critical witness, 

typically in drug cases the only witnesses are drug users and/or other drug traffickers. The offer of relief from a mandatory minimum sentence in exchange for 

truthful testimony allows the Government to move steadily and effectively up the 

chain of supply, using the lesser distributors to prosecute the more serious dealers 

and their leaders and suppliers. 

The Department thinks that mandatory minimum sentences are needed in appropriate circumstances, and we support the specific mandatory minimum sentences 

proposed in H.R. 4547. These sentences are entirely appropriate in light of the 

plight of drug-endangered children throughout this country. 

SPECIFIC PROVISIONS WITHIN H.R. 4547

I would now like to turn to some specific provisions within the proposed legislation that the Department of Justice finds particularly noteworthy and offer some 

comments which might prove useful as the Committee continues to consider this 

bill. 

Before doing so, however, I must reserve opinion, in light of Blakely v. Washington—a Supreme Court case decided just two weeks ago—on those sections of the 

bill which propose to directly amend the sentencing guidelines, Having reserved 

opinion on the particular language of these sections, I will say that the Department 

of Justice supports the concepts and policies behind the proposed legislative amendments. 

59

Section 3 : Fairness in sentencing: assuring traffickers in large quantities of drugs 

receive appropriate sentences and denying double sentencing benefits 

The Department of Justice favors eliminating the guidelines offense level limitation that applies to drug traffickers who play a mitigating role in the offense. We 

believe that there is no need for such an offense level ‘‘cap’’ and that the federal 

statutes and the otherwise applicable sentencing guidelines appropriately allow for 

the consideration of aggravating and mitigating factors. Moreover, we believe that, 

in most cases, the controlled substance quantity is an important measure of the 

dangers presented by that offense because, even without other aggravating factors, 

the distribution of a larger quantity of a controlled substance results in greater potential for greater societal harm than the distribution of a smaller quantity of that 

substance. 

We acknowledge that the Sentencing Commission has undertaken to lessen the 

impact of this offense level cap. Pursuant to proposed guidelines amendments submitted to Congress and published in the Federal Register in May of this year, the 

Commission would apply a higher cap to the initially higher offense levels. For the 

reasons set forth above, however, we do not believe that this proposal sufficiently 

addresses our concern that the significance of drug quantity be adequately taken 

into account and the defendant not receive multiple benefits based on his lesser role 

in the offense. 

Section 5: Conforming guideline sentencing to conspiracy law 

We agree that the scope of accountability for co-conspirator conduct under the 

sentencing guidelines should be coextensive with such accountability for purposes 

of criminal liability generally. We also agree that a conspirator can be held accountable for acts of co-conspirators, in addition to his own conduct. Defendants, therefore, should be accountable for all conduct occurring during the course of the conspiracy that was reasonably foreseeable and in furtherance of the conspiracy. 

Section 6: Assuring limitation on applicability of statutory minimums to persons who 

have done everything they can to assist the Government 

We strongly support the proposed amendment to 18 U.S.C. § 3553(f), insofar as 

it would require Government certification that the defendant has timely met the full 

disclosure requirement for the safety valve exemption from certain mandatory minimum sentences. 

We certainly understand the concerns that prompted this proposal. Our prosecutors rightfully complain that courts often settle for minimal, bare-bones confessional 

disclosures and, in some cases, continue sentencing hearings to afford a defendant 

successive tries at meeting even this low standard. The Department of Justice thus 

is aware that some courts and defendants have too liberally construed the safety 

valve and have applied it in circumstances that were clearly unwarranted and 

where no beneficial information was conveyed. For these reasons, we strongly support the prosecutor certification requirement. 

Requiring courts to rely on the Government’s assessment as to whether a defendant’s disclosure has been truthful and complete would effectively address the problems prosecutors have encountered with respect to application of the safety valve. 

Section 9: Assuring judicial authority consistent with law in sentencings 

The Department has a number of concerns with regard to the proposed amendments to Rule 11. Notably, we have been working with Committee staff to alleviate 

such concerns and look forward to continuing this dialogue. 

Section 10: Mandatory detention of persons convicted of serious drug trafficking offenses and crimes of violence 

The Department agrees with the principle that, in almost all circumstances, a defendant who has been found guilty should be immediately detained. We also acknowledge that the circumstances in which release pending sentencing or appeal is 

necessary are extremely limited. Nevertheless, we cannot support this proposal to 

the extent it requires Government certification as to a defendant’s cooperation and 

precludes release pending appeal. Even with sealed pleadings, a defendant’s intention to cooperate would be much more apparent under this provision, and this likely 

would have an adverse impact on a defendant’s willingness to cooperate, on the 

value of the cooperation, and on the safety of the defendant. By foreclosing the possibility of release for circumstances other than cooperation and, thereby, 

telegraphing a defendant’s intention to assist the Government, this proposal would 

severely diminish the value of one of our most useful investigative and prosecutorial 

tools. Moreover, this is a tool that we employ not simply post-conviction but, sometimes, pending appeal as well. A prosecutor should not be prohibited from seeking 

release after sentencing, if the particular circumstances of the case so warrant. 

60

CONCLUSION

We again thank you for this opportunity to share our views. I will be pleased to 

answer any questions the members of the Subcommittee may have.

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ARTICLE ENTITLED ‘‘DRUG MARKET THRIVES BY METHADONE CLINICS,’’ SERGE F. 

KOVALESKI, WASHINGTON POST STAFF WRITER, THE WASHINGTON POST, AUGUST

12, 2002


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ARTICLE ENTITLED ‘‘PROBE CONFIRMS DEALING OF DRUGS NEAR D.C. CLINICS,’’

MONTE REEL, WASHINGTON POST STAFF WRITER, THE WASHINGTON POST, JULY 7, 

2004


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ARTICLE ENTITLED ‘‘KIDS CAUGHT IN METH LAB PRESSURE COOKER,’’ SARAH

HUNTLEY, NEWS STAFF WRITER, ROCKY MOUNTAIN NEWS, MARCH 15, 2002


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SUPPLEMENTAL MATERIAL FROM WILLIAM N. BROWNSBERGER, ASSOCIATE DIRECTOR, 

PUBLIC POLICY DIVISION ON ADDICTIONS, HARVARD MEDICAL SCHOOL


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SUPPLEMENTAL MATERIAL FROM LORI MORIARTY, THORNTON POLICE DEPARTMENT, 

THORNTON, COLORADO, COMMANDER, NORTH METRO DRUG TASK FORCE, AND

PRESIDENT, COLORADO’S ALLIANCE FOR DRUG ENDANGERED CHILDREN


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BROCHURE SUBMITTED BY THE NATIONAL ALLIANCE FOR

DRUG ENDANGERED CHILDREN


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POSITION PAPER OF THE AMERICAN BAR ASSOCIATION (ABA)


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LETTER FROM COALITION OF ORGANIZATIONS EXPRESSING THEIR VIEWS ON H.R. 1528, 

‘‘DEFENDING AMERICA’S MOST VULNERABLE: SAFE ACCESS TO DRUG TREATMENT

AND CHILD PROTECTION ACT OF 2005,’’ TO THE HONORABLE F. JAMES SENSENBRENNER, JR., AND THE HONORABLE JOHN CONYERS, JR.


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LETTER FROM FORMER UNITED STATES ATTORNEYS AND DEPARTMENT OF JUSTICE OFFICIALS EXPRESSING THEIR VIEWS ON H.R. 1528, ‘‘DEFENDING AMERICA’S MOST

VULNERABLE: SAFE ACCESS TO DRUG TREATMENT AND CHILD PROTECTION ACT OF

2005,’’ TO THE HONORABLE F. JAMES SENSENBRENNER, JR., AND THE HONORABLE

BOBBY SCOTT


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LETTER FROM THOMAS W. HILLER, II, CHAIR, LEGISLATIVE EXPERT PANEL, FEDERAL

PUBLIC AND COMMUNITY DEFENDERS, TO THE HONORABLE HOWARD COBLE, AND

THE HONORABLE BOBBY SCOTT


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LETTER FROM TEACHERS OF LAW EXPRESSING THEIR VIEWS ON H.R. 1528, ‘‘DEFENDING

AMERICA’S MOST VULNERABLE: SAFE ACCESS TO DRUG TREATMENT AND CHILD

PROTECTION ACT OF 2005,’’ TO THE HONORABLE F. JAMES SENSENBRENNER, JR., 

AND THE HONORABLE JOHN CONYERS, JR.


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LETTER FROM FRANK O. BOWMAN, III, M. DALE PALMER PROFESSOR OF LAW, INDIANA UNIVERSITY SCHOOL OF LAW, TO THE HONORABLE HOWARD COBLE, AND THE

HONORABLE BOBBY SCOTT


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RESPONSE TO POST-HEARING QUESTIONS FROM LORI MORIARTY, THORNTON POLICE

DEPARTMENT, THORNTON, COLORADO, COMMANDER, NORTH METRO DRUG TASK

FORCE, AND PRESIDENT, COLORADO’S ALLIANCE FOR DRUG ENDANGERED CHILDREN


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RESPONSE TO POST-HEARING QUESTIONS FROM RONALD E. BROOKS, PRESIDENT, 

NATIONAL NARCOTIC OFFICERS’ ASSOCIATIONS’ COALITION (NNOAC)


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Æ


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