Justice Against Sponsors of Illicit Fentanyl Act of 2023

Subjects: Law


<html><body><pre>[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 389 Introduced in Senate (IS)]

&lt;DOC&gt;






118th CONGRESS
  1st Session
                                 S. 389

   To deter the trafficking of illicit fentanyl, provide justice for 
                    victims, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            February 9, 2023

   Mr. Thune introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To deter the trafficking of illicit fentanyl, provide justice for 
                    victims, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Justice Against Sponsors of Illicit 
Fentanyl Act of 2023''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--Congress finds the following:
            (1) International drug trafficking is a serious and deadly 
        problem that threatens the vital interests of the United States 
        and the safety and health of every community in the United 
        States.
            (2) Transnational criminal organizations, cartels, and 
        violent gangs are leading perpetrators of drug trafficking, 
        often combining the manufacture and distribution of synthetic 
        opioids with violence, human smuggling and trafficking, 
        firearms trafficking, and public corruption, and pose a 
        sustained threat to the homeland security of the United States.
            (3) Illicit fentanyl is primarily produced in clandestine 
        laboratories and trafficked into the United States in powder 
        and pill form, including fentanyl-laced counterfeit pills.
            (4) The People's Republic of China (hereinafter in this 
        section referred to as ``China'') is the primary source country 
        of fentanyl precursor chemicals used to manufacture the illicit 
        fentanyl that is trafficked into the United States.
            (5) The Commission on Combating Synthetic Opioid 
        Trafficking, established under section 7221 of the National 
        Defense Authorization Act for Fiscal Year 2020 (Public Law 116-
        92), reported in 2022 that China, which supplied 70 to 80 
        percent of fentanyl seized by Federal authorities between 2014 
        and 2019, has been surpassed by Mexico as the ``dominant 
        source'' of illicit fentanyl in the United States.
            (6) Illicit fentanyl is primarily trafficked by land into 
        the United States through legal ports of entry, as well as 
        between such ports of entry, with some trafficking facilitated 
        by domestic and foreign-based social media and encrypted 
        communication applications.
            (7) In fiscal years 2021 and 2022, U.S. Customs and Border 
        Protection seized over 24,000 pounds of fentanyl at ports of 
        entry, a 200 percent increase from the amounts seized in fiscal 
        years 2019 and 2020.
            (8) Deaths caused by the trafficking of illicit fentanyl 
        have reached epidemic proportions, as--
                    (A) fentanyl was involved in nearly 200,000 deaths 
                in the United States during the period between 2014 and 
                2020;
                    (B) the number of drug overdose deaths in the 
                United States surpassed 100,000 during the period 
                between May 2020 and April 2021, of which over 64,000 
                deaths were related to fentanyl; and
                    (C) fentanyl and other synthetic opioids caused 
                approximately \2/3\ of more than 107,000 fatal 
                overdoses in the United States during 2021.
            (9) Overdose deaths remain a leading cause of injury-
        related death in the United States, and fentanyl-related deaths 
        are the leading cause of deaths among adults aged 18 to 45.
            (10) Failure to meaningfully combat illicit fentanyl 
        trafficking will continue to stress the health care and law 
        enforcement resources of the United States.
            (11) It is necessary to recognize the substantive causes of 
        action for aiding and abetting and conspiracy liability under 
        the Controlled Substances Act (21 U.S.C. 801 et seq.).
            (12) The decision of the United States Court of Appeals for 
        the District of Columbia in Halberstam v. Welch, 705 F.2d 472 
        (D.C. Cir. 1983), which has been widely recognized as the 
        leading case regarding Federal civil aiding and abetting and 
        conspiracy liability, including by the Supreme Court of the 
        United States, provides the proper legal framework for how such 
        liability should function in the context of the Controlled 
        Substances Act (21 U.S.C. 801 et seq.).
            (13) Persons, entities, or countries that knowingly or 
        recklessly contribute material support or resources, directly 
        or indirectly, to persons or organizations that pose a 
        significant risk of committing acts of trafficking of illicit 
        fentanyl that threaten the safety and health of nationals of 
        the United States or the national security, foreign policy, or 
        economy of the United States, necessarily direct such conduct 
        at the United States, and should reasonably anticipate being 
        brought to court in the United States to answer for that 
        conduct.
            (14) The United States has a compelling interest in 
        providing persons and entities injured as a result of the 
        trafficking of illicit fentanyl into the United States with 
        full access to the court system in order to pursue civil claims 
        against persons, entities, or countries that have knowingly or 
        recklessly provided material support or resources, directly or 
        indirectly, to the persons or organizations responsible for 
        their injuries.
    (b) Purpose.--The purpose of this Act is to provide civil litigants 
with the broadest possible basis, consistent with the Constitution of 
the United States, to seek relief against persons, entities, and 
foreign countries, wherever acting and wherever they may be found, that 
have provided material support, directly or indirectly, to foreign 
organizations or persons that engage in the trafficking of illicit 
fentanyl into the United States.

SEC. 3. RESPONSIBILITY OF FOREIGN STATES FOR THE TRAFFICKING OF 
              FENTANYL INTO THE UNITED STATES.

    (a) In General.--Chapter 97 of title 28, United States Code, is 
amended by inserting after section 1605B the following:
``Sec. 1605C. Responsibility of foreign states for the trafficking of 
              fentanyl into the united states
    ``(a) Definition.--In this section, the term `fentanyl trafficking' 
means--
            ``(1) means any illicit activity--
                    ``(A) to produce, manufacture, distribute, sell, or 
                knowingly finance or transport--
                            ``(i) illicit fentanyl, including any 
                        controlled substance that is a synthetic opioid 
                        and any listed chemical (as defined in section 
                        102 of the Controlled Substances Act (21 U.S.C. 
                        802)) that is a synthetic opioid utilized for 
                        fentanyl production; or
                            ``(ii) active pharmaceutical ingredients or 
                        chemicals that are used in the production of 
                        fentanyl;
                    ``(B) to attempt to carry out an activity described 
                in subparagraph (A); or
                    ``(C) to assist, abet, conspire, or collude with 
                any other person to carry out an activity described in 
                subparagraph (A);
            ``(2) a violation of section 401(a)(1) of the Controlled 
        Substances Act (21 U.S.C. 841(a)(1)) involving manufacturing, 
        distributing, or dispensing, or possessing with intent to 
        manufacture, distribute, or dispense, fentanyl or a fentanyl-
        related substance in or into the United States;
            ``(3) an attempt or conspiracy to commit a violation 
        described in paragraph (2);
            ``(4) having manufactured, distributed, or dispensed, or 
        possessed with intent to manufacture, distribute, or dispense, 
        fentanyl or a fentanyl-related substance outside the United 
        States with the intention of such fentanyl or fentanyl-related 
        substance being distributed or dispensed in or into the United 
        States in violation of section 401(a)(1) or 406 of the 
        Controlled Substances Act (21 U.S.C. 841(a)(1), 846); or
            ``(5) having produced or manufactured, distributed, or 
        dispensed, or possessed with intent to manufacture, distribute, 
        or dispense, a substance that is a precursor to fentanyl or a 
        fentanyl-related substance with the intention of such 
        precursor, fentanyl, or fentanyl-related substance being 
        distributed or dispensed in or into the United States in 
        violation of section 401(a)(1) or 406 of the Controlled 
        Substances Act (21 U.S.C. 841(a)(1), 846).
    ``(b) Responsibility of Foreign States.--A foreign state shall not 
be immune from the jurisdiction of the courts of the United States in 
any case in which money damages are sought against a foreign state for 
physical injury to person or property or death occurring in the United 
States and caused by--
            ``(1) an act of fentanyl trafficking in or into the United 
        States; and
            ``(2) a tortious act or acts of the foreign state, or of 
        any official, employee, or agent of that foreign state while 
        acting within the scope of his or her office, employment, or 
        agency, regardless where the tortious act or acts of the 
        foreign state occurred.
    ``(c) Claims by Nationals of the United States.--
            ``(1) Definition.--In this subsection, the term `person' 
        has the meaning given the term in section 1 of title 1.
            ``(2) Claims.--If a foreign state would not be immune under 
        subsection (b) with respect to an act of fentanyl trafficking 
        in or into the United States, a national of the United States 
        may bring a claim against the foreign state in the same manner, 
        and may obtain the same remedies, as a claim with respect to an 
        act of international terrorism brought under section 2333.
            ``(3) Aiding and abetting liability.--In an action under 
        paragraph (2) for an injury arising from an act of fentanyl 
        trafficking in or into the United States, liability may be 
        asserted as to any person who aids and abets, by knowingly 
        providing substantial assistance, or who conspires with the 
        person who committed such an act of fentanyl trafficking.
            ``(4) Effect on other foreign sovereign immunities.--
        Nothing in paragraph (3) affects immunity of a foreign state 
        from jurisdiction under other law.
    ``(d) Rule of Construction.--A foreign state shall not be subject 
to the jurisdiction of the courts of the United States under subsection 
(b) on the basis of an omission or a tortious act or acts that 
constitute mere negligence.''.
    (b) Technical and Conforming Amendments.--
            (1) The table of sections for chapter 97 of title 28, 
        United States Code, is amended by inserting after the item 
        relating to section 1605B the following:

``1605C. Responsibility of foreign states for the trafficking of 
                            fentanyl into the United States.''.
            (2) Subsection 1605(g)(1)(A) of title 28, United States 
        Code, is amended by striking ``or section 1605B'' and inserting 
        ``, 1605B, or 1605C''.

SEC. 4. STAY OF ACTIONS PENDING STATE NEGOTIATIONS.

    (a) Exclusive Jurisdiction.--The courts of the United States shall 
have exclusive jurisdiction in any action in which a foreign state is 
subject to the jurisdiction of a court of the United States under 
section 1605C of title 28, United States Code, as added by section 3(a) 
of this Act.
    (b) Intervention.--The Attorney General, in consultation with the 
Administrator of the Drug Enforcement Administration, may intervene in 
any action in which a foreign state is subject to the jurisdiction of a 
court of the United States under section 1605C of title 28, United 
States Code, as added by section 3(a) of this Act, for the purpose of 
seeking a stay of the civil action, in whole or in part.
    (c) Stay.--
            (1) In general.--A court of the United States may stay a 
        proceeding against a foreign state in an action brought under 
        section 1605C of title 28, United States Code, as added by 
        section 3(a) of this Act, if the Secretary of State certifies 
        that the United States is engaged in good faith discussions 
        with the foreign state defendant concerning the resolution of 
        the claims against the foreign state, or any other parties as 
        to whom a stay of claims is sought.
            (2) Duration.--
                    (A) In general.--A stay under this section may be 
                granted for not more than 180 days.
                    (B) Extension.--
                            (i) In general.--The Attorney General may 
                        petition the court for an extension of the stay 
                        for additional 180-day periods.
                            (ii) Recertification.--A court shall grant 
                        an extension under clause (i) if the Secretary 
                        of State recertifies that the United States 
                        remains engaged in good faith discussions with 
                        the foreign state defendant concerning the 
                        resolution of the claims against the foreign 
                        state, or any other parties as to whom a stay 
                        of claims is sought.

SEC. 5. SEVERABILITY.

    If any provision of this Act or any amendment made by this Act, or 
the application of a provision or amendment to any person or 
circumstance, is held to be invalid, the remainder of this Act and the 
amendments made by this Act, and the application of the provisions and 
amendments to any other person not similarly situated or to other 
circumstances, shall not be affected by the holding.

SEC. 6. EFFECTIVE DATE.

    The amendments made by this Act shall apply to any civil action--
            (1) pending on, or commenced on or after, the date of 
        enactment of this Act; and
            (2) arising out of an injury to a person, property, or 
        business on or after January 1, 2013.
                                 &lt;all&gt;
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