The Drug Trafficking Safe Harbor Elimination Act was a bill proposed to the 112th United States Congress in 2011. It was introduced to amend Section 846 of the Controlled Substances Act to close a loophole that has allowed many drug trafficking conspirators to avoid federal prosecution. The Drug Trafficking Safe Harbor Elimination Act would have made it a federal crime for persons who conspire on United States soil to traffic or aid and abet drug trafficking inside or even outside the borders of the United States. This Act was created to provide clarity to current laws within the United States and provide criminal prosecution of those who are involved in drug trafficking within the United States or outside its borders. This Act would have provided a borderless application to United States Law and extends possible criminal charges to all individuals involved in the drug transport. The bill passed the House but was not acted upon by the Senate and thus died.
History
The Drug Trafficking Safe Harbor Elimination Act was introduced to the House on January 18, 2011 by Representative Lamar S. Smith of Texas and Representative Adam B. Schiff of California. The proposed Drug Trafficking Safe Harbor Elimination Act, also known as H.R.131, would make it a federal crime for persons who conspire on United States soil or traffic outside the borders of the United States, as well as engage in conduct such as aiding or abetting. These criminal actions would be in violation of the current legislation under the Controlled Substances Act. The Act is to amend Section 846 within the Controlled Substances Act and is legally defined as, "Anyone who enters into a conspiracy to traffic or possess a controlled substance outside the United States or who aids and abets others in such crime within the United States, shall be subject to the same charges or penalties that would apply to conduct if it were to occur within the United States." This Act will not include a simple possession of a controlled substance." This amendment to the Controlled Substances Act is to "clarify conspiracies conducted within the United States which may lead to criminal prosecution of those involved within the United States."
The section within the Controlled Substances Act that is to be amended is Section 846. This Section, entitled Offenses and Penalties (21 U.S.C. 846) legally states that, "Any person who attempts or conspires to commit any offense defined in this 'subchapter' shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." The Drug Trafficking Safe Harbor Elimination Act, if passed, will insert: ‘"(a)" before "Any"; and insert "Whoever, within the United States, conspires with one or more persons, or aids or abets one or more persons, regardless of where such other persons are located, to engage in conduct at any place outside the United States that would constitute a violation of this title if committed within the United States, shall be subject to the same penalties that would apply to such conduct if it were to occur within the United States." This Act will close a current loophole in the Controlled Substances Act that has limited prosecution and regulation. Prior to this act, there was no punishment for individuals who were on United States soil who conspired to traffic drugs outside the borders into other countries. Several cases throughout the history of the United States have been dismissed due to the current Controlled Substances Act not covering conspiring or trafficking outside the United States through collaboration on United States soil.
The Drug Trafficking Safe Harbor Elimination Act provides a borderless application to the current Federal drug conspiracy and trafficking statute. The act, if passed, is intended to decrease crimes including conspiracy and drug trafficking while attempting to secure United States borders. Supporters report that this act will provide clarity in prosecution regarding conspiracy by persons within the United States, as well as persons who engage within the United States to aid or abet drug trafficking outside of the countries borders. The act itself is to reduce the involvement on United States soil in the ever increasing and borderless drug problem. This small change in the wording regarding the Controlled Substances Act provides clarity to past gray areas.
In the United States, there have been many legislative actions and agencies to regulate and prevent drug trafficking on United States soil. The United States Department of Homeland Security has a division for International Drug Trafficking that coordinates with various departments to attempt to prevent drug movement, especially those targeted to enter the United States. With this Act, these agencies will obtain increased boundaries in detention of possible conspirators and individuals who assist the transport. Currently, the Federal Maritime Drug Law Enforcement Act focuses on the transport of illegal substances on international waters. This Act focuses on water vessels, such as submarines, which are increasing in use. These vessels are used to help drug traffickers reach their destination on waters that are often unregulated. Congress reported that the increase in these vessels and the increase in drug trafficking creates a threat to the well being and the security of the United States. The use of these types of vessels are universally unacceptable, but difficult to regulate.
Legislation background and cases
The United Nations Office on Drugs and Crime reports that cocaine is typically transported to the United States by water vessels from Colombia to Mexico or Central America. At this time, cocaine from Colombia remains the primary source for Europe and other countries. Coordinating the transports takes preparation of the many individuals involved. From 1998 to 2009, seizures of cocaine, heroin, morphine, and cannabis have almost doubled. Further analysis shows that ATS (Amphetamine-Type Substances) have doubled in the same time frame. The United Nations Office on Drugs and Crime in 2009 stated that approximately "149 and 272 million people or 3.3% to 6.1%" of the population from ages 15 to 64, used an illicit substance at least once in the previous year. With this data, legislation and agencies are attempting to deter and decrease the market for illegal drug use by strict punishments.
The United States and other organized international agencies have battled drug-related crimes throughout history. The first legislation against drug trafficking was passed in 1848 when an act known as, Drug Importation Act, was passed. This act allowed United States Customs to inspect drugs entering the United States from overseas. This came as one of the first attempts of interception and prevent any misuse or markets. Since then legislation has had to become more precise in narrowing the gray areas within the law and international concerns. Congress expresses that the reasoning behind the Drug Trafficking Safe Harbor Elimination Act is because trafficking drugs or conspiring to traffic, is a threat to the United States' security and to the well-being of United States citizens. Data from a survey in 1991 shows that participates, ages 18 to 49, who reported use of illegal drugs such as marijuana or cocaine were much more likely to commit crimes than those who did not use. This study also showed that 26.1% of those interviewed in 1991 and used cannabis, alcohol, and/or cocaine had committed a violent crime during the last year. There is a proven link that shows a strong correlation between illicit drug use and crime. Often these criminal acts are committed to obtain goods or money to support the drug habit. Thus, increasing concern for legislation to continue to look for possible solutions.
The United States not only focuses on its borders, it focuses beyond its soil in attempts to prevent what eventually will enter the country. The United States has a total of three drug treaties that extend internationally. The first treaty, known as the 1961 Single Convention on Narcotic Drugs which was amended in 1972 and gave power and influence in the control of drugs nationally. The second treaty came along in 1971, known as the Convention on Psychotropic Substances, which covered new drugs that came out in the 1970s, like LSD and other hallucinogens. The initial two treaties were an attempt to secure the availability of drugs for scientific and medical purposes only, thus, diverting illegal trade. Each of these treaties included sections on trafficking and drug scheduling and information. The third treaty was introduced in 1988 and is entitled the Illicit Traffic in Narcotic Drugs and Psychotropic Substances. This treaty provided more details concerning related crime and extended law in attempts to detour drug-related crimes, such as money laundering or drug trafficking precursors. Each of these treaties concentrated efforts in attempting to prevent or decrease the number of drug-related crimes within the United States and beyond.
The introduction of the Drug Trafficking Safe Harbor Elimination Act, stems from the same goal of regulation and prevention of drug trafficking throughout United States and throughout the world. The most prominent case that is used to support the Drug Trafficking Safe Harbor Elimination Act occurred in 1998. The conspiracy occurred between two individuals who coordinated the trafficking of 2,000 kilograms of cocaine from South America to Europe. With assistance from a Saudi Arabian Prince, Nayef bin Fawwaz Al Sha'lan, who allowed the drugs to be transported by his private jet and a large Colombian drug trafficking organization, these two individuals helped move approximately $100 million of cocaine. The co-conspirators met for collaboration while in Miami, Florida, to purchase the cocaine from the Colombian drug organization and to transport it to Europe. Law enforcement in France and Spain intercepted the cocaine, but approximately 1,000 kilograms had already been sold in the Netherlands and Italy, as well as other locations throughout Europe. In 2005, the two conspirators in what became the Lopez-Vanegas case, were convicted of conspiracy and drug trafficking by a Florida Federal District Court. Both of the co-conspirators were sentenced to 24 years in prison. In 2007, the Court of Appeals vacated the convictions and determined no violation of Federal law had occurred since when the conspiracy to possess and distribute occurred it was outside the United States. This became the case that provided support for an amendment to the Controlled Substances Act to occur since the collaboration of the conspiracy to traffic occurred while on United States soil in Miami, Florida.
Controlled Substances Act
The Controlled Substances Act of 1970, formally known as title II Pub. L. 91-513, was implemented on October 27, 1970 to control and regulate both prescribed and illegal substances. Although, the Act has been amended several times since it was implemented, it has been the building block of drug legislation within the United States. The Controlled Substances Act of 1970 was created to regulate medications which can lead to abuse or dependency if used incorrectly. With the creation of five classifications of Scheduled drugs and detailed policy, the Controlled Substances Act attempted to regulate and control any importation, distribution, or manufacturing.
In 1970, a total of five schedule categories were established within the Controlled Substances Act. Once established, these schedule categories would be reexamined twice annually to update the substances and to be republished to be used by agencies. Each substance is placed into a category by determining the quantity and consistency of each individual substance. The following are the five scheduled categories: