The Honorable Patrick Leahy, Chairman
Committee on the Judiciary
United States Senate
433 Russell Senate Office Building
Washington, DC 20510-4502
The Honorable Orin Hatch, Ranking Member
Committee on the Judiciary
United States Senate
104 Hart Senate Office Building
Washington, DC 20510-4402
June 29, 2001
Re: S. 304, the "Drug Abuse Education, Prevention, and Treatment Act of 2001"
Dear Chairman Leahy and Senator Hatch:
We are writing to you in regards to S. 304, the "Drug Abuse Education, Prevention and Treatment Act of 2001. Overall, the bill provides a welcome emphasis on drug treatment, prevention, and education instead of primarily focusing on incarceration. However, we do oppose several sections of the bill. Our two primary concerns are Title VII and Title I. We request that you remove these two sections from the bill. Title VII is likely unconstitutional and Title I is not in keeping with the spirit of a treatment bill.
Title VII permits using federal money to fund religious organizations, without requiring them to establish separate 501 (c)(3) non-profit organizations. This section violates the First Amendment's prohibition against excessive government entanglement with religion and raises serious risks that religious organizations will use their exemption from federal civil rights laws to discriminate. Title I mandates that the United States Sentencing Commission (U.S.S.C.) increase a number of criminal sanctions. We oppose increasing these penalties, which are already overly punitive. Further, there does not appear to be any record as to why the increases are necessary or whether they will accomplish the goal of reducing drug use.
Another reason to eliminate Title I is that the American public approves moving away from using harsh criminal penalties and favors alternatives to incarceration to address the drug problem. The ACLU recently commissioned a large poll surveying the American public's opinion on incarceration, especially for drug offenses. (We would be happy to provide you with the results of this polling if you are interested.) There are a number of findings that are relevant to this bill that we believe you will find useful. For example, we learned that a substantial majority of Americans do not support prison terms for non-violent, personal use drug offenses, but instead support alternatives such as drug treatment, job training, community service and parole. Additionally, the majority of Americans do not support mandatory sentencing because of the unfair results that occur when judges lose discretion about what kind of sentence to impose. And lastly, the overwhelming majority of Americans believe that the primary purpose of prison should be rehabilitation and that prisons are failing to meet this goal. These findings suggest that the public is looking for innovative drug solutions different from simply imposing longer prison sentences.
What follows are our recommended changes to the bill, in order of priority. We appreciate your consideration of them and look forward to working with you.
I. Title VII
The ACLU opposes section 701 of S. 304, which expands so-called "charitable choice" to all programs funded under the Drug Abuse Education, Prevention, and Treatment Act of 2001. This section would violate the Establishment Clause of the First Amendment and undermine nearly sixty years of federal civil rights protections against most uses of federal money by persons engaged in employment discrimination based on religion.
By allowing federal funds to flow directly to religious organizations, section 701 is a direct violation of the Establishment Clause. Although the Supreme Court has allowed religiously affiliated organizations to provide government-funded services in a secular manner, it has never allowed religious institutions to receive direct government aid. In defiance of that standard, section 701(a) would mandate that federal, state, and local governments award federally funded contracts to any religious organization, on the same basis as any other organization, without "impairing the religious character of the organizations." Section 701(a) even limits the ability of the State to question whether or not it will be funding a sectarian or secular program.
Additionally section 701(b)(1) reads, "A religious organization that provides assistance?shall maintain its independence from Federal, State, and local governments, including such organization's control over the definition, development, practice and expression of its religious beliefs." This language severely limits the government's ability to protect the constitutional rights of beneficiaries and employees. For example, federal civil rights statutes cannot be enforced if an organization is insulated by law from government oversight of compliance with civil rights statutes.
Moreover, section 701 does not adequately protect beneficiaries from being coerced into religious activities. While Sec. 701(h) states that no public funds may be used for "sectarian worship, instruction or proselytization," there is no section of the bill stating that a religious organization's private funds may not be used to proselytize or advance a sectarian message in that same program. In other words, an individual could attend a drug treatment program in which the publicly funded employees refrain from proselytizing, but the privately-funded employees such as religious clergy-working alongside the publicly-funded employees-do engage in religious instruction. The same problem could occur with volunteers at a faith-based social service provider.
Section 701 (c) would put the government in the business of funding discrimination. The section provides that religious organizations may retain their right under Title VII of the Civil Rights Act of 1964 to discriminate in employment by preferring members of their own religion. Religious organizations that receive federal grants should be required to adhere to the same safeguards that apply to every other government contractor or grantee.
Allowing federal funds to go to persons who discriminate based on religion undermines core civil rights protections that date back to President Franklin Delano Roosevelt. Although current law allows religious organizations to use their own private money to prefer members of their own religion, they generally cannot use federal funds to discriminate.
The ban on using federal funds to discriminate dates back to the very earliest days of the civil rights movement. Sixty years ago this month--more than two decades before the signing of the Civil Rights Act of 1964--President Roosevelt ordered all federal agencies to "include in all defense contracts hereafter negotiated by them a provision obligating the contractor not to discriminate against any worker because of race, creed [religion], color, or national origin." E.O.8802 (June 25,1941).
President Roosevelt later expanded the civil rights provision to include all government contracts, and Presidents Truman, Eisenhower, Kennedy, and Johnson strengthened its protections. Their common objective was to keep taxpayers' money from funding discrimination--including religious discrimination.
Congress and the Executive Branch have further extended the prohibition on federally funded religious discrimination by adding statutes and regulations affecting a wide range of federal contract and grants programs. For sixty years, the basic principle has been that the federal government should not be financing religious discrimination against others.
Moreover, because at least some courts have allowed religious organizations to use their exemption from Title VII's prohibition against religious discrimination as a basis for requiring adherence to the religion's teachings and tenets, the potential scope of permissible discrimination may be broad. Thus, if section 701 is enacted, applicants for jobs with federally funded religious organizations may have to answer such interview questions as: What is your religion? Are you married or divorced? Was your marriage annulled? Is your spouse the same race as you? Are you pregnant? HIV-positive? What does your church teach about sexual orientation? Are you willing to work only with members of your own sex? A wrong answer could mean no job.
Such questions have no place now in the federally funded workplace. However, section 701 could make such questions commonplace for religious organizations funded under the act. And discrimination will be the new rule.
We should add that deleting section 701 would not affect the ability of religiously affiliated groups working in our communities to participate in federally funded programs. Catholic Charities, Lutheran Social Services, and United Jewish Communities, as well as countless other religiously-affiliated groups, receive federal funds and agree not to discriminate based on religion or any other protected characteristic. They play by the rules.
Recommendation: We urge you to delete Sec. 701 and evaluate alternative options including, giving more technical assistance to religious organizations that wish to compete for federal grants. Most importantly, any alternative proposal that includes religious organizations should require that they comply with the same laws that affect all other grantees.
2. Title I - Sentencing Enhancements - Overall Recommendations
Title I is essentially, crime legislation, and would be more appropriately handled in a crime bill instead of a drug bill. In general, provisions of this title could adversely affect civil liberties by continuing the misdirected war on drugs philosophy of continually imposing harsher penalties. The harsher penalties are particularly disturbing because nothing in the legislation has identified a need for such extreme increases, especially in sections 106 and 109. We know from our research that Americans believe we should move away from using incarceration as the primary method of addressing the drug problem. These provisions are not a movement away from harsh penalties and may lead to unfair results.
A. Sec. 102 "Drug Offenses Committed in the Presence of Children"
This section increases a penalty enhancement for drug offenses that take place in "the presence" of children. We recommend striking this section because it is unnecessary, vague and could result in punishing conduct that did not have any impact on a child.
It is unclear what problem this section seeks to address. If it is that children will see a drug offense, there are already a number of sentencing enhancements that address that problem. See 21 U.S.C. sec. 859 (Distribution to persons under age twenty-one); sec. 860 (Distributing or manufacturing in or near schools or colleges), and sec. 861 (employment or use of persons under 18 years of age).
Section 102 (a)(1) requires increasing prison terms if the offense took place "in the line of sight of a child." This language is overly broad. It could be read to penalize a drug offense that took place in an area that could be in the line of sight of children, such as a school, even if no child observed the offense. Section 102 (a) (2) is equally vague. It requires enhancement if the offense takes place where a child "habitually resides." This provision would seem to apply if a drug deal takes place at a housing project where children reside, even if no child observes the offense. Both these penalty enhancements would apply, even if no child were impacted by the offense.
An additional concern is that the penalties are likely to impact disproportionately urban, minority communities. Schools in urban settings are typically closer to homes in which children may habitually reside than are schools in suburban or rural areas. The close proximity of schools to homes also means that offenses are more likely to take place in the "line of sight" of children.
Lastly, the language of secs. 102 (1) and (2) mandates the degree to which sentences must be enhanced, thus usurping the role that Congress delegated to the United States Sentencing Commission (USSC) to determine uniformity and fairness in determining appropriate sentences. If Congress believes that new sentencing penalties should be considered, it should direct the USSC to determine the appropriate increase.
Recommendations --- Our preference would be to eliminate section 102 entirely. However, in the alternative, subsection (1) and (2) could be merged into one subsection that imposes an enhancement when an individual who has not attained the age of 16 observes the offense and the offender knew that a child was watching.
We also recommend eliminating the mandatory directives to the sentencing commission, which can be done by striking (b) (1) and (b) (2) and retaining (b). This gives the Commission the discretion to determine the appropriate sentencing increase.
B. Section 106 "Increased Penalties for Using Federal Property to Grow or Manufacture Controlled Substances."
Current federal law already imposes harsh penalties for cultivating or manufacturing drugs - depending on the quantity the mandatory sentence that could apply is in the range from 5 to 20 years. See 21 U.S.C. 841 (b)(1). Current law also already authorizes an increased fine in cases where an individual violates federal drug law by cultivating drugs on federal property. See 21 U.S.C 841(b)(5). This provision has consistently been one of the three most commonly used federal mandatory minimum sentencing statutes. There is no indication that the current provision is not already sufficiently harsh, nor any reason to double the current maximum penalty, which is what section 106 would do.
Some of the people most harshly punished under federal drug laws are Native Americans. Native Americans who commit federal drug offenses on reservations are usually prosecuted under federal law because federal, rather than state, drug laws are usually applied on reservations. Sentences for drug offenses are usually more severe in federal court than in state court. This results in unfairness when Native Americans repeatedly receive a punishment under federal law that is more severe than what a non-Native would receive under state law for the same crime committed off an Indian reservation.
The United States Sentencing Commission recently held a hearing in South Dakota to consider whether federal sentencing guidelines are unfair to Native Americans. The Commission was asked to consider whether in some cases Native Americans should be able to decide whether they want the guidelines to apply to them. See Terry Woster, Panel Urged to Give Tribes Sentencing Options, Argus Leader, June 20, 2001. Given that sentencing changes are currently under consideration, it makes sense for Congress to hold off on increasing penalties during this re-evaluation process.
Unnecessarily harsh federal drug penalties pose serious civil liberties concerns especially when the sentences may impact one racial group more than others. There is no factual record establishing the need to increase such already high penalties, nor is there any rationale to explain why doubling the already harsh penalty would address any problem that may exist.
Recommendations: The ACLU recommends striking this section.
C. Section 109 "Supervised Release Period After Conviction for Continuing Criminal Enterprise."
Section 109 modifies 21 U.S.C. sec. 848 to impose a minimum 10-year period of supervised release for persons convicted of participating in a continuing criminal enterprise. For persons with prior convictions, the minimum period of supervised release would be 15 years. Persons convicted under this section have already been subjected to minimum sentences of 20 years for a first offense or 30 years for a second offense. These are extraordinarily harsh punishments. Adding an additional 10 to 15 years on top of these already harsh provisions is an extraordinary level of government interference into a person's life. These harsh penalties apply even in cases of involving marijuana and even when no violence was involved.
Supervised release involves very intrusive surveillance techniques. The government monitors all aspects of an individual's life including where they travel, whom they live and associate with and what kind of work they do. Persons on supervised release are subjected to drug requirements like drug-testing and other invasions of their privacy. The typical term of supervised release is five years, which is already a significant period of time.
Congress should be lowering the sentences for these offenses, not increasing the severity of punishment by adding on an additional decade or decade and a half of supervised release.
Recommendation: We recommend striking this provision. In the alternative, Congress could give the sentencing judge the authority to extend the period beyond five years if necessary. Persons who are subjected to the five-year period of release will be routinely monitored. If during that time, they show some recidivist tendencies, than their period of supervision could be extended beyond the normally imposed five-year period if warranted, but this extension should not be automatic.
3I. Title II - Drug Free Prisons and Jails
A. Section 2201. Drug-Free Prisons and Jails Incentive Grants
Title II sec. 202 amends 42 U.S.C. 13701 (grant authorization for residential substance abuse treatment for state prisoners) to make 10% of the funding available for jail-based substance abuse treatment programs for state and local correctional facilities. This money that is set-aside is to be used to encourage the establishment and maintenance of drug-free prisons and jails. To be eligible, the programs must meet certain program requirements, including a "zero-tolerance" policy.
The premise of this section may be sound, but it is unrealistic to believe that prisons will ever be completely drug free. To obtain funding under these programs, states are required to implement programs that include: random and routine sweeps and inspections for drugs, random and routine tests for all inmates, and drug testing of all inmates upon intake and release from incarceration. These requirements are problematic for a number of reasons. First of all, not all inmates use drugs or are serving time for drug related crimes. Requiring prison officials to subject all inmates to drug testing and routine sweeps is a waste of resources and an unnecessary invasion of privacy. Relying on the results of drug tests for purposes of revoking federal funding is unreliable because many drug tests are inaccurate leading to both false positives and false negatives.
Recommendations: Change the word "shall" in Sec. 20110 ( c )(2)(A) to "may", which changes the program requirements from mandatory to suggestive and increases the flexibility needed to use the treatment program that works best. It will enable more prisons and jails to participate in the grant program and it eliminates the highly unrealistic requirement of creating completely "drug free" prisons and jails.
B. Section 203. Mandatory Revocation of Probation and Supervised Release for Failing Three Drug Tests.
Section 203 would modify 18 U.S.C. 3565 that requires mandatory probation revocation if the defendant: possesses illegal controlled substances, possesses a firearm or refuses to comply with drug testing. Section 203 would add a fourth condition under which probation revocation would be mandatory -- if a person tests positive for illegal controlled substances three times within a one year period.
The ACLU opposes this provision, as it opposes all mandatory sentencing provisions because it removes discretion from the sentencing judge to make the best determination of how a probation or supervised release violation should be addressed. The hallmark of due process is fairness and mandatory sentencing provisions often produce unfair results because judges are not permitted to take into account mitigating factors in particular cases. Mandatory sentencing provisions transfer discretion from judges to prosecutors (and in this case probation officers) who adjust the charges so that the defendant receives the sentence the prosecutor - not the judge - thinks proper.
Relapse, including multiple relapses, are an expected part of drug treatment. To mandate that judges send someone back to prison may be the worst decision for that person's treatment. Ironically it is the person who has relapsed, even continuously, that needs treatment, more, not less than those who haven't slipped.
In many cases, mandatory revocation will be less effective and more expensive than sending a person for treatment. Americans are questioning the wisdom of sending drug-addicted people to prison, which often does nothing to address the underlying problem. For example, voters in Arizona and California recently passed referenda requiring treatment instead of prison for nonviolent drug possession or for persons on probation that failed drug tests. The philosophy underlying these propositions is that too many non-violent people are unnecessarily imprisoned taking up expensive, limited prison space. Voters in Florida will be considering a similar proposition this fall. California estimates that this referendum will save the state $1.5 billion over 5 years.
Recommendation: We recommend striking this requirement. Judges already have the authority to return people to prison for failing drug tests and in many cases return them after only one failure. Congress should not require judges to automatically return persons to prison based on an arbitrary number of failed drug tests. Every effort should be made to provide maximum access to treatment programs in lieu of prison terms for drug-addicted people.
4. Title III - Treatment and Prevention
A. Section 301. Drug Treatment Alternative to Prison Programs Administered by State and Local Prosecutors.
Section 301 establishes a pilot program to grant money to state or local prosecutors for the purpose of developing, implementing or expanding drug treatment alternatives to prison programs.
ACLU supports efforts by Congress to encourage alternatives to incarceration, because we oppose the current punishment-oriented policy of putting drug offenders in prison for long jail sentences. Punishment-oriented programs unnecessarily infringe on personal liberty and are not as effective as treatment programs. See Testimony on Drug Treatment Alternatives to Incarceration, Martin Y. Iguchi, Co-Director of the Drug Policy Research Center at Rand, April 4,2000 before the Sub-Committee on Criminal Justice Drug Policy and Human Resources of the House Committee on Government Reform.
However, establishing drug treatment programs that are administered by prosecutors could violate civil liberties. First of all, prosecutors are not treatment experts. Their role is to prosecute criminal offenses; it is not to treat drug addiction. Establishing treatment programs in prosecutor's offices risks compromising the defendants' due process right against self-incrimination and also risks violating the privacy of the person undergoing treatment. In addition, prosecutors have an institutional interest in addressing failure with punishment instead of treatment.
The goal of promoting Drug Treatment Alternatives to Prison could more effectively be met by revising this grant program to allow other organizations to run the treatment programs, thus avoiding the problem of compromising the defendant's privacy and due process rights.
Recommendation: We recommend changing the words "State or local prosecutors" to "treatment providers."
Part DD --- Juvenile Substance Abuse Courts
This provision would amend 42 U.S.C. 3711 et seq. to include funding for juvenile substance abuse courts. Drug courts have been used in various parts of the country. They are courts that handle exclusively drug cases. This provision would allow the Attorney General to make grants to state, local and tribal governments for the purpose of establishing courts that serve juveniles.
B. Section 575. Residential Treatment Programs for Juveniles
This section requires the Director of the Center for Substance Abuse Treatment to award grants and enter into agreements with entities for the purpose of providing juvenile substance abuse treatment. A potentially serious issue is raised by a funding constriction for residential treatment programs under subsection (g). That section requires that an applicant "will provide outreach services in the community involved to identify juveniles who are engaging in substance abuse and to encourage the juveniles to undergo treatment for such abuse."
While outreach may be sound social policy, this clause raises the possibility that juvenile substance abusers could be identified by treatment providers and subsequently targeted by law enforcement agencies. There is no guarantee that the abusers' identities would be kept confidential. If the youth were identified, but did not receive treatment, then the confidentiality protections accorded to medical records would not apply. Without the guarantee of confidentiality, youth in need of treatment will be dissuaded from participating. This problem could be overcome by an amendment that protects the confidentiality of outreach records.
Recommendation: At the end of subsection (g) add, "All records of outreach to juveniles for the purpose of identifying substance abusers are to be considered confidential and will not be shared with law enforcement or juvenile authorities."
5. Title V - Reestablishment of Drug Courts
Drug courts are a controversial method of addressing criminal drug offenses through a separate court system. By taking drug cases out of the regular court system, drug courts are touted as a way to both "unclog" busy court calendars and enable special attention to be paid to persons with drug problems. There is very little literature on the effectiveness of drug courts and it is unclear at this point in time if they are an effective way of dealing with drug cases either from the point of view of streamlining the court system or providing additional attention to drug offenders.
The ACLU is concerned that in the process of establishing separate court systems, the full due process rights of accused persons are protected. There is some evidence that drug courts may be compromising defendants' rights.
In his thorough review of the drug court system, Judge Morris B. Hoffman, a judge who practiced for nine years in the Colorado drug court system, concluded that there is "little evidence that drug courts reduce recidivism and substantial evidence that they create profound operational and institutional problems." See Morris B. Hoffman, The Drug Court Scandal, 78 N.C.L. Rev. 1437 (June 2000). Morris is critical of drug courts because they have not produced a significant reduction in the rate of recidivism, but they have led to quick resolutions that compromise defendants' due process rights. Persons who agree to have their cases prosecuted in drug court often forego normal due process rights with the understanding that their case will be handled outside the regular criminal justice system. The person enters into some type of a no-contest plea with the understanding that if he or she successfully completes treatment than there will be no further prosecution of the criminal case. However, if that person fails to meet the requirements set forth by the drug court, then the conviction is automatically imposed and the case returns to criminal court. In this way, the person has the conviction on his or her record, but did not have the benefit of the adversarial system that might have resulted in an acquittal, a dismissal or a lowered charge.
Morris is also critical of drug courts because they pl