Transnational Drug Trafficking Act of 2015

Floor Speech

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Mr. SCOTT of Virginia. Mr. Speaker, I rise in opposition to S. 32, the Transnational Drug Trafficking Act of 2015. While I support the underlying goal of combating drug trafficking, existing federal criminal laws already prohibit and punish this conduct. This bill however weakens existing mens rea standards, and therefore could lead to the application of mandatory minimums to action which the defendant did not know was illegal.

This bill therefore is a perfect example of four of the most common problems in crime policy.

First, it is a textbook example of overcriminalization, namely the careless creation and addition of federal crimes without reviewing if that conduct is already sufficiently prohibited and can be prosecuted under existing federal criminal laws. Existing federal laws prohibit importation and exportation of controlled substances, possession with intent to distribute such substances, or attempt or conspiracy to do so and therefore already prohibit the very conduct S. 32 was drafted to reach.

Our federal code contains over 5,000 offenses carrying criminal penalties, but a precise count eludes not only the Congressional research service but also the Department of Justice, the agency charged with prosecuting those offenses. The House Judiciary Committee's bi- partisan Overcriminalization Task Force, upon which I served as Ranking Member, found that our Congressional appetite to add new federal offenses to demonstrate that we were ``tough on crime,'' instead of relying on existing state or federal statutes, was a significant driver. If we are serious about cleaning up our federal code, it starts with ensuring that the first question we ask when introducing, marking up, or voting on a bill is whether that bill is necessary. There is no such evidence in the record that the Department of Justice has been unable to investigate or prosecute these such cases under existing law, nor is there any evidence that the present punishment for violation of these laws is insufficient.

Second, the mens rea standard in S. 32 is weaker than the criminal intent standards of existing federal drug statutes carrying mandatory minimums. This means that the government can convict based on a lower standard of proof. Again, the need for a robust mens rea standard is a key Constitutional requirement that ensures that citizens are not deprived of their liberty, absent a showing that they were aware that their conduct was prohibited and they intended to engage in that unlawful conduct. In the wake of discussions about the importance of mens rea in protecting defendants who act with innocent intent and/or no notice of the illegality of their conduct, it is disappointing to see a step in the wrong direction that makes it easier for the government to convict them based upon a weaker standard.

Third, applying S. 32 would lead to unintended consequences due to this weaker mens rea standard. Specifically, not only does S. 32 criminalize ``intending'' or ``knowing'' that one of the prohibited chemicals will be used to manufacture a controlled substance, but also ``having reasonable cause to believe that the controlled substance will be unlawfully imported into the United States.''

Many legitimate industrial chemicals, such as anhydrous ammonia found in fertilizer or ephedrine found in sinus medication, and natural substances, such as the alkaloid fluid extracted from the bulbs of poppy plants, can also be used to process and synthesize some illicitly produced drugs.

Thus, the problem S. 32 presents is that it may sweep too broadly. For example, a fertilizer manufacturer or pharmaceutical company or florist in Europe could be criminally liable and subject to a mandatory minimum penalty. That is because under S. 32's rubric, any manufacturer, importer, or distributor of any substance that some illicit chemist seeks to turn into an existing, or as-of-yet-developed, controlled substance would be vulnerable to federal criminal charges. The problem is that S. 32's ``reasonable cause to believe'' benchmark is intellectually bankrupt''--is it ``reasonable cause to believe that the entity they are shipping it to has requested it for illicit purposes'' or merely ``reasonable cause to believe that these are the types of chemicals that could be turned into illicit drugs?''

Lastly, this bill expands the universe of conduct to which a mandatory minimum applies. Research and evidence in the past few decades has demonstrated that mandatory minimums are ineffective deterrents, waste the taxpayers' money, force judges to impose irrational sentences, and discriminate against minorities, particularly with regards to drug offenses. Unfortunately, there are too many mandatory minimums in the federal code. If we expect to do anything about that problem, the first step has to be to stop passing new ones. The mandatory minimums in the code today did not get there all at once--they got there one at a time, each one part of a larger bill, which on balance might have been a good idea. Therefore, the only way to stop passing new mandatory minimums is to stop passing bills that contain mandatory minimums. Giving lip service to the suggestion that you would have preferred that the mandatory minimum had not been in a bill, then voting for it anyway, just creates another mandatory minimum and guarantees that those who support mandatory minimums will include them in the next crime bill. And more mandatory minimums will be created and the failed war on drugs will continue.

If our goal is to ensure that we prosecute transnational drug traffickers, let us provide adequate funding to local, state, and federal law enforcement agencies to do so under multiple federal statutes that already achieve that goal, without raising these problematic implementation and fairness concerns.

In summary, while I support the underlying goal of S. 32, I have grave concerns about its redundancy, its erosion of the mens reas standard commonly used in these offenses, its broad sweep and its use of mandatory minimums. Therefore, I urge my colleagues to vote no on S. 32.

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