Letter to the Senate Regarding the Hatch Drug Amendment to S. 625, the "Bankruptcy Reform Act of 1999"

Oppose Bankrupt Ideas - Vote Against S. 625! Dear Senator: We are writing to urge you to vote against S. 625 "The Bankruptcy Reform Act of 1999." Numerous controversial amendments were added to this bill including Amendment number 2771, the Hatch Drug Amendment. The Drug Amendment combines several controversial and misguided policy ideas that threaten civil liberties. 1. The Amendment Will Increase Racial Disparities in Drug Sentencing. Although the majority of crack and powder cocaine users are white, people of color have felt the brunt of cocaine sentencing policy. The sentencing laws for crack cocaine have had a devastating impact on African-Americans: almost 90 percent of the people in prison for crack under federal drug laws are black, even though twice as many whites as blacks use crack. This discrepancy is due in part to racial profiling in drug cases where blacks are arrested and charged with drug offenses at a greater rate than white people. Raising powder sentences will also disproportionately impact people of color. Currently, 80 percent of the defendants sentenced to federal prison for powder cocaine are people of color. The single largest racial group is Hispanic -- comprising 48 percent of the population. 2. The Amendment Will Spend Billions Incarcerating Non-Violent Lower Level Drug Users. This amendment will exacerbate current imbalances in drug policy at tremendous cost. The U.S. Sentencing Commission reports that more than half of powder cocaine defendants are already at the lowest level of the drug trade and 86 percent are nonviolent. Predicted costs of increasing powder cocaine sentences will create an influx of 7,538 addicts and small-time drug users into federal prisons within ten years at a cost to taxpayers of $1.55 billion. The predicted twenty-year cost rose to $4.72 billion, and the 30-year cost was a staggering $9.5 billion. 3. The Amendment Increases Powder Cocaine Sentences to the Same Unduly Harsh Level as Crack Cocaine Offenses. The ACLU agrees with the United States Sentencing Commission that crack and powder cocaine sentences should be the same. However, crack sentences should be lowered instead of powder sentences being raised that is because in 1988 Congress mandated a five-year minimum sentence for possession of crack cocaine, artificially inflating the sentences for crack without a scientific basis. This inflated penalty has remained in place despite urgings by the US Sentencing Commission, the Journal of American Medical Association and the Department of Justice that the penalties were unwarranted because crack and powder cocaine are the same drug and should not be punished differently. A Commission survey of public opinion indicates that the American public believes that powder cocaine penalties are already sufficiently harsh. Unfortunately, this amendment will place powder sentences in line with inflated crack sentences, filling prisons with non-violent offenders and doing nothing to address the problem of drug addiction. 4. The Amendment Contains a Misguided School Vouchers Provision. The Drug Amendment contains a Student Choice and Family School Choice Amendment that would provide federal funding for a limited group of children to attend private and religious schools. Money would be available from Title I Funds and "any other educational funds" to be used to send certain children to private schools. Although characterized as offering choice for parents, in actuality, the amendment would only offer benefits to a select number of students. A voucher program would be created to send children who are victims of certain offenses to private schools, after the violence has already occurred. Fundamental fairness demands that we improve our public schools for every child instead of targeting a few for special privileges. Contrary to some assertions, vouchers do not guarantee parental "choice." Private schools do not have to serve all students and can reject those with disabilities, with limited English proficiency, or other special needs. While voucher schemes offer the illusion of 'choice,' in reality, they increase the opportunities for only a handful of children who will have the luxury of attending private and religious schools at public expense. 5. The Amendment Mandates School Expulsion. This amendment would mandate that states expel students for at least one year if they are found in possession of a felonious quantity of drugs on school grounds. Current law makes possession of any amount of cocaine a felony offense. Mandatory expulsion from school for drug possession deprives a child of his or her right to an education and deprives the state of its ability to set school policy that makes sense for its locality. Expelling students from school for drug offenses will do nothing to help the child address a drug habit, but will do a lot towards keeping the child from rehabilitation and a productive future. 6. This Amendment Infringes on Free Speech Guaranteed Under the First Amendment. The very core of the First Amendment is that the government cannot regulate speech based on its content. The United States Supreme Court has repeatedly held that content-based regulations are presumptively invalid. Nonetheless, this bill prohibits dissemination of information based on content when coupled with intent. The bill prohibits communication of information about the manufacture of controlled substances "with the intent" that the information be used for, or in furtherance of "an activity that constitutes a Federal crime." The difficulty arises in proving that intent. First, proof of intent involves an examination of protected speech. Second, the bill has a chilling effect because people will not engage in legitimate speech for fear of criminal investigation. Assume a web operator used her site to criticize the Government's drug policy, and stated her opinion that drugs should be legalized. In her opinion, it is none of the Government's business what people put into their bodies. This is clearly protected speech under the First Amendment. The Government cannot legitimately prosecute her for expressing her opinion. Now, assume this same web operator posted information on less dangerous ways of making methamphetamine. This information has the potential to save the lives of those who choose to manufacture methamphetamine as well as those who may live in the immediate vicinity. Because of the content of the information the government must now examine her motives and prove intent. It is likely that a prosecutor would use examples of protected speech to prove intent. (She favors drug legalization and posted information about making drugs, so she intends for the information to be used in committing a Federal crime.) The Government is now punishing the expression of opinion in the guise of arguing intent. This is unconstitutional. The bill also tends to chill protected speech because of the likelihood of being subjected to a criminal investigation. The effect of the bill is to greatly increase the investigative and surveillance authority of the FBI. In other words, this bill turns a whole host of actions into crimes thereby establishing the criminal predicate for which the FBI guidelines allow an investigation to be pursued. Even worse, the FBI investigates when it merely has a "reasonable indication" a crime may have been committed. This means that anyone who simply disseminates - on paper, over the airwaves, or in cyberspace - information on manufacturing controlled substances is now subject to investigation by the FBI to determine their "intent." The overall effect is to chill any speech that may appear on the FBI's "crime radar." 7. This Bill Criminalizes the Dissemination of Legitimate Information and Overrides the Judgment of the States Regarding what is Best for their Citizens. North Dakota, Minnesota and Hawaii have all approved the production of industrial hemp. Hemp is marijuana, a controlled substance according to the definitions in this bill. It is entirely foreseeable that two hemp farmers will discuss production methods with the intent to increase production, and run afoul of the law. Not only does this bill substitute federal judgment for that of the states, it could send two farmers to jail for merely discussing production methods. The bill also prohibits doctors from providing their medicinal marijuana patients with information about cultivating and preparing the plant, even where it is otherwise legal. Voters and legislatures in seven states have legalized the use of marijuana if prescribed by a physician for a serious illness. Yet this bill would override the will of the voters and legislatures, and send a doctor to jail for providing information. Vote No on the Bankruptcy Bill!!!