Congress is considering a proposal meant to help the Department of Justice pursue a wider range of players in the transnational drug trade, potentially foreshadowing an increase in extraditions and prosecutions of drug traffickers based abroad.
The Transnational Drug Trafficking Act of 2015 was passed by the Senate in October and is currently making its way through the House of Representatives. The bill is meant to make it easier for US authorities to build extradition cases on traffickers who use other criminal organizations -- such as those based in Mexico -- as intermediaries when moving drugs to the US.
As the Senate press release states, this would particularly help the Department of Justice in building cases against criminal groups based in Andean countries like Colombia and Peru, who work with Mexican cartels in trafficking drugs northwards.
The bill does this, in part, by modifying US drug laws so that if there is "reasonable cause to believe" that someone is trying to unlawfully bring drugs into the US, or 12 miles off the US coast, that person can be prosecuted.
Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who sponsored the bill, told InSight Crime that adding the "reasonable cause to believe" provision is necessary because "it has become more difficult to prove that South American manufacturers knew or intended that the drugs would end up in the United States," due to their use of Mexican trafficking groups as intermediaries.
"The addition of the provision, 'having reasonable cause to believe,' would lower the… threshold needed to prove that the defendant knew that the drugs were destined for the United States," Grassley said.
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The act inserts a similar provision for drug laws concerning precursor chemicals used for drug production. According to Grassley, this provision “would address the individuals or [drug trafficking organizations] that know the chemicals they’re trafficking will be used to produce illicit drugs, even though they may not be directly involved in manufacturing or transporting the drugs into the United States.”
The legislation also adds a provision that forbids using counterfeit marks to traffic any drug. If enacted, this provision could be applied to traffickers who use forged corporate logos to identify shipments of illicit drugs, as well as those trafficking in counterfeit pharmaceuticals.
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At the moment, it is difficult to discern to what extent this proposal would impact US extraditions of foreign drug trafficking suspects.
Supporters of the legislation claim the proposed changes would eliminate obstacles faced by the Department of Justice in building extradition cases against foreign kingpins, especially those operating in the Andean region. But the broad scope of the bill has raised concerns that it could be used to target small-time players as well.
It appears even the bill's designers are not in total agreement over who it will target. When asked whether the legislation would specifically target top figures in the drug trade, Grassley told InSight Crime that the proposed law “could be used across the spectrum of individuals and Drug Trafficking Organizations (DTOs).”
Responding to the same question, Representative Tom Marino, the sponsor of the House version of the bill, said its "primary purpose is to target source producers of controlled substances and precursor chemicals who know or should know that they are being sent to the United States."
Even if the act passes, there are a few reasons why a major spike in extraditions and prosecutions -- especially concerning low-level drug producers like coca farmers -- is unlikely. Dan Schneider, a former federal criminal prosecutor who now teaches at American University, questioned whether the expansive provisions would hold up under legal scrutiny.
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“Usually the intent requirement in criminal law…has to be some fairly high level of intent,” Schneider told InSight Crime. “But this seems to be a lower threshold for the intent requirement. And it’s possible that this requirement, if passed, would run afoul of the US Constitution in that regard.”
Moreover, US federal drug crime prosecutions have generally experienced a slow decline in recent years. With the United States moving toward reducing criminal penalties for low-level offenders domestically, it seems implausible that the government would seek to lower the bar on extraditions for drug-related offenses.
From both a political and practical perspective, extradition remains a controversial topic. Extraditing foreign suspects to the United States can mitigate the chances they will avoid prosecution -- or escape prison -- due to corruption in their home country. But critics argue the common practice of allowing criminals to trade information for reduced sentences diminishes the deterrent effect of US prosecution.
Considering this context, the bill’s passage into law would likely represent more of a tweak rather than a rehaul of US foreign drug policy.