[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
CONTROLLED SUBSTANCES: FEDERAL POLICIES AND ENFORCEMENT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
THURSDAY, MARCH 11, 2021
__________
Serial No. 117-9
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
44-670 WASHINGTON : 2021
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MADELEINE DEAN, Pennsylvania, Vice-Chair
ZOE LOFGREN, California JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
STEVE COHEN, Tennessee LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr., DARRELL ISSA, California
Georgia KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida MATT GAETZ, Florida
KAREN BASS, California MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island TOM McCLINTOCK, California
ERIC SWALWELL, California W. GREG STEUBE, Florida
TED LIEU, California TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida DAN BISHOP, North Carolina
J. LUIS CORREA, California MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado CLIFF BENTZ, Oregon
LUCY MCBATH, Georgia BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri
PERRY APELBAUM, Majority Staff Director
BRENDAN BELAIR, Minority Staff Director & Chief Counsel
------
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
SHEILA JACKSON LEE, Texas, Chair
CORI BUSH, Missouri, Vice-Chair
KAREN BASS, California ANDY BIGGS, Arizona, Ranking
VAL BUTLER DEMINGS, Florida Member
LUCY MCBATH, Georgia STEVE CHABOT, Ohio
MADELEINE DEAN, Pennsylvania LOUIE GOHMERT, Texas
MARY GAY SCANLON, Pennsylvania W. GREGORY STEUBE, Florida
DAVID N. CICILLINE, Rhode Island TOM TIFFANY, Wisconsin
TED LIEU, California THOMAS MASSIE, Kentucky
J. LUIS CORREA, California VICTORIA SPARTZ, Indiana
VERONICA ESCOBAR, Texas SCOTT FITZGERALD, Wisconsin
STEVE COHEN, Tennessee BURGESS OWENS, Utah
JOE GRAUPENSPERGER, Chief Counsel
JASON CERVENAK, Minority Counsel
C O N T E N T S
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Thursday, March 11, 2021
Page
OPENING STATEMENTS
The Honorable Sheila Jackson Lee, Chair, a member of Congress
from the State of Texas, Subcommittee on Crime, Terrorism, and
Homeland Security.............................................. 1
The Honorable Andy Biggs, Ranking Member, a member of Congress
from the State of Texas, Subcommittee on Crime, Terrorism, and
Homeland Security.............................................. 3
The Honorable Jerrold Nadler, Chair, a member of Congress from
the State of New York, Committee on the Judiciary.............. 5
The Honorable Jim Jordan, Ranking Member, a member of Congress
from the State of Ohio, Committee on the Judiciary............. 7
WITNESSES
Howard Henderson, Ph.D., Founding Director, Center for Justice
Research Texas Southern University, Nonresident Senior Fellow,
Governance Studies Brookings Institution
Oral Testimony................................................. 8
Prepared Statement............................................. 10
Katharine Neill Harris, Ph.D., Alfred C. Glassell, III, Fellow in
Drug Policy Rice University's Baker Institute for Public Policy
Oral Testimony................................................. 15
Prepared Statement............................................. 17
Derek Maltz, Former Special Agent in Charge, Special Operations
Division, U.S. Department of Justice
Oral Testimony................................................. 23
Prepared Statement............................................. 25
Nicole M. Austin-Hillery, Esq., Executive Director, U.S. Program,
Human Rights Watch
Oral Testimony................................................. 35
Prepared Statement............................................. 37
STATEMENTS, LETTERS, MATERIALS, ARTICLES SUBMITTED
Visual Aids for the record submitted by Hon. Andy Biggs, Ranking
Member,........................................................ 48
Statement regarding article submitted by Hon. Sheila Jackson Lee
a Member of Congress of the State of Texas, and Chair of the
Subcommittee on Crime, Terrorism, and Homeland Security of the
House, Committee on the Judiciary from USA Today Fact-checking
Trump officials: Most drugs enter U.S. through legal ports of
entry, not vast, open border for the record.................... 62
Articles and letters submitted for the record by Hon. Andy Biggs,
Ranking Member,
Statement submitted by Alison Siegler, Erica Zunkel, and Judith
P. Miller of the Federal Criminal Justice Clinic, University
of Chicago Law School for the record......................... 84
Statement submitted by Janos Marton, Nation Director of Dream
Corps Justice for the record................................. 170
Letter submitted to the Hon. Nancy Pelosi, House Speaker, Hon.
Kevin McCarthy, House Minority Leader, Hon. Steny Hoyer,
House Majority Leader, and Hon. Steve Scalise, House Minority
Whip on behalf of the of numerous organizations regarding the
classwide-ban senate bill for the record..................... 172
Letter submitted regarding Urgent Need for Civil Forfeiture
Reform by Dan Alban, Senior Attorney at the Institute for
Justice on behalf of the advocates listed for the record..... 177
Letter submitted by Justice Roundtable's Sentencing Reform
Working Group Co-chairs, Kara Gotsch, Aamra Ahmad and Nkechi
Taifa, and numerous advocates for the record................. 181
Fact Sheet submitted regarding Why Civil Asset Forfeiture is
Legalized Theft from the Leadership Conference for the record 184
Article--Washington Times, Biden's first full month sets new
records for illegal immigration for the record............... 190
Article--FoxNews.com, Biden adviser admits immigration policy
may have driven migrant surge, encouraged smugglers for the
record....................................................... 193
Article--Fox News.com, Border encounters top 100,000 in
February as migrant crisis spirals for the record............ 195
Article--WashingtonPost.com, Biden Administration rushes to
accommodate border surge, with few signs of plans to contain
it for the record............................................ 198
Article--Politico.com, Biden Administration says it's
struggling for the right message on immigration for the
record....................................................... 203
Article--TucsonSentinel.com, Crisis looms at Pima migrant
shelter; Feds are ill-prepared to help county with COVID
issues for the record........................................ 206
Amicus Brief--No. 20-71433, In the United States Court of
Appeals for the Ninth Circuit, Suzanne Sisley, MD; Scottsdale
Research Institute, LLC; Battlefield Foundation, DBA Field to
Healed; Lorenzo Sullivan; Kendrick Speagle; Gary Hess v. U.S.
Drug Enforcement Administration; William Barr, Attorney
General Timothy Shea, Acting Administrator, Drugh Enforcement
Administration for the record................................ 210
Article--Rice University's Baker Institute for Public Policy
regarding Drug Policy Priority Issues for Biden
Administration for the record................................ 254
Article--The New York Times, What to Know About Breonna
Taylor's Death for the record................................ 259
Article--Four-in-ten U.S. drug arrests in 2018 were for
possession, sale or manufacture of marijuana for the record.. 263
APPENDIX
Article submitted by Hon. Sheila Jackson Lee, a Member of
Congress of the State of Texas, and Chair of the Subcommittee
on Crime, Terrorism, and Homeland Security of the House,
Committee on the Judiciary regarding Customs and Border
Protection officers at the World Trade Bridge Seize Narcotics
Worth Over $24 Million for the record........................ 272
Article submitted by Hon. Sheila Jackson Lee, a Member of
Congress of the State of Texas, and Chair of the Subcommittee
on Crime, Terrorism, and Homeland Security of the House,
Committee on the Judiciary regarding Laredo Customs and
Border Protection Officers Seize Narcotics Worth Over $2.5
Million at the Juarez-Lincoln Bridge for the record.......... 273
Article submitted by Hon. Sheila Jackson Lee, a Member of
Congress of the State of Texas, and Chair of the Subcommittee
on Crime, Terrorism, and Homeland Security of the House,
Committee on the Judiciary regarding Customs and Border
Protections Field Operations Arrests Woman with Over $1.9
Million in Methamphetamine at Pharr International Bridge for
the record................................................... 274
Article submitted by Hon. Sheila Jackson Lee, a Member of
Congress of the State of Texas, and Chair of the Subcommittee
on Crime, Terrorism, and Homeland Security of the House,
Committee on the Judiciary regarding Laredo Sector Border
Patrol Apprehends Over 100 Individuals in Separate Smuggling
Attempts for the record...................................... 276
Article submitted by Hon. Sheila Jackson Lee, a Member of
Congress of the State of Texas, and Chair of the Subcommittee
on Crime, Terrorism, and Homeland Security of the House,
Committee on the Judiciary regarding a Record number of
migrant youths at the Border wait in adult detention cells
longer than legally allowed for the record................... 278
CONTROLLED SUBSTANCES: FEDERAL POLICIES AND ENFORCEMENT
----------
Thursday, March 11, 2021
House of Representatives
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to call, at 10:25 a.m., in
Room 2141, Rayburn House Office Building, Hon. Sheila Jackson
Lee [chairwoman of the subcommittee] presiding.
Members present: Representatives Jackson Lee, Nadler,
Demings, McBath, Dean, Scanlon, Bush, Cicilline, Lieu, Correa,
Cohen, Biggs, Jordan, Chabot, Gohmert, Steube, Tiffany, Spartz,
and Owens.
Staff present: David Greengrass, Senior Counsel; Madeline
Strasser, Chief Clerk; Cierra Fontenot, Staff Assistant; John
Williams, Parliamentarian; Keenan Keller, Senior Counsel; Joe
Graupensperger, Chief Counsel; Christine Leonard, Counsel;
Veronica Eligan, Professional Staff Member; Analia Mireles,
Intern; Ken David, Minority Counsel; Caroline Nabity, Minority
Counsel; James Lesinski, Minority Counsel; Kyle Smithwick,
Minority Counsel; Sarah Trentman, Minority Senior Professional
Staff Member; Michael Koren, Minority Professional Staff
Member; and Kiley Bidelman, Minority Clerk.
Ms. Jackson Lee. Good morning. The Subcommittee will come
to order. Without objection, the chair is authorized to declare
witnesses of the Subcommittee at any time.
Members, let me thank you and hope that all of you have
voted for the first two votes. What we will do is we will
continue to proceed until the end of the third vote. We will go
break for the third vote and do the fourth vote and then
return. So, there will only be one break and then we will
continue with our hearing and we thank you for your
cooperation. We will all be watching the clock, but we will
proceed at this time.
We welcome everyone for this morning's hearing on
Controlled Substances: Federal Policies and Enforcement. Some
of us are doing double duty. I am wearing an orange mask, I
believe, because I know that we are working towards a good
response of the American people on ending gun violence. Today
we are talking about trying to be problem solvers, if you will,
in the on-going war on drugs and the approach that has been
taken.
Before we begin, I would like to remind Members and so we
welcome everyone to this morning's hearing on Controlled
Substances: Federal Policies and Enforcement. Before we begin,
I would like to remind Members that we have established an
email address and distribution list dedicated to circulating
exhibits, motions, or other written materials that Members
might want to offer as part of our hearing today. If you would
like to submit materials, please send them to the email address
that has been previously distributed to your offices and we
will circulate the materials to Members and staff as quickly as
we can.
I would also ask all Members, both those in person and
those attending remotely, to mute your microphone when you are
not speaking. This will help prevent feedback and other
technical issues. You may unmute yourself any time you seek
recognition. I would also remind all Members that guidance from
the Office of the Attending Physician calls for all Members to
wear masks even when they are speaking. I will now recognize
myself for an opening statement.
An important early focus of this Subcommittee will be
examining the many challenging issues relating to our federal
drug laws. For far too long, our country has taken the wrong
approach to drug abuse, criminalizing substance use instead of
preventing and treating it. I am particularly concerned about
how our past failed policy has disproportionately impacted
communities of color. For instance, in the 1980s, Congress
adopted harsh mandatory minimum sentences for crack cocaine
offenses, subjecting thousands of individuals to needlessly
lengthy terms of imprisonment, even during the era of Just Say
No. That didn't apply across the board evenly, and there were
those who tried to say no, but could not because of their
sickness. That approach was wrong and continues to be wrong,
disparately impacting African American communities while
fueling mass incarceration.
The data is compelling. According to Sentencing Commission
statistics, from 2019, 75 percent of the people sentenced for
federal drug laws were people of color. Half of the people
incarcerated in federal prisons right now, 68,000 people were
convicted of drug offenses; 56 percent were convicted of a drug
offense, carrying a mandatory minimum sentence.
In the past and now, we know that many of these cases
involves people with a minor role in the offense. Federal
prosecutions are not targeting the most serious offenders at
the top of the chain. I believe it is important for us to see
and remember the impact of our failed past approaches during
the so-called war on drugs.
Now I want to make sure that we have not lost our Members.
Okay. I want to put that on the record. We have not lost our
Members, but we are getting ready for a video.
At this time, I would like to play an impactful video
demonstrating its effects. I would like to pause for the staff
to get the video. Thank you.
[Video played]
Ms. Jackson Lee. Thank you. As the video narrated by Jay-Z
illustrates so well, we need to acknowledge the failures of the
drug war and the pain of over incarceration and we must then
commit ourselves to reform. I am reminded of the proceedings
that we had when we were overwhelmed by opioids and I, in this
process of writing legislation, insisted to our then-Chair that
we must include crack cocaine or crack in the legislation as it
related to the idea that it should be treated the same way that
opioids, as it was raging across the nation, was treated in
terms of sickness, addiction, and trying to provide support on
treatment for those who are addicted to crack.
In recent years, we have taken a more comprehensive
approach to at least some types of drug use, including the
opioid crisis, as I said. Yet, we unwisely have kept in place
mandatory minimum penalties related to these substances. At
least there has been a greater focus on the need for treatment,
as illustrated by the enactment of the Comprehensive Addiction
and Recovery Act, directed at those substances five years ago
right out of this committee. We must learn from our mistakes.
One of the concerns that we will discuss today is our
policy concerning the penalties for crime involving fentanyl
and fentanyl analogue. In 2018, DEA used temporary authority to
prosecute cases involving fentanyl-related substances not
listed in the Controlled Substances Act. A year ago, the
Congress extended DEA's temporary authority to group all
fentanyl-related substances under a class-wide ban. I oppose
this measure and continue to object to this excessive approach
that expands the application of mandatory minimum sentences,
particularly when there are other mechanisms available for the
federal prosecution in appropriate cases.
I do not deny the deadly aspect of fentanyl. That would be
foolish. I do believe that we have a way and a pathway of
addressing this question, saving lives, prosecuting as
necessary, but not doing the broad sweep and continue to mount
individuals from neighborhoods into incarceration for life.
We need to listen to experts and the data to determine the
right approaches to our evidence-based and data-driven. It is
time to turn the page and to create a new drug policy for
America, including offering alternatives to incarceration and
increasing access to treatment, enacting the MORE Act to
decriminalize marijuana and treating drug abuse as a public
health issue instead of a driver of mass incarceration. We have
seen that with meth and then we have seen that with the
extensive opioid use.
At the same time, we need to address the harm to
communities and families torn apart by the war on drugs. There
is a better way.
I look forward to hearing from our witnesses today as we
move forward in a better direction for our communities and for
our country.
It is now my pleasure to recognize the Ranking Member of
this committee, my co-leader on this committee, and that is the
gentleman from Arizona, Mr. Biggs, for his opening statement.
Mr. Biggs. I thank the chair and appreciate the opportunity
to speak this morning and I also apologize for my tardiness due
to the floor vote, Madam Chair. So, thank you, Madam Chair.
This morning's hearing should be called Biden's border
crisis is fueling drug smuggling which in turn will fuel drug
addiction, death by drug overdose, and economic and societal
distress.
This Subcommittee should be focusing on the impacts of the
border crisis which has been created by President Biden's
policies and the impact of those policies on drug trafficking.
Additionally, how can we have a serious hearing on federal
policies if we don't have a single witness from the Federal
Government? No one from the Department of Justice, no one from
the Drug Enforcement Administration, no one from the Department
of Health and Human Services, no one from the Department of
Homeland Security, and here we are. I think that if we want to
have serious dialogue about issues that all of us agree we are
facing, we should have folks and representatives from all sides
here.
I think there should be agreement that federal drug policy
must include border security and an enforcement approach that
is balanced with other critical public health and safety
initiatives. Such an approach is critical to enforce drug laws
and help combat the current drug crisis in America that has
reached unprecedented levels even during the coronavirus
pandemic.
According to recent provisional data from the Centers for
Disease Control and Prevention between June 2019 and the first
half of 2020, more than 81,000 died from drug overdoses
signifying the highest number of overdose deaths ever recorded
in a 12-month period. The Centers for Disease Control and
Prevention reported that synesthetic opioids, predominantly
illicitly manufactured fentanyl, commonly laced with other
poisonous drugs like heroin and cocaine appear to be the main
driver of the dramatic increase in overdose deaths in the
United States.
Similarly, the Drug Enforcement Administration, which is
the primary federal agency responsible for enforcing federal
drug law recently reported that illicit fentanyl is one of the
key drugs fueling the on-going opioid crisis in the United
States. Other poisonous drugs like heroin, methamphetamine, and
cocaine also remain difficult challenges to public health and
law enforcement. How do these poisonous drugs pour into
American communities and cities? Well, primarily through drug
traffickers and cartels who smuggle them in between--at and
between our southern border's ports of entry.
Just this month, the Drug Enforcement Administration's
latest national drug threat assessment underscored that the
production and supply of fentanyl to the United States is being
driven by Mexican drug trafficking organizations while China
remains the main source of supply for precursor chemicals.
The Biden Administration's immigration policies are exactly
the wrong type of action we need to fight drug abuse in this
country. We have all seen the news reports. There is a surge of
people down at the border because of President Biden's magnet
policies. Whether the Biden Administration or our Democrat
colleagues want to admit it, there is a crisis on the border.
The porous southern border and the Biden Administration's
inaction to secure it is a recipe for chaos and disorder. The
Biden border crisis is also an opportunity for dangerous drug
and human traffickers to exploit non-existent or ineffective
border controls which is becoming a real problem given that the
Biden Administration has an open border policy and lacks
enforcement.
The crisis here today that we are discussing is frankly
more than just about drugs coming across the border. Drugs,
people, and other contraband are now able to flow across the
border because CBP has focused on caring for aliens flooding
the borders and therefore is less focused on enforcement
activities.
In a recent conversation, I learned that right now 80
percent of CBP's activities is used to processing paperwork and
processing individuals and only 20 percent for enforcing the
border. We must not turn a blind eye to what is happening at
our southern border. The Trump Administration worked hard to
secure our southern border, and now the current Administration,
right out of the gate, and just 50 days in office is reversing
all of the progress that was made in the past in the past four
years. For example, the Biden Administration stopped
construction on the border wall, even in dangerous, drug
smuggling corridors that were in the process of being sealed.
As the co-chair of the Board of Security Caucus earlier this
year, I led a tour of the United States-Mexico border in
southern Arizona with a number of Members of Congress. The
situation at the border is a crisis and drug traffickers are
exploiting the chaos to conduct illegal activities.
On February 9th, I along with over 50 Republican Members of
Congress wrote to President Biden about the rising crisis at
our southern border which must be taken seriously if we are
going to address the use and abuse of fentanyl and other
dangerous drugs in our communities. We must not treat this as a
political game. We must not allow drug traffickers to be
empowered by soft border policies that overlook enforcement of
our laws.
I hope this Subcommittee will examine how our border's
insecurity contributes to the opioid epidemic in this country.
Madam Chair, I thank you again, and I yield back.
Ms. Jackson Lee. I thank the gentleman for his statement
and his views. I now am pleased to recognize Chair Nadler for
his opening statement.
Chair Nadler. Well, thank you very much for holding this
important hearing today. Drug addiction is a serious problem in
our communities. The current pandemic has further worsened the
tragic impact of overdoses as so many Americans continue to
struggle through this isolating and stressful crisis.
It is time for us to Act quickly to advance smart,
effective solutions at the federal, state, and local level.
This Congress, we need to continue our committee's work to take
steps to right the wrongs from the failed drug war. As we have
all seen, that failure has been both exorbitantly expensive and
frequently counterproductive producing staggering incarceration
rates for drug offenses and immeasurable harm to families,
especially those coming from low-income communities and
communities of color.
As our witnesses will highlight today, too many people are
serving unjustly lengthy prison sentences as a result of laws
that were enacted decades ago imposing mandatory minimum
sentences. That approach was wrong then and it continues to be
wrong. It is badly impacting minority communities while fueling
mass incarceration. Mandatory minimum penalties are unwise,
unjust, and unfair. The status quo is unacceptable and we need
to take a hard look at reforming these penalties.
We can tackle these problems and set a new course. For
example, I was pleased to work with my colleagues in passing
the Marijuana Opportunity Reinvestment and Expungement Act or
MORE Act at the last--at the end of the last Congress on a
bipartisan basis. For far too long, we have treated marijuana
as a criminal justice problem instead of as a matter of
personal choice and public health. Whatever one's views are on
marijuana for recreational and medicinal use, the use of
arrest, prosecution, and incarceration at the federal level has
been both costly and biased.
I have long believed that the criminalization of marijuana
has been a mistake and the racially disparate enforcement of
marijuana laws has only compounded this mistake with serious
consequences, particularly for minority communities. Thousands
of individuals, overwhelmingly people of color, have been
subjected by the Federal Government to unjust and lengthy
sentences for marijuana offenses, especially because of
mandatory minimum sentences that give the judges no discretion.
This needs to stop. That is why I will be reintroducing the
MORE Act to remove marijuana from the Controlled Substances Act
and to provide restorative justice of communities that have
been disproportionately impacted by the war on drugs.
We know that the war on drugs, we now know that the war on
drugs was a deliberate attack on racial minorities for
political purposes executed by President Nixon. It is time we
stopped.
We also need to learn lessons from programs and
alternatives that have been successfully pursued at the State
and local level, not just with marijuana, but with other drugs
as well. For instance, the Law Enforcement Assisted Diversion
program, known as LEAD, allows law enforcement to divert
appropriate arrestees from criminal court, instead to provide
treatment and other services that address addiction and reduce
recidivism. Developed and initially implemented in Seattle, the
LEAD approach is now being used with success in other cities,
in other areas. We should support these efforts, as well as
other innovative approaches, at the local level such as
medication-assisted treatment, supervised injection facilities,
expanding the availability of overdose reversal drugs and
better education of doctors and the public about the proper
prescription and use of opioids as pain medication.
We will not able to arrest and incarcerate our way out of
the drug abuse crisis that has many causes. Instead, we must
support the development and implementation of a variety of
solutions as we consider our contribution to addressing this
crisis.
Additional reform is long overdue, especially now that we
know from the testimony of Mr. Haldeman, who was one of Mr.
Nixon's assistants, of the deliberately racially biased
intention of the war on drugs from which we are still
suffering.
I look forward to hearing from our witnesses today and I
hope that we can continue to find bicameral and bipartisan
support to our legislative proposals.
Thank you and I yield back the balance of my time.
Ms. Jackson Lee. The gentleman yields back the balance of
his time and now it is my pleasure to yield to the
distinguished Ranking Member of the Full Committee, the
gentleman from Ohio, Mr. Jordan for his opening statement.
Mr. Jordan. Thank you, Madam Chair. The chairman of the
full Committee talked about smart, effective action to deal
with the drug crisis. Smart, effective action would be to get
control of our border as the Ranking Member, Mr. Biggs,
highlighted in his opening statement. That would be just common
sense, but that is not what is happening right now with this
Administration.
In fact, it is so bad, they are now putting migrant
children in NASA facilities. So if we are going to deal with
this drug crisis and this drug issue and I look forward to
hearing from our witness, Mr. Maltz, here in a few minutes, if
we are going to do that, we need to get control of the border.
Frankly, it is about time that the full Committee have a
hearing on something.
I would suggest the border crisis would be a great issue to
have a hearing on. Maybe the cancel culture, which is denying
people their First amendment of free speech rights, would be a
good issue to have a full Committee hearing on. There are lots
of things we can be discussing, but we have yet now two months
into the Congress had a full Judiciary Committee hearing, the
busiest Committee typically in all of Congress, the Committee
charged with protecting people's liberties. We have got a
crisis on our border. We have got a crisis with people
attacking the First amendment free speech rights of Americans
and we have yet to have a hearing.
Maybe we should be doing that at some point here, but I
think, obviously, right now, the border crisis is front and
center and this is something that we need to get a handle if we
are going to ever have a chance to deal with the drug issues
that confront so many of our communities around the country.
With that, I yield back.
Ms. Jackson Lee. The gentleman yields back. I am sure we
welcome the gentleman's very pointed suggestions and if I
might, as a resident of a border state, having gone to the
border many, many times and have seen the influx of
unaccompanied children in the last decade, I know that this
Administration is working extremely hard not to put children in
cages, but I thank the gentleman for his comments and welcome
them all the time.
We now welcome all our distinguished witnesses and we thank
them for their participation. I will begin by swearing in our
witnesses. I ask our witnesses testifying in person to rise and
I ask our witnesses testifying remotely to turn on their audio
and make sure I can see your face and your raised right hand
while I administer the oath. Please be unmuted at this time.
Do you swear or affirm under penalty of perjury that the
testimony you are about to give is true and correct to the best
of your knowledge, information, and belief so help you God?
[Witnesses sworn.]
Thank you. Let the record show that the witnesses answered
in the affirmative. Thank you and please be seated.
We will now proceed with this introduction. Nicole Austin-
Hillery is Executive Director of U.S. programs for Human Rights
Watch. Ms. Austin-Hillery leads Human Rights Watch efforts to
end violations in abusive systems within the United States. Her
work is focused on addressing and combating systemic racism, as
well as tackling problems within the criminal justice system.
Human Rights Watch, under her leadership, has become an
expanded and outstanding organization as a true watch dog of
human rights in America and around the world, welcome.
Dr. Howard Henderson is the Director of the Center for
Justice Research at Texas Southern University. He is a Senior
Fellow in Governance Studies at Brookings Institution and
founding Director of the Center for Justice Research. He is an
expert on culturally responsive criminal justice research, has
provided approaches to reducing disparity in the criminal
justice system, a multitude of articles, and a great deal of
passion. Dr. Henderson, we welcome you.
Derek Maltz spent 28 years in public service with the Drug
Enforcement Administration, including 10 years as a special
agent in charge for the Special Operations Division of the
Department of Justice. He now serves as Executive Director for
Government Relations at Pen-Link.
Mr. Maltz, we thank you for your service to this country,
welcome.
Dr. Katharine Neil Harris is the Alfred C. Glassell, III,
Fellow in Drug Policy at Rice University Baker Institute for
Public Policy, a drug policy expert. Her current research
focuses on the availability of drug treatment for all at-risk
populations, the opioid epidemic, and the legalization of
medical and adult use cannabis.
Please note that each of your written statements will be
entered into the record in its entirety. Accordingly, I ask
that you summarize your testimony in five minutes. To help you
stay within that time for our witnesses testifying in person,
there is a timing light on your table. When the light switches
from green to yellow, you have one minute to conclude your
testimony. When the light turns red, it signals your five
minutes have expired. For our witnesses testifying remotely,
there is a timer in the WebEx view that should be visible on
your screen.
Dr. Henderson, you may begin, welcome.
TESTIMONY OF HOWARD HENDERSON
Mr. Henderson. Thank you. And allow me to begin my
testimony by expressing my humble appreciation for the
opportunity to testify on the impact of federal drug policies
on the criminalization of people of color.
As a Professor of Justice Administration and the Director
for the Center for Justice Research and the Barbara Jordan-
Mickey Leland School of Public Affairs at Texas Southern
University in Houston, Texas, I would like to take this time to
thank Chair Nadler, the Subcommittee Chair; my representative,
Sheila Jackson Lee; Ranking Chair Andy Biggs; Subcommittee Vice
Chair Cori Bush and the remaining Members of the U.S. House
Committee on the Judiciary Subcommittee on Crime, Chair of
Homeland Security.
I must express my gratitude and appreciation to
Congresswoman Sheila Jackson Lee for her unwavering support of
our university, students, faculty, staff. Her expectation of
evidence-support research and decision making has served as
continued motivation for all of us at Texas Southern University
in Houston, one of the largest historically Black colleges and
universities in the country. Help supporting our efforts does
not go unappreciated.
I present this statement for the record with respect to the
congressional hearing on controlled substances, federal
policies, and enforcement on this day, March 11, 2021. The
testimony will provide a brief overview of the evolutionary
impact of drug policies on the Black community. As suggested, I
would present an equity-based framework or re-frame the federal
drug policy that will serve as a basis of my conclusion.
In this testimony, I offer a structural and historical
overview of the differential impact of the federal drug
policies enforcement tradition. It must be understood that the
inequality caused by federal drug policy is but a continuation
of the historical process of cultural, institutional, and
structural repression. Federal drug policy actually has a deep
historical and institutional root that predate the 1960s.
In the current testimony, I posit that the contemporary
American federal drug policy and its relationship to racial
inequality is only the latest chapter in an unremitting
narrative in which the drug legislation constitutes the middle
ground of a race and class stratified social order. In other
words, this inequality has emerged from the dialect of the
production and reproduction of racist logics as part of the
broader culture of control.
The objective of my testimony is not to say the situation
has remained unchanged from America of old, but our current
racialized social order is not totally divorced from the past.
The crux of today's matters of federal drug policy is really
another step in the long arc of history representing an old
southern order that directly serves the spirit of White
supremacy and absolutely refuses to accept the reality that
they actually lost the Civil War.
In this spirit, I posit that racist logic did not disappear
with the culmination of the civil rights movement, rather
racism in our criminal justice system has transformed over time
with many strategies for stratifying and subjugating
marginalized racial populations persisting in one form or
another.
American criminal justice, particularly federal drug
policy, has often been on the front line in the form of such
tactics. As African Americans, we are disproportionately
displaced in urban ghettos, a connected form in the public mind
between ghetto residents and crime which inexplicably links
perception of danger through skin color and other forms of
expression present among ghetto residents. Ghettos were
increasingly becoming places not just for crime, but Black
crime. Criminal justice became the intervention of choice, an
intervention that involves the direct and indirect control of
urban denizens but did little to address the root structural
causes of the misery that spawns this crime.
In fact, the impact of federal drug policy in these spaces
have only exacerbated the problems confronting African American
in urban ghettos. When contemporary African American ghettos
were fully established in the 1980s, President Reagan declared
the war on drugs. The essential concern of the Reagan
Administration and others was the offenses of crack cocaine as
the next big drug epidemic. Crack was cast as a societal
defense at the hands of crack babies and super predators.
Federal drug policy in the United States continues to
perpetuate systems of inequality and domination and that many
ways mirror forms of control and ultimately violate basic human
rights.
As a line between drug legislation and plantation-style
justice has become increasingly blurred in recent decades,
federal drug policies have helped create and recreate and
manage a racialized problem population or a dangerous class
that has twisted the margins of labor markets and political
priority. In essence, these policies have helped to maintain
the color line. Thank you.
[The statement of Mr. Henderson follows:]
STATEMENT OF HOWARD HENDERSON
Overview
I am appreciative of the opportunity to testify on the
impact of federal drug policies and their criminalization of
people of color and poverty. As a professor of justice
Administration and the director of the Center for Justice
Research in the Barbara Jordan--Mickey Leland School of Public
Affairs, I present this statement for the record with respect
to the Congressional hearing on ``Controlled Substances:
Federal Policies and Enforcement'' on March 11, 2021. My
testimony will provide a brief overview of the evolutionary
impact of federal drug policies on Black communities. A
suggested equity-based framework for the reframing of federal
drug policies will serve as the basis of this testimony's
conclusion.
In this testimony I offer a structural and historical
overview of the differential impact of the federal drug policy
enforcement tradition. Rather than viewing unequal treatment in
drug policy as a result of racism per se, it should be
understood that such inequality is in part a continuation of
the historical process of cultural, institutional and
structural oppression. Similar to Gottschalk's (2006) argument
that ``contemporary penal policy actually has deep historical
and institutional roots that predate the 1960s'' (p. 4), in the
current testimony I posit that contemporary American federal
drug policy, and its relationship to racial inequality, is only
the latest chapter in an unremitting narrative in which the
drug legislation constitutes the middle ground of a race and
class-stratified social order. In other words, this inequality
has emerged from the dialectical production and reproduction of
racists logics as part of the broader culture of control
(Garland, 2001).
The objective of this testimony is not to say that the
situation remains unchanged from the America of old. Our
current racialized social order, however, is not wholly
divorced from the past either. Instead, contemporary society is
merely another step in the long arch of history. In this
spirit, I posit that racist logics did not disappear with the
culmination of the Civil Rights Movement (indeed, many racist
policies continue--see Michelle Alexander's The New Jim Crow).
Rather, racism in our criminal justice system has transformed
over time, with many strategies for stratifying and subjugating
marginalized racial populations persisting in one form or
another. American criminal justice, particularly federal drug
policy, has often been on the front line in the deployment of
such tactics.
Staging Federal Drug Policy
As African Americans were disproportionately displaced into
urban ghettos, a connection formed in the public mind between
ghetto residents and crime, which inextricably linked
perceptions of danger to skin color other forms of expression
present among ghetto residents (e.g., clothing, dance, music,
graffiti art) (Weaver 2007). Ghettos were increasingly becoming
places of not just crime but Black crime. Criminal justice
became the intervention of choice--an intervention that
involves the direct and indirect control of urban denizens but
does little to address the root structural causes of the misery
that spawns crime. In fact, the impact of federal drug policies
in these spaces have only exacerbated the problems confronting
African Americans in urban ghettos (Alexander 2010; Murakawa
2014). When contemporary African American ghettos were fully
established in the 1980s, President Reagan declared the War on
Drugs. The central concern for the Reagan Administration and
others was the ascendance of crack cocaine as the next big drug
``epidemic.'' Crack was cast as an antecedent to many current
and future problems in America. Experts prophesied about an
impending societal descent at the hands of crack babies and
superpredators (Murakawa 2014).
The War on Drugs drastically increased police presence and
power in disenfran-chised communities. The policy mandated
drastic increases in police presence throughout many urban
areas. Although the heavy policing of these districts was
billed as a response to upticks in urban crime (Lea and Young
1984; Miller 2015; Weaver 2007), much of the legitimacy of this
campaign was propelled by unsubstantiated moral panics (Becker
1963; Cohen 1972; Kappeler and Potter 2005). Ghetto spaces were
constructed as terrifying abodes of Black urban decay. Crime
and victimization were said to run rampant. In addition,
paternalistic rhetoric and imagery were deployed that cast poor
urban denizens as incapable of resolving the problems wrought
by crack cocaine. Criminal justice intervention was thus deemed
necessary.
Notions of disrepair, broken communities, and moral
deprivation through the crack cocaine epidemic were powerful
messages that, for many politicians and Members of the general
public, justified and even necessitated intervention in the
ghetto. In the process, urban ghettos have become synonymous
with war zones in the public imagination. The police are viewed
as soldiers on the front line against disorder, becoming
increasingly militarized as a result of the War on Drugs, the
expansion of criminal justice following the Crime Omnibus Act
of 1990, and the changes to American policing in the wake of
the events of 9/11 (Kappeler and Kraska 2015; Kraska 2001;
Kraska and Kappeler 1997; Murakawa 2014). Many departments
began to deploy more aggressive tactics and adopt military
equipment and technology (Kraska 2007; Kraska and Kappeler
1997). In the next section I will detail policies and practices
that manage urban ghettos utilizing drug enforcement as the
modus operandi.
The aggressive and militarized policing of drug activity
provides an exploitive funding stream for municipal governments
and police departments. The Institute of Justice reports the
U.S. Treasury and the Justice Department forfeited more than $5
billion largely through narcotic warrants and arrests
(Carpenter et al. 2015). Narcotic seizures and forfeitures are
just one form whereby police departments exploit the
underclasses, especially minorities, through monetary
dispossession, resulting from federal drug policy. Federal drug
legislation set the stage for `Zero Tolerance' policing models,
which have been shown to lead to the exacerbation of fines and
outstanding warrants that contribute to local government
coffers. In Ferguson, Missouri, the municipal court issued
32,975 arrest warrants in 2013, despite the city's population
of only 21,000 residents (U.S. Department of Justice, Civil
Rights Division 2015). 90-two percent of these warrants were
issued to African Americans, who were 68 percent less likely
than others to have their court cases dismissed. The City of
Ferguson (2014) accumulated $2.4 million in revenue from court
fees and fines in 2013. The practice of accumulating revenue
through fines and fees is related to the carceral State
expanding by enforcing civil and administrative laws (Beckett
and Murakawa 2012). Revenue generation through seizures,
forfeitures, fines, and warrants exploits the economically
vulnerable and especially harms African American populations
(Alexander 2010; Beckett and Murakawa 2012; Goffman 2009;
Murakawa 2014). Districts affected by such practices are
essentially subjected to resource extraction, a prototypical
objective of federal legislation, as codified through the War
on Drugs, mandated by Federal Drug Policy.
Conclusion
As I have attempted to articulate in this testimony,
federal drug policy in the United States continues to
perpetuate systems of inequality and domination that, in many
ways, mirror Jim Crow-like forms of control and ultimately
violations of basic human rights. As the line between drug
legislation and plantation style justice has become
increasingly blurred in recent decades, federal drug policies
have helped create, recreate, and manage a racialized ``problem
population'' or ``dangerous class'' pushed to the margins of
the labor market and political priority--or, as Brucato (2014)
explained, they maintain the ``color line'' (Shelden 2008;
Spitzer 1975).
The testimony offered here is undoubtedly incomplete.
Addressing failed federal drug policy is an expansive and
pervasive process. There are, therefore, a multitude of
dynamics left unexplored in this single testimony. It is
critical for this Committee to recognize the contemporary and
historical linkages between race, class and federal drug
policy, as well as the structures and processes of its
institutionalization. The crises in America's failed drug
policy are not new developments. They are the products of long-
running contradictions in American society--contradictions and
attunement to policies disproportionately and unnecessarily
impacting historically marginalized communities.
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About the Center for Justice Research
The Center for Justice Research is devoted to data-driven
solutions for an equitable criminal justice system. Our primary
focus is to produce innovative solutions to criminal justice
reform efforts by utilizing an experienced group of researchers
working to understand and address the current challenges of the
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The Center for Justice Research can be reached at 713-313-
6843 or visit centerforjusticeresearch.org.
Ms. Jackson Lee. Thank you for your testimony and thank you
for the time in which you pleted your testimony and how it's a
pleasure for Dr. Neil Harris, if you would give your testimony
at this time.
TESTIMONY OF KATHARINE NEILL HARRIS
Ms. Harris. Good morning.
I would like to thank Chair Nadler, Subcommittee Chair
Sheila Jackson Lee, Ranking Chair Andy Biggs, and Subcommittee
Vice-Chair Cori Bush and all Members of the Committee for this
opportunity to testify for this hearing today.
My name is Katharine Neill Harris and I am the Alfred C.
Glassell III Fellow in Drug Policy at Rice University's Baker
Institute for Public Policy.
I want to start by clarifying that the war on drugs is,
first and foremost, a war on people. Four hundred and fifty
thousand people are incarcerated for nonviolent drug offenses
on any given day.
Black people are overrepresented in every aspect of the
drug war, despite using and selling drugs at similar rates as
White people. Since 2013, the presence of fentanyl in the
illicit drug supply has intensified the overdose epidemic.
It is overly simplistic to assume that opioids alone
explain the current crisis. Instead, this epidemic is a sign of
a more persistent drug use problem, one that federal policy has
not only failed to address but has made worse through its
harmful approach.
We are now at an inflection point. The tragedies of the
overdose crisis have forced a reckoning with tough on drugs
thinking, albeit one made possible only because the epidemic's
early victims were mostly white.
Still, any departure from the drug war mentality is a
welcome development. Support is building for reforms that are
centered on racial justice and harm reduction.
Bad policies are hard to dismantle. Drug bans continue to
play a central role demonstrating a failure to learn from the
drug war's mistakes and a misunderstanding of the root of the
current overdose epidemic.
While recent reforms have reduced mandatory minimums for
some drug offenses, this problematic sentencing structure
continues.
I will now briefly discuss each of these policies. Given
the overdose-related risks of fentanyl and its analogs, the
urge to institute broad bans and harsh punishments is
understandable, but it is also misguided.
DEA argues that its emergency class-wide ban on all
fentanyl-related substances is critical to aiding prosecution
of people selling these drugs. An analysis by the U.S.
Sentencing Commission found no evidence that the ban was needed
for these prosecutions, and more importantly, the class-wide
ban doesn't work.
Fentanyl-related overdoses continue to rise even if those
involving other opioids have levelled off or declined. Recent
analysis also shows that law enforcement seizures of fentanyl
are actually associated with an increase in overdose deaths.
The ease of distribution of fentanyl and its analogs make
any efforts to diminish supply an uphill battle, and in the
unlikely event that federal authorities do make a significant
dent in the fentanyl supply, markets will adapt by finding an
equally or more lethal drug alternative.
We know this from experience. Government efforts to crack
down on the supply of prescription opioids in the early 2000s
led to the spikes in heroin and fentanyl deaths that we see
today.
So, while it might seem like the right thing to do, a
class-wide fentanyl ban is not benign. It makes illicit drug
use more dangerous to the person using.
This kind of ban also expands the reach of an agency whose
mission is to make drug arrests regardless of the harms and
ineffectiveness of this approach.
DEA tactics widen the net of people who encounter the
justice system and are arrested, convicted, sentenced, and
continuously monitored by it. Like drug bans, mandatory minimum
sentences have not reduced drug supply, demand, or deaths. They
do not work.
Supporters of these sentences claim that they target drug
sellers, not drug users. But there's often no clear distinction
between these groups, and many people who sell drugs have
substance use disorders.
Also, the amounts of drugs that trigger mandatory penalties
are a poor indicator of a person's role in a drug-selling
operation, and to this point, most people charged with drug
trafficking offenses are at the bottom of the distribution
chain. Any vacancies created by these arrests are quickly
filled and drugs remain available.
Law enforcement has wide discretion to decide who to pursue
with mandatory minimums. This increases the likelihood that
people who have substance use disorders or who are Members of
minority communities already subject to government surveillance
will become targets for harmful interventions.
Mandatory minimums impose long prison sentences and are
disproportionately levied against people of color. We don't
need more data about how these policies are harmful and
ineffective.
We need action, and there are several immediate steps that
Congress can take to promote less harmful, more effective
policy.
First, Congress should not extend the class-wide ban on
fentanyl analogues. It should repeal mandatory minimum
sentences. It should remove financial incentives for law
enforcement to pursue drug offenses, and it should expand
access to medication-assisted treatment and fund interventions
that reduce the harms of drug use, not just for opioids.
It should also remove cannabis from Schedule I and
implement measures to alleviate the damages of prohibition such
as those included in the original MORE Act.
My time is up so I will end here but I look forward your
questions and thank you.
[The statement of Ms. Harris follows:]
STATEMENT OF KATHARINE NEILL HARRIS
Members of the Committee:
Thank you for the opportunity to submit testimony regarding
federal policies for controlled substances. On behalf of the
drug policy program at Rice University's Baker Institute for
Public Policy, this statement is submitted for the record for
the hearing on ``Controlled Substances: Federal Policies and
Enforcement'' on March 11, 2021. The following section provides
a brief overview of current trends in drug use and drug policy.
This is followed by a discussion of two specific policies, the
class-wide fentanyl ban and mandatory minimum sentences. This
testimony concludes with policy recommendations for Congress.
Introduction
The 40-year War on Drugs is a policy failure. It is unable
to stop the steady flow of drugs into communities across the
U.S.; it ignores the complex causes of drug use and fails to
provide effective treatment for addiction; it contributes to
mass incarceration and violence on our Southern border; it is
exceedingly expensive; and it inflicts immeasurable harm on
people who use drugs and on minority communities writ large.\1\
The overdose crisis, which has occurred alongside the drug war
for the last two decades, is the clearest indictment so far of
the failure of prohibition to curb drug use. COVID-19 has
worsened the overdose epidemic, and 2020 was another record-
breaking year for drug-related deaths.\2\
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\1\ See William Martin and Katharine Neill Harris, 2021, Drug
policy priority issues for the Biden Administration, Issue Brief, Rice
University's Baker Institute for Public Policy, https://
www.bakerinstitute.org/research/drug-policy-priority-issues-biden-
Administration/.
\2\ Joan Stephenson, 2021, CDC warns of surge in drug overdose
deaths during COVID-19, JAMA Network, January 5, https://
jamanetwork.com/channels/health-forum/fullarticle/2774898.
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The War on Drugs is first and foremost a war on people.
More people are arrested for drug possession than for any other
offense in the U.S. Of more than 1.5 million drug arrests in
2019, about 90% were for possession. Roughly 450,000 people are
incarcerated for nonviolent drug offenses on any given day.
Nearly half (46%) of the federal prison population consists of
people convicted of drug offenses. National survey data
consistently show that Black people account for about 12% of
people who use drugs, proportionate to their population size,
but they make up 29% of drug arrests. 40-three percent of
people in federal prison for drug offenses are Black and
approximately 60% of people in State prisons for drug offenses
are people of color.\3\ The Federal Government has undeniably
led the charge in the War on Drugs; harsh policies at the
federal level have contributed to punitive, ineffective, and
unequal drug policy at all levels of government.\4\
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\3\ E. Ann Carson, 2020, Prisoners in 2019, U.S. Department of
Justice, Bureau of Justice Statistics, https://www.bjs.gov/content/pub/
pdf/p19.pdf.
\4\ For example, when Congress passed the Anti-Drug Abuse Acts of
1986 and 1988, ratcheting up penalties for crack cocaine, states
followed suit. After Congress passed the Fair Sentencing Act in 2010,
raising the amount of crack that triggers the mandatory sentences and
thereby reducing the sentencing disparity for crack and cocaine from a
ratio of 100 to 1 to 18 to 1, many states did the same.
---------------------------------------------------------------------------
Arrest and incarceration statistics show only one facet of
the harms the War on Drugs has caused. It has infiltrated
nearly every aspect of the lives it entangles. Involvement in
the criminal justice system increases the likelihood of future
law enforcement encounters and negatively impacts multiple
areas of one's life, including education and employment
prospects, parental rights, immigration status, and access to
housing and health care.
Children whose parents have been arrested and incarcerated
for drug offenses incur greater risk for these same negative
outcomes in their adolescence and adulthood.
Increasingly, public health experts are recognizing the
micro- and macro-level adverse physical and mental health
effects caused by encounters with the justice system.\5\
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\5\ For a more detailed discussion of the health impacts of
carceral systems, see the January 2020 special issue of American
Journal of Public Health, https://ajph.aphapublications.org/toc/ajph/
110/S1.
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Drug use can also cause harm, and since 2013, the presence
of fentanyl in the illicit drug supply has exacerbated the
overdose epidemic. The number of overdoses involving synthetic
opioids other than methadone, a category dominated by fentanyl,
doubled from 2015 to 2016.\6\ It is overly simplistic, however,
to assume that opioids alone explain the current overdose
crisis. Analysis of overdose fatalities over time suggests that
such deaths have been increasing exponentially as far back as
1979.\7\ Overdoses involving cocaine and methamphetamine have
been increasing since 2010, and the majority of overdose deaths
involve two or more drugs.\8\ Taken together, these trends
suggest that the recent sharp increases in overdoses may be a
particularly intense manifestation of a more persistent
substance use problem, one that U.S. drug policy has done
little to address.\9\
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\6\ National Center for Health Statistics, Data Brief 294, Drug
overdose deaths in the United States, 1999-2016.
\7\ Hawre Jalal et al., 2018, Changing dynamics of the drug
overdose epidemic in the United States from 1979 through 2016, Science,
September 21, https://science.sciencemag.org/content/361/6408/eaau1184.
\8\ Holly Hedegaard et al., 2018, Drugs most frequently involved in
drug overdose deaths: United States, 2011- 2016, National Vital
Statistics Report, 67 (9), December 12..
\9\ Katharine Neill Harris, 2018, The drug overdose epidemic: not
just about opioids, Issue Brief, Rice University's Baker Institute for
Public Policy, https://www.bakerinstitute.org/
research/overdose-epidemic/
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Despite this grim overview, there is hope that we are
moving toward a more evidence- based approach. The tragedies of
the overdose epidemic have forced a reckoning with tough-on-
drugs thinking, albeit one made possible only because the
epidemic's early victims were predominantly White.\10\ Still,
any departure from the drug-war mentality is a welcome
development. We now find ourselves at an inflection point,
where demands for reforms centered on racial justice and harm
reduction are up against entrenched prohibitionist policies.
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\10\ William Martin and Katharine Neill Harris, 2016, Drugs by the
Numbers, Issue Brief, Rice University's Baker Institute for Public
Policy, https://www.bakerinstitute.org/research/drugs-by-numbers/.
---------------------------------------------------------------------------
Recent reforms such as the First Step Act and federal
funding for expanded access to medication-assisted treatment
for opioid use disorder are important steps toward developing
more evidence-based drug policy. Other trends, however, are
concerning. Drug bans, such as those for fentanyl analogues,
continue to play a central role in U.S. drug policy,
demonstrating a failure to internalize the lessons of past drug
war battles and a misunderstanding of the roots of the current
overdose epidemic. Furthermore, while the First Step Act
reduced mandatory minimum sentences for people convicted of
certain drug offenses, this problematic sentencing structure
continues. The next sections address each of these policies.
Limitations of Drug-Specific Measures
Given the overdose-related risks of fentanyl and its
analogues, the urge to ban these substances and harshly punish
anyone who sells them is understandable, but it is also
misguided.
DEA argues that its emergency class-wide ban on all
fentanyl-related substances, authorized by Congress in 2018 and
set to expire on May 6, 2021, is critical to aiding prosecution
of people selling fentanyl who try to skirt federal prohibition
by making small tweaks to the drug's chemical structure. But it
is not clear that this ban and the additional authority it
grants to DEA are actually necessary. An analysis by the U.S.
Sentencing Commission found that in fiscal year (FY) 2019 only
two cases regarding fentanyl analogues involved substances not
already listed in the Controlled Substances Act, and in neither
case did the courts appear to rely on DEA's 2018 emergency
scheduling order to issue rulings.\11\
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\11\ Kristin M. Tennyson et al., 2021, Fentanyl and fentanyl
analogues, U.S. Sentencing Commission, January, https://bit.ly/3rrZZ9A.
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Law enforcement agencies often point to the number of drug
seizures and prosecutions as indicators of prohibition's
importance and effectiveness. By this logic, prosecution of
fentanyl trafficking is working when more cases of fentanyl
trafficking are being prosecuted. This rationale is used to
justify ever-increasing resources and authority to law
enforcement for drug-related interventions, without providing
evidence of the efficacy of such policies for reducing drug
supply or demand. A 2018 GAO report found that federal law
enforcement agencies lacked metrics for assessing the
effectiveness of their efforts, concluding that ``without
specific outcome-oriented performance measures, federal
agencies will not be able to truly assess whether their
respective investments and efforts are helping them to limit
the availability of and better respond to the synthetic opioid
threat.'' \12\ If we evaluate fentanyl-related law enforcement
efforts using fentanyl-related overdoses as a metric, they are
hardly a success; these overdoses continue to increase even as
overdoses involving prescription opioids and heroin have
leveled off or slightly declined.\13\ Recent empirical research
has also found that law enforcement seizures of fentanyl are
associated with an increase in overdose deaths.\14\
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\12\ Government Accountability Office, 2018, While greater
attention given to combating synthetic opioids, agencies need to better
assess their efforts, https://www.gao.gov/assets/gao-18-205.pdf.
\13\ Centers for Disease Control and Prevention, 2021, Opioid data
analysis and resources, https://www.cdc.gov/drugoverdose/data/
analysis.html.
\14\ Jon E. Zibbell, et al., 2019, Association of law enforcement
seizures of heroin, fentanyl, and carfentanil with opioid overdose
deaths in Ohio, 2014-2017, JAMA Network, November 8, https://
jamanetwork.com/journals/jamanetworkopen/fullarticle/2754249.
---------------------------------------------------------------------------
The ease and diversity of distribution for fentanyl and its
analogues make any efforts to diminish its supply an uphill
battle. In the unlikely event that federal authorities do make
significant dents in fentanyl access and supply, people
involved in manufacturing and trafficking will adapt by finding
a drug alternative that is just as lethal, if not more so. To
confirm the high likelihood of this scenario, we need look no
further than our current predicament. The spike in overdose
deaths, first from heroin in 2010 and then from fentanyl in
2013, are a direct consequence of prohibition generally and can
be tied specifically to government efforts to reduce the supply
of prescription opioids in the early 2000s.\15\
---------------------------------------------------------------------------
\15\ Neill Harris, The drug overdose epidemic, note 9.
---------------------------------------------------------------------------
Extending DEA authority to issue class-wide fentanyl bans,
then, is not benign. Not only might such bans have the
unintended consequence of further increasing the risks related
to illicit opioid use, but this practice also increases the
authority of an agency whose mission is the pursuit of drug
arrests without regard for the evidence of the harms and
ineffectiveness of this approach. Zealous pursuit of drug
offenses, along with policies that incentivize this behavior
such as civil asset forfeiture laws, widens the net of people
who encounter the justice system and are subsequently arrested,
convicted, sentenced, and continuously monitored by it.
There is also abundant evidence that aggressive law
enforcement tactics are used disproportionately against
minorities. One particularly egregious example is DEA's reverse
sting operations, in which the agency invents nonexistent drug
stash houses, purported to have drugs and money, in order to
tempt individuals to rob them. DEA then arrests these
individuals for crimes related to the attempted robbery.
Between 2009 and 2019, all but two of 179 people arrested in
DEA reverse sting operations in New York City were Black or
Latino. Analysis of data from anti-drug operations using fake
stash houses in other major cities show that stark racial
disparities are a common feature of this practice.\16\
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\16\ Shayna Jacobs, 2019, 10 years. 179 arrests. No White
defendants. DEA tactics face scrutiny in New York. The Washington Post,
December 14, https://wapo.st/3t2BYX1.
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The Futility and Harms of Mandatory Minimums
Like other federal drug policies, mandatory minimum
sentences have not been accountable to performance measures.
Steady trends in drug availability and use, and increases in
overdoses, indicate they have not curbed drug supply or demand.
They have, however, been remarkably successful at imposing long
prison sentences. In FY 2016 individuals convicted of drug
offenses carrying mandatory minimum penalties received an
average sentence of 94 months.\17\ These laws have been
especially efficient at incarcerating Black people. Nearly 65%
of Black people convicted of offenses carrying mandatory
minimums received the mandatory minimum sentence compared to
51% of White people convicted of such offenses in FY 2016, a
disparity that is actually an improvement since FY 2010, when
the gap in mandatory minimum sentences across racial groups was
significantly higher.\18\
---------------------------------------------------------------------------
\17\ U.S. Sentencing Commission, 2018, Federal drug mandatory
minimum penalties, Report-at-a-glance, p.1, https://www.ussc.gov/sites/
default/files/pdf/research-and-publications/back
grounders/RG-drug-mm.pdf.
\18\ Id. In FY 2010, 59.5% of Black people eligible for mandatory
minimum drug sentences received them, compared to 39.3% of White
people.
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A general Rule of thumb for effective deterrence is that
the swiftness and certainty of punishment are more important
than severity.\19\ Mandatory minimum sentences do the reverse,
levying severe punishments that are highly uncertain and
unevenly enforced. Furthermore, while mandatory minimums may be
meant to focus on ``drug traffickers'' rather than ``drug
users,'' these distinctions often are not possible. Many people
who use drugs also sell them and an analysis using data from
the National Survey on Drug Use and Health found that 43% of
people who said they sold drugs in the previous year also met
criteria for a substance use disorder.\20\
---------------------------------------------------------------------------
\19\ National Institute of Justice, 2016, Five things about
deterrence, U.S. Department of Justice https://www.ojp.gov/pdffiles1/
nij/247350.pdf.
\20\ Evan Stanforth, et al., 2016, Correlates of engaging in drug
distribution in a national sample, Psychol. Addict. Behav., 30(1),
https://pubmed.ncbi.nlm.nih.gov/26502336/.
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The amounts of drugs that trigger mandatory minimum
penalties are also a poor indicator of a person's role in a
drug selling operation.\21\ The arbitrariness of mandatory
minimum trigger amounts and the wide discretion law enforcement
has over how to determine that a person is selling drugs,
increase the ease of prosecuting people for drug sales and the
likelihood that individuals who have substance use disorders or
who are Members of minority communities already subject to
government surveillance will become ensnared in this
process.\22\ The mandatory minimum sentence of five years for
anyone convicted of possession of the relatively low amount of
five grams of crack cocaine, established by the Anti-Drug Abuse
Act of 1986 and enhanced by legislation of the same name two
years later, is a prime example of uninformed policymaking with
disastrous consequences that disproportionately affect Black
communities.\23\
---------------------------------------------------------------------------
\21\ Lindsey Lawson Battaglia, 2015, Will the U.S. Senate finally
reform harsh mandatory minimum sentences for drugs? Drug Policy
Alliance, March 15, https://bit.ly/3t1fvts.
\22\ Drug Policy Alliance, 2019, Rethinking the ``drug dealer,''
https://bit.ly/3bvQPna.
\23\ The mandatory minimum trigger amount for powder cocaine, more
commonly associated with White drug users, remained unchanged, at 500
grams. For fuller discussion of race and the drug war see Doris Marie
Provine, 2011, Race and inequality in the War on Drugs, Ann. Rev. Law
Soc. Sci., 7, 41-60.
---------------------------------------------------------------------------
Despite ample evidence that mandatory minimum penalties are
unrelated to drug supply, demand, and overdose deaths, support
for them lingers, and they are routinely imposed, despite
increased deviation in recent years. In FY 2019, more than 50%
of people convicted of fentanyl and fentanyl analogue offenses
received mandatory minimums and 66% of people convicted of
other drug offenses received such penalties. Forty-five percent
of people convicted of drug offenses that year (excluding
fentanyl and analogues) had little to no prior criminal
history, calling into question the narrative that the people
convicted under these laws are long-term ``career criminals.''
\24\
---------------------------------------------------------------------------
\24\ U.S. Sentencing Commission, see note 11.
---------------------------------------------------------------------------
The data also contradict law enforcement claims that long
sentences are essential to keeping ``violent traffickers'' off
the street. Sixty-seven percent of people charged with offenses
relating to drug trafficking for fentanyl and its analogues in
FY 2019 were at the level of a street dealer or below.\25\ Any
vacancies in these positions in an organized drug selling
operation will be quickly filled. While harsh penalties and
zealous enforcement are unable to eradicate drugs or people who
sell them, they may disrupt street-level supply just enough to
increase the risks associated with drug use, since removal of a
trusted source of drugs will force people who use drugs to turn
to unfamiliar sources for their supply.\26\
---------------------------------------------------------------------------
\25\ Id.
\26\ Blythe Rhodes, et al., 2019, Urban, individuals of color are
impacted by fentanyl-contaminated heroin, International Journal of Drug
Policy, 73, https://www.sciencedirect.com/science/article/abs/pii/
S0955395919301860; Jennifer J. Carroll, et al., 2020, The protective
effect of trusted dealers against opioid overdose in the U.S.,
International Journal of Drug Policy, https://pubmed.ncbi.nlm.nih.gov/
32143185/; Also see DPA, note 22.
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Policy Recommendations
I. Enact Reforms That Reduce Law Enforcement Interventions and
Other Punitive Measures Towards People Who Use Drugs
National drug law reform is essential for reducing the
federal prison population and for providing states with a
blueprint for effective policy change. The most comprehensive
measure Congress could take would be to decriminalize
possession of all drugs for personal use. This would
effectively remove penalties for drug use and possession and
free up resources to devote to more productive initiatives that
reduce drug-related harms.
Given the political hurdles that may delay this proposal,
Congress can take several more immediate steps to reduce
harmful and ineffective drug policies:
1. Repeal or significantly reduce mandatory minimum sentences
for drug offenses and repeal the crack/powder cocaine
sentencing disparity. Restore judicial discretion in sentencing
decisions and consider making factors other than drug quantity
the primary metrics in sentencing decisions.\27\
---------------------------------------------------------------------------
\27\ Ram Subramanian et al., 2020, A federal agenda for criminal
justice reform, The Brennan Center for Justice, December 9, https://
bit.ly/2OgeAXl; Criminal Justice Policy Foundation, Mandatory minimums
and sentencing reform, https://www.cjpf.org/mandatory-minimums.
---------------------------------------------------------------------------
2. Restructure grants to law enforcement agencies so that
funds are not based on arrest volume, but instead incentivize
development of arrest alternatives, such as pre-arrest
diversion programs like LEAD and crisis intervention response
teams.\28\
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\28\ For discussion of pre-arrest diversion and the need for
federal funding, see Jay Jenkins and Katharine Neill Harris, ``Leading
the way to sensible policy on drug use,'' The Houston Chronicle, Aug.
19, https://bit.ly/3t4qTVC. For discussion on alternative models of
policing, see Stuart Butler and Nehath Sheriff, 2020, Innovative
solutions to address the mental health crisis: Shifting away from
police as first responders, Brookings Institution, November 23, https:/
/www.brookings.edu/research/innovative-solutions-to-address-the-mental-
health-crisis-shifting-away-from-police-as-first-responders/.
---------------------------------------------------------------------------
3. Bar discrimination and denial of benefits in areas
including but not limited to employment, healthcare, housing,
immigration, and education based on prior convictions for low-
level drug possession. Amend the Drug-Free Workplace Act so
that it applies only to people whose work involves hazards to
physical safety.
4. Amend or repeal provisions of the Child Abuse Prevention
Treatment Act and the Adoption and Safe Families Act that
require and incentivize states to remove children from their
homes and terminate parental rights on the basis of substance
use alone. Redirect funds to community-based treatment and
family services.\29\
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\29\ For a comprehensive review of the relationship between the
drug war and the foster care system, see Lisa Sangoi, 2020, How the
foster system has become ground zero for the U.S. drug war, Movement
for Family Power, https://www.movementforfamilypower.org/ground-zero.
---------------------------------------------------------------------------
5. Improve nationwide data collection on race and ethnicity
of people involved in stops, arrests, and use of force
incidents related to drug use and possession.
II. Facilitate Expansion of Harm Reduction and Evidence-Based
Treatment Services
National survey data consistently show that not all drug
use is abuse, and that most people who get into trouble with
any substance recover from it, many on their own without
treatment.\30\ The recent preference for treatment over
incarceration for people who use drugs is encouraging, but not
all people arrested for drug offenses need treatment; assuming
they do or mandating participation wastes scarce resources and
threatens to widen the net of people under government
surveillance for using drugs.
---------------------------------------------------------------------------
\30\ Substance dependence recovery rates: With and without
treatment, 2016, The Clean Slate Addiction Site, https://bit.ly/
3ceoIrz.
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For people who do have substance use disorders, resources
must be available to reduce use-related harms. The Federal
Government can take several measures to facilitate evidence-
based practices:
1. Remove the federal funding ban on syringe service programs
and authorize localities to establish safe consumption
sites.\31\
---------------------------------------------------------------------------
\31\ For more information on syringe service programs, see William
Martin, 2017, Syringe Exchange: Sound Science, Proven Policy, Baker
Institute for Public Policy, Issue Brief 03.09.17, https://
www.bakerinstitute.org/media/files/files/3f4e6675/BI-Brief-030917-
DRUG_SyringeExch.pdf.
---------------------------------------------------------------------------
2. Encourage states and localities to provide comprehensive
harm reduction services that include supportive housing, safe
consumption sites, and syringe and drug testing services by
providing grants for these purposes.\32\
---------------------------------------------------------------------------
\32\ Housing is a key component of curbing harmful drug use; in
November 2020 Oregon voters approved a measure that will use tax
dollars from legal cannabis sales to fund comprehensive treatment and
harm reduction services, including supportive housing, see Oregon
Measure 110, Estimate of Financial Impact, https://bit.ly/2WcUSvP.
British Columbia, which opened the first safe consumption site in North
American, has started to offer residents safer alternatives to street
drugs to help reduce overdoses, see https://www.theguardian.com/world/
2020/sep/16/british-columbia-opioids-safer-supply-drugs-canada. For
information on efficacy of safe consumption sites, see Jennifer Ng et
al., 2017, ``Does evidence support supervised injection sites?'' Can
Fam Physician, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5685449/.
For information on efficacy of drug testing services, see Nicholas
Peiper, ``Fentanyl test strips as overdose prevention strategy,''
International Journal of Drug Policy, https://www.sciencedirect.com/
science/article/pii/S0955395918302135.
---------------------------------------------------------------------------
3. Rather than focus reduction efforts exclusively on
opioids, authorize funding to treat substance use more broadly,
including harm reduction services for people who use alcohol
and stimulants.\33\
---------------------------------------------------------------------------
\33\ Substance Abuse and Mental Health Services Administration,
2016, State targeted response to the opioid crisis grants, December 14,
https://www.samhsa.gov/grants/grant-announcements/ti-17-014; Puja Seth
et al., 2018, Overdose deaths involving opioids, cocaine, and
psychostimulants--United States, 2015-2016, Morbidity and Mortality
Weekly Report 67(12), 349-359, https://www.cdc.gov/mmwr/volumes/67/wr/
mm6712a1.htm.
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4. Make permanent the lower barriers to medication-assisted
treatment (MAT) access that are in place temporarily due to the
COVID-19 pandemic.\34\
---------------------------------------------------------------------------
\34\ DEA and SAMHSA relaxed rules regulating prescribing methadone
and buprenorphine in response to the COVID-19 pandemic; these changes
have the added benefit of increasing treatment access for people who
live in rural locations or are without transportation. See https://
www.samhsa.gov/sites/default/files/faqs-for-oud-prescribing-and-
dispensing.pdf.
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5. Provide funding for MAT to State prisons and local jails
to include all three FDA-approved medications.\35\
---------------------------------------------------------------------------
\35\ The Department of Justice funds MAT for prisons, but there is
a strong preference for the opioid antagonist Vivitrol over methadone
and buprenorphine, the other two FDA-approved medications to treat OUD.
Best practices recommend that all three be made available to fit
patients' individualized needs. Rhode Island was the first State to
offer all three MATs in its correctional system; for an evaluation of
that program see Traci Green et al., 2018, ``Post-incarceration fatal
overdoses after implementing medications for addiction treatment in a
statewide correctional system,'' JAMA Psychiatry, https://
pubmed.ncbi.nlm.nih.gov/29450443/.
---------------------------------------------------------------------------
6. Authorize pilot programs for heroin-assisted
treatment.\36\
---------------------------------------------------------------------------
\36\ Several high-quality studies have shown that heroin-assisted
treatment for chronic opioid uses who do not respond well to other
forms of MAT can result in higher rates of treatment retention, reduced
spread of blood borne viruses, reduced criminal activity, and lower
risk of incarceration. See M. Ferri et al., 2011, Heroin maintenance
for chronic heroin-dependent individuals, Cochrane Database of
Systematic Reviews, https://www.cochranelibrary.com/cdsr/doi/10.1002/
14651858.CD003410.pub4/full and Jens Reimer et al., 2011, Physical and
mental health in severe opioid-dependent patients within a randomized
controlled maintenance treatment trial, Addiction, https://
pubmed.ncbi.nlm.nih.gov/21489005/.
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7. Enforce parity laws requiring insurers to provide equal
coverage for mental health and substance use disorder
treatment.
III. Remove Cannabis From Schedule I of the Controlled
Substance Act and Implement Measures To Alleviate the Damages
of Cannabis Prohibition
Even though the majority of Americans now live in a State
where cannabis is legal for some purposes, it remains a
Schedule I substance in the Controlled Substances Act, and DEA
continues to insist that it has ``a high potential for abuse''
and ``no currently accepted medical use in treatment in the
United States.'' The first assertion is exaggerated; the second
is simply false. Removing cannabis from Schedule I is necessary
both to facilitate sorely needed medical research and to
decriminalize cannabis possession.
The Federal Government has allowed State experimentation
with cannabis policy reform, and many states have now
decriminalized possession or legalized sales. These efforts
often do not consider racial equity. Nationally, Black people
are still 3.64 times more likely to be arrested for possession,
a disparity that has remained constant since 2010 despite
several states' loosening restrictions since then.\37\ There
were over 500,000 arrests for cannabis in 2019, mostly for
possession, indicating that the war on marijuana continues.
Burgeoning State cannabis industries are dominated by White
men, excluding minorities from the benefits of
legalization.\38\
---------------------------------------------------------------------------
\37\ Disparities have increased in 31 states between 2010 and 2018.
ACLU.
\38\ Katharine Neill Harris and William Martin, 2021, Persistent
inequities in cannabis policy, Judges' Journal, https://
www.bakerinstitute.org/research/persistent-inequities-cannabis-policy/.
---------------------------------------------------------------------------
Cannabis reform ultimately requires national leadership.
The Federal Government is the only entity that can remove
cannabis from the list of Schedule I controlled substances,
allow more scientific research, and give banks legal cover to
provide cannabis-related business loans. Measures such as those
contained in the MORE Act, including establishing a process for
expungement of past cannabis convictions, prohibiting the
denial of public benefits and immigration protections on the
basis of cannabis-related activity, establishing grant programs
to fund services and assistance in communities impacted by the
drug war, and improving data collection on the cannabis
industry and enforcement of current cannabis laws, are all
critical to improving racial and social equity.\39\
Congressional action on these issues is important for federal
policy reform, and it will also have a powerful impact on
state-level policy decisions.
---------------------------------------------------------------------------
\39\ https://www.congress.gov/bill/116th-congress/house-bill/3884.
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Concluding Comments
One of the many collateral consequences of the War on Drugs
is that a large segment of the American public distrusts the
intent of U.S. drug policy and the information on drug use that
the government provides. In this way the government's drug war
has likely impeded its own efforts to reduce demand for drugs
through education and prevention programs. Substantive policy
reforms like those discussed above thus are crucial to
restoring public faith in government and to developing long-
term strategies to reduce drug demand.
Policies intended to reduce problematic patterns of drug
use must address systemic issues underlying these problems,
such as the loss of jobs that provide a livable income, the
lack of adequate health care coverage for all ailments and for
mental health in particular, and the increasing sense of
isolation from community and civic life felt by so many
people.\40\
---------------------------------------------------------------------------
\40\ Michael J. Zoorob and Jason L. Salemi, 2017, ``Bowling alone,
dying together: The role of social capital in mitigating the drug
overdose epidemic in the United States,'' Drug and Alcohol Dependence
173, (1), 1-9, https://www.ncbi.nlm.nih.gov/pubmed/28182980.
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The COVID-19 pandemic adds another layer of complexity to
drug-related problems and societal ills by reducing access to
drug treatment and intensifying the conditions which contribute
to drug addiction--increased unemployment, strained health-
delivery systems, limited support services, intensified
distrust of government, and frayed social connections. The
negative effects of these problems, felt most acutely at
society's margins, significantly impacts public health and
quality of life for all Americans.
Government policies cannot solve all of the problems that
may drive a person's desire to escape an unpleasant reality
through drug use, but they can improve current conditions.
Doing so will require increasing social and economic
opportunities that make heavy drug use less appealing. This
involves a significant investment, but one that is necessary to
reduce drug-related deaths and addiction in the future.
Ms. Jackson Lee. Thank you very much, Dr. Neill Harris, for
your testimony.
Now we will yield to Mr. Maltz for five minutes.
TESTIMONY OF DEREK S. MALTZ
Mr. Maltz. Chair Nadler, Chair Jackson Lee, Ranking Members
Biggs and Jordan, thank you very much for having me here today
to speak to you on this ongoing drug crisis in America.
I was fortunate to be the agent in charge of DEA's Special
Operations Division for 10 years. I retired in 2014. The
operation had representatives from 30 agencies. We worked very
hard to synchronize the efforts to go after transnational
criminals around the world.
Prior to that, I was the chief of the country's oldest and
largest drug task force in New York City. I had the honor to
work with the most dedicated American heroes who sacrificed
daily to keep Americans safe.
As a DEA special agent for 28 years, I was paid to enforce
the laws of the country enacted by Congress and to protect
Americans. I am not here representing DEA.
I'm a private citizen who cares deeply about American
people, the public safety, and national security of the
country. I'm here to share information about the growing drug
crisis and how it's impacting communities all over the country.
After my DEA career, I continued to engage with law
enforcement daily to stay current on the trends. I've always
been a huge advocate of working together as a team and applying
a true unity of effort. However, right now, we need more of a
whole of government approach, or rather, a whole of American
approach, as drug prices impacts all citizens and all
communities.
Too many young Americans are dying from this poison.
According to the recent data from CDC, in a 12-month period
ending July of 2020, 83,000 Americans died from drug overdoses.
That's 227 a day.
This represents the largest number of drug overdoses ever.
I lost my brother, Michael, in the U.S. Air Force pararescue
during Operation Enduring Freedom. So, I know what it's like to
bury a loved one.
However, there's nothing sadder than when you watch family
Members of these kids that have promising futures. We cannot
expect to end the drug crisis with law enforcement alone. We
need robust education, treatment, rehabilitation, combined with
law enforcement to curtail this emerging crisis.
Addicted people do need help. However, we cannot treat
somebody in the morgue that already died from fentanyl
poisoning. We need smart Americans from private sector in many
industries to help provide solutions. We cannot sit back and
watch these precious lives be lost.
As law enforcement works to shut down the chemicals flowing
from China into Mexico, and billions of dollars to the ruthless
greedy transnational crime networks in Mexico, we need
addiction specialists, teachers, medical professionals, mental
health professionals, and others to step up with solutions.
There must be a true team coordinated effort with Congress
and all these great Americans that care about the country. The
killing of Americans at record levels must stop. Government
officials leading this effort must be held accountable for
results. Not just papers and statistics but results.
These American transnational criminal organizations are not
just engaging in drug trafficking. They're involved in arms
trafficking, human smuggling, extortion, kidnapping, child
molesting, child exploitation, and other crimes to maximize
profit.
They use the latest and greatest technology, taking
advantage of our antiquated laws and weaknesses. Hezbollah
terrorists are working with the Mexican cartels, moving
millions and millions of dollars around the world and tons of
cocaine.
What keeps me up at night, though, is listening to the
families who lost their loved ones from fentanyl poisoning.
Many of these citizens took a pill and had no idea the pill
contained pure fentanyl, and it came from labs in Mexico or
chemical companies in China.
The Chinese criminals have stepped up their game and
they're big-time involved with the drug business and now
they're involved with taking over the money-laundering services
business for the cartels. They also provide the dangerous
chemicals and start to dominate in other areas of the drug
trade.
Without the money and chemicals, the cartels can't produce
the deadly drugs. There's no quality control of these chemicals
in the pills and remember, one kilogram--2.2 pounds--can kill
500,000 people, according to the experts.
To be clear, counterfeit pills with fentanyl and fentanyl
mixed with other drugs is what's causing the alarming crisis
right now with drugs.
DEA Phoenix seized 6 million Mexi-oxy pills last year,
counterfeit pills with fentanyl. That means that DEA and their
partners potentially saved over a million people's lives
because those pills kill instantly.
As we sit here today, we're dealing with a full-blown
national security and public health emergency as well as a huge
humanitarian crisis on the border. Our brave men and women at
CBP are transitioning from border to security to migrant care.
That's no good.
The Mexican transnational criminal organizations are taking
full advantage of that and they're flooding the zone. They're
flooding the country with drugs and people. They can easily
send special agent aliens into the country with dangerous drugs
as they import guns and cash into Mexico.
We need Congress to support law enforcement, provide the
tools and resources to battle these dangerous adversaries and
very complex criminals.
The country is very vulnerable if the good guys don't have
the tools, and right now they're losing the tools in their
toolbox.
Thank you for the opportunity to appear today on this
important topic, and I'm happy to answer any questions.
Thank you.
[The statement of Mr. Maltz follows:]
STATEMENT OF DEREK S. MALTZ
Introduction
Chair Jerrold Nadler, Ranking Member Jim Jordan, Chair
Sheila Jackson Lee, Ranking Member Andy Biggs and distinguished
Members of the committee, I would like to thank you for this
opportunity to speak with you today about America's devastating
drug epidemic and impact to all citizens. I am grateful for the
opportunity to share my experience and thoughts as America
faces complex challenges and an unprecedented drug crisis. I
had a long rewarding 28-year career as a Special Agent in the
Drug Enforcement Administration (DEA) enforcing the Federal
Controlled Substances Act, title 21 United States Code. I
retired from the DEA in July 2014 but remain actively involved
in the private sector supporting law enforcement agencies
around the world as they aggressively target Transnational
Criminal Organizations (TCO) causing death and destruction in
communities throughout the country.
During the last 10 years of my career, I was the Agent in
Charge of the DEA's Special Operations Division (SOD) in
Northern Virginia. In that capacity, I ran the SOD operational
coordination center with 30 participating agencies, to include
representatives from Canada, Australia and the United Kingdom.
SOD's primary mission is to support and synchronize the
investigative efforts of federal, state, local and
international law enforcement agencies. Since the Mexican
cartels are one of the biggest TCO threats to the United
States, SOD focused substantial resources on the Mexican TCO's.
SOD was instrumental in supporting the Mexican government and
the U.S. agencies to capture the leader of the Sinaloa cartel,
El Chapo Guzman, on two occasions, and coordinating the
worldwide investigations against the cartel. (CBS 60 Minutes,
2018). SOD also has a long history of coordinating the efforts
of agencies around the world disrupting and dismantling major
criminal networks.
Unfortunately, I watched the threat of the Mexican TCO's
grow over the years as they took control of the importation and
distribution of heroin, cocaine, methamphetamines, marijuana
and now fentanyl. I remain committed to work with Congress, my
colleagues in the government agencies and fellow citizens who
have lost their loved ones to the drug epidemic to help develop
recommendations and solutions to build more effective
approaches to eliminate the crisis. Too many Americans are
dying from drug overdoses and citizens all over the United
States are impacted by the Mexican TCO's. It is time to work
together using all the expertise to save lives. Law enforcement
has the important responsibility to enforce the laws of America
to keep our citizens safe and needs the full support of
congress.
According to the recent provisional overdose data published
by the Centers for Disease Control and Prevention's (CDC)
National Center for Health Statistics (NCHS) reflects that
approximately 83,000 drug overdose deaths occurred in the
United States in the 12-months ending in July 2020 which
represents a worsening of the drug overdose epidemic in the
United States and is the largest number of drug overdoses for a
12-month period ever recorded. These disturbing numbers
represent a significant increase from 2019 with over 70,000
people who died from overdoses. (Network, 2020)
Over the last few years, I participated in the production
of several films and media segments to help educate the public
and bring needed awareness to the dangerous and evolving drug
crisis. As a patriotic American who lost his brother Michael,
fighting for America during Operation Enduring Freedom in the
U.S. Air Force, I am familiar with the pain and suffering of
losing a loved one. However, nothing is more difficult in life
than losing a child and I remain committed to this fight. I
will continue to engage with families who lost children to this
crisis as well as participate in national news media to push
the important trends and messages to the public.
In addition to the troubling news on the drug overdoses,
there are also dangerous connections between the criminal
activity of the Mexican TCO's and terrorist groups like
Hezbollah. The threats posed by the TCO's is global and is
growing as they make billions of dollars. The topic of narco-
terrorism has been a priority of mine for many years, and the
United States Government must use all tools of national power
to combat and decimate these complex threats.
As the former Special Agent in Charge of SOD in Virginia,
the Chief of the New York Drug Enforcement Task Force in New
York City and DEA Special Agent working investigations around
the globe, I had the privilege of collaborating with numerous
local, state, federal and international law enforcement
agencies. I have witnessed the incredible results and positive
impact to communities when law enforcement works together in a
professional manner enforcing the controlled substances Act of
the United States.
To be clear, the drug crisis can't be solved with law
enforcement alone. This complex and emerging problem requires
more than a ``whole of government approach'', but rather a
``whole of America approach.'' The U.S. needs more focus and
resources on drug education, treatment and rehabilitation in
addition to law enforcement. This is an unprecedented public
health, national security and community safety matter that also
has huge mental health ramifications for the addicted as well
as their families. There are many great American patriots
working in the medical, education, addiction, science,
technology, financial, and other private sector industries that
can help develop comprehensive strategies and plans to deal
with this matter. The status quo is an unacceptable option as
too many lives are on the line.
Overview
Over the last 34 years, I have been honored to be an active
participant of the DEA and now in the private sector to work
with some of the best and brightest investigators around the
globe. I have always been committed to DEA's mission focusing
enforcement efforts on the entire criminal organization. I
remain very concerned that our collective efforts have some
significant challenges as the Mexican TCO's have expanded their
product line and have formed a lethal partnership with Chinese
organized crime networks. They use the latest and greatest
technology and innovation as well take advantage of antiquated
laws and policies in the U.S. to thwart law enforcement
efforts. Sadly, this has resulted in increased violence and
more overdose deaths.
Based on the current opioid epidemic, drug crisis and the
related death and destruction caused by the Mexican TCO's, I am
pleased to be here today to discuss the growing threats in the
United States related to the Mexican TCO's, their illicit drug
trade and the ongoing southwest border crisis. The Mexican
groups are a tremendous threat to public health, safety and
national security. In my view based on experience, the Mexican
cartel syndicates are one of the greatest criminal threats to
America. I'm thankful for the brave men and women of law
enforcement who continue to dedicate themselves to fighting
these very dangerous threats.
The DEA released its 2020 National Drug Threat Assessment
(NDTA) and highlighted several drug trends and critical
information to the public. Christopher Evans, Acting DEA
Administrator said, ``this year's report shows the harsh
reality of drug threats facing communities across the United
States.'' He went on further to say, ``While the COVID-19
pandemic plagues this nation, so, too, do transnational
criminal organizations and violent street gangs, adjusting to
pandemic restrictions to flood our communities with dangerous
drugs. DEA and our local, State and federal partners continue
to adapt to the ever changing landscape, remained focused on
current threats and looking to the horizon for emerging
threats. We will always defend the American people against
illicit substances that ruin lives, devastate families and
destroy communities. (Drug Enforcement Administration, 2021)
The DEA listed the following significant findings from in
their annual NDTA report:
Mexican Transnational Criminal Organizations
(TCOs) remain the greatest criminal drug threat in the United
States.
Illicit fentanyl is one of the primary drugs
fueling the epidemic of overdose deaths in the United States,
while heroin and prescription opioids remain significant
challenges to public health and law enforcement.
Mexican cartels are increasingly responsible for
producing and supplying fentanyl to the U.S. market. China
remains a key source of supply for the precursor chemicals that
Mexican cartels use to produce the large amounts of fentanyl
they are smuggling into the United States.
Drug-poisoning deaths and seizures involving
methamphetamine have risen sharply as Mexican TCOs increase the
drug's availability and expand the domestic market.
The Mexican cartels and the dangerous drugs impact the
safety and security of all Americans. Despite the overwhelming
issues related to the drug crisis, DEA along with many other
law enforcement partners, remain engaged and will continue to
enforce the controlled substance act. Those who push the
poisonous drugs to the communities of America and violate the
laws of this great Nation will be held accountable. During
Project Python and Operation Crystal Shield, DEA working
closely with their partners, produced substantial results as
highlighted in the assessment for 2020 with the seizure of
28,000 pounds of methamphetamines, millions of counterfeit
pills containing fentanyl and hundreds of firearms. They also
arrested over 2600 targets for violating the laws.
Law enforcement agencies have also worked together on
several substantial drug seizures that highlights the dangerous
trends in America. During fiscal year 2020, U.S. Customs and
Border Protection, (CBP), Office of Field Operations and Border
Patrol, reported the total drug seizures (U.S. Customs and
Border Protection, 2020):
Cocaine: 62,005 lbs.
Heroin: 5,768 lbs.
Marijuana: 582,413 lbs.
Methamphetamine: 177,696 lbs.
Fentanyl: 4776 lbs.
In October 2020, DEA Acting Administrator Timothy J. Shea
and Los Angeles Field Division Special Agent in Charge Bill
Bodner announced the seizure of 893 pounds of cocaine, 13
pounds of heroin, and 2,224 pounds of crystal methamphetamine,
which is the largest domestic seizure of crystal
methamphetamine in DEA history. (Drug Enforcement
Administration, 2020)
Also, in October 2020, U.S. Customs and Border Protection
officers at the Otay Mesa commercial facility Friday seized
more than 3,100 pounds of methamphetamine, fentanyl powder,
fentanyl pills and heroin as part of the second largest
methamphetamine bust along the southwest border in the history
of the agency, based on information developed by DEA, working
jointly with HSI. (U.S. Customs and Border Protection, 2020)
In January 2021, DEA Dallas Division reported the largest
seizure of methamphetamine and heroin in the division's
history. DEA working with partners seized 1,950 pounds of
methamphetamine valued at $45 million during a traffic stop
involving a refrigerated tractor- trailer in Denton County on
Oct. 8, 2020. The drugs were contained inside a secret
compartment of the truck. The enormous seizure was split into
633 packages, and DEA determined the drugs would have been
repackaged for distribution in Texas, Chicago, St. Louis and
Atlanta. (Jimenez, 2021)
These tremendous law enforcement successes highlight the
magnitude of the growing crisis involving the Mexican TCO's as
the agencies are making record level seizures of these
dangerous drugs in America. The Mexican TCO's are producing
record amounts of drugs as they have a vast supply of pre-
cursor chemicals coming into Mexico from China. This dangerous
trend involving pre-cursor chemicals can be further understood
when you look at the 2007 seizure of $207 million, U.S
currency, in Mexico City, Mexico from a Chinese national who
owned a pharmaceutical wholesale business based in Mexico and
was importing massive methamphetamine pre-cursor chemicals.
``With the arrest of Zhenli Ye Gon, we've apprehended not only
the man behind the money, but the man behind the meth. He may
never have touched the drugs, but he made it all possible,
facilitating the massive meth trade by brokering chemicals to
kingpins,'' said DEA Administrator Karen P. Tandy. (Drug
Enforcement Administration, 2007)
Mexican drug cartels dominate the drug business in the
United Sates and are operating in over 50 countries around the
world and most cities in the United States. They operate like a
fortune 500 company in many ways but employ devastating
violence as well. They have major hubs in Southern California,
Arizona, Chicago, Texas, New York and Atlanta. The cartels have
expanded business around the U.S. as they developed a huge
customer market with their high purity products that are
killing Americans at an unprecedented level. As an example,
Franklin County, Ohio coroner Doctor Anahi Ortiz reported that
fatal overdoses jumped 73% in the first half of 2020, with 437
deaths. She further reported that 85% of overdoses involved
fentanyl alone or combined with other drugs and that
methamphetamine related fatalities increased in 2020. (Holm,
2020)
In my view, the major cartels that seem to have the most
substantial impact in America are the Sinaloa and the Jalisco
New Generation Cartel. Even though Chapo Guzman was convicted
on all counts after outstanding law enforcement and prosecution
efforts, and will spend his life in U.S. prison, the Sinaloa
and Jalisco cartels remain a huge threat and seem to be growing
daily as many migrants are walking across the porous border
establishing business with the cartels in U.S. cities.
The TCO's are taking full advantage of the antiquated U.S.
laws and latest technology. They also take advantage of the
vulnerabilities at the border as the brave CBP officials
unfortunately must transition their responsibilities from a
border security role to migrant care due to the massive influx
of migrants. The TCO's recognize the lack of CBP manpower to
patrol areas of the border so they capitalize and move drugs
north into the U.S. and money and weapons south into Mexico.
When you review the CBP's fiscal year southwest land border
encounters by month, you can see the very disturbing trend. In
fiscal year 2021, there is a growing amount of encounters every
month. There is an indication from CBP that in February 2021,
the number of encounters is around 101,535. When you further
compare the first 4 months of the fiscal years 2019, 242,361
encounters, and 2021, 296,259, there was a 22% increase. (U.S.
Customs and Border Protection, 2021)
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Due to the increasing threats around America, the
Department of Justice (DOJ) previously initiated multi-agency
task force groups focusing on the top TCO threats to America.
The Sinaloa Cartel, the Cartel Jalisco New Generation, Lebanese
Hezbollah, MS-13 and Clan del Golfo were designated as the most
significant crime threats to the United States. The Attorney
General's TOC Task Force is composed of experienced prosecutors
and investigators. DOJ formed subcommittees for each of the
target groups and has had several successes. (Department of
Justice, October)
Most recently, the DOJ led task force had an unprecedented
success charging 14 of the world's highest-ranking MS-13
leaders who directed MS-13's violence and criminal activity
around the world for almost two decades. This exceptional
effort is an example of what can be accomplished when law
enforcement and prosecutors work side by side to protect the
America public. The groundbreaking indictment charges the
defendants with conspiracy to provide and conceal material
support to terrorists, conspiracy to commit acts of terrorism
transcending national boundaries, conspiracy to finance
terrorism and narco-terrorism conspiracy in connection with the
defendants' leadership of the transnational criminal
organization over the past two decades from El Salvador, the
United States, Mexico and elsewhere. Keep in mind the motto of
MS-13 is ``Kill, Rape, Control'' (Department of Justice, 2021)
The current opioid crisis has a disturbing history, and the
Washington Post did several outstanding investigative reports
documenting the evolving opioid crisis in America as the ``Big
Pharma'' industry distributed 100 billion opioids into America
from 2006-2014. The Washington Post reporters analyzed the
information from a data analytics company working on behalf of
the plaintiff's lawyers in a massive lawsuit against the opioid
industry. ``In excess of 100 billion pills is simply jaw-
dropping,'' said a lawyer for the plaintiffs from Pensacola,
FL. ``The data demonstrates that every community in the country
has been negatively impacted.'' The data released traces the
path of pills from manufacturers and distributors to pharmacies
across the country. (Steven Rich, 2020)
Unfortunately, as many Americans got addicted to the
powerful pharmaceutical opioids, the Mexican TCO's took
advantage of this greater business opportunity with a larger
customer base throughout America. The Mexican TCO's first
started to distribute very high-quality White heroin to areas
of America with significant opioid addiction issues. Building
on their opportunities to make huge amounts of money, the
Mexican TCO's then engaged with companies in China to acquire
very pure fentanyl and pre-cursor chemicals to make fentanyl in
large scale operations in Mexico. The Mexican TCO's realized
the tremendous demand in America and started to produce
counterfeit oxycontin pills like ``Mexi 30 blue pills''
containing fentanyl. At first, the cartels would buy kilogram
quantities of fentanyl for around $3-5000 which would yield
profits up to $1.5-2 million per kilogram. As a result of this
``Perfect Storm'' of addiction and the Mexican TCO's, America
now has a very complex crisis with multiple facets to deal
with.
Another important factor with the Mexican TCO's impacting
America's national security is the level of violence they
engage in daily. Murders in Mexico edged up to a new record
high in the first half of 2020. Mexico has seen increased gang
violence for many years, with successive governments failing to
tackle the problem. According to the latest data available,
more than 34,600 murders were registered last year, a record.
(Reuters, 2020)
The murder rates in Mexico are very misleading due to the
number of disappearances every year.
There are disappearances at record numbers in Mexico as the
ruthless cartels employ criminals like the ``Stew Maker.''
(Ley, 2017). Based on the unprecedented violence, deaths to
Americans and criminal activities, a sound case can be made to
designate the Mexican cartels as foreign terrorist
organizations pursuant to the U.S Department of State criteria.
The Mexican cartels have left a trail of blood using
intimidation and terrorist acts of ruthless violence. The
cartels engage in beheadings, car bombings, dissolving humans
in acid, mass murders, torture, bombings and political
assassinations. Their actions are consistent with the behaviors
of traditional terrorists and they have infiltrated the highest
levels of the Mexican government with bribes and corruption.
Despite these trends, people refer to the Mexican cartels as
only transnational organized criminals even though they operate
like terrorists and wreak havoc all over their country, United
States and Canada.
The cartels routinely conduct beheadings, in which corpses
and heads are hung on public display. They are known for
kidnapping, torturing and dismembering their targets. They
conduct killings of innocent people and cartel rivals for
satanic sacrifices. Innocent women and children are not
impervious to cartel violence, as they kill have killed
indiscriminately to scare the general population into
submission and subservience.
Similar to terrorists' organizations like ISIL and Al
Qaeda, Mexican drug cartels also utilize social media sites to
install fear into the general public by posting videos, and
photographs of individuals being decapitated and tortured.
(Hastings, 2013) They have also routinely killed politicians
who oppose cartel violence or who publicly announced their
dissent.
The United States Government currently mistakenly views the
Mexican drug cartels as only TCO organizations and its current
strategy and policies are insufficient to end the Mexican drug
cartels chaos and deaths to Americans. Look at the massive
amounts of overdoses and addiction to cocaine, methamphetamines
and heroin by our citizens. The production is on the rise and
the supply of these poisonous drugs are vast. The United States
must accept and come to the realization that the cartels are
terrorist organizations. The government leaders must also
understand the culture and mindset of the cartels.
The Mexican drug cartel ideology is influenced by their
culture and religious beliefs which provide moral justification
for their actions. Some Mexican drug cartels have utilized
techniques which focus on mind manipulation and behavioral
modification commonly utilized by organizations such as Al-
Qaeda. As an example, The La Familia Cartel's indoctrination
process is described as a 6-8-week program which incorporates
texts and videos to assist with brainwashing, periodic vows of
silence and days without talking to enhance spiritual
concentration, solidarity and loyalty to the Cartels
leadership.
Another aspect of indoctrination utilized by the Mexican
drug cartels, consist of enlisting young recruits into training
camps where they are under the guidance and tutelage of hit men
or ``Sicario's.'' Child soldiers are desensitized through
vigorous training in which recruits are taught and ordered to
kill and dismember their victim, while conduct kidnappings,
assassinations and carry out car bombings. The operatives are
taught how to utilize and operate both basic and advanced
weapon systems and devices such as assault weapons, pistols and
at times even explosives. Upon the completion of training,
recruits are sent on domestic and international missions to
establish cells of Sicario's where they are subsequently called
upon to carry out acts of violence on behalf of the cartels.
(Most, 2015)
The Mexican cartels are not typical crime groups as they
conduct acts of terrorism not solely in furtherance of drug
trafficking but for the purpose of instilling fear in the
public and influencing the policy of government. They are
responsible for utilizing terror tactics to silence, torture
and kill civilians, government officials and advocacy groups
such as Catholic priests, who publicly speak out against the
violence inflicted by the Mexican drug cartels. The Mexican
cartels have become Mexico's insurgency's and have utilized
terror tactics. They have corrupted and radicalized religion to
undermine the Mexican government and the Rule of law. The
Mexican drug cartels have recruited hundreds of trained law
enforcement and military personnel who now carry out executions
and assassinations on behalf of the cartels. Paramilitary
organizations such as the Los Zetas Cartel, who were previously
trained by the U.S. military and have become one the most
feared and violent terrorist organizations society has ever
seen.
The cartels are fearless and operate with a sense of
impunity. For example, in May 2015, the Jalisco Nuevo
Generacion cartel (CJNG), blocked more than 30 roads with
smoldering tankers, set ATMs and banks on fire then proceeded
to shoot down a military helicopter with a rocket propelled
grenade (RPG); killing several Mexican military soldiers.
(Cordoba, 2015)
In 2011, Immigration and Customs Enforcement (ICE) Special
Agent's Jaime Zapata and Victor Avila were traveling in a
bullet proof vehicle containing Diplomatic license plates on
Highway 57 in San Luis Potosi, MX, when a group of armed men
from the Los Zetas Cartel forced their vehicle to the side of
the road. After identifying themselves as U.S. Diplomats and
refusing to exit the vehicle, the group of armed men forcibly
opened the vehicle door and opened fire into the vehicle
killing SA Zapata and wounding SA Avila. (Hsu, 2017)
The Mexican drug cartels have proven that they will kill
discriminately and indiscriminately in order to expand and
their influence throughout the country. In May of 2011,
representatives from the Department of Homeland Security (DHS)
and the Department of Justice (DOJ) declined a proposal by
several U.S. Congressmen including U.S. Rep Michael McCaul, to
classify several Mexican drug cartels as terrorist
organizations. (McCaul Seeks to Classify Mexican Drug Cartels
as Terrorists, 2011)
They stated the mechanisms and laws already in place in the
U.S. to deal with drug trafficking are enough and the proposed
terrorist classification wouldn't be unnecessary. The U.S. and
Mexico efforts and strategy against the Mexican drug cartels
have been proven to be ineffective in its ability to curtail
and significantly reduce the level of drug trafficking and
violence inflicted by the cartels. Look at the statistics
alone. The purpose of reclassifying Mexican drug cartels as
terrorist organizations is to not only address the problem of
drug trafficking, but to ultimately confront the level violence
and terror carried out by the cartels.
A designation would also provide the U.S. government with
additional options when combating the Mexican TCO's that would
not be limited to the capabilities of law enforcement. Instead,
it would help bridge the gap between the law enforcement,
military and intelligence community, thus providing more
resources and capabilities to combat the Mexican drug cartels.
The cartels utilize and have been found to be in possession of
weapons such as assault rifles, pistols, grenades, RPG rocket
launchers, claymore anti-personnel mines and man portable air
defense systems (MANPADS). (Bunker, 2016)
The Mexican cartels have taken control of Mexico through
active means of terrorism. They have consistently killed Mexico
mayors who have opposed the illegal activities and violence
inflicted by the cartels. They have corrupted thousands of
government officials, police officers and military personal
through financial means or through intimidation by means of
death to them and their loved ones. They have also posed a
threat to Mexico's oil infrastructure. Siphoning incidents on
pipeline networks have become the norm and drug cartels have
continuously threatened to kidnap and extort employees involved
in oil operations. (Woody, 2018)
During ``Project Cassandra'', SOD's focused attack on major
drug cartels and Hezbollah's role in a very large-scale terror
finance operation. Hezbollah was identified as a top threat by
the DOJ led inter-agency group pursuant to the President's TCO
strategy. SOD's Counter Narco Terrorism Operations Center
(CNTOC), initiated a project with multiple agencies to
investigate the connectivity between Hezbollah and the drug
cartels.
As the Director of SOD for several years, I witnessed
unprecedented results as the CNTOC Task Force and exposed
elements of the terrorist group Hezbollah, who were being
funded by worldwide cocaine sales. During 2008, the U.S.
cooperative investigation with Colombia culminated with over
130 arrests, to include many of the senior-level operatives,
and $23 million was seized. (ROTELL, 2008) This case identified
the scope and the alliance between South American drug
traffickers to money laundering operations in Hong Kong,
Central America, Mexico, Africa and Canada, and a connection to
several Lebanese criminals associated with a global organized
crime network.
Based on the substantial information developed during this
phase of Cassandra and very alarming and emerging trends
exposed, CNTOC with representatives from numerous agencies,
spearheaded a focused investigation with the field offices on
the Middle Eastern money launderers working with the drug
traffickers who were shipping multi-ton quantities of cocaine
into West Africa for distribution around the world. During this
initiative, DEA identified the leader of this sophisticated
network who coordinated multi-ton shipments of cocaine from
Colombia to Los Zeta's Mexican drug cartel and was laundering
hundreds of millions of dollars in drug proceeds back to
Colombia. The main operative also established a very
sophisticated network in West Africa to move currency via
couriers back to Lebanon.
In February 2011, The Department of Treasury with DEA
announced the identification of the Lebanese Canadian Bank
(LCB) as a financial institution of primary money-laundering
concern under section 311 of the USA Patriot Act. This was the
first time ever the 311 Action was used in a drug case. The
organized crime network was moving large shipments of drugs
from South America, Central America and Mexico to Europe and
the Middle East via West Africa and laundering hundreds of
millions of dollars to accounts held at LCB as well as through
trade base money-laundering involving consumer goods throughout
the world, including used car dealerships in the U.S. LCB was
helping Hezbollah through the Joumaa network. (U.S. Treasury,
2011)
Subsequently in December 2011, there was a complaint filed
in the Southern District of New York exposing this Lebanese
money-laundering scheme which investigators documented over
$300 million into United States for the purchase and shipment
of used cars to West Africa. The complaint alleged that the
assets of LCB, Hassan Ayash Exchange and Elissa Holding, along
with the assets of approximately 30 U.S. car buyers and a U.S.
shipping company and related entities that facilitate the
scheme, are forfeitable as the proceeds of violations of the
International Emergency Economic Powers Act (IEEPA).
Through this investigation, the task force of agencies
exposed the LCB as money-laundering for Hezbollah through a
very aggressive financial attack against the network. The
federal complaint was seeking penalties totaling $483 million.
During the December 2011, the Eastern District of Virginia
announced the indictment of Ayman Joumaa for coordinating the
shipment of tens of thousands of kilograms of cocaine from
Colombia to Los Zetas Drug Cartel for distribution into the
United States over an eight-year period. Joumaa was also
charged with laundering millions of dollars in drug proceeds
for the organization. It was estimated that the terror scheme
was moving $200 million per month. Joumaa's organization was
further exposed through the OFAC sanction. (U.S. Charges
Alleged Lebanese Drug Kingpin with Laundering Drug Proceeds for
Mexican and Colombian Drug Cartels, 2011)
In August 2012, the Southern District of New York (SDNY)
filed a 981K action against five corresponding banks in the
United States that were doing business with Banque Labano
Francais. This Lebanese bank received $150 million from the
Lebanese Canadian bank after they were exposed with their
international money-laundering business. As a result of this
very successful 981K action, the United States settled a civil
forfeiture action against the Lebanese Canadian bank and the
settlement required LCB to forfeit $102 million to the United
States. This was an unprecedented action targeting Hezbollah
and their worldwide illicit activities. The settlement also
identified to the world that international money-launderers for
terrorists and narco-traffickers will face serious consequences
even when the activity is outside the U.S. (Justice, 2012)
(York, 2013). (Manhattan U.S. Attorney Announces $102 Million
Settlement of Civil Forfeiture and Money Laundering Claims
Against Lebanese Canadian Bank, 2013)
The DEA continues to investigate the dangerous nexus
between terrorist groups and the Mexican TCO's. Project
Cassandra has resulted in numerous other U.S. government high
level arrests, seizures, extraditions, prosecutions and U.S.
Treasury actions.
Conclusion
Mexican TCO's currently operate throughout the U.S. and are
the primary cause for the heroin/fentanyl/opioid and
methamphetamine crisis we are combating today. The country is
inundated with crime, drugs and violence fueled by the Mexican
TCO's. The TCO's are taking advantage of the massive addiction
and the demand for opioids and methamphetamines all over the
United States.
Terrorists will continue to tap into the incredible amounts
of money generated from drug trafficking and many other
criminal activities such as human trafficking, counterfeiting,
weapons sales and sex trafficking so it's imperative that our
hard-working law enforcement and other U.S. government
personnel get the resources and support to enforce the laws and
keep Americans safe. We need the leadership of the Attorney
General, the Secretary of the Department of Homeland Security
(DHS), Executives from the Department of Defense (DOD) and the
Intelligence Community (IC) to unite and battle these growing
adversaries. We also need to work closely with our State and
local counterparts who are under resourced trying to deal with
this crisis on the front lines. We must also stop the unfair
treatment of law enforcement professionals around America. The
vast majority of law enforcement personnel wake up in the
morning and go to work with the goal to protect all citizens.
They respond to ``911'' calls and proactively investigate
TCO's, gangs and criminal networks trying to keep the public
safe from these growing threats. There is going to be ``bad
apples'' in all professions, but it's unfair to paint any
profession with a ``broad brush'' based on the actions of a
few. We need to unite our agencies and thank them for their
dedicated service as the complexity of the threats continues to
grow.
The threats to this great country are moving at lightning
speed and we need a sense of urgency at this point. Chinese
organized crime and the Mexican TCO's have formed a bond that's
growing daily. In DEA testimony of DEA's Chief of Operations,
it's clear that fentanyl has emerged as a tremendous threat to
America with the influence of the Chinese and cartels. (DEA,
2019)
Under U.S. federal law, fentanyl is a Schedule II
controlled substance, which is lawfully produced and
distributed in the United States by manufacturers of
prescription drugs approved by the Food and Drug Administration
(FDA) and is widely used in medicine. It is an extremely potent
analgesic, used for anesthesia and for pain control in people
with serious pain problems; in such pain control cases, it is
generally indicated only for use in people who have a high
opioid tolerance. Illicit fentanyl, fentanyl-related
substances, and their immediate precursors are often produced
in China. From China, these substances are shipped primarily
through express consignment carriers or international mail
directly to the United States, or, alternatively, to TCOs in
Mexico, Canada, and the Caribbean. Once in the Western
Hemisphere, fentanyl and fentanyl- related substances are
prepared for mixing into the heroin supply, other non-opioid
drugs, or pressed into a tablet form, and then moved into the
illicit U.S. market, where demand for prescription opioids and
heroin remain at epidemic proportions. In some instances, drug
trafficking organizations have industrial pill presses shipped
directly into the United States from China, which allows them
to press fentanyl pills domestically. Mexican TCOs have seized
upon this business opportunity because of the profit potential
of synthetic opioids and have invested in growing their share
of this market. Because of its low dosage range and potency,
one kilogram of fentanyl purchased in China for $3,000-$5,000
can generate upwards of $1.5 million in revenue on the illicit
market. Such is the potency of fentanyl, that consumption of as
little as 2 milligrams of fentanyl can result in a fatal
overdose, meaning that a kilogram of fentanyl has the potential
of causing lethal overdoses of 500,000 people.'' (Unprecedented
Migration at the U.S. Southern Border: 2019)
It's evident that the TCO groups like the Mexican cartels
are moving extremely fast while our investigators and assets
are getting ``stuck in the mud'' of politics, bureaucracy and
antiquated laws. In my view, fentanyl is a chemical weapon and
the narco-terrorist Mexican TCO's are destroying our country.
We need to step up the game with a sense of urgency. Law
enforcement will continue to do their best in enforcing the
laws, but America needs congress to further engage on these
growing issues. The death rates are spiking and impacting
republicans, democrats and independents. We must come together
and develop updated strategies to combat these threats.
Thank you for the opportunity to speak on these important
topics impacting our national security and public safety.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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Ms. Jackson Lee. The gentleman's time has expired.
I now recognize, and thank you for your testimony, Ms.
Austin-Hillery, recognized for five minutes.
TESTIMONY OF NICOLE M. AUSTIN-HILLERY
Ms. Austin-Hillery. Ms. Jackson Lee.
Madam Chairwoman, are you able to hear me?
Ms. Jackson Lee. Yes, I can. Thank you.
Ms. Austin-Hillery. Thank you so much, Madam Chair Jackson
Lee. I appreciate the opportunity that you, Chair Nadler, and
Ranking Member Biggs have provided to me this morning to talk
with you about this very important issue.
In 2016, Human Rights Watch and the American Civil
Liberties Union issued a joint report entitled, ``Every 25
Seconds: The Human Toll of Criminalizing Drug Use in the United
States.''
Our research found that at the time, every 25 seconds in
the United States someone is arrested for the simple Act of
possessing drugs for their personal use. The numbers have only
worsened in recent years.
We are way overdue for identifying and implementing more
sound, effective, and rights-respecting policies to address
this problem. To do so, we have to have honest, direct, and
fact-based discussions on exactly what the cost of these
policies has been and equally honest discussion about what real
reform looks like.
First, we need to discuss racial disparities. Communities
of color and low-income people are disproportionately impacted
by drug arrests and the unintended consequences of those
arrests.
The criminalization of drug possession has served as an
excuse over the last several decades for authorities to
significantly increase the presence of police in these
communities and enforce laws on simple drug possession in
racially discriminatory ways.
Second, it is imperative that we look at the collateral
consequences resulting from our current drug policies. A drug
conviction keeps many people from getting a job, renting a
home, and accessing benefits and other programs they may need
to support themselves and their families.
Federal law allows states to knock people out of welfare
assistance and public housing for years, and sometimes even for
life, based on a drug conviction.
People convicted of a simple drug possession may no longer
qualify for educational student loans. They may lose their
driver's license. They may be banned from juries and may face
deportation if they are not U.S. citizens, and in many
instances, some will lose the precious right to vote.
These limitations amount to nothing more than labelling
these individuals as second-class citizens. Laws criminalizing
the possession of drugs for personal use are inconsistent with
the respect for human autonomy and has yielded few, if any,
benefits.
Criminalization, simply put, is not an effective public
safety policy. It is counterproductive to public health
strategies and often people recycle in and out of jails or
prisons with little to no access to voluntary treatment.
Several countries, like Portugal, are experimenting with
models of decriminalization. Several states in the U.S. are
examining the same, with Oregon being the most prominent,
having recently passed a ballot measure banning arrest for low-
level drug possession.
The work of nations like Portugal and states like Oregon
can serve as a template for what is possible in the United
States.
Now, let me be clear in saying this. Ending the
criminalization of simple drug possession does not mean turning
a blind eye to the misery that substance use disorder can cause
in the lives of individuals and their families.
On the contrary, it requires a more direct focus on
effective measures to reduce the harms associated with
problematic drug use. Congress has this opportunity today.
Criminal law does not achieve these important ends but, rather,
causes additional harm and loss. The war on drugs was a flawed
program and it simply didn't work. Federal implementation of
mandatory minimums along with harsh sentencing guidelines has
severely lengthened sentences and contributed to an over 500
percent increase in the current prison population since 1980.
Congress now has the means and the tools at its disposal to
ensure that criminal laws permit judges to impose proportionate
sentences, ensure a class-wide ban on fentanyl-related
substances, pass the Justice Safety Valve Act of 2019, pass the
Mandatory Minimum Reform Act of 2020.
Avoid delay in passing legislation making sentencing
reforms from the First Steps Act of 2018 retroactive. Pass the
Second Look Act and the MORE Act.
Congress can make transformative changes to drug policies,
finally providing equitable, compassionate, sound solution to
addressing these numerous concerns. That is what real reform
looks like.
Thank you.
[The statement of Ms. Austin-Hillery follows:]
STATEMENT OF NICOLE M. AUSTIN-HILLERY
On behalf of Human Rights Watch, I wish to thank Chair
Nadler, Subcommittee Chair, Sheila Jackson Lee, Ranking Chair,
Andy Biggs, Subcommittee Vice-Chair, Cori Bush and all Members
of the U.S. House Committee on the Judiciary's Subcommittee on
Crime, Terrorism and Homeland Security, for the opportunity and
privilege to submit this statement for its hearing to address
Controlled Substances: Federal Policies and Enforcement. My
name is Nicole Austin-Hillery and I am the Executive Director
of the U.S. Program at Human Rights Watch. Human Rights Watch
is an international organization with staff in more than 40
countries which works to defend the rights of people worldwide.
We investigate abuses, expose the facts related to those abuses
and pressure those with power to respect rights and secure
justice.
I have worked as both a civil and human rights attorney and
advocate on criminal justice issues for over a decade,
including the interconnected issues of reform, drug policy and
racial justice as they relate to the criminal justice system. I
have served in leadership roles in national organizations where
I oversaw work focused on how to improve our justice system to
provide fair and racially equitable policies regarding drug
enforcement and treatment. I am honored to have this
opportunity to address the Committee regarding ways to
effectively, and fairly, approach drug policy in the United
States.
Reforming and Creating Sensible Drug Policy
In 2016, Human Rights Watch and the American Civil
Liberties Union (ACLU) issued a joint report entitled ``Every
25 Seconds: The Human Toll of Criminalizing Drug Use in the
United States.'' Our research found that, at the time, every 25
seconds in the United States, someone is arrested for the
simple Act of possessing drugs for their personal use.\1\ The
numbers have only worsened in recent years.\2\ Then and now,
police in the United States make far more arrests for simple
drug possession than for any other crime.\3\ More than one of
every seven arrests by State law enforcement is for simple drug
possession.\4\ \5\ Each day, tens of thousands more are
convicted for that possession, cycle through jails and prisons,
and spend extended periods on probation and parole, often
burdened with crippling debt from court-imposed fees and
fines.\6\ Drug possession arrests remain significant
contributors to mass incarceration in the United States.
---------------------------------------------------------------------------
\1\ Human Rights Watch and the American Civil Liberties Union,
Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the
United States (New York: Human Rights Watch, 2016), https://
www.hrw.org/report/2016/10/12/every-25-seconds/human-toll-
criminalizing-drug-use-united-states 2016, p. 2.
\2\ In 2019, there were 1.35 million arrests for drug possession in
the U.S., up from 1.25 million in 2015, the number upon which Human
Rights Watch relied in its Every 25 Seconds report. See U.S. Department
of Justice, Criminal Justice Information Services Division, Federal
Bureau of Investigation, 2019, Table 29 https://ucr.fbi.gov/crime-in-
the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/persons-arrested and
``Persons Arrested'' data showing that 86.7 percent of arrests for
``drug abuse violations'' in 2019 were for possession https://
ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/
persons-arrested (accessed March 9, 2021); see also Human Rights Watch,
Every 25 Seconds, p. 37.
\3\ United States Department of Justice, Federal Bureau of
Investigation, ``Crime in the United States, 2019,'' September 28,
2020, https://www.fbi.gov/news/pressrel/press-releases/fbi-
releases-2019-crime-statistics (accessed March 8, 2021).
\4\ United States Department of Justice, Federal Bureau of
Investigation, ``Crime in the United States, 2019,'' September 28,
2020, https://www.fbi.gov/news/pressrel/press-releases/fbi-
releases-2019-crime-statistics (accessed March 8, 2021).
\5\ Human Rights Watch, Every 25 Seconds, p. 2.
\6\ Human Rights Watch, Every 25 Seconds, p. 2.
---------------------------------------------------------------------------
The cost of these arrests and incarcerations, however,
extend far beyond individual experiences in the formal criminal
justice system. The cost to the incarcerated individuals, their
families, and communities, is devastating.\7\ A criminal record
locks these individuals out of jobs, housing, education,
welfare assistance, voting and much more. It also subjects them
to discrimination and stigma.\8\ What these numbers tell us is
that there is a human cost to criminalizing personal drug use
and possession in the United States.\9\ Criminalizing simple
drug possession has caused dramatic and unnecessary harms
around the country, both for individuals and for communities
that are subject to discriminatory enforcement.\10\ There are
injustices and corresponding harms at every stage of the
criminal process, harms that are all the more apparent when, as
often happens, police, prosecutors, or judges respond to drug
use as aggressively as the law allows.\11\
---------------------------------------------------------------------------
\7\ Ibid., p. 2.
\8\ Ibid., p. 2.
\9\ Ibid., p. 2.
\10\ Ibid., p. 2.
\11\ Ibid., p. 2.
---------------------------------------------------------------------------
Families, friends, and neighbors understandably want
government to take actions to prevent the potential harms of
substance use disorder.\12\ Yet, the model that has been used
for far too long in the U.S. does little to help people whose
drug use has become problematic.\13\ Voluntary treatment for
those who need and want it is often unavailable, and
criminalization tends to drive people who use drugs
underground, making it less likely they will access care and
more likely they will engage in unsafe practices that make them
vulnerable to disease and overdose.\14\ Indeed, the last decade
has seen a dramatic rise in overdose deaths, hitting over
81,000--the highest number ever recorded by the Centers for
Disease Control and Prevention--in the year that ended in 2020,
despite widespread criminalization of simple drug
possession.\15\
---------------------------------------------------------------------------
\12\ Ibid., p. 2.
\13\ Ibid., p. 3.
\14\ Ibid., p .3.
\15\ United States Centers for Disease Control and Prevention,
``Overdose Deaths Accelerating During COVID-19'': ``Expanded Prevention
Efforts Needed,'' CDC press release, December 17, 2020, https://
www.cdc.gov/media/releases/2020/p1218-overdose-deaths-covid-19.html
(accessed March 9, 2021).
---------------------------------------------------------------------------
Governments and communities have a legitimate interest in
preventing problematic substance use.\16\ The criminal legal
system is not the solution to this problem and has led to
dramatically harmful consequences. The criminalization of drug
possession for personal use is also inherently problematic
because it represents a restriction on individual rights that
is neither necessary nor proportionate to the goals it seeks to
accomplish.\17\ It punishes an activity that does not directly
harm others.\18\
---------------------------------------------------------------------------
\16\ Human Rights Watch, Every 25 Seconds, p. 3.
\17\ Ibid., p. 3.
\18\ Ibid., p. 3.
---------------------------------------------------------------------------
More broadly, the ``war on drugs'' has contributed
significantly to the problem of mass incarceration in the
United States. In addition to the vast numbers of people
arrested for simple drug possession, many other people end up
behind bars and serving extremely harsh sentences, often for
low-level drug sales, crimes generally committed to support
drug use or to alleviate poverty. Nearly one in five people in
State prisons and jails are there for drug offenses.\19\
---------------------------------------------------------------------------
\19\ The American criminal justice system holds almost 2.3 million
people in 1,833 State prisons, 110 federal prisons, 1,772 juvenile
correctional facilities, 3,134 local jails, 218 immigration detention
facilities, and 80 Indian Country jails as well as in military prisons,
civil commitment centers, State psychiatric hospitals, and prisons in
U.S. territories.'' Prison Policy Initiative, ``Mass Incarceration: The
Whole Pie 2020,'' March 24, 2020, https://www.prisonpolicy.org/reports/
pie2020.html (accessed March 9, 2021), p. 1.
---------------------------------------------------------------------------
After decades of ``tough on crime'' policies, there is
growing recognition in the U.S. that governments need to
undertake meaningful criminal justice reform and that the ``war
on drugs'' has failed.\20\ There has been a national effort to
take on parts of the problem--addressing police abuse, long
sentences, and reclassification of certain drugs.\21\ Each of
these steps is critical and I will address some of them further
herein. However, these steps are simply not enough--it is time
to have a real, honest and critical discussion about the
criminalization of drug use and what steps must be taken to
rethink reform.\22\ What is needed, particularly in this
historic moment where we have come face to face with issues of
racial and economic disparities, is a comprehensive approach to
ending the failed policies of the war on drugs and addressing
the economic, social, and health needs of communities,
disproportionately impacted by them, largely Black and brown.
---------------------------------------------------------------------------
\20\ Human Rights Watch, Every 25 Seconds, p. 4.
\21\ Ibid., p. 4.
\22\ Ibid., p. 4.
---------------------------------------------------------------------------
Racial Disparities in Drug Arrests and Sentencing
Communities of color and low-income people are
disproportionately impacted by drug arrests and the unintended
consequences of those arrests.\23\ The criminalization of drug
possession has served as an excuse over the last several
decades for authorities to significantly increase the presence
of police in these communities and enforce laws on simple drug
possession in racially discriminatory ways.\24\
---------------------------------------------------------------------------
\23\ Human Rights Watch, Decades of Disparity: Drug Arrests and
Race in the United States (New York: Human Rights Watch, 2009), https:/
/www.hrw.org/report/2009/03/02/decades-
disparity/drug-arrests-and-race-united-states, pp. 1-2.
\24\ Human Rights Watch, Every 25 Seconds, p. 4.
---------------------------------------------------------------------------
Data analyzed by Human Rights Watch shows that, over the
course of their lives, White people are more likely than Black
people to use illicit drugs in general, as well as marijuana,
cocaine, heroin, methamphetamines, and prescription drugs (for
non-medical purposes) specifically.\25\ Data has consistently
shown that Black and White adults use illicit drugs and
marijuana at similar rates.\26\ Yet, in the U.S., Black adults
are three times as likely as White adults to be arrested for
simple drug possession.\27\ Human Rights Watch also found stark
racial disparities in arrest rates for drug possession even in
the same State or city.\28\ In Manhattan, for example, we found
that Black people were eleven times as likely as White people
to be arrested for simple drug possession.\29\ The sheer
magnitude of drug possession arrests means that they are a
defining feature of the way certain communities experience and
interact with police in the United States.\30\
---------------------------------------------------------------------------
\25\ Ibid., p. 5.
\26\ United States Centers for Disease Control and Prevention,
National Center for Health Statistics, ``Use of selected substances in
the past month among persons aged 12 years and over, by age, sex, and
race and Hispanic origin: United States, selected years 2002-2018,''
https://www.cdc.gov/nchs/data/hus/2019/020-508.pdf (accessed March 8,
2021).
\27\ Drug Policy Alliance, ``2020 Annual Report,'' February 17,
2021, https://drugpolicy.org/
resource/drug-policy-alliance-annual-report (accessed March 9, 2021),
p. 11.
\28\ Human Rights Watch, Every 25 Seconds, p. 5.
\29\ Ibid., p. 47.
\30\ Ibid., p. 5.
---------------------------------------------------------------------------
More broadly, because Black communities have been the
principal targets in the ``war on drugs,'' the burden of drug
arrests and incarceration falls disproportionately on Black
people, their families, and neighborhoods.\31\ It is actually
more than just the burden of drug arrests. It is the burden of
increased police presence and surveillance which equals not
just more drug arrests but more arrests in total, in addition
to the other non-quantifiable damage that comes from living
under police scrutiny.
---------------------------------------------------------------------------
\31\ Human Rights Watch, Decades of Disparity, p. 1.
---------------------------------------------------------------------------
Racial disparities in drug arrests reflect a history of
complex political, criminal justice, and socio-economic
dynamics, each individually and cumulatively affected by racial
concerns and tensions.\32\ A fresh and evidence-based
rethinking of the drug war paradigm that includes moving away
from criminalization of simple drug possession is needed.\33\
Any solutions should also include a focus on communities and
the needs identified by community Members themselves and not
simply those identified by politicians and outside
stakeholders.
---------------------------------------------------------------------------
\32\ Ibid., p. 1.
\33\ Ibid., p. 1.
---------------------------------------------------------------------------
The Collateral Consequences of Drug Convictions
The impact of a drug conviction can, and often does, impact
multiple facets of an individual's life beyond the experience
of incarceration. In addition to excessive sentences, including
lengthy probation terms, frequently with onerous
conditions,\34\ there is massive criminal justice debt and
restrictions that impact one's ability to function within their
families and communities. The costs of these arrests and
incarcerations extend far beyond individual experiences in the
formal criminal justice system. The cost to those incarcerated,
their families and communities, is devastating.\35\
Criminalizing simple drug possession has caused dramatic and
unnecessary harms around the country, both for individuals and
for communities that are subject to discriminatory
enforcement.\36\
---------------------------------------------------------------------------
\34\ Human Rights Watch, Revoked: How Probation and Parole Feed
Mass Incarceration in the United States (New York: Human Rights Watch,
2020), https://www.hrw.org/report/2020/07/31/revoked/how-probation-and-
parole-feed-mass-incarceration-united-states.
\35\ Human Rights Watch, Every 25 Seconds, p. 2.
\36\ Human Rights Watch, Every 25 Seconds, p. 2.
---------------------------------------------------------------------------
A drug conviction also keeps many people from getting a
job, renting a home, and accessing benefits and other programs
they may need to support themselves and their families. Federal
law allows states to lock people out of welfare assistance and
public housing for years and sometimes even for life based on a
drug conviction.\37\ People convicted of simple drug possession
may no longer qualify for educational loans; they may be forced
to rely on public transport because their driver's license is
automatically suspended; they may be banned from juries and
they may face deportation if they are not U.S. citizens, no
matter how long they have lived in the U.S. or how many family
Members live in the country.\38\ In addition, they bear the
stigma associated with the labels of ``drug'' offender'' the
State has stamped on them, subjecting them to private
discrimination in their daily interactions with landlords,
employers, and peers.\39\
---------------------------------------------------------------------------
\37\ Ibid., p. 11.
\38\ Ibid., p. 11.
\39\ Ibid., p. 11-12.
---------------------------------------------------------------------------
In 2021, the Nation experienced a national election with
record-breaking numbers of voters engaged in the electoral
process, yet ``5.2 million Americans were forbidden to vote
because of felony disenfranchisement, or laws restricting
voting rights for those convicted of felony-level crimes.''
\40\ Many of these individuals have a drug conviction that
prevents them from enjoying full civic participation. These
limitations amount to individuals taking on the moniker of
``second class citizens.''
---------------------------------------------------------------------------
\40\ The Sentencing Project, ``Locked Out 2020: Estimates of People
Denied Voting Rights Due to a Felony Conviction,'' October 30, 2020,
https://www.sentencingproject.org/publications/locked-out-2020-
estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/
(accessed March 9, 2021), p. 1.
---------------------------------------------------------------------------
Decriminalization as a Policy Solution
Laws criminalizing the possession of drugs for personal use
are inconsistent with respect for human autonomy, which is at
the heart of the right to privacy, and contravene the human
rights principle of proportionality in punishment.\41\ In
practice, criminalizing drug use also violates the right to
health of those who use drugs.\42\ The harms experienced by
people who use drugs, and their families and broader
communities, as a result of the enforcement of these laws, may
constitute additional, separate human rights violations.\43\
---------------------------------------------------------------------------
\41\ Human Rights Watch, Revoked, p. 12.
\42\ Ibid., p. 12.
\43\ Ibid., p. 12.
---------------------------------------------------------------------------
At the time of the Human Rights Watch/ACLU report in 2016,
all U.S. states and the Federal Government criminalized
possession of certain categories of drugs for personal use.\44\
Last year, Oregon took an important step, with a majority of
voters approving a ballot initiative that shifts the State away
from criminalization and toward a health-centered approach to
drug use, investing in voluntary treatment, services, and
support for people who are struggling with problematic drug
use. Nonetheless, other states across the country criminalize
drug possession and enforce those laws with high numbers of
arrests--as of 2019, more than 86 percent of drug arrests were
for simple possession.\45\
---------------------------------------------------------------------------
\44\ Human Rights Watch, Every 25 Seconds, p. 4.
\45\ Ibid., p. 12; Susan Stellin, ``Is the `War on Drugs' Over?
Arrest Statistics Say No,'' New York Times, November 5, 2019, https://
www.nytimes.com/2019/11/05/upshot/is-the-war-on-drugs-over-arrest-
statistics-say-no.html (accessed March 9, 2021).
---------------------------------------------------------------------------
Criminalization has yielded few, if any, benefits.\46\
Criminalizing drugs is not an effective public safety policy.
Human Rights Watch is not aware of any empirical evidence that
low-level drug possession defendants would otherwise go on to
commit violent crimes.\47\
---------------------------------------------------------------------------
\46\ Human Rights Watch, Revoked, p. 12.
\47\ Ibid., p. 12.
---------------------------------------------------------------------------
Criminalization is also a counterproductive public health
strategy.\48\ Rates of drug use across drug types in the U.S.
have not decreased over the past decades, despite widespread
criminalization.\49\ For people who struggle with substance use
disorder, criminalization often means cycling in and out of
jail or prison, with little to no access to voluntary
treatment.\50\ Criminalization undermines the right to health,
as fear of law enforcement can drive people who use drugs
underground, deterring them from accessing health services and
emergency medicine and leading to illness and sometimes fatal
overdose.\51\
---------------------------------------------------------------------------
\48\ Ibid., p. 12.
\49\ Human Rights Watch, Every 25 Seconds, p. 3.
\50\ Ibid., p. 12.
\51\ Ibid., p. 12.
---------------------------------------------------------------------------
It is time to rethink the criminalization paradigm.
Although the amount cannot be quantified, the enormous
resources spent to identify, arrest, prosecute, sentence,
incarcerate, and supervise people whose only offense has been
possession of drugs is hardly money well spent, and it has
caused far more harm than good.\52\ Fortunately, there are
alternatives to criminalization.\53\ Other countries--and now
some states in the U.S. (in particular, Oregon) are
experimenting with models of decriminalization that the U.S.
can examine to help chart a path forward.\54\ \55\
---------------------------------------------------------------------------
\52\ Ibid., p. 12.
\53\ Ibid., p. 13.
\54\ Ibid., p. 13.
\55\ Drug Policy Alliance, ``2020 Annual Report,'' February 17,
2021, https://drugpolicy.org/
resource/drug-policy-alliance-annual-report (accessed March 9, 2021),
pp. 10-13.
---------------------------------------------------------------------------
Ending the criminalization of simple drug possession does
not mean turning a blind eye to the misery that substance use
disorder can cause in the lives of those who struggle with it
and their families.\56\ On the contrary, it requires a more
direct focus on effective measures to reduce the harms
associated with problematic drug use, and providing voluntary
access to treatment and support for those who struggle with
it.\57\ Ultimately, the criminal law does not achieve these
important ends, and causes additional harm and loss
instead.\58\
---------------------------------------------------------------------------
\56\ Human Rights Watch, Every 25 Seconds, p. 13.
\57\ Human Rights Watch, Every 25 Seconds, p. 13.
\58\ Ibid., p. 13.
---------------------------------------------------------------------------
Ending Excessive Sentences
Almost 30 years of harsh sentencing laws have left the U.S.
with over 2.2 million people behind bars.\59\ In the 1980s
State and federal legislators began to adopt ``tough on crime''
laws in response to rising crime rates, racial tensions, the
emergence of crack cocaine, supposed threats to ``traditional
values'' from counterculture movements, and fears of perceived
increases in the numbers of immigrant and youth offenders.\60\
These attitudes were a follow-up to the Nixon Administration's
push to wage a war against Black people--a plan that was well-
known and documented.\61\ Specifically, for most of the past
century,\62\ Congress and State legislatures simultaneously
adopted harsher sentencing laws, including mandatory minimums
and habitual offender statutes.\63\
---------------------------------------------------------------------------
\59\ Human Rights Watch, Nation Behind Bars: A Human Rights
Solution (New York: Human Rights Watch, 2014), https://www.hrw.org/
news/2014/05/06/us-nation-behind-bars#: :text=
The%2036%2Dpage%20report%2C%20%E2%80%9C,
highest%20report%20rate%20of%20incarcer ation, p. 3.
\60\ Ibid., p. 5.
\61\ Tom LoBianco, ``Report: Aide says Nixon's war on drugs
targeted blacks, hippies,'' CNN, March 24, 2016, https://www.cnn.com/
2016/03/23/politics/john-ehrlichman-richard-nixon-drug-war-blacks-
hippie/index.html (accessed March 9, 2021).
\62\ Drug Policy Alliance, ``Dismantling the Federal Drug War: A
Comprehensive Drug Decriminalization Framework,'' July 29, 2020,
https://drugpolicy.org/resource/dismantling-federal-drug-war-
comprehensive-drug-decriminalization-framework-drug-policy (accessed
March 9, 2021), p. 1.
\63\ Human Rights Watch, Nation Behind Bars, p. 1.
---------------------------------------------------------------------------
The plan was flawed. The Nation should not have experienced
a ``war on drugs''--drug use is a personal choice and the
``war'' was started as a political tool with racist intentions.
It was an abject failure of a policy that violated human rights
at its onset.
Specifically, at the federal level, the implementation of
mandatory minimums, along with harsh sentencing guidelines, has
severely lengthened federal prison sentences and contributed to
an over 500 percent increase in the current prison population
since 1980.\64\ While the First Step Act, signed into law by
the previous Administration in 2018, took some steps to address
the issue of over-incarceration, bolder and larger steps are
needed.
---------------------------------------------------------------------------
\64\ Human Rights Watch, Revoked, p. 132.
---------------------------------------------------------------------------
Lawmakers should ensure that criminal laws permit judges to
impose proportionate sentences, that consider individualized
circumstances and allow appropriate leniency.\65\ Reforming or
eliminating mandatory minimum sentences is a recommendation
that has been on the table and supported by criminal justice
reform advocates for years, but we have yet to achieve this
goal. These sentences are ``criminal penalties that limit
judicial discretion and require judges to impose a specified
minimum term of imprisonment upon conviction.'' \66\ Nearly
two-thirds of all federal drug sentences are subject to
mandatory minimums.\67\ The prospective sentencing reforms
incorporated in the First Step Act, including reduced
sentencing enhancements for prior drug offenses, clarification
that the 25-year mandatory minimum for certain firearm offenses
is reserved for true recidivists, and expanded safety valve
relief for certain nonviolent drug offenses, will help to limit
excessive sentences in the future.
---------------------------------------------------------------------------
\65\ Human Rights Watch, Nation Behind Bars, p. 8.
\66\ The Justice Roundtable, ``Transformative Justice:
Recommendations for the New Administration and 117th Congress,''
November 2020, https://justiceroundtable.org/wp-content/uploads/2020/
11/Transformative-Justice.pdf (accessed March 9, 2021), p. 44.
\67\ Ibid., p. 44.
---------------------------------------------------------------------------
Unfortunately, these changes are not retroactive, and it is
estimated at least four thousand people in federal prison today
serving sentences under now-reformed statutes will not benefit,
including many people who will die in prison without
retroactivity.\68\
---------------------------------------------------------------------------
\68\ Ibid., p. 46.
---------------------------------------------------------------------------
Recommendations for Reform
Congress has an opportunity to make transformative changes
to drug policies that finally provide an equitable,
compassionate, and sound solution to addressing the numerous
concerns laid out in this testimony. This is a moment to
recognize and address the harms that harsh, disparate policies
that have focused more on punishment than supporting healthy
individuals, families and communities have had on the people,
particularly those who are Black and low-income.
Congress should follow in Oregon's footsteps by
prioritizing an effort to end the criminalization of possession
of drugs for personal use, and shift resources from the
policing of drug use toward access to evidence-based treatment
and other voluntary supports for people who struggle with
substance use disorder.
Additional legislative proposals that can contribute to
reducing the excessive punishment brought on by the ``war on
drugs,'' which Congress should undertake and pass, include:
The Justice Safety Valve Act of 2019 which would
allow courts to impose a sentence below a mandatory minimum if
the court finds that it is necessary to do so to impose a
sentence that is not greater than necessary to comply with the
statutory purpose of sentencing laid out in 18 U.S.C.
3553(a).\69\
---------------------------------------------------------------------------
\69\ Ibid., p. 44.
---------------------------------------------------------------------------
The Mandatory Minimum Reform Act of 2020 would
eliminate mandatory minimum sentences for drug offenses.\70\
---------------------------------------------------------------------------
\70\ Ibid., p. 45.
---------------------------------------------------------------------------
Include in any sentencing reform legislation
provisions that ensure the new law will be applied
retroactively to individuals who have already been
sentenced.\71\
---------------------------------------------------------------------------
\71\ Ibid., p. 46.
---------------------------------------------------------------------------
Avoid delay in passing legislation making the
sentencing reforms enacted in the First Step Act of 2018
retroactive.\72\
---------------------------------------------------------------------------
\72\ The Justice Roundtable, ``Transformative Justice,'' p. 45.
---------------------------------------------------------------------------
The Second Look Act would allow any individual
who has served at least 10 years in federal prison to petition
a court to take a ``second look'' at their sentence before a
judge and determine whether they are eligible for a sentence
reduction or release.\73\
---------------------------------------------------------------------------
\73\ Ibid., p. 45.
---------------------------------------------------------------------------
The MORE Act removes marijuana from the
Controlled Substances Act and begins to repair the harm
marijuana prohibition has caused to millions of people,
particularly people of color, by establishing a fund for social
equity programs to reinvest in affected communities. It also
creates a process by which people with federal marijuana
convictions can have their records for these convictions
expunged, in some cases automatically, or can be
resentenced.\74\
---------------------------------------------------------------------------
\74\ ``US: House Votes to End Marijuana Prohibition,'' Human Rights
Watch News release, December 4, 2020, https://www.hrw.org/news/2020/12/
04/us-house-votes-end-marijuana-prohibition.
---------------------------------------------------------------------------
Thank you for the opportunity to submit this testimony.
Ms. Jackson Lee. Thank you so very much, Ms. Austin-
Hillery, for that testimony and, as well, thank you for the
divergent but also seemingly consistent view of all of our
witnesses.
Certainly, we do not take lightly the dangers of drug use
or the dangers of cartels or large organizations. We know that
we can, in essence, walk and chew gum at the same time and try
to deal head-on with this horrible rage of addiction and the
plague of major cartels and criminal activities. We can do that
in the right way. So, we thank you very much.
The time is now for questions and we will now proceed under
the five-minute Rule with questions. I'll begin by recognizing
myself for five minutes.
The answers of the witnesses are so very important, but we
ask that they are succinct so that we can get as much on the
record of your vital information as we possibly can.
Quickly, decades of unequal enforcement of drug laws
against Black and brown communities have resulted from--
resulted in long-term damage to families, economic opportunity,
mental health, wellbeing, and overall quality of life.
Certainly, Dr. Henderson, as you've indicated, it has
impacted communities of color. We have been under served in
healthcare and other aspects of treating that disease and
addiction.
Last Congress, Chair Nadler and I worked to pass the MORE
Act. Isn't it true that we need this--these kinds of reforms to
bring more economic opportunities to communities most adversely
impacted by the war on drugs, and as well, the ending of
mandatory minimums and a different construct? Can you answer
that question, please, Dr. Henderson?
Mr. Henderson. Yes, it is true that we need more policies
in that direction because we understand that a significant
majority of individuals who are caught in this trap are doing
it because they don't have economic opportunity in many of
their communities.
Ms. Jackson Lee. At the federal level, what drug policy
priorities do you recommend that are evidence-based and data-
driven?
What can we do to reduce these historic racial disparities
that come about and generate mass incarceration with
individuals, even from being prosecuted in the '80s still
incarcerated at this time?
Dr. Henderson?
Mr. Henderson. Well, we can start with decriminalizing
marijuana. We understand the significant impact of that.
We can start with also, the whole notion behind federal
drug legislation in terms of the way we schedule these drugs.
We understand the impact of the schedulization in many of these
communities.
More importantly, we need to reframe our thinking around
the drug problem and remove the drug situation from the
criminal justice system and directly place it into the public
health arena.
Ms. Jackson Lee. Thank you very much.
Ms. Austin-Hillery, thank you for indicating that we do not
have to ignore the vileness of drug use or drug sales. We can
prosecute as well as save lives.
So, my comment to you or question is, isn't it true that
these penalties, mandatory minimums that are unjust and unfair,
have a disparate outcome for Black and brown communities?
Please tell me your views on mandatory minimum sentences and
how they can be counterproductive.
Ms. Austin-Hillery. Thank you very much, Madam Chairwoman.
They are absolutely counterproductive because they have a
disparate impact on not only Black and brown communities but on
poor communities. To ensure that we have equity across the
board, we have to look at all of the different factors that go
into how we apply our laws.
If there is not a direct outcome that relates to the crime
committed but that, rather, puts a burden on certain
communities over others based on nothing more than racial
intent and racial animus, then we have to do away with those
laws.
Mandatory minimums have done just that. Mandatory minimums
have ensured that we have more Black and brown people in jails
despite the fact that, based on research, Black and brown
people do not use drugs at a higher level than white.
Ms. Jackson Lee. Thank you for that.
Ms. Austin-Hillery. So, we have to make that change.
Ms. Jackson Lee. Let me also ask you, last year, Congress
passed a bill to temporarily extend the DEA's authority for
scheduling fentanyl--related substances. We heard from a
coalition of advocates opposed to the bill including Human
Rights Watch.
What's your view on this issue now?
Ms. Austin-Hillery. As I said in my testimony, Madam
Chairwoman, we absolutely have to make that change. The letter
that we sent to Congress, which we are happy to submit for the
record, spells it out very clearly.
This is not only something that Human Rights Watch
believes, but it is what so many of our coalition partners
believe. We must put a ban when it comes to fentanyl, and we
can't go forward with real reform if we don't do that.
Ms. Jackson Lee. Thank you so very much.
Dr. Neill Harris, welcome again.
Thirty-six states, the District of Columbia, and others
have adopted laws allowing legal access to cannabis. Fifteen
states have adopted laws legalizing cannabis for adult
recreational use.
Nonetheless, marijuana continues to be a key driver of mass
incarceration. Why do you think it's important to remove
cannabis from Schedule I of the Controlled Substances? Why is
this action so important?
How can Congress support these data-driven effective
programs like the Law Enforcement Assisted Diversion program
and how do these programs successfully demonstrate an alternate
pathway for treatment of individuals struggling with substance
abuse?
I've combined two questions--two aspects of the questions.
The time is short, but I would appreciate if you'd be able to
answer.
Dr. Neill Harris?
Ms. Harris. Yes, thank you, Madam Chairwoman.
It's very important to decriminalize marijuana for a few
reasons. One is that it will send a message to other states
that this is an important act. I believe that some states are
waiting to see federal action before they go to decriminalize
themselves.
Second, we know that even though legalization is spreading
across the country, racial disparities in arrests continue.
Black people remain over three times as likely to be arrested
for marijuana possession nationally, even though we have seen
this large move for reform.
The MORE Act that has been brought up in this hearing is a
perfect example of legislation that also targets the racial
inequities that we have seen from the drug war by reinvesting
in communities.
Programs like Law Enforcement Assisted Diversion we see
work because what they do is that they catch somebody before
arrests, and they put them in contact with treatment and with
social services that can help with that problem and they bypass
the entire criminal justice system so that person does not
become ensnared in that system.
Ms. Jackson Lee. Thank you so very much. Appreciate your
answer. I know my time has expired.
I now recognize the Ranking Member for his questions for
five minutes, Mr. Biggs.
Mr. Biggs. Thank you, Madam Chair.
Mr. Maltz, I'm sure you've seen recent news stories about
the growing crisis at the southern border, and you touched on
it in your opening statement.
My question for you is what impact does this surge of
illegal border crossers at the border have on DEA, CBP, and
other federal agencies' ability to conduct enforcement
operations to deter and interdict drug trafficking?
Mr. Maltz. Well, right now we have a situation where CBP
has gone from border security and protecting Americans to
migrant care workers. That's unacceptable because we have
families all over this country, and I do this every day--I get
pictures from families of their children that are dying from
fentanyl. They have record level seizures of fentanyl.
As an example, in February so far this year, there's over
4,000 pounds of fentanyl been seized. One kilogram of fentanyl
kills 500,000 people.
So, we have a crisis. We have radical open border policies
that will not work when it comes to national security and
public health, and we have to deal with this.
One thing I will say was an observation I made today, that
walls and fences must work because it took me an hour and 15
minutes to walk from the garage to get here. So, walls should
be put up on the border and we need to keep the migrants going
through a legal process.
Mr. Biggs. So one of the things, Mr. Maltz, that you talked
about flooding the zone, and a lot of people don't understand
what flooding the zone is in border crossing, and we're talking
between ports of entry.
Express to us what flooding the zone means and how it
facilitates criminal cartels using now vacated areas to smuggle
in dangerous drugs.
Mr. Maltz. So flooding zone is, basically, a way that these
business operations can make lots of money. They're charging
the migrants thousands of dollars. If it's a special interest
alien from certain parts of the world it may be $9,000.
So, they're making money on the migrants coming up. They
gather the migrants together. They watch where the Border
Patrol is. They blitz the Border Patrol agents, so they're
totally focused on the migrants, and then they send their drugs
and the people, many times special interest aliens, through
these open areas.
Then on top of that, the cash and the guns come southbound.
So, they take advantage of the vulnerability. That's what
criminal networks do. They take advantage of weaknesses, and
that's a weakness in our country at the border.
Mr. Biggs. So federal agencies put out press releases
several times a week touting drug seizures, like what you see
behind me. This is from Phoenix and Yuma.
Can you estimate what percentage of drugs people and other
contraband crossing our border are interdicted by a federal
agency?
Mr. Maltz. Look, I'm no expert on border interdiction
statistics, but I've heard for many, many years in the DEA, 10
percent is seized, right.
So, if you look at just an example, in January there were
1,950 pounds of meth in Dallas, 2,500 pounds in El Paso in
December, another 1,900 pounds was seized in Texas.
In Los Angeles, they had record seizures of meth, 2,000
pounds, another 3,000 in San Diego. Lots of meth, fentanyl,
cocaine, and marijuana are getting in there.
The thing that concerns me the most are the counterfeit
pills that are disguised as what they call Mexi-oxy 30s.
They're the blue pills that the kids are taking, and they have
no idea it's poison. It's pure fentanyl in many cases.
There's no quality control. They don't have chemists that
sit there like FDA and regulate the amount of fentanyl. They're
just trying to make as much money as they can, and it's killing
Americans at record levels.
Mr. Biggs. Mr. Maltz, as we get toward the end of your
testimony or my opportunity to ask you questions, you talk to
the parents of the victims of overdose and drug use on a
regular basis, daily?
Mr. Maltz. Right, and that's why I'm here, by the way. My
passion is for the American people and public safety. I'm not
here getting paid. I have no agenda.
This is Joseph Dean from Connecticut, 23-year-old. The
mother had to put up billboards in Connecticut to get the
attention about how bad this crisis is, the murders with
fentanyl.
These are all the pictures I get from families every day on
Facebook. I don't look at the race in the background of these
people. I'll take any photo that they send to get the word out
there. These kids are dead and they're not going to come back.
They don't have a future, because it is poisonous chemical
coming from labs in Mexico.
Mr. Biggs. Madam Chair, I'd request without objection that
his three visual aids be admitted into the record.
Ms. Jackson Lee. Without objection, so ordered.
[Mr. Maltz for the record]
MR. MALTZ FOR THE RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Biggs. Thank you.
With that, I thank you, Mr. Maltz.
Thank you, Madam Chair, and I'll yield back.
Mr. Maltz. Thank you.
Ms. Jackson Lee. Thank you so very much. The gentleman
yields back.
The gentleman from New York is recognized, chairman of the
committee, for five minutes.
Chair Nadler. Thank you, Madam Chair.
Dr. Austin-Hillery, I just want to clarify. The letter to
us you quote--you cited concerning the class-wide ban on
fentanyl analogs opposes the extension of DEA's order.
Isn't that the position in the letter?
Ms. Austin-Hillery. Yes, it is, Mr. Chair.
Chair Nadler. Okay, thank you.
Dr. Neill Harris, please tell us more about your views on
the class-wide ban.
Ms. Harris. Yes, thank you, Mr. Chair.
I would like to briefly respond to the point about the
border and the drugs that are coming across the border and just
remind everyone that the reason that we have so many drugs
coming into this country is a direct result of prohibitionist
policies, and the fact that 90 percent of drugs remain unseized
goes to show the ineffectiveness and the fact that people are
still getting access to these drugs.
Chair Nadler. Thank you.
Ms. Harris. The problem with the class--
Chair Nadler. Go ahead.
Ms. Harris. With respect to the class-wide ban, I was just
going to reiterate that the bans themselves, when you ban a
certain substance people, chemists, traffickers, people
selling, people using will find alternatives.
That's how we got to the point where people--where fentanyl
is so prevalent in the heroin supply, because heroin was
prohibited. So, people found a different way to get something
smaller and more lethal to supply the demand that exists in
this country.
We have to focus on reducing the demand. If we focus on the
supply, we will continue to see more deadly alternatives come
to this country and continue to contribute to the overdose
epidemic.
Chair Nadler. Thank you.
In 2018, the New York Times reported that in New York City,
Black people were arrested on lower-level marijuana charges at
eight times the rate of White non-Latino people over the past
three years.
In Manhattan alone, Black people were arrested at 15 times
the rate of White people. As you know, I am the author of the
MORE Act, a bill that would eliminate marijuana from the list
of federally--controlled substances.
Could you describe, please, why this is the right policy
and why it's necessary to help communities most adversely
affected by the war on drugs?
Ms. Harris. The MORE Act is essential because what we have
seen so far with decriminalization and legalization throughout
the country is that the racial inequities continue. Even in
states that have legalized, you continue to see racial
disparities in arrest rates.
The MORE Act is essential because not only does it
decriminalize, which sends a strong message to states, but it
also lays a blueprint for how to redress the harms of the drug
war through actions such as barring discrimination for public
benefits and social assistance, and all of those important
components. It bars discrimination against people who have been
convicted of marijuana-related offenses.
It also lays out a process for expungement for past
convictions and it also provides opportunities for people of
color to get involved in the marijuana industry. What we have
seen in states that have legalized is that that industry is
dominated by White men, and so the communities most hurt, most
impacted by the war on drugs have been unable to benefit from
legalization. The MORE Act is critical to enforcing that and to
seeing that progress.
Chair Nadler. Thank you.
Ms. Austin-Hillery, reverse sting operations are a
technique in which the DEA and other law enforcement agencies
approach people and induce them to rob fictional drug stash
houses.
The use of reverse stings in the Southern District of New
York reveals a troubling pattern across the country. The
operations overwhelmingly target people of color and lead to
mandatory minimum sentences or other significant penalties for
fictional crimes that do not reduce the flow of drugs.
In federal drug cases, how do law enforcement practices and
policies violate basic principles of equal justice, and what
reforms are needed to address the racial disparities in drug
cases and investigations?
Ms. Austin-Hillery. Mr. Chair, we need to make certain that
what other mechanisms are used by law enforcement that they are
not pretextual and that they serve the actual purpose for which
they were intended.
When we have law enforcement create mechanisms that simply
put up falsehoods and that target certain communities, even
when statistical data and the evidence before us doesn't show
those communities are the predominant actors in creating the
harm that they seek to end, then we have a problem.
We at Human Rights Watch want to make sure that whatever
policies and mechanisms are put in place are based on real data
and real research and not based on any kind of political wants
and desires and needs to increase numbers so that law
enforcement can look like they're doing their job.
Their job is to protect communities and keep them safe, and
frankly, what we'd really like to see is more funding go to
ensuring that people are healthy and safe and get the kind of
support that they need to care for themselves and their
families so that these issues will become less prominent and
there will be a lesser need for law enforcement interaction.
Chair Nadler. Thank you. My time has expired.
Ms. Jackson Lee. The gentlelady's time has expired.
The gentleman's time has expired. It is at this time that
I'm going to call for a recess for Members to be able to vote.
Witnesses, if you can turn off your mics at this time and
we will call you to order after the vote on the floor of the
House.
Thank you so very much. The Committee now stands in recess.
[Recess.]
Ms. Jackson Lee. I now call back to order the Crime
Subcommittee hearing, House Judiciary Committee, Controlled
Substances, Federal Policies, and Enforcement hearing today on
Thursday, March 11, 2021.
As we left for a vote and let me thank the Members for
their cooperation and hope everybody voted twice, legally, of
course, for the two votes that remain.
So it's my pleasure to now yield to the gentleman from
Ohio, the distinguished gentleman from Ohio, Mr. Chabot, for
five minutes.
Mr. Chabot. Thank you very much, Madam Chair.
Mr. Maltz, I want to begin by thanking you for your years
of service at the DEA, the Drug Enforcement Administration, for
everything that you and your men and women there did to protect
the American public and save lives. So thank you very much for
that.
My first question, I believe it was posited by the other
side a while back that, essentially, if we legalized or
decriminalized drugs we'd probably have less of that coming in
at our southern border.
Yet, there are quite a few states now that have legalized
marijuana and the amounts coming in at the southern border has
continued to be on the rise.
So, is that your understanding?
Mr. Maltz. Yes, of course. It's not just coming in from the
southern border. Chinese nationals are buying real estate all
over America and they're making these unbelievable marijuana's
grow houses in beautiful communities and they're selling very
high pure THC marijuana to people all over America, right now
as we sit here today.
Mr. Chabot. Thank you very much.
My next question, would you agree that drug trafficking
goes hand-in-hand with human trafficking, that we have a real
crisis at our southern border when we turn detention centers
into reception centers now and when we, basically, say come on
in?
People are coming in. They're listening and they think they
can stay. You mentioned it took you an hour and 15 minutes, I
think it was, to get beyond the walls and barbed wire that we
have around this facility now here in Congress.
Yet, construction on the wall at our southern border has
been stopped, ceased, terminated, at least during this
Administration.
Again, going back to my original question, does drug
trafficking and human trafficking go hand-in-hand?
Mr. Maltz. Yes. I mean, the Mexican cartels are
transnational criminal organizations. They're in the business
to make money. They're charging these poor migrants thousands
of dollars to be escorted up to the border. They're using them.
They're tagging them now. They're putting wristbands on
them so they can keep track of the money owed so if they don't
pay the money, their families or they die.
So, you also had that incident in January where--it's a
2,000-mile journey from Guatemala. There were 19 migrants
murdered and burned to a crisp because they didn't pay their
taxes to the cartels.
So, it's a very, very dangerous situation. It is a huge
humanitarian crisis and it's really, really sad.
Mr. Chabot. Thank you very much.
I read your statement before you came, and you only get
five minutes so you don't have a chance to get all of that in
there.
So one of the things you mentioned in there that I thought
was worth bringing up here is the sicarios, which a lot of
people may not necessarily be familiar with the term, but
essentially, drug thugs, hit men, muscle, that are training
young impressionable drug dealers who get across our border,
come here, and are setting up shop in cities across the
country, and the propensity for violence that these people are
equipped with and willing to do, could you discuss that?
Mr. Maltz. Yeah. I mean, the Mexican cartels are hiring
former military and police officers, and obviously, the
corruption is through the roof in Mexico. So, they're paying
these people a lot more than they would get paid in the police
jobs or military.
Then they get trained in professional facilities. They have
indoor ranges. They have plenty of ammunition. They recruit
kids, these young kids that just want to make some money, and
they go out and start killing people.
It's very dangerous because they don't just kill people
with guns. They chop people up. They hang people's heads from
bridges and fence posts. They sent heads in coolers with blood
to people to intimidate. They tie notes over people. There was
one famous case where they roll heads on the dance floor.
Then they are way into the country and there is some
violence in our country. It is spillover violence in the
country, depending on how you define that word. Some people
define the word as deliberate attacks against U.S. people. I
don't see too much of that.
I see cartel violence at levels we have never seen, I could
talk all day about the stuff I witnessed when I was the head of
the SOD operation.
Mr. Chabot. Before I run out of time here, you had
mentioned when you were testifying before that you're losing
the tools in your toolbox. Could you tell us what you mean by
that?
Mr. Maltz. Oh, absolutely. One of the best techniques that
law enforcement has is infiltrating communications pursuant to
federal court orders. Very lengthy process. You don't just flip
a switch and listen to somebody's phone.
Unfortunately, because our laws are so outdated, the bad
guys are using advanced encryption technology and we can't
infiltrate the communications. We have communications going on
every day of the week in advanced communications, encrypted
apps, and if we have a court order, if we have the probable
cause and the judge signs the order, we can't get the content.
That's a problem, and that's a problem for every American.
It's not a problem just for DEA. It's a problem for everyone in
this room because child molesters, robbers, murderers, rapists,
they're all using these apps. So, law enforcement can't track
these criminals. They're predators in the community. So, it's a
big problem, yes.
Mr. Chabot. Thank you very much. My time has expired, Madam
Chair.
Ms. Jackson Lee. The gentleman's time has expired.
Ms. Bass?
[No response.]
Ms. Jackson Lee. I recognize Ms. Demings for five minutes.
Ms. Demings. Thank you so much, Madam Chair. I'd also like
to thank all of our witnesses for your time and your testimony.
It is extremely important that we have this discussion,
this hearing, and also hear your expertise and perspective.
I want to begin my comments with this. I've witnessed the
devastating effects of drugs in communities, devastating
effects on families, individuals, and those communities.
I want to quote former Police Chief David Brown when he was
with Dallas. He said this: ``Every societal failure we put on
the cops or the criminal justice system to solve. Not enough
mental health funding? Give it to the police. Not enough drug
addiction treatment funding? Let the police handle it.''
We say in Orange County, Florida, that the Orange County
Jail is the biggest mental health treatment facility and the
biggest drug treatment facility in the region. Some families
actually feel like were it not for those institutions, and this
is really sad, that their loved one would not get any help at
all.
Chief Brown went on to say, ``Schools fail? Call the
police. Let them handle it.'' He said, ``This is too much to
ask.''
What I believe, based on my experience as a 27-year law
enforcement officer is that the criminal justice system is left
to solve problems that government has failed to address.
I believe those quality of life issues--education, housing,
poverty, economics, wages--are directly tied to our criminal
justice system.
Dr. Henderson, I'd like to begin with you. If you could
please talk about what you believe is the nexus between the
failures of our criminal justice system and those quality of
life issues in communities that we care about--I care about all
of them--like poverty.
Mr. Henderson. Thank you so much for taking that position.
I, myself, spent a number of years working as a probation
officer and that's where I learned the ``do no harm'' approach.
When you look at the war on drugs and you think about every
25 seconds someone being arrested for drug possession, when you
think about the families that are directly impacted, we know
all the stats. We know that.
What we don't really think a lot about are the residual
impacts of this reality in these communities that have
decimated many Americans.
Since 1971, the war on drugs has been estimated to cost
this country over a trillion dollars. When you now look at the
current opioid epidemic and the approach that we're taking in
that space, when you think about the impact of interventions,
when you think about how many jurisdictions are now reducing
fatalities because they are made naloxone available across many
of these communities in trying to reduce and respond to opioid
overdoses, in states like New York when you look at syringe
access programs, when you think about the over 60 international
cities that now operate supervised injection facilities, when
you think about the number of American cities that are working
to implement approaches that are going to focus on harm
reduction, when you think about the number of drug courts that
we now have in this country to move us in the right direction,
I think that we understand the harm, and now it's about time
for us to begin to reverse that so that we can reacclimate and
rebuild these families that have been torn apart over the last
50 years.
Ms. Demings. Dr. Henderson, could you or any witness
comment on some of the alternative programs to incarceration
like the LEAD program? If you could just comment. You mentioned
drug courts, but if you could comment on the effectiveness of
some of those other programs.
Mr. Henderson. Yes, I will. I'll do that. I think the LEAD
program, it allows officers to divert individuals to treatment
and social services, which is where they should be because we
know now addiction is a disease, particularly when you're
talking about low-level drug arrests.
The model that was pioneered in Seattle, it's yielded
significantly positive results. Individuals who have been
diverted to these programs are found to be almost 60 percent
less likely to be rearrested when you compare them to
individuals who went through traditional criminal justice
programming.
So, we know that works. The challenge that we have is
getting people to begin to adopt the alternative philosophy to
social controls.
Ms. Demings. Thank you so much, Madam Chair. I yield back.
Ms. Jackson Lee. The gentlelady's time has expired.
I recognize the gentleman from Texas, Mr. Gohmert, for five
minutes.
Mr. Gohmert. Thank you, Madam Chair.
Mr. Maltz, you were talking about the horrendous corruption
in Mexico. I know you were with the DEA for a long time. Have
you ever travelled to Mexico?
Mr. Maltz. Yes, sir.
Mr. Gohmert. They've got hard-working people there, right?
Mr. Maltz. Absolutely.
Mr. Gohmert. Of course, I think it's wonderful when the
majority of the people have a faith in God, which is what I
find in Hispanics and Central Americans, and also they have a
love of family.
It seems that the number-one problem that's keeping Mexico,
Central America, from being some of the most vibrant economies
in the world, one thing and you touched on it, the massive
amount of corruption.
Are you aware of corruption from any source in Mexico
besides the drug cartels?
Mr. Maltz. I mean, I'm aware of the massive corruption up
to the top in the Mexican government. The DEA actually recently
had a major success with the arrest of the former Defense
Secretary, Cienfuegos. They indicted him in the Eastern
District of New York, and he was running the country's army.
Okay. Also, Genaro Garcia--
Mr. Gohmert. Literally running the country--Mexico's army?
Mr. Maltz. He was running the army but working with the
cartels, and Genaro Garcia Luna was running their public
safety. He was arrested and is in jail in America.
So, the corruption is off the charts in with the cartels.
If you paid attention to the ``Chapo'' Guzman trial in New
York, there were allegations of the bribes they were making,
even to the former President of Mexico. Okay.
So, yeah, it's off the charts and they get all the money
from America, and the money doesn't go to the people. It goes
to the corrupt politicians.
Mr. Gohmert. Yeah. Well, and you mentioned about people,
and I've spent lots of nights on the border--days, but also all
night many times, and I've been there as they go through the
Border Patrol and they have their checklist.
A lot of times they'll add questions like, how much did you
pay, and the money all ends up going to the cartels. They
sometimes pay coyotes or gang Members to get them across. Most
of the time, they'll say, $5,000, $6,000, $7,000, or $8,000.
When the Border Patrolman says, you don't have that kind of
money, well, I'm going to be able to pay it when I get where
I'm going.
I've seen them, people standing in line waiting to be asked
their in-processing questions, and they're passing addresses.
Oh, I like yours better, and they're switching addresses. They
apparently are given addresses where they're supposed to go to
sell drugs or be involved in sex trafficking, whatever, and
they're given the location of the city and place they're
supposed to go.
You've seen that, I'm sure.
Mr. Maltz. Right, and that's what I was talking about
before. The most recent is the wristbands. They're giving them
wristbands, and they're finding wristbands, which is actually
tracking them as commodities, and if they don't pay their
families are in danger and they're in danger when they come
back one day or if they're even in the U.S. they're in danger.
Mr. Gohmert. Well, I have read estimates like $80 billion
just on drug trafficking that the cartels bring in now that
they've been in human trafficking for a while. It's amazing.
What a business model. Your employees pay you to be indentured
servants for the future.
What would happen if we completely secured--not closed but
secured our southern border? What would happen to the cartels
in Mexico?
Mr. Maltz. Well, the cartels are very innovative. They
would figure out ways to get their supply to the unbelievable
demand we have in America. It would cause a lot of stress for
them at the border. They would start using different methods,
tunnels, and they'd use container ships.
Mr. Gohmert. Yeah, but we have got technology now, if we
would use it--not just the microphones underground, like the
old days in West Berlin, but we have some really good methods
of detecting tunnels.
Mr. Maltz. Absolutely.
Mr. Gohmert. There's technology that we have now we didn't
used to have. Wouldn't you surely agree that if we completely
secured the border, including a very strong program just to
find out tunnels, it would minimize the amount of money that's
pouring into the drug cartels and severely limit the corruption
there?
Mr. Maltz. Absolutely. They need the people here to run
their operations in almost every city in America. This is not
just the big cities, New York and Chicago and Los Angeles. This
is cities all throughout America.
So, they need the people. So, the people here, they have
trusted confidants to work as leaders of their cartel in our
different cities. So, the people are so important, and that's
what they're doing. They're taking advantage of the wide-open
void.
Ms. Jackson Lee. The gentleman's time has expired.
Mr. Gohmert. Thank you for allowing me the extra 27
seconds. I know it wasn't 56 like yours but thank you.
Ms. Jackson Lee. Thank you so very much to the gentleman
from Texas for his comments.
Let the record reflect that the bulk of those who are
crossing the border over the years and decades have not come
for drug activities, but have come out of desperation in
fleeing persecution that they are experiencing.
Mr. Gohmert. I would object to that.
Ms. Jackson Lee. I thank the gentleman for his testimony.
Let me now yield 5 minutes to the gentlelady from Georgia,
Ms. McBath.
Ms. McBath. Thank you, Madam Chair.
Thank you to our witnesses today. Thank you so much for
coming before us to discuss how we can really keep our
communities safe.
I also want to thank the many researchers at the Centers
for Disease Control and Prevention, and that is, in and also
near my district. Their research is very critical to making
sure that we are making informed public health decisions.
Unfortunately, as we have mentioned, the CDC research shows
that the opioid deaths have accelerated under the COVID-19
pandemic, which really compounds the tragedies that we are
facing now. I know that we have got to do more to save lives
from drug addiction and overdoses, using the tools of public
health and improvements to our justice system. So, I am pleased
that we are having this discussion today because it is vitally
critical.
Ms. Austin-Hillery, in your testimony you mentioned the
impact of the increased incarceration of people for drug-
related offenses on their family Members. What family resources
should be made available right now? Are there any friendly
family-oriented resources that need to be used for more
support?
Ms. Austin-Hillery. Thank you, Congresswoman, for that
question. The answer is a resounding yes. At Human Rights
Watch, our research takes us into communities where people are
directly impacted. We don't just sit behind our desks and pull
up research on the computer or go to a library. We go to
communities and talk to the people about what they want.
What we find from those communities is this: The families
say they want resources, not to figure out how to continue
tangling with law enforcement. They want resources that help
them get better educational opportunities, better and cleaner
housing, clean water, more infrastructure, and more jobs.
So, if we can focus on resources, on providing those kinds
of supports to families, that will have a trickle-down effect
and will ensure that we will have less entanglements and less
interactions between communities and law enforcement that are
negative. This is what the people are telling us they want, and
we need to hear them and heed to their desires and to their
needs, and not use our own erudite, and sometimes very, what I
want to say, thinking that doesn't hit the point and that
doesn't meet their needs. We need to be talking to them and
giving them the services that they tell us on a daily basis
that they need. That is how we can support those families.
Ms. McBath. Thank you very much. We should always be
listening to our constituents.
So, Dr. Neill Harris, your testimony mentioned several
programs that you think can help improve how law enforcement
interacts with those who have substance abuse programs,
programs like the Law Enforcement Assisted Diversion, or LEAD,
as you call it. LEAD is the pre-arrest program, am I correct? I
believe that there are also other kinds of programs within the
justice system as well, such as the Veterans Treatment Courts
that focus on getting veterans the treatment that they need and
finding better ways to rebuild accountability. So, do you think
that Veterans Treatment Courts can have some of the same
effects as programs as LEAD do, and I guess help to reduce
inappropriate incarcerations?
Ms. Neill Harris. Thank you for that question.
I would say that I do think that there is potential for
treatment courts such as veterans' courts and diversion courts
to help people and connect them with different services. I
would still suggest and recommend, however, that our primary
diversions occur pre-arrest, because once someone gets involved
with the court process, then that means that they are still
entangled with the legal system in different ways. For people
who have resources already, it is easier to comply with the
requirements of those specialty courts. For those who do not
have those resources, it is harder.
So, I absolutely think that we need to be connecting people
with services, whether it is veterans, other people with mental
illness, people with substance use disorders. I would strongly
urge that we do that prior to the arrest. The LEAD program is a
good example of that because law enforcement can, essentially,
hand off people to social workers and behavioral counselors who
can, then, connect people with the services that they need.
Ms. McBath. Thank you.
Ms. Austin-Hillery, do you think that programs like these
might help our justice system produce more equitable and just
outcomes?
Ms. Austin-Hillery. Absolutely. That really is the goal.
One of the problems that we are facing as we talk about these
drug problems is that there is a lack of equity, that we have
disparate impact that seems at times to be immovable. We have
to ensure that we have equity, justice, and fairness. These
kinds of programs, as well as many others that we would be
happy at Human Rights Watch to talk to you about beyond this
hearing, are ones that we should be focusing our time and
attention and resources on.
Ms. McBath. Thank you. I think I am just about out of time.
Ms. Jackson Lee. Thank you. Thank you.
We now want to recognize the gentleman from Florida, Mr.
Steube, for 5 minutes.
Mr. Steube. Thank you, Madam Chair.
Walls work; fences work. If walls and fences and razor wire
didn't work, then why did Speaker Pelosi erect fencing, razor
wire, deploy National Guard troops around the Capitol? Yet,
President Biden is doing the complete opposite on the border,
and it is literally killing Americans--literally.
I have the honor of representing Florida in the 17th
District of Florida. Florida alone had 5,268 overdoses just in
2019. Thirty-five people died of an overdose in Florida every
single day in 2019. Opioid deaths more than tripled in Florida
between 2000 and 2016, according to a State government report,
and central Florida drug overdose deaths were up as much 70
percent during the COVID-19 pandemic.
The amount of fentanyl that has been seized on the border
in just the first five months of 2021 is 4,552 pounds of
fentanyl, which will kill hundreds of thousands of Americans.
All last year in 2020 at the southwest border, 4,544 pounds of
fentanyl were seized. So, in the first five months of this year
we have seized more fentanyl at the border than the entire year
last year in 2020. It is continuing and continuing to kill
Americans and to kill Floridians.
Now I don't understand--the first witness talked about
racism and White supremacy, and fentanyl doesn't know what
color you are. In fact, just in Florida, there is 13th times
more whites that have died than African Americans in the State
of Florida. I personally don't think that it matters what color
you are. We should be strong and hard on people who are killing
Americans and dealing in dangerous drugs on our streets.
Regardless of the color they are, they should go to prison, and
like reforms that we have made in Florida, if you are dealing
in opioids and fentanyl, and people die as a result of you
dealing, you should go to prison for life. Those are a lot of
changes that we made in Florida when I was in the State
legislature.
Mr. Maltz, with those facts and numbers in mind, what are
some immediate actions that the federal law enforcement can
take to address this problem at the Mexican border?
Mr. Maltz. Well, first, you have to secure the border. You
can't allow these people coming in that are carrying these
dangerous Fentanyl pills that are killing kids immediately.
I agree with your point 100 percent. The charts that I have
with these family Members here, it is red, white, and blue. It
is not red against blue. It has nothing to do with race or
color. It has to do with just these Mexican terrorist criminal
organizations that want to make billions of dollars.
There is a reason Chapo Guzman was on Forbes' Most Richest
People in the World. They make a lot of money. They take
advantage. They destroy families. They destroy communities.
So, we could definitely shut the border. We also have to
get together with the different professionals, the mental
health professionals, addiction specialists. We must have
accountability on these programs. We can't just throw money at
the programs and then say it is going to go away. It will only
go away with strong leaders, and we have to hold people
accountable.
So that is something we could do. We have to get full
cooperation between all of our agencies. We must have the focus
on the people that are dying, not getting a job when you leave
government or getting a job in private industry. It has to be
about saving lives.
Mr. Steube. In your written testimony, you went into detail
about the barbaric tactics used by the Mexican drug cartels--
beheadings and torture displayed on social media,
indoctrination camps to desensitize new recruits, including
child soldiers, taking over huge areas of land while destroying
roads and buildings with impunity, creating their own pseudo-
religious teachings to brainwash Members. You even compared
them to al-Qaeda.
From a law enforcement perspective, how important is it
that these individuals are not allowed to cross from Mexico
into the United States?
Mr. Maltz. First, I was one of the advocates of declaring
the Mexican cartels as terrorists because they are terrorists
the way they are killing, the way they are destroying families.
They are taking advantage of society.
In regards to the cartel's violence, what about the Stew
Maker, dropping people in acid. So that the murder statistics
in Mexico is very misleading. There are so many people that
have disappeared because they drop them in acid.
The violence is off the charts, and these people are narco-
terrorists. That is what they are, and they need to be dealt
with accordingly.
Mr. Steube. The current Biden policies at the border doing
a good job of making sure that U.S. or that Mexican drug lords
don't get across the border?
Mr. Maltz. Absolutely not. I mean, when you tell the world
that coming to America everything is free, meanwhile our
schools are closed and families are destroyed because
businesses have been closed, it is not fair to the hardworking
American people.
I have to say, this is a message to the world. That is why
they are lining up in record numbers. It is common sense. You
don't have to be an expert.
Ms. Jackson Lee. The gentleman's time is expired.
Mr. Steube. Thanks for being here today.
Mr. Maltz. Thank you.
Ms. Jackson Lee. Let me take this moment to introduce an
article in the record, ``Fact-checking Trump officials: Most
drugs enter U.S. through legal ports of entry, not vast open
border.'' In particular, according to U.S. Customs and Border
Protection, statistics show 90 percent of heroin seized along
the border, 88 percent of cocaine, and 87 percent of
methamphetamine, and 80 percent of Fentanyl, in the first 11
months of 2018 fiscal year was caught trying to be smuggled in
at legal crossing points.
I ask unanimous consent to place that in the record, and I
respond to myself. So, ordered.
[The information follows:]
MS. JACKSON LEE FOR THE RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Jackson Lee. Let me now call upon Ms. Dean of
Pennsylvania for 5 minutes.
Ms. Dean. Thank you, Madam Chair, and thank you for
convening this Subcommittee hearing on these important issues.
What I am taking away is maybe there is one thing that
everybody across the dais here can agree on, and that is that
addiction is a disease. It is a deadly disease.
With that in mind, I want to just start first with Ms.
Austin-Hillery. Analysis by your group, the Human Rights Watch,
as well as by many others, has shown that despite equal rates
of drug abuse, black, brown, and poor Americans, as you point
out, are more likely than White Americans to get arrested.
I have to admit to you I know a little something about
this. My middle son is 8 years 4 months in long-term recovery
from opioid addiction. Yet while he was in active addition, he
is White and he was quite young, and I think his driver's
license revealed that he was of at least middle class means.
My son never was arrested. He has no criminal record. So,
while addiction didn't spare him, White privilege and
socioeconomic status spared him from the cruelties and the
injustices of our criminal justice system.
Can you provide us with more detail into what the Human
Rights Watch has learned about racial and economic disparities
in the War on Drugs?
Ms. Austin-Hillery. Thank you for that question,
Congresswoman. I will give you an example to help underscore
the point I would like to make. We have spent several years in
Tulsa, Oklahoma. While we were in Tulsa, we were there to do
research around policing in communities and to learn more about
how police and communities relate. What brought us there was
the death of Terence Crutcher, an African American man, at the
hands of a White police officer.
We learned so much more, and what we learned from those
community Members is this. They experienced specific targeting
by police. We did not only talk to community Members, we talked
to individuals, all stakeholders, with respect to an issue. We
talked to the police officers. We talked to the police chief.
What we understood was that Members of the Black community
there felt that they were being specifically targeted in ways
that their White counterparts in wealthier parts of the town
were not being targeted. That is what we mean when we talk
about systemic racism.
That is why Mr. Henderson, in his testimony earlier, talked
about White supremacy and racism. We have to start telling the
truth, and that is that racism underlines many of the policy
decisions that we put forth. We have to learn and understand
how we take that out of policymaking and focus on the end goal,
which is protecting people and communities.
Until we do that, Congresswoman, we will continue to see
these kinds of disparities. We will continue to see these harms
from systemic racism, and we will continue to see this kind of
targeting. That is why the experience your son had is far
different than so many of the people we represent and the
people that we talked to in Tulsa communities.
Ms. Dean. We are so keenly aware of it. We know that had he
been caught up in the criminal justice system, he would be far
behind in his career. He would be far behind in and may have
lost his right to vote and other precious things.
If I could go quickly to Dr. Neill Harris. With the
American Rescue Plan, Congress just passed the most significant
child poverty reduction policy in a generation. I am excited to
have been a part of it. Your testimony mentions that the latest
research shows children with parents caught up in the criminal
justice and carceral cycle are at greater risk of negative
outcomes in adolescents in child and adulthood. Can you speak
to that a little more?
Ms. Neill Harris. Yes. Thank you for that question. When
children have parents who come into the criminal justice system
and become incarcerated, that disrupts their home life. It
creates uncertainty for them, and it disrupts every routine
that they might have that might be able to provide stability
for them. It can interfere with their schooling. It can
interfere with their mental health. It can interfere with their
physical health. It literally impacts every aspect of their
life.
If they have to go into the foster care system, then they
have to deal with that system and the disruptions that it
causes. I know here in Texas, we have a lot of problems with
our foster care system that negatively impact a child's life as
well.
So, it is literally setting them up at the most precious
part of their lives when their brains are still developing with
all of these additional stressful factors to deal with that
impede their development. Later down the line, then, it becomes
more difficult for them to excel with education and employment
opportunities, which creates a cycle where they can encounter
issues with mental health.
Ms. Jackson Lee. The gentlelady's time is expired.
Ms. Dean. Thank you very much. I yield back. Thank you,
Madam Chair.
Ms. Jackson Lee. Thank you very much.
Let me now call on the gentleman from Wisconsin for 5
minutes, Mr. Tiffany.
Mr. Tiffany. Thank you, Madam Chair.
Mr. Maltz, thank you for being here, and thank you for
serving our country for so many years and still today. I think
the humanitarian crisis that is going on at the border is well
documented here in this hearing, and the flooding of our
streets with drugs, the imported violence as a result of the
Mexican drug cartels.
As we watched the Biden-created crisis at our southern
border, the number of drugs that will be flooding through our
borders is alarming. As you know, the drugs don't cross over by
themselves.
The effects aren't only limited to our southwestern border
states but are as far-reaching as my home State of Wisconsin.
It costs Wisconsin's taxpayers over $10 billion a year to fund
health care, emergency care, and other resources for the
victims of this crisis.
The highest overdose rates are in economically distressed
areas that have experienced high rates of unemployment. These
areas seem to have a steady supply of Fentanyl and heroin, like
coming from our southern border. Yet, the latest statistics
from immigration and customs enforcement indicate an almost 66
percent drop in arrests at the border in February compared to
December of 2020. I assure you that this drastic drop isn't
because less immigrants are coming across the border.
Mr. Maltz, you have noted that the cartels have formed a
partnership with Chinese organized crime networks and that they
pose a significant threat to public safety, public health
safety, and national security, and that they use sophisticated
technology and take advantage of antiquated laws and policies
in the U.S.
First question for you. Some say interdiction at the border
makes no difference, that the drugs will keep coming into our
country even if interdiction goes away, or even if interdiction
is improved. Do you agree with that?
Mr. Maltz. Absolutely not. Interdiction saves lives every
day.
Mr. Tiffany. What laws or policies need updating? So, I
have done a pretty good job of drawing that nexus of this is
not just the Mexican cartels, there is a Chinese government
that is involved also. What laws or policies do you think need
to be updated for us to be more effective?
Mr. Maltz. Well, first, it is about the terrorists as well.
Like Hezbollah is one of the world's most capable terrorist
organizations, and we had Project Cassandra where they were
moving used cars out of American to support Hezbollah to fight
and to carry out their agenda.
So, in this country, we have to first recognize that this
is not just, you know, drugs on the streets. It is about a
global network of transnational criminals that want to destroy
the country. It is a much bigger problem. We have to realize,
like in the Chinese scenario, the chemicals are just coming in
ton quantities into Mexico. That is why we are seeing the huge
amounts of methamphetamine. They produce like seven tons of
meth every 3 days.
When I was a young agent, if you seized a kilo of meth,
that was a huge case. Now, we are seizing 2-3,000 pounds of
meth. So, the business operation is booming, the demand is
booming, but it is all of these other countries that are making
money and these groups are making money on the problem.
Mr. Tiffany. Thank you. So, I would just like to share with
the committee, in Wisconsin we had--when I was in the State
legislature, I served for nearly 10 years. We created something
called the HOPE agenda, and it was really groundbreaking in
our--in the country. A number of other states have taken a look
at what we did, and we did things like create drug courts,
expand drug courts, get assistance to help those with
addiction.
We spent an enormous amount of time and money to create
that agenda, do it in a smart way, to be able to help people
with this problem. We heard from local sheriffs regularly about
the drugs that were being pumped up from the southern border as
well as the human trafficking that was going on in their
communities. They were emphasizing that to us regularly, and we
tried to implement policies to help fight back on that.
So I guess, in conclusion, I would just say here, Madam
Chair, it is so disappointing that the President--the first
thing he did was cancel a pipeline that works for America, but
then he enables a pipeline for drugs to the rest of America
that is going to kill Americans, that he won't put a stop to
that pipeline flowing from our southern border.
I yield back.
Ms. Jackson Lee. I thank the gentleman for his testimony
and remind him of the article submitted that most of the drugs
are coming in through the legal entries. I thank the gentleman
again for his testimony.
Let me yield to the Congresswoman from the great State of
Pennsylvania, Ms. Scanlon, for 5 minutes.
Ms. Scanlon. Thank you, Madam Chairwoman, for having this
important hearing.
I want to look at a particular aspect of this issue that
doesn't get enough attention, and that would be civil
forfeiture. In my prior career, I had some experience with this
as the program I worked with brought--started to represent
folks who were subject to civil forfeiture.
It is a program that is designed to deal with the War on
Drugs, but it has a perverse financial incentive to have law
enforcement target people to get their assets. Let me just give
an example of one of the cases we dealt with in Pennsylvania.
We represented a widow, a woman whose son was arrested for
selling a small amount of pot at the house that they shared
while his mom, who owed the house, was in and out of the
hospital. So, he was arrested and the police moved to seize her
$54,000 home and her 15-year-old minivan. So, because it is
civil forfeiture, this person, this woman who had been in the
hospital, and did not participate in any criminal activity, was
forced to defend possession of her home and her car.
So, Ms. Austin-Hillery, when a State or the Federal
Government accuses someone of a crime, the defendant has a
right to counsel at no cost, if they can't afford them. This is
not true in civil forfeiture cases. If my law firm hadn't
stepped up to represent this woman, she would have been, like
so many of the people in our community who got swept up in this
sort of dragnet, and she wouldn't have been represented and
could very likely have lost her house and her van.
Can you speak to how the lack of representation impacts
these cases and really risks the incentives for enforcement?
Ms. Austin-Hillery. Yes. Thank you, Congresswoman Scanlon.
In an earlier part of my career, I worked on a concept that I
actually hope our DOJ and maybe even Congress will take up
again, and that is the creation of what we call Civil Gideon.
We know that, as you just stated, individuals have the right to
counsel when it comes to criminal cases. In examples just like
you pointed out, when we are dealing with civil asset
forfeiture, many people without the means are left unattended
and alone to try to deal with this.
We know there is an economic and racial disparity with
respect to that. People who are in lower economic communities,
people often in Black and brown communities who don't have the
same economic resources, cannot afford counsel to fight back
with respect to these cases, and that is what they need. They
need someone to fight back for them.
So, we really need to look at what kinds of means and
mechanisms can we put in place to give them that kind of
protection. Civil Gideon is a way to do that.
Aside from that, because that's a dream of mine, aside from
that, there are things we can do right now, and that is clean
up civil asset forfeiture and this process and how it is
implemented. We should not be incentivizing law enforcement
officers to make decisions based on whether it can provide them
with more economic gain and more economic opportunity.
We should only have systems and mechanisms in place that
focus on how they can do their jobs in the best way possible,
how they can treat communities fairly and equitably, and that
is the bottom line. There should be no incentive for them to
make additional monies off these crimes. That is where we have
to start, and hopefully at some point we can also have a good
discussion about Civil Gideon.
Ms. Scanlon. You are speaking to my heart there. One of the
things that was particularly troubling about how civil
forfeiture was being enforced in our region was that folks like
our client, the widow with limited means, were the folks who
were being targeted. At the same time, we were not seeing the
kid out in the suburbs who had done a pot deal on the side, had
his family's $100,000 or $200,000 home seized.
So, from your research or your work, has civil forfeiture
proven effective at reducing harm or drug use? Or has it been
quite a bit harmful impact on the same Black and brown
communities that were disproportionately harmed by other flawed
approaches?
Ms. Austin-Hillery. There has been a lot of research done,
and there are many organizations beyond Human Rights Watch that
have been focusing on this, and so we need to look at the full
body of work. Certainly, we have seen that this is targeted
activity and that, yes, it has a disparate impact on these
communities.
Just like the stories that you have talked about, the
Leadership Conference on Civil and Human Rights has done a
great deal of work on this. They are coalition partners of
ours, and we know that they have been focused on how we can cut
down on this disparate impact. Again, this is about the larger
discussion of systemic racism and what kinds of choices we are
making and we are making choices based on race and economics.
Ms. Jackson Lee. The gentlelady's time is expired. Thank
you.
Ms. Scanlon. Thank you. I would appreciate if--I saw Dr.
Henderson nodding his head there. If he is able to respond
offline, I would appreciate that. I yield back.
Ms. Jackson Lee. I thank the Congresswoman for her
indulgence, and I hope that Dr. Henderson will respond
accordingly at a later time.
Now, Mr. Gohmert, I believe the gentleman is not present in
the room. You are reserving? Thank you so very much.
It is now time to yield to the gentlelady from Missouri for
5 minutes, Ms. Bush, our vice-chair.
Ms. Bush. Yes. St. Louis and I thank you, Madam Chairwoman,
again for convening this hearing. The vicious and carceral drug
war that has prioritized punishment over treatment, violence
over healing, and trauma over dignity has influenced all our
lives.
Brought up in St. Louis, I saw the crack cocaine epidemic
rob my community of so many lives, and I am not talking about
what I heard or read. I am not talking about what I watched on
television. I am talking about the people who I was around all
the time, people who I knew and was in community with, loved
ones, I saw picked off and put into a system that was this
revolving door.
I lived through a malicious marijuana war that saw Black
people arrested for possession at three times the rate of their
White counterparts, even though usage rates are similar. As a
nurse, I have watched Black families criminalized for heroin
use while White families are treated for opioid use.
Now, as a congresswoman, I am also seeing the pattern
repeat itself with Fentanyl as the DEA presses for an expanded
classification that would criminalize possession and use. This
punitive approach creates more pain, increases substance use,
and leaves millions of people to live in shame and isolation as
they battle drug use with limited support and healing.
If you don't know it, go into the communities and start
sitting with people and really hearing their stories and
finding out their struggles. Sometimes you have got to do the
deep work.
This is an issue that affects all communities, from my
neighborhood in St. Louis to the edge of Lake Erie in Ohio.
Somehow, we have criticized science and compassion in favor of
trauma and punishment, all the while leaving people to fend for
themselves.
Dr. Harris, why is national drug policy reform essential
for reducing the federal prison population and for providing
states with a blueprint for effective policy change?
Ms. Neill Harris. Thank you for your question and for your
passion on this issue. Federal reform is essential for states
to follow suit. We saw this in the 1980s when the Federal
Government ratcheted up penalties for cocaine, for crack, and
the disparities it created for crack and cocaine, you saw the
states follow suit.
So, we know that the states will do what we see the Federal
Government do on these issues. If the Federal Government takes
leadership, we will see more responsible policy at the State
level.
We also know that punishment does not work. We have been
talking a lot about mandatory minimums here. Mandatory minimums
levy very severe sentences, but they do not deter people from
using drugs. The very nature of addiction suggests that people
are going to use drugs regardless of what the consequences are,
and so that approach will not work.
We have been talking a lot about the demand for drugs and
the cartels. Absolutely, cartels are dangerous--can be
dangerous organizations and very profitable. That is because of
the demand for drugs that we have in the United States, and we
have not addressed that demand. We have 40 years to show that
we have not addressed that demand, and it is time to try
something else instead of continuing the same failed policies.
Ms. Bush. Thank you. Because our jails were not originally
purposed to be treatment centers and yet our jails have become
the largest mental health institutions in America. This is
sickening. People with a history of substance use are being
sent to jails, and have been for a long time, that are in no
way equipped to treat their trauma or addiction.
This is a public health crisis. Too often drug offenses are
borne out of poverty. If we don't want to actually address
poverty, then this is the situation. This system allows those
with wealth to more easily escape the trauma of police raids,
civil asset forfeiture, and mandatory minimums, which you all
have been talking about, because they can afford those top-
notch treatments while the rest of the country is left to hurt
in silence.
So, Ms. Hillery, what is your main concern about mandatory
minimum sentencing for drug offenses and its devastating
collateral impact on people's lives? Then, when you answer
that, is there any reason that these types of crimes should be
treated differently than other offenses?
Ms. Austin-Hillery. Quickly, Congresswoman, thank you. My
main concern is that mandatory minimums are excessive. It is
like using a sledgehammer to put a small tack into a wall. It
is too much, and it doesn't really do the job. That is number
one.
Number two, we need to look at each instance of crime, each
type of abuse, each type of circumstance separately. We cannot
use one method and say this is going to solve all our problems.
There is not a panacea for how we address these issues, and
that is what we have been talking about today.
We need to be particularized. We need to use real evidence
and real data.
Ms. Bush. Thank you so much, and I yield back.
Ms. Jackson Lee. Thank you so very much.
The colleague on the other side continues to reserve, and
it is my privilege now to call upon Mr. Cicilline for 5
minutes.
Mr. Cicilline. Thank you, Chairwoman Jackson Lee, and to
Chair Nadler, for organizing this hearing today. Thank you to
our witnesses for sharing their expertise on how to improve
drug policy and work toward addressing the decades of failed
drug policy in this country.
The War on Drugs we know has led to the overcriminalization
of Americans, with communities of color experiencing
oversurveillance leading to increased arrests and
disproportionately harsh sentences.
Last week the House passed the George Floyd Justice in
Policing Act, which takes a major step to holding police
officers accountable for misconduct. Equally important is
Congress' responsibility to examine how drug laws contribute to
increased law enforcement interventions, unnecessary
incarcerations, when public health alternatives are often much
more appropriate.
So, my first question is to Ms. Austin-Hillery. In your
written testimony, you recommend that Congress shift resources
from the policing of drug use toward access to evidence-based
treatment and other voluntary supports for people who struggle
with substance abuse disorder. Can you elaborate and really
discuss the importance of the need to take a public health
approach to addressing drug abuse as opposed to the approach
that we have taken in the War on Drugs?
Ms. Austin-Hillery. Yes. Thank you, Congressman, for that
question. We know from the research that we have done at Human
Rights Watch--and not only do we have the program that I
oversee, the U.S. program, we also have experts in-house who
deal with health issues and we know that individuals have
issues around their medical care, around their physical being,
addressed by medical experts.
If you have an individual, for instance--and I spent time--
as I said, Human Rights Watch, we go to the communities. I
spent time in Florida in a van going around with one of the
community groups that goes around the community and deals with
individuals who are dealing with drug issues.
What I am seeing is that those people are saying to us that
they are helped when they have doctors and nurses who are in
their communities. They say they are not helped when they are
picked up by police officers, when they are taken to court,
where they can't afford bail, where they can't afford lawyers.
All those things are a whole other host of questions and
issues.
What they are saying is they are most helped and that their
opportunity for healing and for taking better care of
themselves and their families is through better access to
health care and to the medical community.
So, again, we must give people the best opportunity to heal
and to move themselves into a better situation. That is not
through criminalization. That is through health care, and the
medical science backs this up and supports this. So, let's
start having real conversations about how we put dollars there
instead of dollars into furthering law enforcement's ability to
target these communities and these individuals.
Mr. Cicilline. Thank you.
Dr. Neill Harris, as we all know, America's opioid crisis
is far from resolved. According to the American Medical
Association, over 40 states have reported an increase in opioid
overdoses since the beginning of the pandemic. In my home State
of Rhode Island, opioid overdose remains the leading cause of
accidental death.
Every day we are at risk of losing more and more people to
overdoses, with recent numbers showing that Black and Hispanic
Rhode Islanders are disproportionately experiencing overdose-
related deaths.
Through various research trials, evidence has shown that
medication-assisted treatment is an effective treatment for
opioid addiction, and we have some great leadership in Rhode
Island from the medical community that has been really leading
this effort, particularly at Brown University.
So, my question is, do you think that these programs should
receive more federal support? Are there other programs that
also should be available? What are the most efficacious ways to
provide the kind of treatment that will have a meaningful
impact on this problem?
Ms. Neill Harris. Absolutely. Thank you for that question.
I like this in terms of short-term and long-term solutions.
When we talk about reducing overdoses, we are talking about the
short-term solutions to provide treatment and immediate
intervention.
Rhode Island has done a great job at increasing access for
medication-assisted treatment, especially for people that are
in the criminal justice system. I would like to see federal
funding go to expanding the access to medication-assisted
treatment within correctional systems in all states, and not
just for Vivitrol, which tends to be preferred because it is an
opioid antagonist, but also for methadone and Suboxone because
people need the option that works best for them.
The other thing that the Federal Government can do, in
addition to expanding access to needle exchange programs and
authorizing safe consumption sites, is to expand access to drug
testing services.
Mr. Maltz had mentioned the problem of counterfeit pills.
Absolutely, when people unknowingly take pills that they think
are legitimate prescriptions, and they contain Fentanyl in
them, that is very dangerous. If we provide people with
resources so that they can test those substances and determine
whether there is Fentanyl in them, research shows that they
will moderate their drug use behaviors and can use in a safer
way. So, we need to focus on those harm reduction
interventions.
Mr. Cicilline. Great. Thank you so much.
With that, Madam Chair, I yield back.
Ms. Jackson Lee. The gentleman's time is expired.
Now I yield 5 minutes to the gentleman from California, Mr.
Lieu. Happy to yield now 5 minutes to the gentleman from
California as well, Mr. Correa. The gentleman is recognized.
Mr. Correa. Madam Chair, can you hear me okay?
Ms. Jackson Lee. I hear you.
Mr. Correa. Can you hear me okay?
Ms. Jackson Lee. I hear you very well, sir.
Mr. Correa. Thank you. Thank you very much for holding this
very, very important hearing. I am out of Orange County,
California. One of the things I did the last few months was to
visit our juvenile hall where I found that most of the young
ladies in juvenile hall are there because of prostitution--
prostitution related to trying to raise money by selling their
souls, their bodies, to pay for drugs.
I also have a good relationship with local police officers,
good police officers, and it breaks my heart to know that we
are giving them the impossible job of fixing our societal
problems of homelessness, drug addiction, and mental health.
When you take a deep breath and you think about the
decades--the decades-long War on Drugs--four, maybe five
decades of this war, I have a question for each one of our
panelists here today. Are we winning the War on Drugs? Ms.
Austin-Hillery, yes or no?
Ms. Austin-Hillery. We are not winning the War on Drugs.
The numbers show that the statistics--
Mr. Correa. Mr. Henderson? Mr. Henderson, yes or no?
Mr. Henderson. No. No, we are not.
Mr. Correa. Mr. Maltz?
Mr. Maltz. No, we are not. I am sorry. We are making a
difference and saving lives.
Mr. Correa. Thank you.
Ms. Neill Harris, are we winning the War on Drugs?
Ms. Neill Harris. No, we are not.
Mr. Correa. Yes or no question to each one of our
panelists. Through the incarceration of drug addicts, does that
help them go straight, yes or no? Does jail straighten out drug
addicts? Ms. Austin-Hillery?
Ms. Austin-Hillery. No.
Mr. Correa. Mr. Henderson?
Mr. Henderson. No.
Mr. Correa. Mr. Maltz?
Mr. Maltz. Can't answer that question. It is too vague.
Mr. Correa. Putting a drug addict in jail, does that
straighten him or her out?
Mr. Maltz. If they have a drug addiction issue, jail is not
the answer.
Mr. Correa. Thank you.
Ms. Neill Harris?
Ms. Neill Harris. No.
Mr. Correa. Thank you very much.
Ms. Austin-Hillery, should we study what the states are
doing, what other nations are doing, when it comes to
addressing drug addiction? Treatment instead of rehabilitation
and--or I should say treatment and rehabilitation instead of
jail. Should we address drug addiction as a medical issue
instead of a criminal issue?
Ms. Austin-Hillery. Absolutely, yes.
Mr. Correa. Mr. Maltz?
Mr. Maltz. Drug addiction must be dealt with the
professionals.
Mr. Correa. As a medical issue or as a medical issue?
Excuse me. As a medical or a criminal issue?
Mr. Maltz. Addiction is a medical issue, of course.
Mr. Correa. Mr. Henderson?
Mr. Henderson. Yes, we should.
Mr. Correa. Ms. Austin-Hillery?
Ms. Austin-Hillery. Yes, we should. Congressman--
Mr. Correa. Mr. Maltz? Mr. Maltz, you talked about Mexican
cartels and corruption. Is that not corruption fueled by
American dollars, dollars from American drug users? Yes or no.
Mr. Maltz. Well, certainly, there is millions and millions
of dollars being generated from the demand here in America, but
corruption is a separate issue.
Mr. Correa. Yes or no, are those dollars--are those dollars
fueling corruption around the world?
Mr. Maltz. Obviously.
Mr. Correa. Yes or no. Obviously, that is a yes, correct?
Mr. Maltz. Yes, sir.
Mr. Correa. Mr. Maltz, if we seal the southern border, will
that stop Americans from using illegal drugs?
Mr. Maltz. It will help.
Mr. Correa. So, Chinese chemical precursors that don't come
in through Mexico, they won't come through Canada?
Mr. Maltz. They might. Might.
Mr. Correa. Would you consider the Canadian border secure?
Mr. Maltz. I don't think it is very secure because all of
the resources are going to the southern border now.
Mr. Correa. So, they are both insecure. Would you consider
our Atlantic and Pacific ports secure when it comes to drug
trade, Mr. Maltz?
Mr. Maltz. CBP needs more resources to secure these
borders. It is impossible to do it with what you have.
Mr. Correa. Are they secure, yes or no?
Mr. Maltz. They are doing a great job. Absolutely.
Mr. Correa. So, the ports are secure from drug trade.
Mr. Maltz. Not totally secure, but they are making a lot of
seizures.
Mr. Correa. Yes? Yes or no? Okay. Finally, Mr. Maltz,
America is good when it puts its focus on a certain effort. Two
decades ago, we essentially sealed off the Caribbean when it
came to drug trade. We were pretty good at sealing that up,
but--what we ended up doing was really diverting that drug
trade inland.
In that process, we essentially destabilized the countries
of a whole continent--Mexico and Central America--and yet, the
drugs kept flowing. That is why I am saying this drug trade--
this drug war, four, five, six decades, has not worked. My
question to you, sir, do you think sealing the Mexican border
will bring us success when it comes to the drug war?
Mr. Maltz. One hundred percent it will help. It is not
going to solve the problem 100 percent, but it will help for
sure.
Ms. Jackson Lee. The gentleman's time is expired.
Mr. Correa. So, Americans will stop using drugs once you
seal the Mexican border.
Mr. Maltz. I never said that.
Ms. Jackson Lee. The gentleman's time has expired.
Mr. Correa. Thank you, Madam Chair.
Ms. Jackson Lee. Thank you very much.
Now yielding to the gentleman from Utah for 5 minutes, Mr.
Owens.
Mr. Owens. Well, you have 15 seconds or so to wrap up
anything that you were trying to say during that last
interaction, or are you okay?
Mr. Maltz. I mean, obviously, sealing the border is not
going to stop the addiction all over America, because it has
been out of control for so many years. We didn't put the money
into the education, into the treatment, into the
rehabilitation. We ignored it. All these poor people got
addicted, and the cartels took complete advantage of the
addicted population to make billions of dollars.
Securing the border is going to help keep these poisonous
drugs out of the country, yes.
Mr. Owens. Thank you. Thank you so much.
I am glad we are having this conversation. It is a very
important issue to me. I grew up in a 1960s segregated
community where the progress into the blight middle class was
an expectation for us. Our family unit was strong, and drugs
simply were not a part of our everyday life.
Over the last few decades since, I witnessed friends, NFL
careers lost, families destroyed by drug abuse. It is a fact
that the less control we have over our borders the more control
Mexican drug cartels have on bringing misery to both my State
and the Black community.
Here are a few statistics that are really troubling to me.
Fact: Illegal drug use among blacks is 23 percent higher than
the general population in whites. Fact: Seventy-eight percent
of the overdoses in Washington, DC, are African Americans.
Fact: In DC, opioid overdose deaths among Black men between the
ages of 40 to 69 increased 245 percent between 2014 and 2017.
Fact: In Utah, 473 drug overdose deaths involved opioids in
2018.
With that in mind, Mr. Maltz, the smuggling of drugs along
the southern/southwestern border by Mexican cartel is one of
the greatest threats to the American dream. What is the most
important thing the Federal Government can do today to stop the
flow of drugs into our country?
Mr. Maltz. Well, for one, they have to talk about the
issues with drugs. It is not just over-prescribing. That is,
15, 20 years ago, we never dealt with that as a country. They
have to get people help. They have to unite all the smart
people in America that have good ideas, but we have to shut
down that border and we have to show the American public we
care about the families that are being destroyed.
We have to take this seriously. Right now, people just seem
to think it is going to go away. It is going to get worse every
day. More and more of these kids are going to die. By the way,
Fentanyl doesn't care what color you are. It is going to kill
you if you snort it, right? If you take Fentanyl, there is a
good chance you are going to die. Sadly, most of the kids don't
even know what they are taking. The cartels are making billions
off this.
Mr. Owens. Do you have any insight into the drug
trafficking path into the inner part of our United States, for
states like mine that are not on the border, but are still
getting impacted by this process of drugs coming through our
borders?
Mr. Maltz. Well, the Sinaloa Cartel and Jalisco New
Generation Cartel are throughout all the American cities,
right? They have command and control set up in some of the
biggest cities, like in Chicago, Arizona, Los Angeles, New
York, and Atlanta. What they are doing is spreading out their
command and control.
With the people that are coming over the border, they are
setting them up in these different cities, and they basically
have the opportunity to push drugs on the streets all over.
They are pushing their drugs to gangs, right? The Chapo Guzman
case, if you look into that, it was the Sinaloa Cartel
providing all of these drugs to the gangs on the west side of
Chicago.
So, it goes from the command and control in Mexico right to
the command and control in these subcities and right into your
city.
Mr. Owens. So, in other words, ZIP code is not a protection
against these drugs coming in our--
Mr. Maltz. There is no boundary, sir.
Mr. Owens. Okay. What is the connection between the border
security and the prevalence of illegal drugs on urban America,
those that are most at risk, those communities that I have just
listed are being hit the hardest? What is the connection
between our security at the border and that of impacting the
communities that we should all be caring about at this point?
Mr. Maltz. Well, like we have said all day so far, like
when the border is open, these people can get in here. They
bring the Fentanyl pills, they distribute the pills all over
the cities, and people are dying. So, everybody is vulnerable.
This is poison in counterfeit pills.
If you take a pill and you think it is a legitimate
OxyContin, but it has Fentanyl that was put in it from a lab in
Mexico, you are going to die. So, everybody is vulnerable.
Mr. Owens. Let me just wrap up with this. The greatest
thing about our country is access to the American dream, the
middle class. I think Americans need to understand this is a
way to negate our middle class. We have death, misery, and
addiction, and it is coming through a border where people are
taking advantage of our good hearts.
So, at the end of the day, we need to shut the border down.
I totally agree. We need to take a look at what the problem is,
and we are having another generation being addicted to drugs
that they don't need to be, and they should not be, and we
should be protecting them.
With that, I yield back.
Ms. Jackson Lee. The gentleman yields back. His time is
expired.
I now recognize the gentleman from California, Mr. Lieu,
for 5 minutes. Mr. Lieu is recognized for 5 minutes.
Mr. Lieu. Thank you.
Mr. Lieu. Thank you, Chairwoman Jackson Lee, for holding
this important hearing. I want to thank all the panelists for
your time and expertise today.
My first question is to Mr. Maltz. I believe in response to
a question from Congressman Correa you had stated that if
someone is addicted jail time is not the answer. Am I saying
that accurately?
Mr. Maltz. My opinion is if somebody is addicted, they need
help from an addiction specialist, a medical specialist, a
social worker. Putting them in jail is not going to help the
problem.
Mr. Lieu. Thank you. Appreciate that.
So, Ms. Neill Harris, I believe earlier you had stated that
about 90 percent of illegal drugs are in fact not stopped or
caught or interdicted. Is that correct?
Ms. Austin-Hillery. Yes. Mr. Maltz had said that about 10
percent are stopped or interdicted, which would mean that 90
percent are not.
Mr. Lieu. So, my view is if we keep doing the same thing
over and over again, and expect a different result, that does
come close to the definition of insanity. We have been at this
War on Drugs for many decades. It does not appear to have
gotten better; it actually appears to have gotten worse.
So it seems to me we should now look at other ways to try
to reduce people using drugs, particularly if they are addicted
because if they are addicted it seems to me that is a medical
issue, and what we actually would need is treatment.
So, I would like to ask about opioids. Ms. Neill Harris, I
will ask you this. So, it seems like part of the reason there
is an opioid epidemic is because people would get prescription
opioids because they got into a car injury or some other sort
of surgery or something where they wanted to relieve pain, the
doctor prescribed it, and then all of a sudden, 2 months later
they realize that they are addicted to this.
It is not like they went and sought out to get addicted.
Does it make any sense to put those people in a jail?
Ms. Neill Harris. Thank you for that question. No, it does
not make sense to put those people in jail. I would like to
briefly clarify the distinction between dependence and
addiction. It is an important one to make when we are talking
about opioids.
If I got surgery and had to take opioids for an extended
amount of time, if I had to take them, say, for 10 days
straight, my body would become physically dependent on those
drugs. It would be difficult for me for a few days to stop
using them. That is a different process than psychological
addiction.
What happens when people take these drugs, it doesn't only
alleviate physical pain, it also helps them feel better about
other things that are wrong in their lives. We have talked a
lot here about the root causes of addiction--poverty,
inequality, mental health problems, mental illness, physical
illness, all of these things.
So, if we really want to address the roots of psychological
addiction, for opioids and for all drugs, we really have to
invest in addressing those systemic issues that lead to
addiction.
Mr. Lieu. Thank you.
Ms. Austin-Hillery, in your statement, you talk about
decriminalization. So, I support Chair Nadler's efforts to
legalize marijuana. I believe that cannabis is no more
dangerous than alcohol, and in many situations, it is actually
less dangerous. I think it is just a remarkably stupid use of
federal resources to spend even a single penny trying to
prosecute and jail people for cannabis use.
However, I do recognize that some opioids are in fact more
dangerous than alcohol. I am curious, Ms. Austin-Hillery, what
would it look like if we were to decriminalize opioid use?
Ms. Austin-Hillery. Congressman, thank you for that
question. I would point back to an example that I brought up
during my oral testimony and that I have also included in my
written testimony, which is that there are templates available
when we look at countries such as Portugal.
When Portugal applied decriminalization, that didn't mean
that there were absolutely no crimes related to drugs any
further. That just meant they were smarter about drugs, and
they were smarter about making sure that individuals who use
drugs for personal use were not then penalized for that.
Personal drug use is an issue that mostly involves that
person, and it is about their personal choice, and that is a
right. That is how they started to look at that issue.
Now, there are other issues related to drugs in Portugal
for which one does get brought into the criminal justice
system. Again, they don't treat it with one broad brush. They
look at the different drugs. They look at the different
outcomes. They look at how communities are impacted, and they
make decisions based on those differences. That is what we need
to do if we were to look--and we should look--at
decriminalizing drugs for personal use here in the United
States.
Mr. Lieu. Thank you. I yield back.
Ms. Jackson Lee. The gentleman's time has expired.
Now, I will call on the gentleman from Tennessee for 5
minutes, Mr. Cohen.
Mr. Cohen. Thank you, Madam Chair. I appreciate your
calling this hearing on this important subject. One of the most
pressing subjects we can deal with in criminal justice--and Mr.
Lieu was right, it is insanity to continue dealing with it in
the same way. We have had a failure for years. We fail, we
fail, we fail; we need to try something different.
Let me ask the panel a question, and I don't know who the
right responder may be. Let me start with Ms. Harris because I
liked your 5 minutes. I agreed with everything you said.
I read that Mexico may be decriminalizing or legalizing
recreational marijuana. Have you seen that story?
Ms. Neill Harris. Yes, Congressman, I have.
Mr. Cohen. Assuming they do, how is that going to affect
the drug situation as far as Mexico, the cartels, and the
United States goes? If there is legal medical--recreational
marijuana in Mexico, does that take away from the cartel's
strength? What happens?
Ms. Neill Harris. I think that legalization in Mexico will
reduce the cannabis aspect of their business model. However,
the cartels are essentially, like Fortune 500 companies. They
are well-run business organizations.
They have been able to capitalize on prohibition that we
have in this country and be able to profit immensely off
supplying the demands that we have here and have not addressed.
So, they have made an immense profit off of that. They have
diversified to other sources of revenue, such as human
trafficking and the trafficking in other goods besides drugs
and besides people.
So, I do think that the issue of the cartel is one that is
a complicated issue to address, legalizing cannabis here and in
Mexico is one step to addressing. I think that if we
decriminalize drugs and remove all of the profit that comes
along with supplying the demand of drugs from the cartels, that
will also help to put a dent in their businesses and ending the
violence that they perpetuate.
Mr. Cohen. Exactly. Okay. Let me ask you this, too. An
arrest or conviction for even a minor drug offense in the
United States can have life-long consequences to the individual
who has been arrested or convicted of that crime. They may not
be able to get a job. They may not be able to obtain a loan, a
professional license. Maybe they can't get a college
scholarship or housing, federal housing, et cetera.
Tell me a little more about these collateral consequences
and other solutions to address this unfair impact on our
criminal justice system.
Ms. Neill Harris. Thank you for that question. You really
just explained a lot of those collateral consequences that
people had. It really can damage their employment prospects,
especially when we treat drug possession as a felony, which, in
my State of Texas, we do.
Possession of any number of drugs other than cannabis is a
felony charge. It goes on a person's record. It impedes their
ability to get a job. It impedes their ability to get
assistance with housing, with employment, with education. It
can impede their parental rights.
There has been legislation at the federal level to bar
discrimination from federal loans for education for past drug
convictions. I think that is excellent. I think that we need to
work to provide for expungement for people's records to make
that process automatic, so that people don't have to navigate
through the bureaucracy of the legal system to have that
happen.
I also think that all of the reforms that we have been
talking about here about reducing mandatory minimums, about
reducing drug disparities, all of those need to be retroactive,
so that people currently serving sentences for those things can
be released for them as well.
Ms. Jackson Lee. Mr. Cohen, you may be muted. We are not
hearing you.
Mr. Cohen. Right. Ms. Austin-Hillery, I have a bill that
will allow federal judges to expunge an individual's record if
they go 7 years without any kind of offense at all, if they
were convicted of drug crimes. Do you think that would be good?
How do you feel about collateral consequences for these people?
Ms. Austin-Hillery. Congressman, I think that would be an
excellent piece of legislation. What we need to do is to give
people second chances. That is really what we are talking
about. When you were addressing the collateral consequences, it
is about giving people opportunities.
We should not punish people for the rest of their lives for
issues related to drugs. Your bill would do just that. The
people who have the hardest time getting second chances are the
Black and brown and poor people who are most impacted by these
onerous laws. So, yes, I would welcome your legislation.
Mr. Cohen. Unfortunately, my time has expired. So, I yield
back my time.
Ms. Jackson Lee. Thank you very much, Mr. Cohen. Thank you
for your testimony.
Let me quickly allow Mr. Biggs for a quick clarifying
question and submission of documents in the record.
Mr. Biggs. Thank you, Madam Chair. I appreciate your
courtesy. I won't read all of these because there is 13 of
them, but I am going to submit these articles, everything from
The Washington Post to The Washington Times, and a host of
others, dealing with the topic of the day.
Ms. Jackson Lee. Without objection, so ordered.
[The information follows:]
MR. BIGGS FOR THE RECORD
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Mr. Biggs. Thank you. Then, Mr. Maltz, my clarifying
question for you is, in response to something that Professor
Harris said when she talked about the increase in drug
trafficking is, in part at least, due to prohibition policies
with regard to drugs.
That is an interesting contraindication. In some corridors
right now, the number one drug being illegally transited into
the United States is marijuana. This is the case in Colorado
they have seen an increase in Black market marijuana. This is
the case even though marijuana is legalized in many states,
including Colorado.
The rationale that has been suggested not today by anybody
on the panel but in other studies that I have read is that
domestic pot costs more because of taxes and regulatory
schemes, and that because of those additional tax burdens and
regulatory burdens what we see is it is still cheaper for
cartels to transit pot across the border where they can't
create the grow houses that they are creating in the United
States. Is that accurate?
Mr. Maltz. Yes. I mean, the people that are using marijuana
do not want to pay these exorbitant prices that they would have
to pay because of the taxes. So, the Black market is going to
explode, and the Chinese and the cartels are going to continue
to get the marijuana into the United States.
We see the same thing with cigarette trafficking, right?
People don't want to pay $13 a pack for cigarettes in New York
City, so they buy the cigarettes on the Black market. This is
nothing new, and it is going to continue.
Mr. Biggs. Thank you, and I appreciate the share.
Ms. Jackson Lee. Not at all, to the Ranking Member.
Let me quickly clarify two points. First of all, quickly,
Dr. Henderson, if you could, there was some discussion about
middle class African Americans and maybe suggesting that, why
is this happening, and this does not necessarily need to happen
to the population of African Americans.
Can you do a deep dive very quickly on why the idea of
addiction and possession for African Americans winds up with
incarceration and mass incarceration?
Mr. Henderson. Yeah. Thanks for the opportunity to chime in
here. One of the realities that we understand--and I want to
correct the record--supply side drug interdiction has never
worked. It has never been effective in any period of the War on
Drugs. We understand that.
We also understand that 75 percent of the individuals who
have been convicted at the federal level for Fentanyl have been
people of color. When you talk about the decimation of the
Black community, we understand that ultimately the Black
community and the Hispanic community and overall poor community
have received the brunt of the bad drug policies in this
country. We understand the impact of the school-to-prison
pipeline. We understand the reality of being incarcerated, and
we understand the mark on the criminal record.
I thank this Committee for having the opportunity to
conversate about possible solutions to moving this country in
the right direction. But ultimately, we have to reframe our
thinking in the right direction and focus on harm reduction.
Ms. Jackson Lee. Thank you.
Ms. Austin-Hillery, a quick response to that dichotomy?
Ms. Austin-Hillery. I am in complete agreement with Mr.
Henderson. It is those very circumstances that lead to
disparity.
Now, I also need to point out that there are economic
changes that make it very difficult to compare the
circumstances that existed for African Americans 40 and 50
years ago than exist now. Changes such as gentrification and
other kinds of policy reforms have made the African American
experience different, and in many ways more difficult for
African Americans to access some of the benefits that they
might have had available to them previously. So, we have to
keep these things in context.
Ms. Jackson Lee. Thank you.
Mr. Maltz, very quickly, you indicated that you were being
stifled through some technology in terms of what information
you can secure--and I want to make it very clear--against the
murderous big guys like the cartels. What was that specifically
that you said that you were being stymied because of the
encrypted aspects of the work that you were trying to do or
what you were trying to obtain?
Mr. Maltz. Thank you for the concern. So, obviously, the
communications are very vital to a law enforcement
investigation. If the bad guys are using encrypted apps that
are being used every day all over America, law enforcement is
not going to be able to intercept the content pursuant to a
federal court order.
So, we have to look closer at the encryption issue with
these new types of technologies.
Ms. Jackson Lee. Excellent. Thank you. I wanted to clarify
that for the record.
Mr. Maltz. Thank you.
Ms. Jackson Lee. Ensure all of us against the murderers,
bad guys. Thank you so very much.
Let me indicate that we appreciate very much the witnesses
who have been very open and very provocative and very thorough.
Let me thank Nicole Austin-Hillery, executive director of the
Human Rights Watch; Dr. Howard Henderson, director of Center
for Justice Research, Texas Southern University; Derek Maltz,
28 years in public service with DEA; and Dr. Katharine Neill
Harris of the Alfred C. Glassell, III, fellow in drug policy at
Rice University. Thank you very much for your testimony.
This concludes today's hearing. Thank you to our
distinguished witnesses for attending.
Without objection, all Members will have 5 legislative days
to submit additional written questions that the witness--or
additional materials for the record.
The hearing is adjourned. Thank you again.
[Whereupon, at 1:38 p.m., the Subcommittee was adjourned.]
APPENDIX
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