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Ronald Reagan Presidential Library
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MEMORANDUM
THE WHITE HOUSE
WASHINGTON
July 11, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS are
SUBJECT:
Draft Statement Before Members of
Subcommittee on Alcoholism and Drug
Abuse on DEA's Views on "Look-Alike Drugs"
A representative of DEA (as yet unidentified) proposes to
deliver the above-referenced statement on July 14. The
testimony concerns "look-alike" drugs, which are legal,
non-controlled substances designed and marketed to resemble
controlled substances and mimicking their effect, though on
a smaller scale. For example, a typical "look-alike" is a
legitimate caffeine capsule with the same shape and coloring
as a popular, illegal "speed" capsule. The testimony notes
three general problems with the "look-alike" industry: (1)
"look-alikes" can be abused when taken in large quantities,
(2) they contribute to acceptance of the view that drugs
should be consumed not for medicinal purposes but for
pleasure, and (3) serious consequences attend the confusion
between "look-alikes" and the real things -- e.g., someone
accustomed to taking six caffeine "look-alike" tablets could
easily kill himself if he took six of the speed tablets the
"look-alikes" were designed to resemble.
The testimony notes DEA's success in promulgating a model
act addressed to the "look-alike" problem, its efforts to
educate appropriate officials concerning the problem, the
role of the legitimate pharmaceutical industry in declining
orders to produce "look-alikes," and inter-agency
cooperative efforts. In general the testimony urges caution
in addressing the problem through federal legislation.
The second sentence on page 6 bemoans the fact that "no
single Federal agency has jurisdiction over all facets of
this drug abuse problem." Such language plays directly into
the hands of those who support creation of a drug czar, and
could be very embarrassing to the Administration should this
debate be joined anew. We should recommend deletion of the
sentence.
Attachment
THE WHITE HOUSE
WASHINGTON
July 11, 1983
MEMORANDUM FOR GREGORY JONES
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Draft Statement Before Members of
Subcommittee on Alcoholism and Drug
Abuse on DEA's Views on "Look-Alike Drugs"
Counsel's Office has reviewed the above-referenced draft
testimony. The second sentence on page 6 should be deleted,
since it plays into the hands of those who favor creation of
a "drug czar" with jurisdiction over all aspects of the drug
abuse problem, something the Administration has strongly
opposed. We have no other objections.
FFF:JGR:aw 7/11/83
CC: FFFielding
JGRoberts
Subj.
Chron
ID #.
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
D
OUTGOING
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Date Correspondence
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Name of Correspondent:
GREG JONES
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Subject: Draft Stalement before Members 8 Subcommittee
on alcoholism and Drug abuse h DEA'S views on
bok-alike drugs
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5/81
UKALN
July 14, 1983
Chairman Humphrey and Members of the Subcommittee on Alcoholism and Drug Abuse:
Thank you for this opportunity to provide you with DEA's views on the
status of the problem of look-alike drugs. Over the past two years much has
been done at the federal and state levels to attempt to bring this activity
under control. From DEA's perspective, these initiatives have had a
significant impact on the look-alike problem. The precipitous growth of this
phenomenom seen in 1980 and 1981 has been arrested and, in a number of areas,
there has been a substantial decline in the availability of look-alikes. I
hasten to add however that a problem remains, albeit in a different form and
of a smaller magnitude. We are faced with a dynamic situation in which some
of those involved appear willing and capable of adapting rather than going out
of business. Because of the combined Federal and State attack, the look-alike
industry has changed considerably over the past two years; so much so that if
legislation were passed based on the problem as it existed in 1981, most of
today's problem would fall outside its scope. The changing nature of the
problem makes it magnitude difficult to assess. Nevertheless, I will attempt
to characterize the look-alike situation as I see it today and then describe
the actions taken by DEA, their impact and our future direction.
Nature of the Look-Alike Problem
In spite of the sudden explosive growth of this problem, look-alikes have
been around for a number of years. In the mid-seventies, an organization known
as Peashooter was selling bogus amphetamines to truck drivers in many Southern
states. The head of this organization eventually started his own company
devoted solely to the production and distribution of look-alikes.
DRAFT
By 1980, this phenomenon had spread across the nation. By 1981 it was
estimated that at least 10 companies were manufacturing look-alikes and over
200 wholesalers were distributing them. During 1979 and 1980 DEA laboratories
analyzed 1462 exhibits and over 500,000 dosage units of look-alikes.
During this period the term look-alikes referred to tablets, capsules or
other substances containing noncontrolled, over-the-counter (OTC) ingredients,
which closely resembled well-known, highly abused controlled drug products.
Distributors were advertising these products as the legal way to get high,
directly implying that the look-alikes could be sold as controlled substances.
The look-alikes were sold in containers without proper labels, warnings or
descriptions of the contents. Quality control was virtually nonexistent.
Unethical entrepreneurs were making huge profits by using loopholes in
society's legal and regulatory apparatus to peddle drugs and the concept of
drug abuse to the nation's youth.
In late 1981 the Federal and state governments became actively involved
in the battle against look-alikes. Some of the regulatory loopholes were
closed but unfortunately others were found. Today the problem we face refers
predominantly to those products which, although not manufactured to closely
resemble controlled drug products, are promoted in the same manner and contain
the same ingredients as those resembling controlled products. Many of the
look-alike products, at least at the manufacturer level, are now sold in
properly labelled containers with appropriate warnings. Usually the active
ingredients and their quantities are identified on the label. Many of the
look-alikes bear trademarks which the manufacturers say prevent them from being
confused with other products. Further some of the look-alikes are imprinted
with National Drug Code (NDC) numbers and have specific brand names.
DRAFT,
They are advertised as stimulants, diet aids, appetite suppressants,
decongestants and sleep aids. Generally, the more recent generations of
look-alikes are not overtly represented as controlled products.
Once these products reach the street, or retail level user, however, they
are may be removed from their labelled bottles and contain no warnings or
precautions about their use. The message to the user is the same as with the
original look-alikes: that drugs should be used for thrills and not solely
for legitimate medical reasons. Despite all the publicity surrounding look-
alikes, there appears to be a number of people who still perceive them to be
real controlled substances. Still others who are well aware of the contents
and effects of look-alikes, continue to abuse them. In either case look-alike
stimulants mimic the appearance or effects of amphetamine-type products and
generally contain one or more of the following OTC ingredients: caffeine,
ephedrine, pseudoephedrine and phenylpropanolamine. The depressant look-alikes
mimic the appearance or effects of sedative or hypnotic drugs such as Quaalude,
Valium and Librium and generally contain combinations of the following
ingredients: acetaminophen, salicylamide, doxylamine and chlorpheniramine.
DRAFT.
Although they are legitimately used as nasal decongestants, analgesics,
or for the relief of cold, allergy or asthma symptoms, the look-alike
ingredients can produce mild stimulant or depressant effects and have caused
serious injury to those who ingest large quantities. Moreover, many use
look-alikes along with alcohol. There have been several documented reports
of cerebral hemmorrhage and severe hypertension associated with the use of
stimulant look-alikes. Reactions to look-alikes may range from nervousness,
insomnia or drowsiness to tachycardia, sharp rises in blood pressure, cerebral
hemmorrhage, cardiac arrhythmias and temporary psychotic episodes. Emergency
rooms have reported many episodes of adverse reactions associated with the use
of look-alikes or their ingredients. A number of deaths associated with
look-alike use have been reported with caffeine intoxication as the likely
cause of death. In 1981, a new category for look-alikes was established for
the Drug Abuse Warning Network (DAWN) to help determine the extent of this
public health problem. During the period June 1981, through March 1983, 92
emergency room mentions were attributed directly to substances reported as
look-alikes with the majority involving drugs obtained by street buys.
Furthermore, many of the emergency room visits attributed to amphetamines and
speed may be the result of look-alike abuse. It is important to note, however,
that during the entire year of 1982, 48 emergency room mentions were reported
by DAWN compared to 43 during only 6 months of 1981. Thus far in 1983 only 1
report of an emergency room episode attributed to look-alikes has been recorded
in DAWN.
DRAFT
In addition to the health hazards inherent in taking look-alikes
themselves, the risk of serious drug overdose from real controlled substances
is greatly increased for look-alike users who unknowingly consume equal numbers
of a real controlled product. This is most troublesome when depressants are
involved. Health care professionals in emergency rooms, poison control centers
and drug abuse clinics may be deceived by the look-alikes. They are hampered
in determining and providing appropriate medical care in drug overdose cases.
Perhaps most important of all, the advertising and distribution of look-
alike drugs in any form gives the impression of societal acceptance of the use
of drugs for recreational purposes. This counteracts the efforts of the many
drug abuse educational programs supported by government and public
organizations. The look-alikes have helped to create a market for stimulant
and depressant use. Children and others who wouldn't normally abuse drugs are
introduced to look-alikes and told they're safe and legal. The end result of
the look-alike phenomenon is a glamorization and legitimacy of the concept of
recreational drug use, particularly among children. The use of psychoactive
substances for mood alteration - - even in the form of look-alikes if condoned,
can only further add to our national drug abuse problem.
DRAFT
DEA Initiative
Since look-alikes contain only noncontrolled substances, DEA has no
specific jurisdiction over look-alike products under the Controlled Substances
Act (CSA). Unfortunately, it appears that no single Federal agency has
jurisdiction over all facets of this drug abuse problem. I am pleased to
report, however, that there has been a high degree of cooperation among Federal
agencies in sharing information and devising and implementing strategies to
effectively combat the problem. Additionally, each agency involved,
specifically DEA, FDA and the United States Postal Service has set up
independent programs using current resources and within the framework of
existing laws and regulations to attack the look-alike problem. The activities
undertaken by DEA and an assessment of their impact to date are as follows:
1. Drafting of a Model Act for Concerned States to Adopt
In November 1981, DEA drafted and distributed to the states a Model
Imitation Controlled Substances Act. A revised version was distributed in
February, 1982. The Model Act makes it unlawful for anyone to manufacture,
distribute, possess or advertise an imitation controlled substance. An
imitation controlled substance is defined as a noncontrolled substance which
by overall dosage unit appearance or by representation made, would lead a
reasonable person to believe that the substance is a controlled substance. At
this time, 41 states have passed some form of legislation against look-alikes;
another 8 states have legislation pending; 4 states have additional look-alike
legislation pending.
DRAFT
The DEA Model Act does cover products not resembling controlled products
but promoted or represented in the same manner as those resembling controlled
products. An informal survey conducted by DEA's Office of Diversion Control
in the Spring of 1983 showed that those states reporting a decrease in the
availability of look-alikes all have look-alike legislation. Delaware, the
first state to pass look-alike legislation and equally important, to enforce
it has reported a dramatic decrease in the availability of look-alikes. It
is noteworthy that a recent FDA seizure of millions of look-alike dosage units
occurred in Michigan, one of the few states without look-alike legislation.
The impact of state look-alike legislation is encouraging.
For state legislation to be effective, however, it is essential that the
laws be enforced and violators prosecuted, particularly at the manufacturer and
distributor levels. DEA is aware of nine states which have reported
prosecutions under their look-alike laws. The Alabama and Illinois look-alike
laws have been challenged in court and both declared constitutional.
A somewhat similar situation occurred with the drug paraphernalia
industry. DEA drafted model legislation in 1979 which has been adopted by 25
states as of September 1982, and has been successful in supressing this one
time powerful industry. More than 20 Federal District Courts have upheld the
Model Paraphernalia Act. The look-alike legislation drafted by DEA is
patterned after the paraphernalia legislation and gives local jurisdictions
similar authority over look-alikes.
DRAFT
2. Preparation of Documentation Describing the Look-Alike Problem; its Dangers
and Effects; for Use in Support of the Model Act:
Information packages have been distributed to DEA field offices for use
by personnel who are requested to provide information or testimony in support
of state look-alike legislation. DEA personnel have made presentations
concerning look-alikes to state legislatures, professional organizations, law
enforcement personnel and parent and community groups in an effort to encourage
their support of state look-alike legislation. A number of articles concerning
look-alikes have been written by DEA personnel and published in trade journals
of the pharmaceutical industry.
3. Enlisting the Support and/or Action of the Legitimate Pharmaceutical
Industry
In an effort to limit the availability of capsules used to manufacture
look-alikes, DEA asked the three domestic capsule manufacturers to voluntarily
refuse orders to suspected look-alike manufacturers. This effort appears to be
successful in that the popular black/black and yellow/yellow capsules are in
extremely short supply as indicated by look-alike advertisements. There is
evidence that look-alike manufacturers have looked to foreign capsule producers
for their supplies. Some of the foreign suppliers are subsidiaries of domestic
capsule manufacturers. The foreign subsidiaries have instituted similar
safeguards to those of the parent company. A domestic company informed us of
an order for 50 million black/black and yellow/yellow capsules placed to one
of its foreign subsidiaries by a third party in the United Kingdom. It was
determined that the order was by a United States look-alike firm who was unable
to obtain these capsules domestically. The request was not honored.
DRAFI
DEA is aware of at least one domestic brokerage house who has ordered capsules
from foreign sources for look-alike manufacturers in the United States. When
confronted by DEA personnel this firm agreed to stop selling to the look-alike
companies.
Industry cooperation and information exchange has also resulted in a
successful lawsuit filed by a legitimate manufacturer of controlled substances
against a look-alike producer for trademark infringement.
4. Fostering Intergovernmental Agency Cooperation and Providing Active Support
to Other Agency Efforts
Because no single Federal agency has clear-cut jurisdiction over the look-
alike problem, it was imperative that the relevant Federal agencies coordinate
their efforts against look-alike drugs. DEA has taken the initiative to
establish interagency governmental groups at both the policy making and working
levels. Representatives of the Drug Enforcement Administration, the Food and
Drug Administration, the Federal Trade Commission, U.S. Postal Service, the
Internal Revenue Service, and the National Institute on Drug Abuse meet
periodically to discuss the dynamics of the look-alike problem, to identify
changing trends in distribution and abuse patterns, and to report on each
agency's activities or need for interagency support. Additionally, DEA has
supported the efforts of the U.S. Postal Service and the FDA by supplying
intelligence and by providing laboratory analyses and expert testimony in
has
ed
court against look-alike manufacturers and distributors. DEA is working with
the FDA and the U.S. Postal Service in an attempt to develop an effective and
realistic Federal legislative package. In Furtherance of this effort DEA and
FDA have sponsored a joint meeting of the state attorneys general for their
input and ideas.
In order to ascertain the magnitude of the impact of the DEA, FDA,
DRAFT
Postal Service and state government initiatives on the look-alike problem
the DEA Office of Diversion Control reviewed DEA laboratory data for the period
January, 1979 through March, 1983. This study showed that the number of look-
alike exhibits and dosage units analyzed peaked in 1980 at 868 and 329,305
respectively. By 1982 there was a 55.8% decrease in the number of exhibits
(383) and an 82.3% decrease in the number of dosage units (58,316) of look-
alikes analyzed. (See figure 1)
The laboratory data further showed that during the period 1979 through
1981, over 75% of the look-alike exhibits were capsules. In 1982 and 1983
capsules and tablets each accounted for roughly 50% of the exhibits. (See
figure 2) Further, black and yellow capusles, the most popular stimulant
look-alikes, made up over 47% of the look-alike exhibits in 1979 and 1980
compared to 30% in 1981 and 24% in 1982. Additionally products such as
20/20's, U-Zoom's, and Capricorns began appearing in late 1981 and increased
in 1982. The percentage of stimulant look-alikes containing the triple
combination of caffeine, ephedrine, and phenylpropanolamine increase from 16.5%
in 1979 to approximately 70% in 1981 and 1982. Following FDA's declaration in
August, 1982 that this triple combination is a new drug and required a New
Drug Application prior to marketing, this combination was found in only 27% of
the exhibits analyzed in the first three months of 1983. (See figure 3)
The above study shows that the DEA and other government initiatives,
begun in late 1981, have significantly reduced the availability of look-alikes
and that these look-alikes have been replaced, albeit to a much lesser degree,
with products not resembling or directly represented as controlled products but
containing some of the same ingredients as the original look-alikes.
DRAFT
These findings were reinforced at a meeting between DEA, FDA and the
U.S. Postal Service and a group of state attorneys general. This meeting
was held to discuss the status of the look-alike problem and what further
state and federal regulations or criminal sanctions could be brought to bear
on this problem. Representatives from 6 states were present. In general
they were pleased with the efforts of the government agencies in reducing the
look-alike problem but also concerned about the transition to products not
resembling controlled products. They encouraged federal involvement in the
look-alike battle but only to the extent that resources allow and would not
be taken away from more serious drug abuse problems.
The state representatives and federal agencies agreed to work closely
together and to use and expand existing authorities to combat the changing
look-alike problem. Further, although the state representatives agreed that
much of the problem can be and has been handled at the state level, the federal
agencies agreed to continue to explore new approaches.
I know the need for federal legislation in response to the look-alike
problem is of interest to this subcommittee. Further legislation is among
the options we have considered in determining future strategies. A number of
things must be kept in mind when considering new legislation. First, much
has been done using existing and less radical means at the federal level and
through new and existing state laws. Because of these actions the problem has
decreased.
URAFT
Secondly, the products in question are now very close to those legitimately
marketed diet aids and stimulants sold in most drug stores. For the purposes
of a criminal statute, it is extremely difficult to define the offenses in such
a way which would separate the so called look-alikes from legitimate over-the-
counter diet and sleep aids. S. 503 is an attempt to do just that. It is our
view, however, that this legislation attempts to describe a very broad offense
using imprecise terms not specifically defined. It is likely that efforts
to enforce this statute would generate considerable and largely successful
litigation challenging the legislation.
The problem as it exists today simply does not lend itself to conventional
federal criminal legislative measures which would be productive in eliminating
the manufacturing and distribution of these products. DEA's Model Imitation
Controlled Substances or similar legislation can be used by states to
adequately control the problem at the street or retail level where the pills
are removed from labelled containers and represented to be controlled products
or where manufacturer⁵and distributors market true look-alikes. In cases where
manufacturers and distributors market products indistinguishable from the diet
aids and sleep aids found in most drug stores other issues should be resolved.
The serious question of the safety, efficacy and true medical need for both
categories of over-the-counter products may need further examination. Perhaps
the focus could be shifted to the medical indications for these products and
their ingredients, the type and manner of advertising, this age of those
permitted to purchase these products and the types of establishments permitted
to sell them. These are all areas in which DEA does not have the necessary
expertise to effectively resolve these issues.
DRATO
Nevertheless DEA does consider the look-alike industry, even in its
modified form, as a contributor to the drug abuse problem. As such we will
continue to work together with other federal agencies and states within the
scope of our existing statutory authority to help further reduce the problem
of look-alike drugs.
DRAFT/
J .. ..
ODRI
REPORT
NUMBER OF EXHIBITS
4/18/83
0
200
400
600
800
1000
1979 1980 1981
594
868
1983
676
Figure /
1982 3mos
383
49
DODAGE UNITS X 1000
0
100
200
300
400
1979 1980 1981
188.766
TOTAL LOOK-A-LIKES ANALYZED BY DEA LABS
329.305
88.29
1983 1982 3mos
58.316
9.812
DRAFT
LOOK-A-LIKE EXHIBITS FROM DEA LABS
from January,1979 through March,1983
100
81.85
67.3
80
74.55
Percent of LOOK-A-LIKE Exhibits
57.87
60
50 50
42.13
40
25.44
16.14
20
12.02
Legend
TABLETS
CAPSULES
0
1979
1980
1981
1982
1983
ODRI
REPORT
58/51/4
FIGURE 2
DRAFT
STIMULANT LOOK-A-LIKE INGREDIENTS FROM DEA LABS
From January,1979 through March,1983
80
60
Percent of LOOK-A-LIKE Exhibits
40
20
Legend
CATTENE
X CATE/EPR/PPA
CATT-EPD/PSEUDO
OTHERS
0
1979
1980
1981
1982
1983
ODRI
REPORT
4/13/83
FIGURE 3
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
July 14, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Proposed Testimony of Alfred S. Regnery
Before the Senate Subcommittee on
Juvenile Justice Concerning
Confidentiality of Juvenile Records
The above-referenced testimony is to be delivered on July
19. The testimony is very general in nature, indeed
rambling, but basically concludes that juvenile court
records of serious habitual offenders should be as
accessible for justice system purposes as adult criminal
records. This would avoid the frequent phenomenon of
serious habitual juvenile offenders being treated as if they
had a clean slate when they first encounter the adult
criminal justice system. The testimony states that
Regnery's Office of Juvenile Justice and Delinquency
Prevention is reviewing state codes on the question of
record access and supporting research in the area, and plans
to draft model code provisions for the states.
There is what I take to be a Freudian slip on page 4 of the
testimony, where Regnery is discussing the difference
between the view of juvenile justice that places priority on
protecting the child and the view that places priority on
protecting society. He states that "these two points of
view are completely antithetical
Presumably a
"not" has been inadvertently dropped.
Attachment
THE WHITE HOUSE
WASHINGTON
July 14, 1983
MEMORANDUM FOR GREGORY JONES
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING FFF,RAA
COUNSEL TO THE PRESIDENT
SUBJECT:
Proposed Testimony of Alfred S. Regnery
Before the Senate Subcommittee on
Juvenile Justice Concerning
Confidentiality of Juvenile Records
Counsel's Office has reviewed the above-referenced proposed
testimony and finds no objection to it from a legal
perspective. On page 4, line 15, we assume "not" should be
inserted between "are" and "completely."
FFF:JGR:aw 7/14/83
CC: FFFielding
JGRoberts
Subj.
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WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
John
10 - OUTGOING
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Subject: Testimony. of alfred Regnesy on access to jurenile
records 8 Serious, habitual knowbreakers appearing in
adult coust for the first time
(July 19, 1983)
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+15/81
Alfred S. Regnery
DRAFT
Testimony before Senate Subcommittee
on Juvenile Justice:
Confidentiality of Juvenile Records
July 19, 1983
First, I would like to thank Subcommittee Chairman, Senator
Specter, for giving me the opportunity to testify on a significant issue for
the juvenile justice system.
Police, prosecutors and judges are becoming increasingly concerned
about the lack of easy and timely access to juvenile records of serious,
habitual young offenders appearing in adult courts for the first time. In
addition, what records are available are often of poor quality.
The extent and nature of the problem has been studied by the Rand
Corporation (Greenwood, Petersilia, Zimring, 1980) which found that only
some 3% of prosecutors had access to complete juvenile records.
In addition, 75% of the prosecutors Rand surveyed said that "serious
administrative problems and resource constraints limited their ability to
search for juvenile records except in unusual circumstances." Overall, half
of the prosecutors in the national survey reported that "they would
normally receive little or no juvenile record information." This was true
for even the most serious young adult offenders. When records were
obtained, they were often incomplete and arrived too late to assist in the
charging decision.
There are important uses for prior offense records, perhaps at most
of the key decision points in the juvenile and criminal process, including
arrest, bail determination, charging, plea negotiation, and sentencing. To
the extent records are not available when and where needed, the entire
justice system is compromised as a viable crime control mechanism. This
diminishes the public's trust in the system and reduces any fear or respect
for the system by the criminal, and thereby diminishes the deterrence value
of the entire justice system.
I would also note here that all habitual or serious offender programs
are completely dependent on record information for identification of such
offenders early in the juvenile or criminal justice process.
A number of investigators, some present here today, have dealt with
the reasons and remedies for the shortcomings in the records area, as well
as with their consequences.
Most observers agree that the culprit in this breakdown in the
juvenile/criminal justice machinery is the two-track justice system we have
built and maintained. This two-track or dual system exists as a result of
state juvenile codes and administrative provisions which require separate
storage of juvenile and adult court records.
Because of this separate storage requirement, other code provisions
on confidentiality, and a virtual morass of administrative policies and
procedures governing access, records of serious juvenile repeat offenders
are often not available at crucial stages of criminal court processing, up to
and including sentencing. Too often, the result is that a first-time adult
offender with a lengthy and serious juvenile record frequently starts with a
clean slate in criminal court, delaying for 7 to 10 years his identification as
an habitual offender.
As early as 1978, James Q. Wilson and Barbara Boland questioned
the propriety of the two-track system. The separate system for juveniles
often does not share its information with the adult system. They
recommend centralizing serious criminal history records for offenders of
all ages.
The Attorney General's Task Force on Violent Crime, appointed in
1981, agreed. The Task Force recommended that at the very least,
fingerprints and photographs of violent juvenile offenders be placed in the
F.B.I. Information Bank so they can be retrieved by prosecutors.
Recent reports and articles appearing in criminal justice literature
indicate that there is growing interest in a review of existing provisions
governing juvenile record confidentiality and utilization.
We are aware of at least one state, Maryland, that has a working
group of its own, striving to examine their situation with regard to juvenile
records access in connection with a repeat offender program they have
established in several jurisdictions.
The several efforts summarized above, particularly the Attorney
General's Task Force recommendations, are leading us closer to developing
a national consensus on juvenile records use. I expect that the hearing
before this committee, today, will add measurably to the achievement of
that goal. At the same time, it should be stressed that the many issues
surrounding this topic are by no means resolved.
There are differences among state codes governing records use,
often reflecting real differences in the policies and philosophy. In addition,
it appears that the actual availability of records for various purposes does
not always correspond with what the juvenile codes allow and variations
exist among jurisdictions pertaining to record quality, and their
management and retrieval systems.
There are differences involving fingerprinting and photographing of
juveniles, sealing or expunging of records, and on the handling of different
types of records - law enforcement data, official court files, and social
histories.
This is but a brief sketch of the legal, procedural, and technical
issues to be reviewed and resolved to reach consensus on the appropriate
use of juvenile records. It is intended to convey the complexity of the
subject matter.
We would be remiss, I believe, if we failed to recognize another
dimension of the topic. This has to do more specifically with the human
element, the people who make or interpret the laws and policies on records
use.
Much controversy surrounds this topic because of the divergent
philosophies and values held by officials of the juvenile and criminal justice
systems. I expect that in any randomly selected group of such officials
there would be, on the one side, those who stress rehabilitation and
protection of the child, and on the other, those who stress protection for
society. While these two points of view are completely antithetical, there
is some fear that reassessing the confidentiality of records may lead to the
demise of the juvenile court. In fact, neglecting to review the use of
juvenile records would be the greater threat. The recent popularity of
waiver provisions is a prime example of community and judicial frustration
with the juvenile system.
Legislatively established original jurisdiction of the court already
covers children between 16 and 19 years of age. In addition, a number of
states do not specify a lower age limit when a child can be waived to
criminal court -- I believe South Dakota allows the waiver at age 10. At
the same time, there are provisions for retention of juvenile jurisdiction
(once under correctional restraint) through age of majority or longer.
Thus, it appears that who is a juvenile and who is adult for juvenile
and criminal court purposes varies over a range of 10 years or more. It
seems to me that there is an irony in this with regard to record
confidentiality. At least, this seems to show that the juvenile and criminal
systems cannot be viewed as substantially discrete or separate, nor are
their clients identifiable as composing discrete categories. In one state, a
person 9 or 10 years old can be an adult criminal, while in another, he is
treated as a juvenile delinquent until 19 or 20 with corresponding
confidentiality of records.
The time has come to establish some equivalance between juvenile
and adult records access and use for serious offenders. There are several
areas that must be addressed in order to make headway in this area.
First of all, I believe that some model criteria for optimum level
juvenile record utilization must be established. Although the federal
government should not dictate what each state does in this area, a national
model might be helpful to all states.
The availability of juvenile records would enhance the credibility of
both the juvenile and the adult justice systems. Proper utilization of
records would increase the certainty and integrity of intervention with
serious, habitual offenders, by increasing the accountability of such
offenders to the justice system and to the public. Contrary to the
argument that nothing seems to have been proven to work against crime, I
believe there is some evidence from research and program evaluations that
the proper mix of secure custody, for those who need it, and of discipline,
rehabilitation and reintegration back into the community make a
difference.
In addition, record management, including creation, storage,
retrieval and control must be improved. This would assure better quality of
records and access to them, and would also guard against record
proliferation and abuse. Under properly maintained systems, the records of
serious habitual juvenile offenders should be as accessible for justice
system purposes as adult criminal records.
To assist in the resolution of the record confidentiality and
utilization issues, OJJDP has undertaken several projects. We are now
reviewing all state juvenile code provisions pertaining to record
confidentiality and utilization. In the course of this review, we will
communicate with justice system practitioners to determine what they
consider the most important needs and procedures to be in this area. From
this, we plan to develop draft model code provisions together with policies
and procedures for their implementation. To the extent uncertainty exists
regarding the proper approaches, we will support research to find the
answers.
We expect to develop information on where and how juvenile records
ought to be used, what the best record management systems are, what code
and procedural improvements are required to facilitate record availability
and use, and what benefits accrue to the justice systems and the public
from improvements in these areas. Further, we expect to provide the
information obtained to the practitioner field through publications,
conferences, and training programs.
During the course of these activities, we will seek and appreciate
continuing guidance and support from this Committee, from the
Department of Justice, from our own National Advisory Committee, and
from practitioners in the field.
J61 Suly
Tester only
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
July 18, 1983
FOR:
FRED F. FIELDING
FROM:
JOHN G. ROBERTS
are
SUBJECT:
H.R. 3497 -- Proposed Amendments to
the Federal Rules of Criminal Procedure
OMB has asked for our views as soon as possible on a proposed
letter from Robert McConnell opposing H.R. 3497. H.R. 3497
would prevent the proposed amendments to the Federal Rules
of Criminal Procedure currently lying before Congress from
going into effect until specifically provided by Act of
Congress. Under 18 U.S.C. § 3771 the Supreme Court may
propose such rules or amendments, which go into effect
ninety days after reported to Congress, in the absence of
contrary legislation. H.R. 3497 is just such contrary
legislation.
Justice opposes H.R. 3497 because Justice generally supports
the proposed amendments to the rules, specifically amendments
authorizing conditional guilty pleas, verdicts by 11-member
juries when a twelfth juror becomes incapacitated, and
extension of the life of a regular grand jury. I see no
reason to question Justice's conclusion that the amendments
are a net plus.
No legislative veto problems are presented by the procedure
established pursuant to 18 U.S.C. $ 3771. This is a classic
"report and wait" provision. Its counterpart with respect
to the Civil Rules was approved in Sibbach V. Wilson, 312
U.S. 1 (1941). The Chief Justice's opinion in INS V. Chadha
specifically cited the Civil Rules provision, indicating
that it did not present the problems associated with the
legislative veto. Slip op. at 14 n. 9.
If you agree, I will telephone Greg Jones to advise that we
interpose no legal objections.
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5/81
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
ROUTE SLIP
Take necessary action
TO Mike Uhlmann
Approval or signature
Richard Hauser
Comment
Karen Wilson
Prepare reply
Discuss with me
For your information
See remarks below
FROM
GVJ
Greg Jones (x3856) 1 DATE
7/15/83
REMARKS
The attached letter from Justice opposes
a provision of a bill (HR 3497) that
would indefinitely
delay the
effective date of the new Rules
of Criminal Procedure.
According to Justice, this bill is
scheduled for markup on Tuesday,
7/19; so we need to clear by
Monday afternoon.
Please let me know what you think by
noon on Monday, 7/18.
CC: Jim Murr
SPECIAL
OMB FORM 4
Rev Jul 82
U.S. Department of Justice
Office of Legislative Affairs
DRAFT
Office of the Assistant Attorney General
Washington. D.C. 20530
Honorable Peter W. Rodino, Jr.
Chairman
Committee on the Judiciary
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
This letter presents the views of the Department of Justice
on that portion of H.R. 3497, which would indefinitely delay the
proposed amendments to the Federal Rules of Criminal Procedure.
The effect of enacting H.R. 3497 would be to require passage of
additional legislation in order for the proposed amendments to
take effect. The proposed amendments were transmitted by the
Chief Justice on April 28, 1983 pursuant to the Rules Enabling
Acts, 18 U.S.C. 3771-3772 and 28 U.S.C. 2072.
The Department strongly opposes delaying the effective date
of the proposed amendments to the Federal Rules of Criminal Proc-
edure (the "proposed Rules"). 1/ We believe that the Rules Enabl-
ing Act process will instutute, on balance, useful reforms. Some
of the proposals indeed are innovative and have our strong support.
Specifically, proposed Rule 11(a) (2) would create a new form of
"conditional" guilty plea designed to obviate unnecessary trials
which must currently be demanded by a defendant simply to preserve
his right to appeal the denial of a dispositive pretrial motion.
Proposed Rule 23 (b) would empower a district judge to proceed to a
binding verdict with the remaining eleven jurors if after retiring
for deliberations, e.g. following a multi-week trial as recently
occurred in two of our cases, one of the twelve jurors becomes in-
capacitated. This situation now necessitates a retrial unless
the defendant consents to a verdict by the remaining jurors. The
proposed Rule offers a solution that operates to preserve scarce
judicial and prosecutorial resources while not diminishing, in any
material way, the defendant's right to a fair trial. Proposed Rule
6(g), likewise, would improve the criminal justice system by allowing
1/ We take no position at this time on the proposed amendments to
the Federal Rules of Civil Procedure.
DRAFT
wise, would improve the criminal justice system by allowing a court
to extend the life of a regular grand jury which was due to expire
before having completed its investigations. This flexibility would
not benefit only the government; it would benefit the defendant as
well by shortening the time in which the investigation (which other-
wise would have to be reinstituted before a new grand jury) was
conducted, and by guarding against the temptation of the expiring
grand jury to return a precipitous indictment.
As you are aware, the proposed Rules have undergone careful de-
velopment and scrutiny. Indeed, in this instance, the process, in
requiring the proposed Rules to undergo several layers of review by
all segments of the interested legal community, took approximately
three years. We believe that the product which resulted is deser-
ving of implementation on August 1, 1983. Although we do not favor
each and every aspect of the proposed Rules, and we recognize that
other persons may have like criticisms of individual provisions,
2/ we strongly believe that the process has overall produced a
sound group of amendments that should not be further prevented
from taking effect as scheduled on August 1, 1983.
The Office of Management and Budget has advised this Depart-
ment that there is no objection to the submission of this request
from the standpoint of the Administration's program.
Sincerely,
ROBERT A. McCONNELL
Assistant Attorney General
2/ The Department does not support the proposed change to Rule
I2 (i) to require the government to disclose information to the de-
fense at pretrial suppression hearings. We are concerned that this
change will generate non-meritorious motions to suppress evidence,
made primarily with the objective of acquiring disclosure of state-
ments by the government's witnesses, thus facilitating the manufac-
turing of spurious defenses.
- 2 -
I
98TH CONGRESS
1ST SESSION
H. R. 3497
To defer proposed amendments to the Federal Rules of Civil Procedure and the
Federal Rules of Criminal Procedure.
IN THE HOUSE OF REPRESENTATIVES
JUNE 30, 1983
Mr. RODINO introduced the following bill; which was referred to the Committee
on the Judiciary
A
BILL
To defer proposed amendments to the Federal Rules of Civil
Procedure and the Federal Rules of Criminal Procedure.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That notwithstanding section 2072 of title 28 and sections
4 3771 and 3772 of title 18, United States Code, the amend-
5 ments to the Federal Rules of Civil Procedure and the Feder-
6 al Rules of Criminal Procedure as proposed by the Supreme
7 Court of the United States and transmitted to the Congress
8 by the Chief Justice on April 28, 1983, shall not take effect
9 until and to the extent specifically provided by Act of Con-
10 gress.
MEMORANDUM
THE WHITE HOUSE
WASHINGTON
July 19, 1983
FOR:
FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Proposed Testimony of Deputy Assistant
Attorney General Knapp re: S. 1146, a Bill
to Address the Use of Aircraft in Drug Offenses
By memorandum dated July 18, you noted no legal objection to
the above-referenced testimony, to be delivered on July 21.
A dispute has arisen between Transportation and Justice over
an aspect of the testimony, and we have been asked to "weigh
in" as soon as possible. The bill would direct the FAA
Administrator to revoke the airman certificate of a pilot or
crew member if the airman were convicted of a drug offense
and served as an airman in connection with the violation, or
if the airman were determined, after notice and hearing, to
have served as an airman in connection with the transport by
aircraft of a controlled substance. Justice's proposed
testimony would expand the section to direct revocation of
the certificate if the airman as an airman were determined
to have furthered a drug offense, e.g., by knowingly flying
a drug kingpin to a meeting.
Transportation objects that no safety considerations are
involved in this proposed category, so the FAA should not be
required to revoke certificates. Safety considerations are
typically present when the plane actually carries drugs, as
the pilots often fly low and without lights to avoid capture.
I side with Justice. If an airman is knowingly flying a
drug dealer to a secret meeting, he could well fly without
lights, etc., just as if he were carrying drugs themselves.
The whole purpose of this bill is to fight drug trafficking,
so the FAA's argument that it should only revoke air certifi-
Also,
cates when safety is implicated rings hollow. With the Air
Force monitoring drug traffickers, the IRS seizing their
&
assets, and the Park Service destroying their fields, the
no
FAA can pitch in by revoking their flight certificates.
422
due
Dick Williams of Carlton Turner's office has proposed a
compromise, whereby the bill would authorize (as opposed to
direct) the Administrator to revoke certificates in the one
category that has engendered the dispute. This makes
the inclusis actions in
eminent good sense, and with your permission, I will tell
FAA
OMB that we support it. They would like to resolve the
matter tonight or tomorrow morning.
JGKSQ
MEMORANDU M
THE WHITE HOUSE
WASHINGTON
July 18, 1983
FOR:
FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Proposed Testimony of Deputy Assistant
Attorney General Knapp re: S. 1146, a Bill
to Address the Use of Aircraft in Drug Offenses
We have been asked for our views on the above-referenced
testimony, scheduled to be delivered before the Subcommittee
on Aviation of the Senate Commerce Committee on July 21.
The testimony generally supports the main provisions of
S. 1146, which would provide for the revocation of the FAA
certificates of persons convicted of drug offenses (other
than simple possession) involving aircraft. Knapp proposes
that revocation be based on conviction or an FAA determination
of involvement in drug trafficking offenses, since airmen
are often granted immunity to testify against principals
and, under the bill, the certificates of such airmen could
not be revoked. The testimony also supports a section in
S. 1146 which would make it a crime to forge FAA certificates
for use in drug trafficking.
The testimony opposes a provision in S. 1146 making it a
crime to use aircraft in drug trafficking. Justice considers
this duplicative, since such use of an aircraft is already
punishable under the general drug trafficking provisions.
Justice sees no need based on its experience to specify the
mode of transportation of the drugs. I have no objections.
Attachment
THE WHITE HOUSE
WASHINGTON
July 18, 1983
MEMORANDUM FOR GREG JONES
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Proposed Testimony of Deputy Assistant
Attorney General Knapp re: S. 1146, a Bill
to Address the Use of Aircraft in Drug Offenses
Counsel's office has reviewed the above-referenced proposed
testimony, and finds no objection to it from a legal
perspective.
FFF:JGR:ph 7/18/83
CC: FFFielding/
Subject
Chron.
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5/81
To Greg Jones
DRAFT
STATEMENT
OF
JAMES I. K. KNAPP
DEPUTY ASSISTANT ATTORNEY GENERAL
CRIMINAL DIVISION
BEFORE
THE
SUBCOMMITTEE ON AVIATION
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
CONCERNING
S. 1146
ON
JULY 21, 1983
I am pleased to be here today to present the views of the
Department of Justice on S. 1146, a bill which is aimed at the
problem of the use of aircraft in illegal drug offenses.
As you know, the Administration and this Department are
strongly committed to doing everything possible to stem the flow
of illegal drugs into the United States. We regard this bill as
a potential source of help in this effort and support in concept
all but one of its five operative sections.
Sections two, three, and four of the bill, which provide for
the revocation of airman certificates¹ and aircraft registration
certificates2 of persons committing drug offenses, other than
simple possession offenses, where an aircraft is involved, are of
primary concern to the Federal Aviation Administration. While we
support the general thrust of these provisions, I will later
point out a potential problem that may be presented in the way in
which section two is drafted.
Turning first to those portions of the bill which create new
criminal offenses, I note that section five in effect creates a
new criminal offense of using an aircraft to knowingly transport
a controlled substance in violation of state or federal law
relating to controlled substances, other than simple possession.
The section would accomplish this result by amending section 902
1/ Possession of the proper airman certificate is necessary
for anyone to serve as an airman in connection with aircraft
operation or maintenance. (49 U.S.C. 1422). The term "airman"
includes pilots, crew members, navigators, mechanics and air
traffic controllers. 49 U.S.C. 1301.
2/ All aircraft must be registered to operate. 49 U.S.C. 1401.
- 2 -
of the Federal Aviation Act of 1958 (49 U.S.C. 1472) to add a new
subsection (a) to provide for criminal penalties for persons who
violate section 610(a) (2) of the Act (49 U.S.C. 1430(a) (2)) while
involved in illegal drug transportation. Section 610(a) (2), in
turn, forbids any person to serve as an airman without a valid
airman certificate or in violation of any of a number of FAA
orders, rules, or regulation. Under present law there is a
civil, but not a criminal, penalty for a violation of the
section. The new subsection to be added to 49 U.S.C. 1472 would
provide for imprisonment for up to five years and a fine of up to
$25,000 for any person who knowingly and willfully violates
section 610(a) (2) in connection with the transportation by
aircraft of any controlled substance where such transportation is
prohibited by state or federal law or is provided in connection
with any act prohibited by state or federal law relating to
controlled substances, other than simple possession.
The Department of Justice does not support this provision
because it is duplicative of existing prohibitions in title 21.
Essentially, the proposed new offense would criminalize a
particular method of committing the offense of drug "transporta-
tion", a concept already covered by the proscription in 21 U.S.C.
841 against distribution of or possession with intent to distrib-
ute a controlled substance. Moreover, another drug statute, 21
U.S.C. 952, specifically covers the importation or smuggling in
of controlled substances.
- 3 -
Criminalizing a particular method of committing this crime,
namely by using an airplane without a valid airman certificate or
while in violation of an FAA regulation, is not desirable because
it may lead to proliferation of laws creating separate crimes for
particular methods of violating an existing general prohibition.
In short, we see no need, in light of current statutes, for a
separate offense of transporting drugs by airplane, any more than
there is need for a separate statute covering smuggling of drugs
by vessel or motor vehicle. The interest of the government is
adequately protected by the basic prohibitions against drug
importation and distribution, which include the ability to
forfeit the aircraft used in the offense in many instances. In
addition, the proposed penalty of up to five years in prison for
the use of an aircraft is unlikely to act as a deterrent in light
of the existing penalty structure which provides for up to
fifteen years' imprisonment for importation of or possession with
intent to distribute the most serious drugs such as heroin or
cocaine.
On the other hand, the Department of Justice supports
section six of the bill which would make two amendments to
section 902(b) of the Federal Aviation Act of 1958 (49 U.S.C.
1472(b)). This section of the Act presently provides for a
$1,000 fine and one year's imprisonment for forging or counter-
feiting a certificate such as an airman certificate or aircraft
registration certificate, using a forged certificate, or display-
ing false identification markings on an aircraft. Section six of
- 4 -
the bill would first expand the coverage of section 1472(b) to
include the sale and possession with intent to use a fraudulent
certificate. Second, it would increase the penalties for a
violation of the section to a felony punishable by a $25,000 fine
and five years' imprisonment for anyone who violates it with the
intent to commit a violation of state or federal law relating to
controlled substances, other than simple possession, and for
anyone who sells a forged certificate knowing that the purchaser
intends to use it in such a controlled substance offense.
The use of false certificates and aircraft markings clearly
facilitates the use of aircraft in illegal drug transactions,
particularly by those persons whose airman or registration
certificates have already been revoked for one drug offense
involving an airplane. The Congress recognized the pervasive use
of false identification in criminal activity generally with the
enactment of P.L. 97-398, the False Identification Crime Control
Act of 1982, which prohibits, among other things, the transfer or
production of false federal identification documents. The term
"identification document" is defined as one intended for or
commonly accepted for the purpose of identification of an
individual. While the False Identification Act would cover the
forging or sale of an airman certificate, it may not cover those
offenses involving a registration certificate and clearly does
not reach the use of false aircraft markings. Thus, section six
- 5 -
of the bill is necessary and would provide an appropriate new
weapon in the federal government's efforts to combat illegal
drugs.
Similarly, as I previously indicated, the provisions of
sections two, three, and four dealing with the revocation by the
FAA of airman and aircraft registration certificates of persons
who use an aircraft in a drug offense would also appear to be a
welcome addition in the battle to make our borders more secure
against illegal drugs. Although these sections are of primary
concern to the FAA, I would like to point out one problem area
with respect to section two that the Subcommittee may wish to
address.
The section would require that the Administrator of the FAA
revoke an airman certificate of any person who has been convicted
of a violation of a state or federal law relating to controlled
substances, other than simple possession, if the Administrator
determines that the person served as an airman in connection with
the violation. It also would require the Administrator to revoke
the airman certificate of any person who he determines after
notice and a hearing "knowingly served in any capacity as an
airman in connection with the transportation by aircraft of any
controlled substance" if the transportation is prohibited by
state or federal law relating to controlled substances.
While the intent of the section is clearly to require the
Administrator to revoke the airman certificate of the pilot or
crew member of a plane used in furtherance of a drug offense, it
- 6 -
would fail in this objective if the pilot or airman was not
convicted of an offense and if drugs were not actually trans-
ported on the aircraft. By way of illustration, as drafted the
section would not cover a pilot who knowingly flew a major drug
trafficker to the Caribbean for a meeting to arrange a drug deal
with a supplier for a shipment at a later date unless the pilot
was charged with and convicted of an offense such as conspiracy
to import a controlled substance. If, for example, the pilot was
granted immunity from prosecution in exchange for his testimony
against the major trafficker, his certificate could not be
revoked. We would suggest that the FAA Administrator be directed
to revoke an airman certificate whenever the holder thereof has
been convicted of a controlled substance violation while serving
as an airman in connection with such an offense, or whenever the
Administrator determines either (1) that the holder has served as
an airman in connection with an offense involving the transporta-
tion by aircraft of a controlled substance, or (2) that he has
served as an airman in furtherance of an offense, such as a
conspiracy, involving a violation of a state or federal law
relating to a controlled substance.
Mr. Chairman, that concludes my prepared remarks and I would
be pleased to answer any questions the Subcommittee may have.