[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
DRUG ENFORCEMENT ADMINISTRATION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
HOMELAND SECURITY, AND INVESTIGATIONS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 18, 2014
__________
Serial No. 113-109
__________
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio ZOE LOFGREN, California
SPENCER BACHUS, Alabama SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on Crime, Terrorism, Homeland Security, and Investigations
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
LOUIE GOHMERT, Texas, Vice-Chairman
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
SPENCER BACHUS, Alabama Virginia
J. RANDY FORBES, Virginia PEDRO R. PIERLUISI, Puerto Rico
TRENT FRANKS, Arizona JUDY CHU, California
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TREY GOWDY, South Carolina KAREN BASS, California
RAUUL LABRADOR, Idaho CEDRIC RICHMOND, Louisiana
Caroline Lynch, Chief Counsel
C O N T E N T S
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SEPTEMBER 18, 2014
Page
OPENING STATEMENTS
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 1
The Honorable Tom Marino, a Representative in Congress from the
State of Pennsylvania, and Member, Committee on the Judiciary.. 3
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations................................................. 4
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 6
WITNESS
The Honorable Michele M. Leonhart, Administrator, Drug
Enforcement Administration
Oral Testimony................................................. 9
Prepared Statement............................................. 12
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, Homeland
Security, and Investigations................................... 25
Additional Material submitted by the Honorable Robert C.
``Bobby'' Scott, a Representative in Congress from the State of
Virginia, and Ranking Member, Subcommittee on Crime, Terrorism,
Homeland Security, and Investigations.......................... 39
APPENDIX
Material Submitted for the Hearing Record
Questions for the Record submitted to the Honorable Michele M.
Leonhart, Administrator, Drug Enforcement Administration....... 46
DRUG ENFORCEMENT ADMINISTRATION
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THURSDAY, SEPTEMBER 18, 2014
House of Representatives
Subcommittee on Crime, Terrorism,
Homeland Security, and Investigations
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 11:13 a.m., in
room 2141, Rayburn House Office Building, the Honorable Bob
Goodlatte (acting Chairman of the Subcommittee) presiding.
Present: Representatives Goodlatte, Chaffetz, Gowdy, Scott,
Conyers, Pierluisi, and Chu.
Also Present: Representative Marino.
Staff Present: (Majority) Caroline Lynch, Chief Counsel;
Robert Parmiter, Counsel; Allison Halataei, Parliamentarian &
General Counsel; Brian Northcutt, Counsel; Alicia Church,
Clerk; (Majority) Ron LeGrand, Counsel; Vanessa Chen, Counsel;
Danielle Brown, Parliamentarian; and Veronica Eligan,
Professional Staff Member.
Mr. Goodlatte. Good morning. The Crime, Terrorism, Homeland
Security, and Investigations Subcommittee will come to order.
Without objection, the Chair is authorized to declare recesses
of the Subcommittee at any time, and we welcome our witnesses
today.
I will begin by recognizing myself for an opening
statement. Welcome, Administrator Leonhart, to your first
appearance before the House Judiciary Committee since June of
2012. We thank you for your service, and are happy to have you
here with us today.
Just last week, this Committee reported two bills that
directly affect DEA operations. H.R. 4299 addresses concerns
that I and other Members have with the increasing length of
time DEA has expended in recent years to schedule new
controlled substances, thus delaying patient access to new
therapies.
Reducing these scheduling time frames is important, but it
should not be achieved by eliminating the Drug Enforcement
Administration's critical role in the scheduling process. The
substitute amendment I offered in markup codified a reasonable
shorter scheduling time frame while preserving its vital role
in the scheduling process.
H.R. 4771 adds 25 new substances to the list of anabolic
steroids in the Controlled Substances Act. In cooperation with
our Democratic colleagues, the Judiciary Committee unanimously
approved a substitute amendment to remove an unnecessary and
largely redundant criminal penalty and streamline the civil
penalties for the illicit manufacture, distribution, and
dispensation of these substances.
Earlier this year, this Committee collaborated with our
Energy and Commerce Committee colleagues on another piece of
legislation, H.R. 4709, which streamlines the process for the
revocation or suspension of a registration to manufacture,
distribute, or dispense controlled substances.
It is indisputable that our Nation is facing a public
health crisis due to prescription drug abuse, and we know that
much of the illicit activity that diverts prescription drugs
from the legitimate supply chain happens in the United States.
However, we cannot solve that problem by simply cutting off
legitimate access to prescription drugs.
While H.R. 4709 is not a perfect bill, and I invite DEA's
additional comments to improve the bill, we must ensure that
Federal law punishes the bad actors who illicitly divert drugs
from the supply chain while protecting legitimate, law abiding
businesses.
Under my leadership, this Committee will continue to
conduct robust oversight of the DEA to ensure that vigorous
enforcement of our Federal drug laws does not compromise
responsible regulation of prescription drugs and patient access
to life improving or even life saving medications.
Unfortunately, vigorous enforcement of our Federal drug
laws has been repeatedly compromised by this Administration.
President Obama and Attorney General Holder have repeatedly
demonstrated their disregard for the Constitution and the
founding principle of separation of powers.
They have circumvented the legislative process, ignored the
will of Congress and the American people, and usurped the
constitutional role of the legislative branch by unilaterally
changing or ignoring Federal laws with which we disagree.
These policies have touched many areas and taken many
forms, not the least of which is the frontal assault on Federal
drug enforcement and sentencing.
Since 2009, and at the specific direction of Attorney
General Eric Holder, the Justice Department has issued
directives and memos with the goal of softening its enforcement
of Federal drug laws to a level not seen in the 40 year history
of the Drug Enforcement Administration.
Specifically, the Attorney General and Deputy Attorney
General have directed Federal prosecutors to not pursue cases
against certain offenders, even though they violated Federal
law.
Directed Federal prosecutors to selectively enforce Federal
financial crimes against institutions handling marijuana
proceeds, directed Federal prosecutors not to allege drug
quantities in cases where the quantity could potentially
trigger mandatory minimum sentences.
Directed Federal prosecutors not to object to motions by
defense counsel to apply lower proposed sentencing guidelines,
and initiated a campaign to solicit clemency petitions from an
entire class of Federal drug offenders.
Whether we agree on the policy is beside the point. The
President has a constitutional duty to take care that the laws
be faithfully executed. The ``take care'' clause requires the
President to enforce all constitutionally valid acts of
Congress regardless of his own Administration's view of their
wisdom or policy.
These unilateral executive actions have put the DEA, and
especially its line agents, in an impossible position. They
must now choose between doing their job and obeying their boss.
As an example of this Hobson's choice, we need look no
further than the testimony of the witness that appears before
us today.
In testimony before the Senate Judiciary Committee on April
30, 2014, Administrator Leonhart refused to support legislation
to slash mandatory minimum sentences for drug trafficking
offenses when she remarked ``Having been in law enforcement for
33 years and a Baltimore City police officer before that, I can
tell you that for me and for the agents that work for DEA,
mandatory minimums have been very important to our
investigations.''
Following her testimony, it has been well documented that
Ms. Leonhart was ``called in'' by the Attorney General for an
``one on one chat about her recent insubordination.''
Apparently, in this Administration, a dedication to enforcing
the law amounts to ``insubordination.''
The selective enforcement of Federal law and lack of
respect for the constitutional separation of powers has become
a hallmark of the Obama administration. It is a source of
profound concern for me and the Members of this Committee.
Again, it is Congress' responsibility to make policy
decisions about whether to address mandatory minimums and other
hot button items. It is the Administration's responsibility to
enforce the laws.
Administrator Leonhart, I look forward to your testimony
regarding the challenges facing the DEA today.
In consultation with the Ranking Member of the
Subcommittee, I ask unanimous consent to allow me to yield
briefly to the gentleman from Pennsylvania, who is not a Member
of this Subcommittee but is a Member of the full Committee, and
is keenly interested in the issues before us today, and who
also needs to slip away to another Committee.
So, without objection, I now recognize the gentleman from
Pennsylvania, Mr. Marino, for his comments.
Mr. Marino. Thank you, Chairman. Thank you, Ranking Member.
I truly appreciate this. Administrator, thank you for being
here. Thank you for what the professionals at DEA do to fight
the illegal distribution of narcotics.
There are heroes in your agency, and I have worked with
them directly. I cannot overstate my respect for the DEA and
its mission.
My congressional colleagues, Chu, Blackburn, Welch, and I
authored a bill that will clarify the responsibilities of the
legitimate prescription supply industry and facilitate
collaboration. Our bill passed the House unanimously -
unanimously. Today, companion legislation will be introduced in
the Senate by Senators Hatch and Whitehouse.
Let me say this with the utmost respect. Congress is
sending the DEA a message. You should take a serious look at
your regulatory culture and seek collaboration with legitimate
companies that want to do the right thing, legitimate
companies.
Big fines make headlines, but that is all they do. Press
releases do not save lives.
It is my understanding that Joe Rannazzisi, a senior DEA
official, has publicly accused we sponsors of the bill of
``supporting criminals.'' This offends me immensely. You know
before coming to Congress I was a prosecutor and an United
States Attorney. I worked to put away violent felons and drug
dealers.
I ask that you commit to me today that you will look into
this and get back to me on whether you think that statement is
acceptable behavior. Such conduct is not acceptable and it is
unbecoming of the DEA, an agency that I have the utmost respect
for. I would like to hear from you on this in writing after
this hearing.
Finally, at our April 8 Judiciary Committee oversight
hearing, the Attorney General suggested he should meet with
industry representatives and asked me to facilitate that. I
have attempted to do that but to date, no such meeting has
taken place. I am disappointed that DOJ staff has not made this
a priority, and I will be following up with a letter reminding
the Attorney General of our exchange and his personal
commitment.
Chairman Goodlatte, Ranking Member Scott, thank you so
much, and I yield back.
Mr. Goodlatte. I thank the gentleman, and it is now my
pleasure to recognize the Ranking Member of the Subcommittee,
the gentleman from Virginia, Mr. Scott, for his opening
statement.
Mr. Scott. Thank you, Mr. Chairman. First, I want to thank
you for cooperatively working with the Minority last week to
develop bills on drug scheduling that we could all support. The
original versions had several problematic provisions which you
addressed without diluting the effectiveness of the
legislation.
I am pleased to join you this morning in convening this
oversight hearing on the Drug Enforcement Administration, and I
would like to thank Administrator Leonhart for her years of
dedicated service and for appearing before us today. I must
also thank the thousands of dedicated DEA employees who enforce
our laws every day, many of whom are putting their lives on the
line to do so.
The DEA is involved in drug enforcement activities all over
the world. However, it is not clear that all of these
activities are as effective or as important as others in
stopping or reducing the scourge of drug use.
In general, there are supply side strategies and demand
side strategies to reduce drug use. Research indicates that
demand reductions through prevention, education, and treatment
can be much more effective than supply side reduction through
interdiction and law enforcement efforts.
I am hoping the Administrator will be able to shed some
light on DEA's strategy with respect to prevention and
intervention strategies and what works and what does not work.
One of the big problems we have in this country with
illegal drugs as well as illegal use of prescription drugs is
that there is a huge demand for them. The history of the war on
drugs shows us two things. First, if there is a demand for the
product, suppliers will find a way to provide it, no matter
what cost or no matter what the sanctions.
Second, the large amounts of drugs interdicted or captured
annually represents only a small fraction of the drugs being
trafficked. In fact, evidence suggests that the street price
for some of the most dangerous drugs has actually gone down
while purity has gone up, and drug use has increased or stayed
about the same.
Therefore, the so-called ``war on drugs'' has had
negligible effect on the drug trade at the highest levels but
it has imprisoned legions of street level dealers and users.
Given that we have already spent billions of dollars without a
significant impact, the question remains how much more would we
have to spend in order to achieve significant results.
While drug use in all major categories, among White
Americans, is as high or higher than the drug abuse among Black
and Hispanic Americans, the vast majority of those imprisoned
for drug violations are Black and Hispanic.
The war on drugs has been waged almost exclusively in poor
communities of color, even though the data shows that
minorities are no more likely to use illegal drugs or commit
crimes. Black Americans make up 12 percent of the U.S.
population, but almost 50 percent of those are incarcerated for
drug violations.
Drug convictions alone make up about two-thirds of the
increase in the Federal population that has exploded over the
last few years. The excessive and discriminatory sentencing
penalties from drug convictions are driven mainly by mandatory
minimums and also by consecutive counts and enhancements that
are so Draconian that many are serving life sentences or the
equivalent in years, even for first time, low level offenders.
In fiscal year 2012, 16 percent of convicted drug
defendants were convicted of offenses carrying a mandatory
minimum penalty. These harsh penalties were intended to be used
against kingpins and leaders and criminal syndicates.
In reality, data from the U.S. Sentencing Commission shows
they are used against couriers, street level dealers, and
addicts. More than half of these defendants had the lowest
criminal history category at the time of their convictions.
Mandatory minimums are sound bytes masquerading as crime
policy. They sentence people before they are even charged or
convicted based solely on the name of the crime. No
consideration is given to how minor the role may be that one
played or whether or not they are a first offender, a minor, or
an abused woman under the control of a violent boyfriend.
Even if the prosecutor, the judge, the defense counsel, and
probation officer all agree that a mandatory minimum is too
severe for a particular offender in a specific case, there is
no choice. The judge's hands are tied and the judge must impose
the mandatory minimum as a matter of law.
All the research we have shows that mandatory minimums
waste money, disrupt rational sentencing considerations,
discriminates against minorities, and often require judges to
impose sentences that simply violate common sense when compared
to traditional proportional sentencing.
As a result of the emotional appeal of the ``tough on
crime'' policies, the United States has the dubious distinction
of being the world's leader in incarceration, jailing 700
people for every 100,000 population. Most countries incarcerate
about 100. The closest competitor is Russia at about 600, China
locks up about 116 per 100,000, India, about 36.
Research on the states estimates that any ratio over 350
per 100,000, for any ratio above that, the crime reduction
value begins to diminish. Anything over 500 per 100,000 becomes
counterproductive, messing up so many families, wasting so much
money, having so many people with felony conviction records
that you are actually adding to crime, not reducing crime. That
is at 500 per 100,000. The United States' average is over 700.
When we look at the lock up rate in the minority community,
it is even worse. Ten states lock up African Americans at the
rate of approximately 4,000 per 100,000. The rates of
incarceration we have in this country and looking at crime and
simply suggesting that the main problem we have is we are not
locking up enough people just does not meet with science,
experience or common sense.
So, one is left to wonder about the motivation to continue
what amounts to a failed system in reducing drug trafficking
and abuse when we consider how ineffective and costly the
punitive supply reduction strategy has been.
Reliance on incarceration is not free. When a drug dealer
gets sentenced to 50 years at $30,000 a year, that amounts to
over approximately $1.5 million. The day after the drug dealer
is sent away, his territory is taken over, so you really have
not done anything in reducing crime.
That same $1.5 million, if it had gone to the Boys and
Girls Clubs, who held their annual congressional breakfast
yesterday, could have been put to much better use. Maybe if we
had just spent $500,000 locking up the guy and had $1 million
for the Boys and Girls Clubs, we could put hundreds of young
people on the right track and kept them on the right track
rather than the excessive incarceration for just one person.
Those are some of the things that I hope we discuss today,
Mr. Chairman, and I yield back the balance of my time.
Mr. Goodlatte. I very much thank the gentleman for his
comments, and I am now pleased to recognize the Ranking Member
of the full Committee, the gentleman from Michigan, the former
Chairman of the Committee, Mr. Conyers, for his opening
statement.
Mr. Conyers. Thank you, Chairman Goodlatte and Ranking
Member Scott. Welcome, Administrator Leonhart. Pleasure to have
you here.
The Drug Enforcement Administration is tasked with
enforcing the most critical failing, in my mind, of our
Nation's criminal justice system, namely the war on drugs.
I want to discuss two things. First and foremost, the war
on drugs has disproportionately impacted communities of color,
and second, federalizing street crime undermines constitutional
principles of limiting government prosecution to charges that
cannot or should not be brought in state courts.
To begin with, the collateral damage of the war on drugs
has disproportionately harmed minorities, obviously.
Admittedly, discrimination has permeated our Nation's history
since its founding. The Constitution itself devalued slaves,
former slaves, as three-fifths of a man. Through the Civil War
and although the Civil War was fought to abolish slavery, Jim
Crow in its wake codified disparate treatment as the supreme
law of the land.
So, we have been wrestling with this for quite a while
historically. While it has been 60 years since Brown v. Board
of Education struck down the abhorrent doctrine of separate but
equal, and 50 years since the march on Washington and the
passage of the Civil Rights Act, the casualties of our war on
drugs continues to be separate and unequal.
The malignant vestiges of racism, unconscious or not, lurk
within our Federal criminal justice system. Criminal justice
and drug enforcement are weeded out by human beings with real
human failings, including bias and self interest. Not all of
them but some of them.
The statistics tell the story of the racially
disproportionate impact of our Federal drug laws and policies.
Our country has spent over $2.5 trillion on the war on drugs.
Our Federal prison system is currently at 132 percent over
capacity. Half of all Federal prisoners are drug offenders.
In 2013, Blacks and Hispanics comprised almost 75 percent
of all Federal drug offenders. Currently, almost 40 percent of
all Federal prisoners are Black and 35 percent are Hispanic.
Blacks are arrested for drug offenses at rates two to five
times higher than Whites.
This is despite the fact that national data shows that
people of all races use and traffic drugs at about the same
rate. People of all races use and traffic drugs at about the
same rate, yet African American and Hispanic men and women are
sentenced and imprisoned for Federal drug offenses at
disproportionately higher rates for virtually every kind of
drug.
While only 4 percent of Federal crimes carry mandatory
minimum sentences, 34 percent of those in Federal prison are
serving mandatory sentences with Blacks and Hispanics, of
course, receiving sentences that are often years longer than
Whites in similar cases.
Before we identify solutions, we must recognize how our
laws and policies along with systemic problems writ large in
our Federal system interact with the Drug Enforcement
Administration's practices in the war on drugs to contribute to
this disparate impact.
No longer does Jim Crow and overt racism move the day, but
rather euphemisms such as ``those who fit the profile,'' ``who
raise reasonable suspicion,'' ``who reside in high crime
areas,'' where stop and frisk policies are the norm.
Now, to be fair, bias creeps in at every branch of our
Federal Government, from the initial decision of where and whom
to monitor, which cases are accepted for prosecution, which
defendants to charge with mandatory enhancements, and
ultimately which defendants receive upward or downward variant
sentences.
Particularly troubling to me from a civil liberties'
perspective are the DEA's civil asset forfeiture practices. The
Drug Enforcement Administration in conjunction with state
authorities can seize cash and property from men and women who
are not convicted, much less charged with a crime. This
incentivizes state and local law enforcement agencies to engage
in these seizures so as to apply the fruits of that bounty to
their own budgets.
The burden rests on the property owner to prove his
innocence in a civil suit that costs frequently thousands of
dollars in legal fees and months' imprisonment.
Much like we saw in the DEA's Operation Pipeline in the
1990's, the overwhelming majority of those targeted for those
traffic stops are Black or Hispanic. Private contractors, such
as Black Asphalt and Desert Snow, working with state and local
authorities, have made it so driving while Black or Hispanic
means that one is presumed guilty absent any evidence other
than an officer's hunch based on someone's appearance.
Our reforms need to eliminate this bounty hunting incentive
and disparate impact that it causes.
To declare success on the war on drugs, rather than
continue policies that actually cause more harm than good, we
must learn from the recent successes from our states and others
around the globe.
Our founding fathers recognized the value of delegating the
general police power to the states and the important function
that states serve as laboratories of innovation. We should
permit these federalism principles to guide us in ensuring that
Federal jurisdiction is limited, complimenting, but not
supplanting state jurisdiction.
I conclude by pointing out that many states and countries
have examined similar troubling disparities in their conviction
and sentencing data. In response, they eliminated or reduced
mandatory minimums for drug offenses or diverted those cases to
specialized drug courts and emphasized treatment and re-entry
over incarceration.
Their rewards have been not only billions in savings but
also reductions in their crime, recidivism, and addiction
rates.
While these reforms may sound counterintuitive, they offer
common sense, proportional, and evidence based responses to our
current Federal programs and penalties that are discriminatory,
destructive, and ultimately counterproductive.
Thus, we should cooperate with the states to develop
policies to determine whether offenses should be prosecuted in
the state or Federal systems.
So, accordingly, I look forward to Administrator Leonhart's
testimony about how the DEA and Congress can best address the
concerns that I have identified.
I thank you, Mr. Chairman, and return any unused time.
Mr. Goodlatte. The Chair thanks the Ranking Member and
assures him that there was not any unused time. [Laughter.]
And thanks him for an overly thorough exposition of the
issues. I know the issue is important to him, so I wanted to
let him finish his opening.
Mr. Conyers. Thank you.
Mr. Goodlatte. It is now my pleasure to introduce today's
witness. Michele Leonhart was unanimously confirmed as the
Administrator of the Drug Enforcement Administration in
December of 2012, and she had been Acting Administrator since
November of 2007, and served as the DEA's Deputy Administrator
since 2004.
Prior to that, she held several positions with the DEA's
Senior Executive Service. She served as special-agent-in-
charge of the DEA's Los Angeles Field Division from 1998
through 2003, and special-agent-in-charge of the DEA's San
Francisco Field Division in 1997 and 1998.
As a career DEA special agent, Ms. Leonhart held several
key positions as she moved through the ranks of the DEA. In
1995, she was promoted to the position of assistant special
agent in charge of the L.A. Field Division. She has had more
than 30 years in law enforcement beginning her career as a
Baltimore City police officer after graduation from college in
Minnesota, with a Bachelor of Science in Criminal Justice in
1978.
As is the custom of this Committee, we will begin by
swearing in the witness, so if you would please rise.
[Witness sworn.]
Mr. Goodlatte. Thank you very much. Let the record reflect
that the witness answered in the affirmative, and your entire
written statement will be entered into the record, and we ask
that you summarize your testimony in 5 minutes or less. We have
a timing light there on the table that will assist you in that
information.
Again, welcome to the Committee.
TESTIMONY OF THE HONORABLE MICHELE M. LEONHART, ADMINISTRATOR,
DRUG ENFORCEMENT ADMINISTRATION
Ms. Leonhart. Thank you. Chairman Goodlatte, Ranking Member
Conyers, Ranking Member Scott, Members of this Subcommittee,
thank you for the opportunity to testify before you this
morning.
This Committee's support for the Drug Enforcement
Administration has been enormously important to us. I welcome
this opportunity to continue working with you and share with
you our recent accomplishments and our challenges.
DEA in our unique capacity around the world is responsible
for enforcing the provisions of our domestic controlled
substance and chemical diversion trafficking laws, and is
honored to work closely with our state, local, Federal, and
international counterparts.
In recent years, DEA's investigations resulted in the
arrest and conviction of major international criminals,
including Viktor Bout, Monzer Al Kassar, Haji Bagcho, and even
the former President of Guatemala, Alfonso Portillo.
Most notably, DEA also supported the Mexican Government's
apprehension earlier this year of ``El Chapo'' Guzman, the head
of the world's largest drug trafficking organization.
These individuals highlight just a few of the successful
cases we have aggressively pursued each and every day. Yet,
these law enforcement successes are only one part of the
comprehensive strategy needed to address illicit drug use. A
successful strategy must be comprehensive and include research,
prevention, and treatment. There is no magic solution of the
complex challenge of illicit drug use.
This comprehensive strategic approach has been successful.
According to an analysis by the Substance Abuse and Mental
Health Services Administration, illicit drug use rates are
lower by approximately one-third compared to 30 years ago, and
since 2006, we have seen significant decreases in the number of
past month users of cocaine.
This does not mean that we are not facing real and
significant challenges. Years of over prescribing prescription
pain killers combined with decreased perceptions of risk have
created millions of new addicts.
DEA has responded not just with enforcement actions, but
also pushed to reschedule Hydrocodone, a potent and addictive
opioid. It is still readily available for legitimate use, but
it is now subject to additional tracking, prescribing, and
storage restrictions, which will minimize the potential for
diversion.
In addition, we have just released the final rule governing
drug disposal. This rule expands the public's options to safely
and responsibly dispose of their unused and unwanted controlled
substance prescription medications, and will make DEA's semi-
annual take back days unnecessary.
While we have seen some progress to our counter-
prescription drug abuse, we are beginning to see an increase in
the trafficking of one of the more traditional drugs of abuse -
heroin.
After years of declining use, the availability and abuse of
heroin is now increasing, especially among younger Americans.
In response, DEA is systematically targeting high level heroin
suppliers in partnership with state and local law enforcement
authorities, and has seen a steady increase in heroin related
enforcement efforts nationwide.
Marijuana abuse is another grave concern for DEA,
particularly because of changing public attitudes on its use.
As you are aware, the Administration opposes marijuana
legalization. Approximately 19.8 million Americans have used
marijuana in the past month, more than any other illicit drug,
and this includes nearly one out of 15 American high school
seniors who are now nearly daily marijuana users.
Consistent with the Administration's comprehensive approach
to the issue, DEA also supports scientific research efforts and
ensures that there is sufficient marijuana availability for
research purposes through a robust process of providing
Schedule I research registrations to qualified researchers. In
fact, DEA has never denied a registration for a bona fide
marijuana related research application.
Looking forward, DEA will continue to build on the progress
that we have made, and with our state and local partners, we
will continue to target traffickers who operate in or whose
drugs enter into our country.
These investigations compliment and support our
international partnerships where we target the most violent and
prolific drug trafficking organizations in the world. It is
clear to me as a career special agent and as DEA's
administrator, that not only is our mission an essential
element to our national drug control strategy and to our
Nation's health, but also to the security of our country and
our interests abroad.
Thank you for your partnership, and I look forward to
continuing to work with this Committee and Congress on these
important issues. I look forward to answering your questions.
[The prepared statement of Ms. Leonhart follows:]
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__________
Mr. Goodlatte. Thank you very much for your testimony. I
will begin the questioning. Is marijuana possession use or
distribution, medically or otherwise, legal under Federal law?
Ms. Leonhart. No, under Federal law, any growing,
cultivation, distribution, transportation, importation of
marijuana is against Federal law.
Mr. Goodlatte. Despite the fact this Administration's
current narrative in support of its position on sentencing
reform relies on the supposition that too many low level, non-
violent drug offenders are being investigated, prosecuted and
incarcerated federally.
The Justice Department's own memo from last August
providing guidance to Federal prosecutors stated that the
Department of Justice has not historically devoted resources to
prosecuting individuals whose conduct is limited to possession
of small amounts of marijuana for personal use on private
property.
Is this statement consistent with current and past DEA
enforcement priorities?
Ms. Leonhart. DEA has never targeted drug users of any
kind, especially marijuana users. We go after those that are
trafficking, those that are members of organizations and
cartels, those that are gang members that are supplying our
communities. We do not target users. We do not target patients.
We go after crime. We go after the drug traffickers.
Mr. Goodlatte. In fact, in contrast to what this
Administration would have us believe, the Federal prison system
is not littered with scores of drug users ripped out of their
bedrooms by DEA tactical teams for smoking marijuana; is that
correct?
Ms. Leonhart. That is correct.
Mr. Goodlatte. The reality is those targeted for sentencing
relief by this Administration are only those whose conduct,
that is trafficking large quantities of controlled substances,
would subject them to mandatory minimum sentences.
You stated previously that based upon your 33 years of law
enforcement experience you believe that mandatory minimum
sentences play an important role in criminal investigations. I
understand that you may have been discouraged from publicly
taking this view, but how would the removal of this important
tool affect the DEA's ability to carry out its mission?
Ms. Leonhart. Well, let me say I do believe that mandatory
minimums have been very effective in our work over these many
years, and would hope we can retain that tool.
On the other hand, I am aware that there are a number of
initiatives that are being supported by the Attorney General to
look at the bigger problem of prison overcrowding and to look
at the money, the budget, now so much of it going to the Bureau
of Prisons and not going to different programs that could help
with recidivism, drug treatments and such in the prisons.
So, balancing those two things, yes, it has been an
effective tool, and it is very important especially with the
type of trafficker and the level of trafficker that DEA
investigates and arrests and indicts, that these folks, these
very dangerous criminals, these cartel members, these gang
members, serve appropriate sentences.
Mr. Goodlatte. It has been an effective tool and it is the
law of the land, is it not, at this point in time?
Ms. Leonhart. Right now, yes.
Mr. Goodlatte. As you know, switching to another subject,
earlier this year, the House approved two amendments to the
Commerce Justice Science Appropriations bill regarding
industrial hemp.
These amendments were largely in response to litigation
between the DEA and the State of Kentucky over the seizure of a
large number of hemp seeds. The amendments disallowed DEA from
blocking the importation of hemp seeds and preventing the
cultivation of industrial hemp in states where it is legal.
If DEA does not find ways to improve the process for
approving the importation of hemp or hemp seeds for legitimate
research, it will continue to see the courts and Congress
stepping in.
What are your comments? What is being done to improve that
situation?
Ms. Leonhart. Well, DEA is looking at the Farm bill and
harmonizing it with the Controlled Substances Act, and actually
has worked with several states to ensure the provisions of the
Farm bill, which allow institutions of higher education and
state agriculture departments to grow industrial hemp for
research purposes.
We have been helping them, like we have offered to help
Kentucky.
Mr. Goodlatte. I expect though this is the beginning of a
process in which we are going to see the commercial production
of industrial hemp, which is a historic product and a product
that is abundant, and legitimate uses for it, but it has posed
a problem in terms of DEA enforcement because it is sometimes
difficult to distinguish it from marijuana.
So, what are the ongoing efforts to improve the ability of
the DEA to set up a system where you can distinguish between
the two so that this potential industry can continue to grow
but not hamper the ability of the DEA to enforce the law?
Ms. Leonhart. We can get there by working with the states.
In this particular case with Kentucky, they did not obtain the
right registration or permit to import seeds. We have worked
with other states now to help them get the proper registration.
By using the process, which is importing the seeds with an
import registration and by DEA working with these agricultural
departments and with these institutions of higher education, we
then at DEA will have an idea of where the hemp is grown, but
it does pose a very significant problem for not so much DEA,
but really our state and local partners in that you cannot
distinguish----
Mr. Goodlatte. Let me reclaim my time because it has
expired, and I just want to say that as this grows, literally
and figuratively, this is an industry that is going to grow and
you are not going to just have state departments of agriculture
and research facilities at universities involved, but you are
going to have lots and lots, maybe thousands and thousands of
just average American farmers growing this crop.
The DEA is going to have to make adjustments and they are
going to have to be aggressive about finding ways to more
easily distinguish between what is going to be legal and what
is going to be illegal.
My time has expired. I now am pleased to recognize the
gentleman from Virginia, Mr. Scott, for his questions.
Mr. Scott. Thank you, Mr. Chairman. Ms. Leonhart, there are
a lot of studies that have concluded that mandatory minimums
disrupt rational sentencing strategies, they waste the
taxpayers' money, they discriminate against minorities, and
frequently require judges to impose sentences that violate
common sense.
You have indicated that many times the mandatory minimums
are appropriate but that is, of course, not the problem,
because you do not need a mandatory minimum to impose an
inappropriate sentence. The problem is it gets imposed on those
for whom it is not appropriate.
Are you suggesting that the mandatory minimums do not
inflict inappropriate punishment on anyone?
Ms. Leonhart. I am saying, you know, when asked the
question had these been important tools, they have been for any
of us in drug law enforcement. The decisions on what is an
appropriate sentence for what a crime is is something that
Congress takes up.
As long as there are sentences that fit the crime,
sentences that ensure that the kingpins, the major traffickers,
and those that are causing the violence in our communities are
serving consistent sentences, then that will assist us in doing
our drug law enforcement----
Mr. Scott. Are you suggesting they are not inflicted on
people for whom there is no rational basis like girlfriends of
kingpins getting decades of prison time? Are you suggesting it
is never totally inappropriate, totally violative of common
sense?
Ms. Leonhart. I would say it depends on what their role was
in the organization and were they violent traffickers, what
were they trafficking, the quantities.
Mr. Scott. The President's clemency program suggests that
the Attorney General will consider clemency for those who have
already served 10 years, low level, non-violent, essentially
first offenders, and then it raises the question what is a
``low level, non-violent first offender'' doing with 10 years
to begin with.
Ms. Leonhart. Again, DEA targets the baddest of the bad,
the worse of the worse, the highest level trafficker.
Mr. Scott. They get long sentences and that is appropriate.
What about those for whom the sentence--are you suggesting that
you do not inflict that on people for whom the sentence
violates common sense?
Ms. Leonhart. I think that----
Mr. Scott. That is what the mandatory minimum requires the
judge to do.
Ms. Leonhart. I think it is important that there is
discretion by the prosecutor on what they charge, and then it
is up to the judge to sentence.
Mr. Scott. Wrong. That is what a mandatory minimum requires
a judge to impose, a sentence that violates common sense.
Ms. Leonhart. And there are safety valves, protections,
there are a number of things in sentencing that can be used,
but I also support----
Mr. Scott. Ten years for non-violent, low level, first
offender. Does that make sense to you?
Ms. Leonhart. I am sorry?
Mr. Scott. Ten years, more than 10 years, because you do
not get clemency until you have already served ten, and you
have so much more time to serve that you need clemency; low
level, non-violent, first offender.
Ms. Leonhart. If that first offender was trafficking large
quantities of heroin that were then spread across the
community, I think that is an appropriate sentencing.
Mr. Scott. Suppose it is just a low level somebody on the
tangent, girlfriend taking a message? Are you suggesting that
makes any sense at all?
Ms. Leonhart. I would have to know the circumstances. I
just know that----
Mr. Scott. All circumstances because it is a mandatory
minimum.
Ms. Leonhart. If a mandatory minimum is appropriate for
that crime, that is determined by the prosecutor who charges
the crime, and these are decisions that are not taken into
account when DEA investigates an organization.
Mr. Scott. I mean, yeah, but we are making policy and you
suggested there is some value to these mandatory minimums. Yes,
sometimes the sentence is appropriate. Many times, it is just
stupid. That is what the mandatory minimum requires the judge
to do, and that is why we are trying to get rid of them. If
people say, well, you know, they have value, it is kind of hard
to make policy.
Ms. Leonhart. The Attorney General is putting forward a
number of initiatives under his Smart on Crime initiative, and
one has to do with the sentencing and the clemency you are
speaking of.
He has assured us that the traffickers that we go after,
the traffickers that are the most violent and are leaders of
gangs, cartel leaders, and the most violent of those
traffickers trafficking on our streets, will not fall under
that and will serve their appropriate sentences.
Mr. Scott. That is right, and those that do fall under that
get stuck with the mandatory minimum anyway. That is the
insanity of the mandatory minimum, whether it makes sense or
not. I yield back.
Mr. Gowdy [presiding]. I thank the gentleman from Virginia.
Madam Administrator, I want to start by inquiring of you--I got
a phone call from an old colleague of mine, a guy named Beattie
Ashmore, yesterday, who told us a DEA agent that we work with
named Randy Smith was maybe contemplating retirement. I could
not imagine that. It seemed like last week that Randy was just
starting.
I want to start--I want to call a list of names to you, and
if you would be gracious enough if you ever run into any of
these folks--you do not have to write them down, I will give
them to you--Mark Knight, Tony Duarte, Steve Russell, Bill
Lunsford, Mark Pogh, Randy Smith, Kevin McLaughlin, Frank
Smith, are just some of the DEA agents that I had the pleasure
of working with.
They represented your agency so well and so professionally,
and it is such a difficult, hard, often times thankless job.
If you ever have a chance to tell any of them that they are
appreciated, I would be grateful to you for that.
I want to touch on a couple of things real quickly, I want
to finish--there is no one in Congress that I have more
personal respect for than Bobby Scott, so I want to finish up
by talking to you about mandatory minimums a little bit.
Speaking of the DEA, we prosecuted two physicians way back
in the day for prescribing or dispensing controlled substances
outside the course of a legitimate medical practice. I do not
hear from doctors much any more. I do from time to time, not in
a complaining way, but I do from time to time hear from drug
companies. It just strikes me that the best way to get at folks
who are abusing legal prescription drugs is to target the
physicians. That is who is writing the prescription.
It has been done before. There were DEA diversion agents. I
assume there may still be. Even if there are diversion agents,
it is not that hard to go into a physician's office without
establishing a doctor/patient relationship--one fact pattern,
there was a prescription written on a cocktail napkin at a bar.
Even I could win that case at trial.
So, I just want to ask you to be mindful, and I am not
going to call the name of the drug company, but it is one of
the most well respected companies in my entire district, and I
just do not want any of the drug companies--in interest of full
disclosure, my father is a physician, I grew up around doctors
and pharmacists. I have incredible respect for them.
I do not want the message to be sent that we view them in
the same light we view a doctor who is writing a prescription
on a cocktail napkin for somebody he met at a bar.
If there are reporting requirements, I am all for working
with the drug companies. I just do not want them to feel like--
because my understanding is if you get a prescription, the
pharmacist has a duty to fill the prescription, unless he or
she has some reason to suspect it. You have a drug company even
further removed that is just getting a request for X number of
drugs so this pharmacist can fill that prescription.
So, if you would look into that and just make sure that we
are including the drug companies so that they feel like they
are part of the solution rather than surrogates for doctors who
are writing prescriptions they should not be writing.
Ms. Leonhart. I can assure you that we actually view
distributors and manufacturers, doctors, pharmacists, the whole
gamut, everyone involved in this closed system of distribution,
as partners in trying to resolve and tamp down on this
exploding prescription drug problem.
We have had a number of initiatives where we are working
with companies so that they can better understand what those
signals are, what those red flags are, on what a suspicious
order would be.
Many times, working with them, they are actually able to
then put out warnings or cautions to the people they are
distributing to that it is suspicious and they are not going to
fill orders.
So, those companies are very important to helping us in our
fight to prevent diversion. We do not look at them as the
enemy. We do not look at them as----
Mr. Gowdy. I am sure you do not, and I know you will do a
remarkable job of communicating to them that they are partners
as opposed to targets.
In the few seconds I have remaining, I do not recall it
being a crime to be the girlfriend of a drug dealer. Did that
become a crime since I left the U.S. Attorneys Office?
Ms. Leonhart. That is why I said I needed to know what the
circumstances were, what drugs were they distributing.
Mr. Gowdy. There would not be anybody serving Federal
prison time for simply being the girlfriend or boyfriend of a
drug dealer, nor is there anyone serving Federal prison time
for being the boyfriend or girlfriend of a drug dealer and
accepting a telephone call.
You have to be convicted of conspiracy. You have to be
convicted of a RICO activity. You have to be convicted of
possession with intent to distribute a controlled substance.
There is nobody serving time for simply being the girlfriend or
boyfriend of a drug dealer, much less serving the mandatory
minimum. Agreed?
Ms. Leonhart. Correct.
Mr. Gowdy. All right. Why do you think--in your judgment,
why do we have mandatory minimums? What was the impetus behind
Congress deciding we should have mandatory minimums?
Ms. Leonhart. I came on DEA as an agent after being a
police officer in 1979, hired by DEA in 1980. Went through the
Academy. At the time, I can tell you that when we did our
cases, the criminal histories we received for the people that
we were investigating would blow your mind. It was a revolving
door in and out of the system.
I also can tell you that working cases in the Midwest, more
than often I was the undercover agent. It was also surprising
to see, depending on where you were in the country, the
different kinds of sentences that people would receive for the
very same crime.
So, to see the mandatory minimums kick in, you started to
see more consistency. You also started to see that those that
have been routine, you know, criminals in and out of the system
and increasing their involvement in drug trafficking were
finally stopped by the types of sentences that they were
sentenced to.
Mr. Gowdy. Well, I am well over time and I am going to--
yes, sir?
Mr. Scott. Can I have a consent request?
Mr. Gowdy. Yes, sir.
Mr. Scott. Mr. Chairman, I ask unanimous consent to insert
into the record case histories of girlfriends who have gotten
caught up in taking messages--if you take a message, you are
part of the conspiracy, and you are in fact sentenced based on
the weight of the drugs that the boyfriend is dealing, which
will result in decades of time for people who have no
meaningful role in the conspiracy. I would like unanimous
consent to insert those case histories into the record.
Mr. Gowdy. Without objection.
[The information referred to follows:]
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__________
Mr. Gowdy. I am grossly over time, and I am going to give
all of my colleagues on the other side at least as much time as
I took over.
I am going to say again there is no one in Congress that I
have more respect for than the gentleman from Virginia, who has
been a champion on this issue for the entire time I have been
in Congress, and if he says such cases exist, I believe him
period.
I would encourage them to pursue post-conviction relief,
because they had a lousy criminal defense attorney, if all they
did was take a telephone call and the relative conduct racked
up and accumulated such that they reached a mandatory minimum.
Before I recognize the next colleague, Madam Administrator,
there are currently ways to get around mandatory minimums.
There is Rule 35. There is the safety valve. I assume there are
still 5K 1.1s, although the stated guidelines have changed.
So, the notion that there is no way to get around a
mandatory minimum even today is not accurate; right?
Ms. Leonhart. That is correct.
Mr. Gowdy. All right. The gentleman from Michigan, Mr.
Conyers.
Mr. Conyers. Thank you, Mr. Chairman. You startled me today
with some of your testimony, Madam Administrator. I would like
to find out if you are familiar with data from over 17 states
that demonstrates eliminating or reducing mandatory minimums
has not statistically affected rates of cooperation or pleas.
Ms. Leonhart. I am not familiar with that data.
Mr. Conyers. Well, I will put something in the record and
give you some information on it.*
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*The information referred to, a report titled ``Justice
Reinvestment Initiative State Assessment Report,'' is not reprinted in
this hearing record but can be accessed at http://www.urban.org/
UploadedPDF/412994-Justice-Reinvestment-Initiative-State-Assessment-
Report.
pdf.
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Administrator Leonhart, it is fair to say based on
Sentencing Commission data that the majority of drug
convictions are of couriers, mules, drivers, low level dealers?
So, I ask if you agree that existing state laws cover that
conduct as well.
Ms. Leonhart. That is correct.
Mr. Conyers. Sure. Okay. Would you also agree that kingpins
and leaders do not by any stretch of the imagination comprise
the bulk of the convictions, drug convictions, in this area?
Ms. Leonhart. When DEA pursues drug investigations, the
goal is to disrupt and dismantle an entire organization. So
yes, there are leaders, heads of organizations, lieutenants at
the top, but there are also all those facilitators that help
the organization in their crimes.
Mr. Conyers. Yes, that is who gets caught, the little guys,
the mules, drivers, low level dealers. I am talking about an
examination which I will be doing after this hearing that
kingpins--the people at the top very seldom get convicted. That
is the issue that I am raising with you for a discussion at
this time.
Ms. Leonhart. Ranking Member, I would have to tell you that
DEA has been very successful in taking down the leadership of
organizations. Just look at our kingpin program. Of all of the
kingpins identified since 2002, DEA has indicted over 75
percent of them. Most of them do not even operate on our
shores, and yet we have been able to arrest over 55 percent of
them, and we have extradited to the United States over 33
percent of them.
So, we are investigating them. We are indicting them or
arresting them, and we are actually extraditing them to the
United States. They are prosecuted and they serve long
sentences.
Mr. Conyers. What I am suggesting is the leaders and
kingpins do not comprise anywhere near the bulk of the
convictions. I would like to follow this up with you or your
staff in terms of a study of the statements that you just made
in that regard.
Let me turn now to this final question. The Drug
Enforcement Administration is a component of the Department of
Justice. So, would you agree that its official position
supports the Smarter Sentencing Act which reduces mandatory
minimums?
Ms. Leonhart. We support the Attorney General's initiatives
under Smart on Crime.
Mr. Conyers. And that includes the reduction of mandatory
minimums, which is part of the Smarter Sentencing Act?
Ms. Leonhart. We support the initiatives forwarded by the
Attorney General with his assurances that these will not impact
the traffickers that the DEA spends the majority of our time
going after, the kingpins, the violent traffickers, the gang
leaders and such.
Mr. Conyers. Well, I am going to have to compare that with
some other comments that you have made because it seems to me
that there is a certain contradiction between your response to
this question and other comments that you have made here today
before the Committee.
Well, here is the Huffington Post. ``Obama's DEA Chief
refuses to support drug sentencing reforms.'' I do not know how
accurate it is and I do not know--it is dated from a few months
ago. That is a part of the contradiction that bothers me
between some of the statements and comments that you have made
here today.
We will be following this much more carefully now that you
have had a chance to come before us.
Thank you, Mr. Chairman. I yield back.
Mr. Gowdy. I thank the gentleman from Michigan. The Chair
will now recognize the gentleman from Puerto Rico, Mr.
Pierluisi.
Mr. Pierluisi. Thank you, Chairman. Administrator, thank
you for appearing before the Subcommittee. You and I met in
February 2012 to discuss drug trafficking and related violence
in Puerto Rico. In June of that year, we spoke again about this
issue when you testified before this Subcommittee. Finally, we
spoke by phone in April of 2013.
I have also spoken on multiple occasions with Vito Guarino,
the special-agent-in-charge of the DEA's Caribbean Division
based in Puerto Rico.
As you know, I have placed great pressure on DOJ and DHS to
increase the level of resources dedicated to Puerto Rico, which
is a major trans-shipment point for drugs destined for the U.S.
Mainland.
The need for Federal law enforcement agencies to enhance
their efforts in Puerto Rico is particularly important because
according to DEA, drug traffickers are increasingly using the
Caribbean region to transport cocaine to the States.
In late 2013, DEA officials were quoted as saying that the
percentage of U.S. bound cocaine trafficked through the
Caribbean had risen to 14 percent, which was double the
percentage in 2012.
Puerto Rico is an attractive jurisdiction for drug
traffickers because the island is an American jurisdiction
within the U.S. Customs Zone.
The role of Federal law enforcement agents is simple, to
make Puerto Rico a less appealing operational environment for
drug traffickers. That requires the Federal Government to
develop a comprehensive strategy and to allocate the resources
required to implement that strategy.
In terms of strategy, Congress has required ONDCP to
prepare a counter-narcotics strategy for the Caribbean Border,
with an emphasis on Puerto Rico.
In terms of resources, prior to 2012, I criticized the
Federal Government for not doing enough. Since 2012, however, I
have seen some real progress. Make no mistake, the effect of
these enhanced efforts can be measured in lives saved.
Nevertheless, Puerto Rico's murder rate is still the highest in
the country, averaging nearly two homicides a day.
While I know DOJ is doing great work in Puerto Rico, I have
candidly told Attorney General Holder and FBI Director Comey
that the Department must do more. This is not just my personal
opinion. In both the 2013 and 2014 CJS appropriations bills,
Congress directed the Attorney General to assess whether there
were sufficient DOJ personnel and resources assigned to Puerto
Rico, to identify additional resources that may be necessary,
and to brief Congress on the findings.
In light of this background that I am giving you, I have
two questions, and depending on time, I might follow up on the
sentencing guidelines' issue.
First, what specific steps, including any new initiatives,
is DEA undertaking to combat drug related violence in Puerto
Rico?
And second, I understand that the DEA has incentives in
place to encourage agents to relocate to Puerto Rico and to
remain there beyond their initial period of service. However, I
have learned from agents assigned to the Caribbean Division
that there appear to be inconsistencies in how agents have been
treated under this incentive program.
I am concerned about the possible effect this could have on
mission performance, so I would like you to give me your views
on this issue.
I see time is kind of expiring on me. On this sentencing
guidelines issue, let's set the record straight, you are not
the one setting policy on the Administration's handling of
sentencing guidelines; correct?
Ms. Leonhart. That is correct.
Mr. Pierluisi. So, your views are just your personal views;
is that correct?
Ms. Leonhart. My agency views, my views as a law
enforcement officer and as a DEA special agent, but these
issues are presented by the Department of Justice, and we
support the Attorney General in his initiatives.
Mr. Pierluisi. And until Congress revises or changes the
sentencing guidelines, your commitment is to go after major
drug traffickers as opposed to low level drug offenders; is
that correct?
Ms. Leonhart. That is correct, and that has always been
DEA's mission.
Mr. Pierluisi. Even before your tenure? Are you sure of
that?
Ms. Leonhart. It has always been DEA's mission to go after
organizations, major drug traffickers, and we even made a
change in 2002. We started our own Smart on Crime initiative,
and that was priority targeting and the kingpin list.
Mr. Pierluisi. I will go back to Puerto Rico, but frankly,
there is an issue here, because the statistics do not seem to--
they are not consistent with what you are claiming has been DEA
positions for so long. There is a problem here because the
statistics do not confirm that.
But at least you are saying you are not going to be going
after low level drug users, is that correct, or drug offenders?
Ms. Leonhart. No, we go after organizations that are
causing the most violence in a community, are responsible for
the majority of the supply in a community, are the most
violent, and those are the heads of organizations.
Mr. Pierluisi. Thank you. Mr. Chairman, thank you for your
indulgence. If you could allow the witness to address my
questions on Puerto Rico, the ones that were specific about
Puerto Rico, I would really appreciate it.
Mr. Gowdy. Absolutely.
Mr. Pierluisi. If you will allow her to answer.
Mr. Gowdy. Absolutely; yes, sir.
Mr. Pierluisi. Thank you.
Ms. Leonhart. On your first question about new initiatives,
we have seen an increase in productivity by our office in
Puerto Rico. In fact, I was talking to the special-agent-in-
charge, and we are up about 20 percent in major investigations.
We are up over 80 percent in the number of Title III intercepts
that we are doing of these major traffickers.
More importantly, I have over the past several years
increased the staffing in Puerto Rico. What really hurt was
during sequestration and the tough budget years, we were not
able to hire. Our first full graduation class graduated last
week or 10 days ago, and out of that class of 45 was our first
chance to put new agents in Puerto Rico. Out of those 45
graduates, three of those graduates are headed to Puerto Rico.
We prioritized ahead of the Southwest Border and ahead of
our major offices that have had lots of vacancies because I am
about 600 agents down--we prioritized Puerto Rico so that they
can get there and assist with the enforcement progress that we
have seen in Puerto Rico.
On the other, on incentives, when we have met, you know, I
have told you I am committed to do what we can do to help
Puerto Rico, and that is why I traveled to Puerto Rico.
One of the things I heard was that there was a new
incentive that the Department of Justice had approved for our
components, and that was to given extended assignment
incentives to agents who had been transferred to Puerto Rico
and after a number of years, an incentive to stay there, start
paying those.
I approved that policy, and we started paying them. When we
started paying them, some of the people who were getting
another kind of bonus were paid incorrectly, and we are still
correcting that, but I had approved the extended assignment
incentives, and those agents have been getting paid.
So, I would be glad to come and talk to you about the
specifics, but know that you have a brand new incentive that
will not get the agent to Puerto Rico, but it will help the
agents assigned to Puerto Rico decide to continue a tour longer
than the standard three/four/five years in Puerto Rico. I think
that will help you be able to maintain very good talent in
Puerto Rico.
Mr. Pierluisi. Thank you.
Mr. Gowdy. I thank the gentleman from Puerto Rico, and the
Chair will now recognize the gentleman from Utah, Mr. Chaffetz.
Mr. Chaffetz. I thank the gentleman from South Carolina and
the Chairman. I do appreciate you being here. I want to thank
the men and women throughout your agency who do a very
difficult job. I have seen them in action. I have enjoyed going
out on ride along's to see how they do things firsthand.
They are professional and they do a very difficult job. I
just want them to also know how much we care and appreciate
what they do and how they do it, and are not thanked enough for
the difficult job they have ahead of them, and to their spouses
and loved ones who worry about them when they are out there
doing their jobs. I just want to say thank you.
I want to talk about prescription drugs for a moment. There
is some concern that perhaps in the prescription drug process
that there is maybe not as much involvement with those along
the chain there, that your lack of interaction and
communication and input from those who are dealing with these
controlled substances, whether they be the drug stores
themselves, those who are writing the prescriptions, and the
consumers.
What is it that you are doing to make sure that you
understand that process, what they are going through, and that
they are included as you move along to set up the rules and
boundaries, and the second part of that is what sort of
recourse do they have?
If you have some new rule, are they allowed an opportunity
to have some sort of recourse and interaction with you?
Ms. Leonhart. Thank you for the question. You know, you
were not here when I said it earlier, we consider everyone in
the chain, that closed chain of distribution--we consider
everyone partners, and we all have to do our part, and that is
what will stop diversion.
So, we have over the past several years implemented a
number of ways to improve communication. I can tell you more
recently we have done some things to improve that
communication.
Mr. Chaffetz. And I guess, not to cut you off here--I am
sure there is a much more elaborate process and there are
things that I am not aware of that I would like to become aware
of. Is that something you can share with this Committee or with
my office? I would sincerely appreciate it.
Ms. Leonhart. Yes.
Mr. Chaffetz. Because I do think there are people who are
wondering what is the formal process or recourse for when you
are going through one of the things, as we wrap up here, the
disposing of prescription drugs. For instance, that was put
into law that you were to implement that.
It took years for you to come up with a process to do this.
It seems rather simple to me. I am sure there are a number of
gyrations and things you have to go through in order to get it
just right. It took an exceptionally long period of time.
Nevertheless, I am glad it is there.
But it was stone silence on figuring out where you were at,
how long it would take in order to get there. In general, are
you going to be able to go to a pharmacist or a pharmacy or
drug store and be able to dispose of prescription drugs that
you did not consume or did not need? Is that something you are
going to be able to readily do?
Ms. Leonhart. The new disposal regulations that we put out
are going to allow Americans on a 24/7 basis a way to dispose
of their drugs, and one of the things they will be able to do
is participating pharmacies will have receptacles, some of them
will also have mail back programs that will be available.
Citizens can also go to their participating hospitals and
clinics and those that have a pharmacy in-house are allowed the
same rules and will be able to have receptacles or mail back
programs.
We also thought it was very important to preserve the
ability to have community groups partner with law enforcement
to have periodic take back programs.
So, we have made sure that we have covered the whole gamut
from pharmacies, hospitals, clinics, police departments and
community groups, and included a way for people within the VA
to do it as well, and long term care facilities.
Mr. Chaffetz. I look forward to following up with you on
that. It is a keen interest to people in my district and some
of the hospitals and pharmacists in our district. I look
forward to following up with you on that program, and I yield
back.
Mr. Gowdy. I thank the gentleman from Utah. The Chair now
recognizes the gentlewoman from California, Ms. Chu.
Ms. Chu. Thank you, Chair. Actually, I wanted to follow up
on this issue of prescription drugs because I have been
contacted by my pharmacies who are very concerned about this as
well.
It has come to my attention that there have been cases
where individuals who suffer chronic pain have faced challenges
accessing properly prescribed pain medication. I am concerned
that some pain sufferers are not able to gain such access.
For example, take the case of Karen Westover of Newport
Richey, Florida who had one knee cap removed and suffers from
fibromyalgia. She has had pharmacies deny her prescriptions
many times over the past couple of years.
On one occasion, Walgreens initially refused to fill her
prescription because Westover did not live within five miles of
the store. When it was confirmed by the pharmacist that she
lived within three miles of the store, Westover was still
unable to get her prescription filled.
Now, I understand that pharmacies have been tightening
their rules after the DEA has imposed record fines on
pharmacies based on allegations that they were not scrutinizing
questionable prescriptions, but I do believe that a careful
balance has to be struck between attacking the prescription
drug abuse epidemic while not preventing legitimate patients
from accessing pain medications.
It is for this reason that I am proud to be an original co-
sponsor of H.R. 4709, the ``Ensuring Patient Access and
Effective Drug Enforcement Act,'' which was introduced by
another Member of this Committee, Tom Marino, and passed by the
House in July. I believe that this bill would foster
communication transparency between industry and the DEA.
So, Ms. Leonhart, could you comment on how the bill could
help in ensuring that patients with legitimate prescriptions
for pain are not being denied their prescriptions at
pharmacies, and could you expand on what the DEA is doing to
ensure access for these patients?
Ms. Leonhart. Well, I thank you for your question because
this balance is very important to us. You know, we have a
responsibility to make sure that patients that need the
medication have it available, and at the same time, make sure
that those that are participating in diversion are investigated
by us, whether they are the pharmacy, the doctor, the retail
distributor, or the wholesaler.
I, too, get calls and letters from people concerned about
not being able to get their medications. We have followed up on
a number of them, and one of the things we have found is that
often when someone has gone to fill a prescription, the
pharmacist will say ``I am out of my DEA quota.'' There is no
DEA quota to a pharmacy.
What has happened is because of the explosion of the
prescription drug problem, you have a number of people, drug
seekers, with invalid prescriptions, going and getting their
prescriptions filled, and that is the reason people with
legitimate needs when they go to try to get it, they cannot get
their prescriptions.
So, we are working very closely with the pharmacies. In
fact, we did a training last week in Phoenix. We call them
``pharmacist drug awareness conferences.'' We have done them in
over 20 locations. We will continue to do that.
What we are finding out is that by sitting down together
and going through what the drug problem is, we go through all
the methods of diversion, we go through what the corresponding
responsibility is, we feel that in those locations where we
have done that, we walk away feeling that the pharmacists are
better aware of what their responsibilities are.
We are hoping that a lot of the efforts we have put in
place, such as the pill mills that were shut down in Florida
that now really is part of the reason that Florida has a 50
percent lower overdose rate currently, that these different
things we have put in place over the last couple of years will
ensure and help make sure the patients who have a valid
prescription will be able to get their medications.
Even in the enforcement actions we take, we take that into
consideration if we take an action on one pharmacy, what is
that going to do to the patients who depend on that pharmacy.
We take that all into consideration, and it is not lost on us,
the importance of making sure that the balance is right.
Ms. Chu. Okay. Thank you.
Mr. Gowdy. I thank the gentlelady from California. The
Chair will now recognize the gentleman from Virginia for any
closing remarks he thinks are appropriate.
Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, as I
indicated, I would like to introduce for the record--we have
right now two case histories.
One points out that a girlfriend, Stephanie George, was
sentenced based on 500 grams of crack that her boyfriend had,
and she was given a life sentence. She did have a prior record.
Because she had let him leave his crack there, she was part of
the conspiracy, and the weight of the conspiracy on which the
sentencing was based on was 500 grams.
I mentioned Kemba Smith. This is an outline of her case.
Her boyfriend was dealing crack. She ended up with 24.5 years.
Both of these were subject to presidential commutations.
There are as I indicated hundreds, possibly thousands of
people in jail today on low level, non-violent offenses for
which their sentences of over 10 years must have been a product
of mandatory minimums.
I would like these in the record and unanimous consent to
introduce others as they come in.**
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**See page 25.
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Mr. Gowdy. Without objection.
Well, while my friend from Virginia was talking, I could
not help but think, Madam Administrator, about the awesome
power that prosecutors and law enforcement agents and officers
have that play an incredibly important role in our society, but
the awesome power to accuse and to then prosecute and
ultimately sentence should be sobering for all of us.
But it is also a nice opportunity in conclusion for me to
again thank you, women and men of DEA, who do an incredibly
difficult job.
You do not have to see it up front. Guys like Marino and
others have seen it up front. You do not have to see it up
front to appreciate how difficult it is to be in law
enforcement.
If you could just let the folks know that, and in
conclusion, I just made a couple little notes. If you do have
an opportunity to sit down with Congressman Marino, I would
encourage you to do it. Tommy has a very compelling life
narrative. I have the pleasure of sitting beside him.
The way he came to become a prosecutor, working in the
family business. U.S. attorney. State prosecutor. I know that
you all would have a whole lot more in common than you would
have differences. If you have an opportunity to sit down with
Tommy, I would appreciate that.
Anything you can do to work with drug companies so they
view themselves as partners as opposed to targets, I would be
grateful for, and continue to express your opinion with respect
to matters related to sentencing reform, and the virtues of
mandatory minimums or the shortcomings, as you see them.
You know, I keep coming back to the biggest point of
distinction between a safety valve or Rule 35 and 5K 1.1 and
what the Attorney General has proposed is cooperation with law
enforcement. I just do not think it is asking too much of those
that want to benefit from a reduction in sentencing that they
cooperate with law enforcement. I think that is a legitimate
expectation.
Mr. Scott. Mr. Chairman?
Mr. Gowdy. Yes, sir.
Mr. Scott. As I indicated, additional case studies have
come on. One is Bonnie Di'Toro who was in the next room when
her boyfriend sold an undercover agent a lot of cocaine. She
received a 15 year mandatory minimum. Mandy Martinson was
essentially sentenced for her boyfriend's offenses and received
a mandatory of 15 years.
I would like these also entered into the record.
Mr. Gowdy. Without objection.
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__________
Mr. Gowdy. I will again say what I said earlier to my
friend from Virginia, if either of those two defendants had
somebody as capable as you defending them, they would not be in
prison at all, because mere presence at the scene of a crime is
not a crime.
But because I do respect the gentleman from Virginia, I am
going to read the cases because I told him I would. Again, it
reminds us of the awesome power law enforcement has, judges and
prosecutors, and they should be ministers of justice and not
just try to rack up as many convictions as they can rack up.
So, with that, this concludes today's hearing. I want to
thank our witness for attending. Without objection, all Members
will have 5 legislative days to submit additional written
questions for the witness or additional materials for the
record.
Mr. Gowdy. And with that, thank you, Madam Administrator.
This hearing is adjourned.
[Whereupon, at 12:42 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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