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HR4079 - This is the congressional bill that wants
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101st Congress
2d Session
H.R. 4079
To provide swift and certain punishment for criminals in order to deter
violent crime and rid America of illegal drug use.
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IN THE HOUSE OF REPRESENTATIVES
February 22, 1990
Mr. Gingrich (for himself, Mr. Armey, Mr. Hunter, Mr. Smith of New
Hampshire, Mr. Hansen, Mr. Hiler, Mr. Ireland, Mr. Kyl, Mr. Barton of
Texas, Mr. McEwen, Mr. Bliley, Mr. Condit, Mr. Weldon, Mr. Fields, Mr.
Stearns, Mr. Schuette, Mr. Douglas, Mr. Livingston, Mr. Oxley, Ms.
Ros-Lehtinen, Mr. Hancock, Mr. Schaefer, Mr. Bartlett, Mr. Shumway, Mr.
Inhofe, Mr. Nielson of Utah, Mr. Donald Lukens, Mr. Paxon, Mr. Herger,
Mr. Robinson, Mr. Lagomarsino, Mr. Sensenbrenner, Mr. James, Mr. Upton,
Mr. Bilirakis, Mr. Ritter, Mr. Dornan of California, Mr. Baker, Mr.
DeLay, Mr. Hyde, Mr. Grandy, Mr. Hefley, Mr. Coughlin, Mr. Craig, Mr.
Shaw, Mr. Dreier of California, Mr. Solomon, and Mr. McCollum)
introduce the following bill; which was referred jointly to the
Committees on the Judiciary, Energy and Commerce, Public Works and
Transportation, Education and Labor, and Armed Services
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A BILL
To provide swift and certain punishment for criminals in order to deter
violent crime and rid America of illegal drug use.
_Be it enacted by the Senate and the House of Representatives of the
United States of America in Congress assembled,_
SECTION 1. SHORT TITLE.
This Act may be cited as the "National Drug and Crime Emergency Act".
SEC. 2. TABLE OF CONTENTS.
Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Findings and declaration of a national drug and crime
emergency.
Sec. 4. Definitions.
TITLE I--ELIMINATION OF CRIME WITHOUT PUNISHMENT
Subtitle A--National Drug and Crime Emergency Policies
Sec. 101. Judicial remedies for prison crowding.
Sec. 102. Temporary prison facilities and expanded capacity.
Sec. 103. Elimination of early release from prison.
Subtitle B--Imposition of Mandatory Minimum Sentences Without Release
Sec. 111. Increased mandatory minimum sentences without release for
criminals using firearms and other violent criminals.
Sec. 112. Life imprisonment without release for criminals convicted a
third time.
Sec. 113. Longer prison sentences for those who sell illegal drugs to
minors or for use of minors in drug trafficking activities.
Sec. 114. Longer prison sentences for drug trafficking.
Sec. 115. Mandatory penalties for illegal drug use in Federal prisons.
Sec. 116. Deportation of criminal aliens.
Sec. 117. Encouragement to States to adopt mandatory minimum prison
sentences.
Subtitle C--Mandatory Work Requirements for Prisoners, Withholding
Federal Benefits, and Drug Testing of Prisoners
Sec. 131. Mandatory work requirement for all prisoners.
Sec. 132. Repeal of constraints on prison industries.
Sec. 133. Employment of prisoners.
Sec. 134. Withholding prisoners' Federal benefits to offset
incarceration costs.
Sec. 135. Drug testing of Federal prisoners.
Sec. 136. Drug testing of State prisoners.
Subtitle D--Judicial Reform To Protect the Innocent and Punish the
Guilty
Sec. 151. Good faith standards for gathering evidence.
Sec. 152. Strom Thurmond habeas corpus reform initiative.
Sec. 153. Proscription of use of drug profits.
Sec. 154. Jurisdiction of special masters.
Sec. 155. Sentencing patterns of Federal judges.
TITLE II--ACHIEVING A DRUG-FREE AMERICA BY 1995
Sec. 201. Findings.
Sec. 202. Payment of trial costs and mandatory minimum fines.
Sec. 203. Withholding of unearned Federal benefits from drug
traffickers and users who are not in prison.
Sec. 204. Revocation of drug users' driver's licenses.
Sec. 205. Accountability and performance of drug treatment facilities.
Sec. 206. Drug-free schools.
Sec. 207. Drug-free transportation.
Sec. 208. Financial incentives and citizen involvement in the war
against drugs.
TITLE III--MISCELLANEOUS
Sec. 301. Authorization of appropriations.
Sec. 302. Severability.
SEC. 3. FINDINGS AND DECLARATION OF NATIONAL DRUG AND CRIME EMERGENCY.
(a) FINDINGS.--The Congress makes the following findings:
(1) Next to preserving the national security, protecting the
personal security of individual Americans, especially
children, by enacting and enforcing laws against criminal
behavior is the most important single function of government.
(2) The criminal justice system in America is failing to
achieve this basic objective of protecting the innocent and
punishing the guilty.
(3) Reform is needed to ensure that criminals are held
accountable for their actions, that they receive swift and
certain punishment commensurate with their crimes, and that
the protection of innocent citizens takes priority over other
objectives.
(4) The principle of individual accountability should also
dictate policies with respect to drug users. Users should
face a high probability of apprehension and prosecution, and
those found guilty should face absolutely certain measured
response penalties.
(5) According to the Uniform Crime Reports issued in 1989 by
the Federal Bureau of Investigation (FBI), violent crime
known to law enforcement reached an unprecedented high in
1988. A violent crime occurred ever 20 seconds.
(6) The Department of Justice estimates that 83 percent of
Americans will be victimized by violent crime during their
lifetime.
(7) The Federal Bureau of Investigation reports that violent
crime in America rose by 23 percent during the period
1984-1988.
(8) The National Drug Control Strategy reports that in
certain large cities more than 80 percent of the men arrested
have tested positive for illegal drug use.
(9) According to the Department of Justice, the total number
of Federal and State prisoners grew by 90 percent from 1980
to 1988. The growth rate of the total prison population
during the first 6 months of 1989 exceeded the largest annual
increase ever recorded in 64 years of recordkeeping. The
6-month growth rate translates to a need of almost 1,800
additional prison beds per week.
(10) In 1985, 19 States reported the early release of nearly
19,000 prisoners in an effort to control prison populations,
according to the Bureau of Justice Statistics.
(11) According to the United States Bureau of Justice
Statistics, 63 percent of State inmates were rearrested for a
serious crime within 3 years of their discharge from prison.
(12) The criminal justice system is overloaded and does not
deliver swift and certain penalties for violating the law.
In America today, there exists crime without punishment.
Such conditions imperil the public safety, jeopardize the
rule of law and undermine the preservation of order in the
community.
(b) DECLARATION OF NATIONAL DRUG AND CRIME EMERGENCY.--(1) Guided by
the principles that energized and sustained the mobilization
for World War II, and in order to remove violent criminals
from the streets and meet the extraordinary threat that is
posed to the Nation by the use and trafficking of illegal
drugs, the Congress declares the existence of a National Drug
and Crime Emergency beginning on the date of enactment of
this Act and ending on the date that is 5 years after the
date of enactment of this Act.
(2) During the National Drug and Crime Emergency declared in
paragraph (1), it shall be the policy of the United States
that--
(A) every person who is convicted in a Federal
court of a crime of violence against a person or a
drug trafficking felony (other than simple
possession) shall be sentenced to and shall serve a
full term of no less than 5 years' imprisonment
without release;
(B) prisoners may be housed in tents, and other
temporary facilities may be utilized, consistent
with security requirements; and
(C) the Federal courts may limit or place a "cap"
on the inmate population level of a Federal or
State prison or jail only when an inmate proves
that crowding has resulted in cruel and unusual
punishment of the plaintiff inmate and no other
remedy exists.
SEC. 4. DEFINITIONS.
For the purposes of this Act--
(1) the term "crime of violence against a person" means a
Federal offense that is a felony and--
(A) has as an element the use, attempted use, or
threatened use of physical force against the person
or property of another; or
(B) that by its nature, involves a substantial risk
that physical force against the person or property
of another may be used in the course of committing
the offense; and
(C) for which a maximum term of imprisonment of 10
years or more is prescribed by law; and
(2) the term "drug trafficking crime," (other than simple
possession) means any felony punishable under the Controlled
Substances Act (21 U.S.C. 801 et seq.), the Controlled
Substances Import and Export Act (21 U.S.C. 951 et seq.) or
the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et
seq.), other than a felony constituting a simple possession
of a controlled substance for which the maximum term of
imprisonment of 10 years or more is prescribed by law.
TITLE I--ELIMINATION OF CRIME WITHOUT PUNISHMENT
Subtitle A--National Drug and Crime Emergency Policies
SEC. 101. JUDICIAL REMEDIES FOR PRISON CROWDING.
(a) PURPOSE.--The purpose of this section is to provide for reasonable
and proper enforcement of the eighth amendment.
(b) FINDINGS.--The Congress finds that--
(1) the Federal courts are unreasonably endangering the
community by sweeping prison and jail cap orders as a remedy
for detention conditions that they hold are in conflict with
the eighth amendment; and
(2) eighth amendment holdings frequently are unjustified
because of the absence of a plaintiff inmate who has proven
that detention conditions inflict cruel and unusual
punishment of that inmate.
© AMENDMENT OF TITLE 18, UNITED STATES CODE.--(1) Subchapter C of
chapter 229 of part 2 of title 18, United States Code, is
amended by adding at the end thereof the following new
section:
"Section 3626. Appropriate remedies with respect
to prison crowding.
"(a)(1) During the period of the National Drug and
Crime Emergency, a Federal court shall not hold
prison or jail crowding unconstitutional under the
eighth amendment except to the extent that an
individual plaintiff proves that the crowding
causes the infliction of cruel and unusual
punishment of that inmate.
"(2) The relief in a case described in paragraph
(1) shall extend no further than necessary to
remove the conditions that are causing the cruel
and unusual punishment of the plaintiff inmate.
"(b)(1) A Federal court shall not place an inmate
ceiling on any Federal, State, or local detention
facility as an equitable remedial measure for
conditions that violate the eighth amendment unless
crowding itself is inflicting cruel and unusual
punishment on individual prisoners.
"(2) Federal judicial power to issue equitable
relief other than that described in paragraph (1),
including the requirement of improved medical or
health care and the imposition of civil contempt
fines or damages, where appropriate, shall not be
affected by paragraph (1).
"© Each Federal court order seeking to remedy an
eighth amendment violation shall be reopened at the
behest of a defendant for recommended alteration at
a minimum of two-year intervals.".
(2) Section 3626 of title 18, United States Code, as added by
paragraph (1), shall apply to all outstanding court orders on
the date of enactment of this section. Any State or
municipality shall be entitled to seek modification of any
outstanding eighth amendment decree pursuant to that section.
(3) The table of sections for subchapter C of chapter 229 of
title 18, United States Code, is amended by adding at the end
thereof the following new item:
"3626. Appropriate remedies with respect to prison
overcrowding.".
SEC. 102. TEMPORARY PRISON FACILITIES AND EXPANDED CAPACITY.
(a) IN GENERAL.--In order to remove violent criminals from the streets
and protect the public safety, the Attorney General shall take such
action as may be necessary, subject to appropriate security
considerations, to ensure that sufficient facilities exist to house
individuals whom the courts have ordered incarcerated. During the
period of the National Drug and Crime Emergency, these facilities may
include tent housing or other shelters placed on available military
bases and at other suitable locations. The President may direct the
National Guard and the Army Corps of Engineers to design and construct
such temporary detention facilities.
(b) USE OF MILITARY INSTALLATIONS.--(1)In order to provide facilities
for incarceration authorized by subsection (a), the Secretary
of Defense, the Commission on Alternative Utilization of
Military Facilities, and the Director of the Bureau of
Prisons shall--
(A) identify military installations that could be
used as confinement facilities for Federal or State
prisoners; and
(B) examine the feasibility of using temporary
facilities for housing prisoners with a specific
examination of the successful use of tent housing
during the mobilization for World War II.
(2) Not later than 90 days after the date of enactment of
this Act, the Director of the Bureau of Prisoners shall
submit to the Congress a description and summary of the
results of the examination conducted pursuant to paragraph
(1).
© PRIORITY FOR DISPOSAL OF CLOSED MILITARY INSTALLATIONS.--Section
204(b)(3) of the Defense Authorization Amendments and Base Closure and
Realignment Act (10 U.S.C. 2687 note) is amended to read as follows:
"(3)(A) Notwithstanding any provision of this title and any
other law, before any action is taken with respect to the
disposal or transfer of any real property or facility located
at a military installation to be closed or realigned under
this title the Secretary shall--
"(i) notify the Attorney General and the Governor
of each of the territories and possessions of the
United States of the availability of such real
property or facility, or portion thereof; and
"(ii) transfer such real property of facility or
portion thereof, as provided in subparagraph (B).
"(B) Subject to subparagraph (C), the Secretary shall
transfer real property or a facility, or portion thereof,
referred to in subparagraph (A) in accordance with the
following priorities:
"(i) If the Attorney General certifies to the
Secretary that the property or facility, or portion
thereof, will be used as a prison or other
correctional institution, to the Department of
Justice for such use.
"(ii) If the Governor of a State, the Mayor of the
District of Columbia, or the Governor of a
territory or possession of the United States
certifies to the Secretary that the property or
facility, or portion thereof, will be used as a
prison or other correctional institution, to that
State, the District of Columbia, or that territory
or possession for such use.
"(iii) To any other transferee pursuant to the
Federal Property and Administrative Services Act of
1949 (40 U.S.C. 471 et seq.).
"(C) Within each priority specified in clauses (i) and (ii)
of subparagraph (B), the Secretary shall give a priority for
the transfer of any real property or facility referred to in
that subparagraph, or any portion thereof, to any department,
agency, or other instrumentality referred to in such clauses
that agrees to pay the Department of Defense the fair market
value of the real property, facility, or portion thereof.
"(D) In this paragraph, the term 'fair market value' means,
with respect to any real property or facility, or any portion
thereof, the fair market value determined on the basis of the
use of the real property or facility on December 31, 1988.".
(d) REVIEW OF CURRENT STANDARDS OF PRISON CONSTRUCTION.--(1) The
Director of the Bureau of Prisons (referred to as the
"Director") shall--
(A) review current construction standards and
methods used in building Federal prisons; and
(B) examine and recommend any cost cutting measures
that could be employed in prison construction
(consistent with security requirements), especially
expenditures for air conditioning, recreational
activities, color television, social services, and
similar amenities.
(2) Not later than 90 days after the date of enactment of
this Act, the Director shall submit to Congress a description
and summary of the results of the review conducted pursuant
to paragraph (1).
(e)(1) Chapter 301 of title 18, United States Code, is amended by
adding at the end thereof the following new section:
"Section 4014. Private construct and operation of
Federal prisons
"(a) IN GENERAL.--The Attorney General may contract
with private persons to--
"(1) construct, own, and operate Federal
prison facilities; or
"(2) construct or operate Federal prison
facilities owned by the United States,
including the provision of subsistence, care, and
proper employment of United States prisoners.
"(b) COOPERATION WITH STATES.--The Attorney General
shall consult and cooperate with State and local
governments in exercising the authority provided by
subsection (a).
"© FINANCING OPTIONS FOR PRISON CONSTRUCTION AND
OPERATION.--(1) To the greatest extent possible,
the Attorney General shall utilize
creative and cost-effective private
financing alternatives and private
construction and operation of prisons.
"(2) Operating cots of privately-operated
prisons shall be covered through rent
charged to participating units of
Government placing inmates in a prison.
"(3) The Attorney General may finance the
construction of facilities through lease
or lease-purchase agreements.
"(4) In order to gain full costs
advantages from economies of scale and
specialized knowledge from private
innovation, the Attorney General may
contract with consortia or teams of
private firms to design, construct, and
manage, as well as finance, prison
facilities.".
(2) The table of sections for chapter 301 of title 18, United
States Code, is amended by adding at the end thereof the
following new item:
"4014. Private construct and operation of Federal
prisons.".
(f) SURPLUS FEDERAL PROPERTY.--(1) For the purpose of expanding the
number of correctional facilities, the Administrator of the
General Services Administration, in consultation with the
Attorney General, shall, not later than 1 year after the date
of enactment of this Act, identify and make available a list
of not less than 20 parcels of surplus Federal property,
which the{_ Attorney General has certified are not needed for
Federal correctional facilities but which may be suitable for
State or local correctional facilities.
(2) During the National Drug and Crime Emergency declared in
section 3(b)(1), notwithstanding any other law, any property
that is determined to be excess to the needs of a Federal
agency that may be suitable for use as a correctional
facility shall be made available for such use, in order of
priority, first, to the Attorney General, and second, to a
State, the District of Columbia, or a local government.
(g) STATE AND LOCAL GOVERNMENT USE OF FACILITIES.--State and local
governments shall be permitted to use Federal temporary incarceration
facilities, when they are not needed to accommodate Federal prisoners,
for the purpose of incarcerating prisoners at a per diem fee to be paid
to the Bureau of Prisons.
SEC. 103. ELIMINATION OF EARLY RELEASE FROM PRISON.
During the National Drug and Crime Emergency declared in section
3(b)(1), notwithstanding any other law, every person who is convicted
in a Federal court of committing a crime of violence against a person
or a drug trafficking crime (other than simple possession), shall be
sentenced to and shall serve a full term of no less than 5 years'
imprisonment, and no such person shall be released from custody for any
reason or for any period of time prior to completion of the sentence
imposed by the court unless the sentence imposed is greater than 5
years and is not a mandatory minimum sentence without release.
Subtitle B--Imposition of Mandatory Minimum Sentences Without Release
SEC. 111. INCREASED MANDATORY MINIMUM SENTENCES WITHOUT RELEASE FOR
CRIMINALS USING FIREARMS AND OTHER VIOLENT CRIMINALS.
(a) USE OF FIREARMS.--Section 924©(1) of title 18, United States
Code, is amended to read as follows:
"©(1) Whoever, during and in relation to any crime of
violence or drug trafficking crime (including a crime of
violence or drug trafficking crime which provides for an
enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may be
prosecuted in a court of the United States--
"(A) possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or
drug trafficking crime, be sentenced to
imprisonment for 10 years without release;
"(B) discharges a firearm with intent to injure
another person, shall, in addition to the
punishment provided for such crime of violence or
drug trafficking crime, be sentenced to
imprisonment for 20 years without release; or
"(C) possesses a firearm that is a machinegun, or
is equipped with a firearm silencer or firearm
muffler shall, in addition to the punishment
provided for such crime of violence or drug
trafficking crime, be sentenced to imprisonment for
30 years without release.
In the case of a second conviction under this subsection, a
person shall be sentenced to imprisonment for 20 years
without release for possession or 30 years without release
for discharge of a firearm, and if the firearm is a
machinegun, or is equipped with a firearm silence or firearm
muffler, to life imprisonment without release. In the case of
a third or subsequent conviction under this subsection, a
person shall be sentenced to life imprisonment without
release. If the death of a person results from the discharge
of a firearm, with intent to kill another person, by a person
during the commission of such a crime, the person who
discharged the firearm shall be sentenced to death or life
imprisonment without release. A person shall be subjected to
the penalty of death under this subsection only if a hearing
is held in accordance with section 408 of the Controlled
Substances Act (21 U.S.C. 848). Notwithstanding any other
law, a court shall not place on probation or suspend the
sentence of any person convicted of a violation of this
subsection, nor shall the term of imprisonment under this
subsection run concurrently with any other term of
imprisonment including that imposed for the crime of violence
or drug trafficking crime in which the firearm was used. No
person sentenced under this subsection shall be eligible for
parole, nor shall such person be released for any reason
whatsoever, during a term of imprisonment imposed under this
paragraph.".
SEC. 112. LIFE IMPRISONMENT WITHOUT RELEASE FOR CRIMINALS CONVICTED A
THIRD TIME.
Section 401(b) of the Controlled Substances Act is amended by striking
"If any person commits a violation of this subparagraph or of section
405, 405A, or 405B after two or more prior convictions for a felony
drug offense have become final, such person shall be sentenced to a
mandatory term of life imprisonment without release" and inserting "If
any person commits a violation of this subparagraph or of section 405,
405A, or 405B or a crime of violence as defined in section 924©(3) of
title 18, United States Code, after two or more prior convictions for a
felony drug offense or for a crime of violence as defined in section
924©(3) of that title or for any combination thereof have become
final, such person shall be sentenced to a mandatory term of life
imprisonment without release.".
SEC. 113. LONGER PRISON SENTENCES FOR THOSE WHO SELL ILLEGAL DRUGS TO
MINORS OR FOR USE OF MINORS IN DRUG TRAFFICKING ACTIVITIES.
(a) DISTRIBUTION TO PERSONS UNDER AGE 21.--Section 405 of the
Controlled Substances Act (21 U.S.C. 845) is amended--
(1) in subsection (a) by striking "Except to the extent a
greater minimum sentence is otherwise provided by section
401(b), a term of imprisonment under this subsection shall be
not less than one year." and inserting "Except to the extent
a greater minimum sentence is otherwise provided by section
401(b), a term of imprisonment under this subsection shall be
not less than 10 years without release. Notwithstanding any
other provision of law, the court shall not place on
probation or suspend the sentence of any person sentenced
under the preceding sentence and such person shall not be
released during the term of such sentence."; and
(2) in subsection (b) by striking "Except to the extent a
greater minimum sentence is otherwise provided by section
401(b), a term of imprisonment under this subsection shall be
not less than one year." and inserting "Except to the extent
a greater minimum sentence is otherwise provided by section
401(b), a term of imprisonment under this subsection shall be
not less than 20 years without release. Notwithstanding any
other provision of law, the court shall not place on
probation or suspend the sentence of any person sentenced
under the preceding sentence and such person shall not be
released during the term of such sentence.".
(b) EMPLOYMENT OF PERSONS UNDER 18 YEARS OF AGE.--Section 405B of the
Controlled Substances Act (21 U.S.C. 845b) is amended--
(1) in subsection (a) by striking "Except to the extent a
greater minimum sentence is otherwise provided, a term of
imprisonment under this subsection shall be not less than one
year." and inserting "Except to the extent a greater minimum
sentence is otherwise provided by section 401(b), a term of
imprisonment under this subsection shall be not less than 10
years without release. Notwithstanding any other provision
of law, the court shall not place on probation or suspend the
sentence of any person sentenced under the preceding sentence
and such person shall not be released during the term of such
sentence"; and
(2) in subsection © by striking "Except to the extent a
greater minimum sentence is otherwise provided, a term of
imprisonment under this subsection shall be not less than one
year." and inserting "Except to the extent a greater minimum
sentence is otherwise provided by section 401(b), a term of
imprisonment under this subsection shall be not less than 20
years without release. Notwithstanding any other provision
of law, the court shall not place on probation or suspend the
sentence of any person sentenced under the preceding sentence
and such person shall not be released during the term of such
sentence.".
SEC. 114. LONGER PRISON SENTENCES FOR DRUG TRAFFICKING.
(a) SCHEDULE I AND II SUBSTANCES.--Section 401(b)(1)(C) of the
Controlled Substances Act (21 U.S.C. 841(b)(1)(C)) is amended--
(1) in the first sentence by striking "of not more than 20
years" and inserting "which shall be not less than 5 years
without release nor more than 20 years"; and
(2) in the second sentence by striking "of not more than 30
years" and inserting "which shall be not less than 10 years
without release nor more than 30 years".
(b) MARIHUANA.--Section 401(b)(1)(D) of the Controlled Substances Act
(21 U.S.C. 841(b)(1)(D)) is amended--
(1) in the first sentence by striking "of not more than 5
years" and inserting "not less than 5 years without release";
(2) in the second sentence by striking "of not more than 10
years" and inserting "which shall be not less than 10 years
without release"; and
(3) by adding the following new sentence at the end thereof:
"Not withstanding any other provision of law, the court shall
not place on probation or suspend the sentence of any person
sentenced under this subparagraph, nor shall a person so
sentenced be eligible for parole during the term of such a
sentence.".
© SCHEDULE IV SUBSTANCES.--Section 401(b)(2) of the Controlled
Substances Act (21 U.S.C. 841(b)(2)) is amended--
(1) in the first sentence by striking "of not more than 3
years" and inserting "which shall be not less than 5 years
without release";
(2) in the second sentence by striking "of not more than 6
years" and inserting "which shall be not less than 10 years
without release"; and
(3) by adding the following new sentence at the end thereof:
"Notwithstanding any other provision of law, the court shall
not place on probation or suspend the sentence of any person
sentenced under this subparagraph, nor shall a person so
sentenced be eligible for parole during the term of such a
sentence.".
(d) SCHEDULE V SUBSTANCES.--Section 401(b)(3) of the Controlled
Substances Act (21 U.S.C. 841(b)(3)) is amended--
(1) in the first sentence by striking "of not more than one
year" and inserting "which shall be not less than 5 years
without release";
(2) in the second sentence by striking "of not more than 2
years" and inserting "which shall be not less than 10 years
without release"; and
(3) by adding the following new sentence at the end thereof:
"Notwithstanding any other provision of law, the court shall
not place on probation or suspend the sentence of any person
sentenced under this subparagraph, nor shall a person so
sentenced be eligible for parole during the term of such a
sentence.".
SEC. 115. MANDATORY PENALTIES FOR ILLEGAL DRUG USE IN FEDERAL PRISONS.
(a) DECLARATION OF POLICY.--It is the policy of the Federal Government
that the use or distribution of illegal drugs in the Nation's Federal
prisons will not be tolerated and that such crime shall be prosecuted
to the fullest extent of the law.
(b) AMENDMENT.--Section 401(b) of the Controlled Substances Act (21
U.S.C. 841(b)) is amended by adding the following new paragraph and the
end thereof:
"(7)(A) In a case involving possession of a controlled
substance within a Federal prison or other Federal detention
facility, such person shall be sentenced to a term of
imprisonment of 1 year without release in addition to any
other sentence imposed for the possession itself.
"(B) In a case involving the smuggling of a controlled
substance into a Federal prison or other Federal detention
facility or the distribution of a controlled substance within
a Federal prison or other Federal detention facility, such
person shall be sentenced to a term of imprisonment of 10
years without release in addition to any other sentence
imposed for the possession or distribution itself.
"(C) Notwithstanding any other law, the court shall not place
on probation or suspend the sentence of a person sentenced
under this paragraph. No person sentenced under this
paragraph shall be eligible for parole during the term of
imprisonment imposed under this paragraph.".
SEC. 116. DEPORTATION OF CRIMINAL ALIENS.
(a) DEPORTATION OF ALIENS CONVICTED OF CRIMES OF VIOLENCE.--Section
241(a)(14) of the Immigration and Nationality Act (8 U.S.C.
1251(a)(14)) is amended by inserting after "convicted" the following:
"of a drug trafficking crime or a crime of violence (as those terms are
defined in paragraphs (2) and (3) of section 924© of title 18, United
States Code), or".
(b) REENTRY OF DEPORTED ALIENS.--Section 276(b)(2) of the Immigration
and Nationality Act (8 U.S.C. 1326(b)(2)) is amended to read as
follows:
"(2) whose deportation was subsequent to a conviction for a
drug trafficking crime or a crime of violence (as those terms
are defined in sections 924© (2) and (3) of title 18,
United States Code), such alien shall be fined under such
title and imprisoned for 20 years without release, and in the
case of a second violation of subsection (a) shall be
imprisoned for life without release. Notwithstanding any
other law, the court shall not place on probation or suspend
the sentence of any person sentenced under this paragraph and
such person shall not be released during the term of such
sentence.".
SEC. 117 ENCOURAGEMENT TO STATES TO ADOPT MANDATORY MINIMUM PRISON
SENTENCES.
(a) PRIORITY.--Beginning on the date that is 2 calendar years after the
date of enactment of this Act, a request for Federal drug law
enforcement assistance funds from the Bureau of Justice Assistance
Grant Programs by a State whose law provides for--
(1) mandatory minimum sentences equal to or greater than the
sentences authorized in sections 111, 112, 113, 114, and 115
for the commission of crimes against the State that are
equivalent to the Federal crimes punished in those sections;
(2) elimination of early release from prison of persons
convicted in a State court of committing a crime of violence
against a person or drug trafficking crime (other than simple
possession), equivalent to the requirements of section 103;
and
(3) payment of trial costs and mandatory fines equivalent to
that imposed by section 202,
shall receive priority over a request by a State whose law does not so
provide.
(b) REDISTRIBUTION.--Beginning on the data that is 2 calendar years
after the date of enactment of this Act, the formula for determining
the amount of funds to be distributed from the Drug Control and System
Improvement Grant Program to state and local governments shall be
adjusted by--
(1) reducing by 10 percent the amount of funds that would,
except for the application of this paragraph, be allocated to
States whose laws do not provide as stated in subsection (a);
and
(2) allocating the amount of the reduction pro rata to the
other States.
Subtitle C--Mandatory Work Requirements for Prisoners, Withholding
Federal Benefits, and Drug Testing of Prisoners
SEC. 131 MANDATORY WORK REQUIREMENT FOR ALL PRISONERS.
(A) IN2gGNERAL.--(1) It is the policy of the Federal Government that
convicted prisoners confined in Federal prisons, jails, and
other detention facilities shall work. The type of work in
which they will be involved shall be dictated by appropriate
security considerations and by the health of the prisoner
involved. Such labor may include, but not be limited to--
(A) local public works projects and infrastructure
repair;
(B) construction of new prisons and other detention
facilities;
(C) prison industries; and
(D) other appropriate labor.
(2) It is the policy of the Federal Government that States
and local governments have the same authority to require all
convicted prisoners to work.
(b) PRISONERS SHALL WORK.--Medical certification of 100 percent
disability, security considerations, or disciplinary action shall be
the only excuse to remove a Federal prisoner from labor participation.
© USE OF FUNDS.--(1) Subject to paragraph (2), any funds generated by
labor conducted pursuant to this section shall be deposited
in a separate fund in the Treasury of the United States for
use by the Attorney General for payment of prison
construction and operating expenses or for payment of
compensation judgements. Notwithstanding any other law, such
funds shall be available without appropriation.
(2) Prisoners shall be paid a share of funds generated by
their labor conducted pursuant to this section.
SEC. 132. REPEAL OF CONSTRAINTS ON PRISON INDUSTRIES.
(a) SUMNERS-ASHURST ACT.--(1) Chapter 85 of part 1 of title 18, United
States Code, is repealed.
(2) The table of chapters for part 1 of title 18, United
States Code, is amended by striking the item for chapter 85
and inserting the following:
"[85. Repealed.]".
(3) The repeal made by this subsection shall not affect the
performance to completion of the pilot projects authorized by
section 1761© of title 18, United States Code, prior to
enactment of this act.
(b) FEDERAL PRISON INDUSTRIES.--(1) Section 4122(a) of title 18, United
States Code, is amended to read as follows:
"(a) Federal Prison Industries shall determine in
what manner and to what extent industrial
operations shall be carried on in Federal penal and
correctional institutions for the product of
commodities for consumption in such institutions
or for sale to governmental departments and
agencies and to the public.".
(2) The first paragraph of section 4124 of title 18, United
States Code, is amended to read as follows:
"The several Federal departments and agencies and
all other Government institutions of the United
States may purchase such products of the industries
authorized by this chapter as meet their
requirements and may be available.".
(3) The second sentence of section 4126(f) of title 18,
United States Code, is amended to read as follows: "To the
extent that the amount of such funds is excess to the needs
of the corporation for such purposes, such funds may be
transferred to the Attorney General for the construction or
acquisition of penal and correctional institutions, including
camps described in section 4125.".
© WALSH-HEALY ACT.--Subsection (d) of the fe2yt section of the Act
entitled "An Act to provide conditions for the purchase of supplies and
the making of contracts by the United States, and for other purposes",
approved June 30, 1936, (41 U.S.C. 35(d)), is amended--
(1) by striking "and no convict labor"; and
(2) by striking ", except that this section, or any law or
Executive order contrasting similar prohibitions against
purchase of goods by the Federal Government, shall not apply
to convict labor which satisfies the conditions of section
1761© of title 18, United States Code".
(d) LEGISLATIVE RECOMMENDATIONS.--The Attorney General shall submit to
Congress a report making recommendations for legislation to--
(1) ensure that private businesses and labor do not suffer
unfair consequences from the repeal in subsection (a); and
(2) encourage greater private sector participation in prison
industries and create incentives for cooperative arrangements
between private businesses and prisons providing for such
participation.
SEC. 133. EMPLOYMENT OF PRISONERS.
(a) IN GENERAL.--The Attorney General may enter into contracts with
private businesses for the use of inmate skills that may be of
commercial use to such businesses.
(b) USE OF FEES AND PAYMENTS.--A portion of the fees and payments
collected for the use of inmate skills under contracts entered into
pursuant to subsection (a) shall be deposited in the fund described in
section 131©(1), and a portion shall be paid to the prisoners who
conduct the labor.
© SECURITY REQUIREMENT.--In the case of contracts described in
subsection (a) in which the provision of inmate skills would require
prisoners to leave the prison--
(1) prisoners shall be permitted to travel directly to a work
site and to remain at the work site during the work day and
shall be required to return directly to prison at the end of
each work day; and
(2) only prisoners with no history of violent criminal
activity and who are able to meet strict security standards
to insure that they pose no threat to the public, shall be
eligible to participate.
SEC. 134. WITHHOLDING PRISONERS' FEDERAL BENEFITS TO OFFSET
INCARCERATION COSTS.
(a) IN GENERAL.--The Federal benefits received by any prisoner (not
including those of a prisoner's spouse or dependents) who has been
convicted of a crime of violence against a person or drug trafficking
crime (other than simple possession) under Federal or State law and who
is incarcerated in a Federal or State prison shall, during the period
of the prisoner's incarceration, be withheld to offset the costs of--
(1) any victim compensation award against such prisoner; and
(2) any incarceration costs of the prisoner incurred by the
prison system.
(b) PAYMENT.--(1) In the case of a Federal Prisoner, Federal benefits
withheld forte purpose of subsection (a)(2) shall be paid
into the fund established by section 131©.
(2) In the case of a State prisoner, Federal benefits
withheld for the purpose of subsection (a)(2) shall be paid
to the State.
© EXCEPTION.--The withholding of Federal benefits of a prisoner with
a spouse or other dependents under subsection (a) shall be adjusted by
the court to provide adequate support to and to prevent the
impoverishment of dependents.
(d) DEFINITIONS.--As used in this section the term "Federal benefit"
means the issuance of any payment of money, by way of grant, loan, or
statutory entitlement, provided by an agency of the United States or by
appropriated funds or trust funds of the United States but does not
include a right to payment under a contract.
SEC. 135. DRUG TESTING OF FEDERAL PRISONERS.
(a) DRUG TESTING PROGRAM.--(1) Subchapter A of chapter 229 of title 18,
United States Code, is amended by adding at the end thereof
the following new section:
"Section 3608. Drug testing of defendants on
post-conviction release
"(a) The Attorney General, in consultation with the
Director of the Administrative Office of the United
States Courts shall, as soon as is practicable
after the effective date of this section, establish
by regulation a program of drug testing of targeted
classes of arrestees, individuals in jails,
prisons, and other correctional facilities, and
persons on conditional or supervised release before
or after conviction, including probationers,
parolees, and persons released on bail.
"(b)(1) The Attorney General shall, not later than
6 months after the date of enactment of
this section, promulgate regulations for
drug testing programs under this section.
"(2) The regulations issued pursuant to
paragraph (1) shall be based in part on
scientific and technical standards
determined by the Secretary of Health
and Human Services to ensure reliability and
accuracy of drug test results. In
addition to specifying acceptable methods
and procedures for carrying out drug
testing, the regulations may include
guidelines or specifications concerning--
"(A) the classes of persons to
be targeted for testing;
"(B) the drugs to be tested
for;
"(C) the frequency and duration
of testing; and
"(D) the effect of test results
in decisions concerning the
sentence, the conditions to be
imposed on release before or
after conviction, and the
granting, continuation, or
termination of such release.
"© In each district where it is feasible to do
so, the chief probation officer shall arrange for
the drug testing of defendants on a post-conviction
release pursuant to a conviction for a felony or
other offense described in section 3563(a)(4) of
this title.".
SEC. 136. DRUG TESTING OF STATE PRISONERS.
(a) IN GENERAL.--Title I of the Omnibus Crime Control and Safe Streets
Act of 1968 (42 U.S.C. 3711 et seq.) is amended by adding at the end of
part E (42 U.S.C. 3750-3766b) the following:
"DRUG TESTING PROGRAMS
"SEC. 523. (a) PROGRAM REQUIRED.--No funding shall be
provided under this part, whether by direct grant,
cooperative agreement, or assistance in any form, to any
State or any political subdivision or instrumentality of a
State that has not formulated and implemented a drug testing
program, subject to periodic review by the Attorney General,
as specified in the regulations described in subsection (b),
for targeted classes of arrestees, individuals in jails,
prisons, and other correctional facilities, and persons on
conditional or supervised release before or after conviction,
including probationers, parolees, and persons released on
bail.
"(b) REGULATIONS.--(1) The Attorney General shall, not later
than 6 months after the enactment of this section,
promulgate regulations for drug testing programs
under this section.
"(2) The regulations issued pursuant to paragraph
(1) shall incorporate the standards applicable to
drug testing of Federal prisoners under section
3608 of title 18, United States Code.
"© EFFECTIVE DATE.--This section shall take effect with
respect to any State, subdivisions, or instrumentality
receiving or seeking funding under this subchapter at a time
specified by the Attorney General, but no earlier than the
date of promulgation of the regulations required by
subsection (b).".
(b) AMENDMENT TO TABLE OF CONTENTS.--The table of contents of title I
of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C.
3711 et seq.) is amended by inserting at the end of the item relating
to part E the following:
"Sec. 523. Drug testing program.".
Subtitle D--Judicial Reform to Protect the Innocent and Punish the
Guilty
SEC. 151. GOOD FAITH STANDARDS FOR GATHERING EVIDENCE.
(a) IN GENERAL.--Chapter 223 of title 18, United States Code, is
amended by adding at the end thereof the following new section:
"Section 3509. Admissibility of evidence obtained by search
or seizure
"(a) EVIDENCE OBTAINED BY OBJECTIVELY REASONABLE SEARCH OR
SEIZURE.--Evidence which is obtained as a result of a search
or seizure shall not be excluded in a proceeding in a court of
the United States on the ground that the search or seizure
was in violation of the fourth amendment to the Constitution
of the United States, if the search or seizure was carried
out in circumstances justifying an objectively reasonable
belief that it was in conformity with the fourth amendment.
The fact that evidence was obtained pursuant to and within
the scope of a warrant constitutes prima facie evidence of
the existence of such circumstances.
"(b) EVIDENCE NOT EXCLUDABLE BY STATUTE OR RULE.--Evidence
shall not be excluded in a proceeding in a court of the
United States on the ground that it was obtained in violation
of a statute, an administrative rule or regulation, or a rule
of procedure unless exclusion is expressly authorized by a
statute or by a rule prescribed by the Supreme Court pursuant
to statutory authority.
"© RULE OF CONSTRUCTION.--This section shall not be
constructed to require or authorize the exclusion of evidence
in any proceeding.".
(b) TECHNICAL AMENDMENT.--The table of sections at the beginning of
chapter 223 of title 18, United States Code, is amended by adding at
the end the following:
"3509. Admissibility of evidence obtained by search or
seizure.".
SEC. 152. STROM THURMOND HABEAS CORPUS REFORM INITIATIVE.
(a) FINALITY OF DETERMINATIONS.--Section 2244 of title 28, United
States Code, is amended by adding at the end thereof the following new
subsections:
"(d) When a person in custody pursuant to the judgment of a
State court fails to raise a claim in State proceedings at
the time or in the manner required by State rules of
procedure, the claim shall not be entertained in an
application for a writ of habeas corpus unless actual
prejudice resulted to the applicant from the alleged denial
of Federal right asserted and--
"(1) the failure to raise the claim properly or to
have it heard in State proceedings was the result
of State action in violation of the Constitution or
laws of the United States;
"(2) the Federal right asserted was newly
recognized by the Supreme Court subsequent to the
procedural default and is retroactively applicable;
or
"(3) the factual predicate of the claim could not
have been discovered through the exercise of
reasonable diligence prior to the procedural
default.
"(e) A one-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of the following
times:
"(1) the time at which State remedies are
exhausted;
"(2) the time at which the impediment to filing an
application created by State action in violation to
the Constitution or laws of the United States is
removed, where the applicant was prevented from
filing by such State action;
"(3) the time at which the Federal right asserted
was initially recognized by the Supreme Court,
where the right has been newly recognized by the
Court and is retroactively applicable; or
"(4) the time at which the factual predicate of the
claim or claims presented could have been
discovered through the exercise of reasonable
diligence.".
(b) APPEAL.--Section 2253 of title 28, United States Code, is amended
to read as follows:
"Section 2253. Appeal
"In a habeas corpus proceeding or a proceeding under section
2255 of this title before a circuit or district judge, the
final order shall be subject to review, on appeal, by the
court of appeals for the circuit where the proceeding is had.
"There shall be no right of appeal from such an order in a
proceeding to test the validity of a warrant to remove, to
another district or place for commitment or trial, a person
charged with a criminal offense against the United States, or
to test the validity of the person's detention pending
removal proceedings.
"An appeal may not be taken to the court of appeals from the
final order in a habeas corpus proceeding where the detention
complained of arises out of process issued by a State court,
or from the final order in a proceeding under section 2255 of
this title, unless a circuit justice or judge issues a
certificate of probable cause.".
© APPELLATE PROCEDURE.--Rule 22 of the Federal Rules of Appellate
Procedure is amended to read as follows:
"Rule 22. Habeas Corpus and Section 2255 Proceedings
"(a) APPLICATION FOR AN ORIGINAL WRIT OF HABEAS CORPUS.--An
application for a writ of habeas corpus shall be made to the
appropriate district court. If application is made to a
circuit judge, the application will ordinarily be transferred
to the appropriate district court. If an application is made
to or transferred to the district court and denied, renewal
of the application before a circuit judge is not favored; the
proper remedy is by appeal to the court of appeals from the
order of the district court denying the writ.
"(b) NECESSITY OF CERTIFICATE OF PROBABLE CAUSE FOR
APPEAL.--In a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court,
and in a motion proceeding pursuant to section 2255 of title
28, United States Code, an appeal by the applicant or movant
may not proceed unless a circuit judge issues a certificate
of probable cause. If a request for a certificate of
probable cause is addressed to the court of appeals, it shall
be deemed addressed to the judges thereof and shall be
considered by a circuit judge or judges as the court deems
appropriate. If no express request for a certificate is
filed, the notice of appeal shall be deemed to constitute a
request addressed to the judgements of the court of appeals.
If an appeal is taken by a State or the government or its
representative, a certificate of probable cause is not
required.".
(d) STATE CUSTODY.--Section 2254 of title 28, United States Code, is
amended--
(1) by amending subsection (b) to read as follows:
"(b) An application for a writ of habeas corpus in
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
unless it appears that the applicant has exhausted
the remedies available in the courts of the State,
or that there is either an absence of available
State corrective process or the existence of
circumstances rendering such process ineffective to
protect the rights of the applicant. An
application may be denied on the merits
notwithstanding the failure of the applicant to
exhausted the remedies available in the courts of
the States.";
(2) by redesignating subsection (d), (e), and (f) as
subsections (e), (f), and (g), respectively;
(3) by inserting after subsection © the following new
subsection:
"(d) An application for a writ of habeas corpus in
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that has been fully and
fairly adjudicated in State proceedings."; and
(4) by amending subsection (e), as redesignated by paragraph
(2), to read as follows:
"(e) In a proceeding instituted by an application
for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a full
and fair determination of a factual issue made in
the case by a State court shall be presumed to be
correct. The applicant shall have the burden of
rebutting this presumption by clear and convincing
evidence.".
(e) FEDERAL CUSTODY.--Section 2255 of title 28, United States Code, is
amended by striking the second paragraph and the penultimate paragraph
thereof, and by adding at the end thereof the following new paragraphs:
"When a person fails to raise a claim at the time or in the
manner required by Federal rules of procedure, the claim
shall not be entertained in a motion under this section
unless actual prejudice resulted to the movant from the
alleged denial of the right asserted and--
"(1) the failure to raise the claim properly, or to
have it heard, was the result of governmental
action in violation of the Constitution or the laws
of the United States;
"(2) the right asserted was newly recognized by the
Supreme Court subsequent to the procedural default
and is retroactively applicable; or
"(3) the factual predicate of the claim could not
have been discovered through the exercise of
reasonable diligence prior to the procedural
default.
"A two-year period of limitation shall apply to a motion
under this section. The limitation period shall run from the
latest of the following times;
"(1) The time at which the judgment of conviction
becomes final.
"(2) The time at which the impediment to making a
motion created by governmental action in violation
of the Constitution or laws of the United States is
removed, where the movant was prevented from making
a motion by such governmental action.
"(3) The time at which the right asserted was
initially recognized by the Supreme Court, where
the right has been newly recognized by the Court
and is retroactively applicable.
"(4) The time at which the factual predicate of the
claim or claims presented could have been
discovered through the exercise of reasonable
diligence.".
SEC. 153. PROSCRIPTION OF USE OF DRUG PROFITS.
(a) LIST OF ASSETS.--Section 511(d) of the Controlled Substances Act
(21 U.S.C. 881(d)) is amended by--
(1) inserting "(1)" after (d)"; and
(2) adding at the end thereof the following new paragraph:
"(2)(A) Prior to sentencing a defendant on
conviction in a Federal court of a felony under
this title, the court shall compile a list of all
assets owned by the defendant not subject to
forfeiture.
"(B) After the release of a defendant described in
subparagraph (A), upon request of the Attorney
General, the court shall required the defendant to
provide proof that any asset owned by the defendant
not listed on the list described in subparagraph
(A) was legally obtained.".
"(C) In order to prove that a defendant legally
obtained an asset not listed on the list described
in subparagraph (A), the defendant shall be
required to produce documentation of the same
nature as that required of a taxpayer by the
Internal Revenue Service.
"(D) Assets that a defendant does not prove were
legally obtained under subparagraph (B) may be
seized by the Attorney General through attachment
and foreclosure proceedings, and the proceeds of
such proceedings shall be deposited in the
Department of Justice's Assets Forfeiture Fund and
shall be available for transfer to the building and
facilities account of the Federal prison system.".
SEC. 154. JURISDICTION OF SPECIAL MASTERS.
Notwithstanding any other law, a special master appointed to serve in a
United States court to monitor compliance with a court order, including
special masters who have been appointed prior to the date of enactment
of this Act--
(1) shall be appointed for a term of no more than 1 year;
(2) may be reappointed for terms of 1 year;
(3) shall be given a clear and narrow mandate by the court
and shall have no authority in any area where a specific
mandate is not granted; and
(4) shall not have jurisdiction to enforce any judicial order
with respect to the management of prisons or jails.
SEC. 155. SENTENCING PATTERNS OF FEDERAL JUDGES.
(a) IN GENERAL.--Chapter 49 of title 28, United States Code, is amended
by adding at the end thereof the following new section:
"Section 757 Sentencing patterns
"(a) The Administrative Office of the United States Courts
shall annually publish a cumulative report on sentencing by
United States District Judges. The report shall be compiled
for the purpose of enabling the reader to assess criminal
sentencing patterns among Federal judges and post-sentencing
treatment to determine judicial accuracy of forecasting
future responsible and lawful behavior by those whom they
sentence.
"(b) The report shall--
"(1) personally identify the judge that pronounced
each criminal sentence;
"(2) give a brief description of the crime or
crimes perpetrated by the criminal and the prison,
probationory of the criminal that is reasonably
available for compilation; and
"(3) include such charts, profiles, and narratives
as are necessary.".
(b) TECHNICAL AMENDMENT.--The table of sections for chapter 49 of title
28, United States Code, is amended by adding at the end thereof the
following:
"757. Sentencing patterns.".
TITLE II--ACHIEVING A DRUG-FREE AMERICA BY 1995
SEC. 201. FINDINGS.
The Congress finds that--
(1) to make America drug-free by 1995 requires a concerted
effort to hold drug users accountable for their actions,
which sustain the drug trade and related criminal activities;
and
(2) the anti-drug policy of the 1990's must emphasize the
principles of zero tolerance, user accountability, and
measured user penalties.
SEC. 202 PAYMENT OF TRIAL COSTS AND MANDATORY MINIMUM FINES.
(a) FINE TO PAY COST OF TRIAL.--(1) A person who is convicted of a
violation of section 404 of the Controlled Substances Act (21
U.S.C. 844) shall pay to the Treasury of the United States
the cost of the trial in which the person is convicted, as
determined by the court, out of the income of such person.
(2) If a person convicted of drug possession has insufficient
income and property to pay the cost of trial as required by
paragraph (1), the court shall determine an appropriate
amount that should be paid in view of the person's income and
the cost of trial.
(3) The amount that a person shall be required to pay out of
the person's income to pay the cost of trial shall not exceed
25 percent of the person's annual income.
(b) ADDITIONAL MANDATORY FINE.--In addition to the fines authorized in
section 404 of the Controlled Substances Act (21 U.S.C. 844) and in
subsection (a), a person who is convicted of section 404 of the
Controlled Substances Act shall be assessed a mandatory fine of at
least 10 percent of the person's income for a first offense and at
least 25 percent of the person's income for a second or subsequent
offense.
© INCOME.--For the purposes of this section, a person's annual income
shall be determined to be no less than the amount of income reported on
the person's most recent Federal income tax filing.
(d) FORFEITURE OF PROPERTY.--If a person convicted of a drug crime has
insufficient income to pay the fines imposed under subsections (a) and
(b), the person's property, including wages and other earnings, shall
be subject to forfeiture through attachment, foreclosure, and
garnishment procedures.
(e) The court may order payment of trial costs and fines imposed under
this section in a single payment or in installments, as necessary to
realize the greatest possibility that the entire amount of costs and
fines will be paid.
SEC. 203. WITHHOLDING OF UNEARNED FEDERAL BENEFITS FROM DRUG
TRAFFICKERS AND USERS WHO ARE NOT IN PRISON.
(a) DRUG TRAFFICKERS.--Section 5301(a) of the Anti-Drug Abuse Act of
1988 (21 U.S.C 853a(a)) is amended--
(1) by amending paragraph (1) to read as follows:
"(1) Any individual who is convicted of any State
offense consisting of the distribution of
controlled substances (as such terms are defined
for purposes of the Controlled Substances Act) who
is not sentenced to a prison term or who serves a
prison term of less than the time periods specified
in subparagraph (A), (B), or (C) of this paragraph
shall--
"(A) upon the first conviction for such
an offense be ineligible for unearned
Federal benefits for 5 years after such
conviction;
"(B) upon a second conviction be
ineligible for all unearned Federal
benefits for 10 years after such
conviction; and
"(C) upon a third or subsequent
conviction for such an offense be
permanently ineligible for all unearned
Federal benefits."; and
(2) in paragraph (2) by striking "there is a reasonable body
of evidence to substantiate such declaration" and inserting
"there is clear and convincing evidence to substantiate such
declaration".
(b) DRUG USERS.--Section 5301(b) of the Anti-Drug Abuse Act of 1988 (21
U.S.C. 853a(b)) is amended--
(1) in paragraph (1) by amending subparagraphs (A) and (B) to
read as follows:
"(A) upon the first conviction for such an offense
be ineligible for all unearned Federal benefits for
1 year after such conviction;
"(B) upon a second and subsequent convictions be
ineligible for all unearned Federal benefits for 5
years after such convictions; and
(2) in paragraph (2) by striking "there is a reasonable body
of evidence to substantiate such declaration" and inserting
"there is clear and convincing evidence to substantiate such
declaration".
© SUSPENSION OF PERIOD OF INELIGIBILITY.--Subsection © of section
5301 of the Anti-Drug Abuse Act of 1988 (21 U.S.C. 853a©) is amended
to read as follows:
"© SUSPENSION OF PERIOD OF INELIGIBILITY.--A court may
reduce the period of ineligibility referred to in subsection
(b)(1)(A) to 3 months if the individual--
"(1) successfully completes a supervised drug
rehabilitation program which includes periodic,
random drug testing after becoming ineligible
under this section; or
"(2) completes a period of community service
satisfactory to the court and passes period and
random drug tests administered during the 3-month
period of suspension.".
(d) DEFINITIONS.--Subsection (d) of section 5301 of the Anti-Drug Abuse
Act of 1988 (21 U.S.C. 853a(d)) is amended to read as follows:
"(d) DEFINITIONS.--As used in this section--
"(1) the term 'earned Federal benefits' means
programs and benefits that are earned through or by
financial contributions or service, such as Social
Security or veterans' benefits; and
"(2) the term 'unearned Federal benefits' means all
Federal benefits, including the issuance of any
grant, contract, loan, professional license, or
commercial license provided by an agency of the
United States or by appropriated funds of the
United States, but not including earned Federal
benefits, such as Social Security and veteran's
benefits.
(e) MONITORING.--The Attorney General shall establish a system to
monitor implementation of section 5301 of the Anti-Drug Abuse Act of
1988 (21 U.S.C. 853a).
SEC. 204. REVOCATION OF DRUG USERS' DRIVER'S LICENSES AND PILOT'S
LICENSES.
(a) DRIVER'S LICENSES.--(1) Chapter 1 of title 23, United States Code,
is amended by adding at the end thereof the following new
section:
"Section 159. Revocation of the driver's licenses
of persons convicted of drug possession
"(a) Beginning on the date that is 2 calendar years
after the date of enactment of this section, a
request for Federal drug law enforcement assistance
funds from the Bureau of Justice Assistance Grant
programs by a State whose law provides for
revocation of drivers' licenses as provided in
subsection © shall receive priority over a
request by a State whose law does not so provide.
"(b) Beginning on the date that is 2 calendar years
after the date of enactment of this section, the
formula for determining the amount of funds to be
distributed from the Drug Control and System
Improvement Grant Program to State and local
governments shall be adjusted by--
"(1) reducing by 10 percent the amount of
funds that would, except for the
application of this paragraph, be
allocated to States whose laws do not
provide as stated in subsection ©; and
"(2) allocated the amount of the
reduction pro rata to the other States.
"©(1) A State meets the requirements of this
section if the State has enacted and is enforcing a
law that requires in all circumstances, except as
provided in paragraph(2)--
"(A) the mandatory revocation of the
driver's license for at least 1 year of
any person who is convicted, after the
enactment of such law, of--
"(i) a violation of section 404
of the Controlled Substances
Act (21 U.S.C. 844); or
"(ii) any other Federal or
State drug offense for which a
person serves less than 1 year's
imprisonment; and
"(B) the mandatory denial of any request
for the issuance or reinstatement of a
driver's license to such a person if the
person does not have a driver's license,
or the driver's license of the person is
suspended, at the time the person is so
convicted.
"(2) The State law referred to in paragraph (1) may
provide that the driver's license of a first
offender, but not of a second or subsequent
offender, may be reinstated on performance of 3
months' community service and passes periodic drug
tests administered during the period of community
service.".
"(d) For purposes of this section--
"(1) The term 'driver's license' means a
license issued by a State to any person
that authorizes the person to operate a
motor vehicle on the highways.
"(2) The term 'drug offense' means any
criminal offense which proscribes the
possession, distribution, manufacture,
cultivation, sale, transfer, or the
attempt or conspiracy to possess,
distribute, manufacture, cultivate, sell,
or transfer any substance the possession
of which is prohibited under the
Controlled Substances Act (21 U.S.C. 801
et seq.) and such offenses under State
laws.
"(3) The term 'convicted' includes
adjudicated under juvenile proceedings.".
(2) The table of contents for chapter 1 of title 23, United
States Code, is amended by adding at the end thereof the
following new item:
"159. Revocation of the driver's licenses of
persons convicted of drug offenses.".
(b) PILOT'S LICENSES.--The Secretary of Transportation shall cause the
Federal Aviation Administration to amend its regulations as necessary
to cause the revocation of pilot's licenses on the terms and conditions
prescribed for revocation of driver's licenses in subsection (a).
SEC. 205. ACCOUNTABILITY AND PERFORMANCE OF DRUG TREATMENT FACILITIES.
(a) STATEWIDE DRUG TREATMENT PLANS.--Title XIX of the Public Health
Service Act is amended by inserting after section 1916A (42 U.S.C.
300x-4a) the following new section:
"SEC. 1916B. STATEWIDE DRUG TREATMENT PLAN.
"(a) NATURE OF PLAN.--To receive the drug abuse portion of
its allotment for a fiscal year under section 1912A, a State
shall develop, implement, and submit, as part of the
application required by section 1916(a), an approved
statewide Drug Treatment Plan, prepared according to
regulations promulgated by the Secretary, that shall
contain--
"(1) a single, designated State agency for
formulating and implementing the Statewide Drug
Treatment Plan;
"(2) a description of the mechanism that shall be
used to assess the needs for drug treatment in
localities throughout the State including the
presentation of relevant data;
"(3) a description of a statewide plan that shall
be implemented to expand treatment capacity and
overcome obstacles that restrict the expansion of
treatment capacity (such as zoning ordinances), or
an explanation of why such a plan is necessary;
"(4) a description of performance-based criteria
that shall be used to assist in the allocating of
funds to drug treatment facilities receiving
assistance under this subpart: [sic]
"(5) a description of the drug-free patient and
workplace programs, that must include some form of
drug testing, to be utilized in drug treatment
facilities and programs;
"(6) a description of the mechanism that shall be
used to make funding allocations under this
subpart;
"(7) a description of the actions that shall be
taken to improve the referral of drug users to
treatment facilities that offer the most
appropriate treatment modality;
"(8) a description of the program of training that
shall be implemented for employees of treatment
facilities receiving Federal funds, designed to
permit such employees to stay abreast of the latest
and most effective treatment techniques;
"(9) a description of the plan that shall be
implemented to coordinate drug treatment facilities
with other social, health, correctional and
vocational services in order to assist or properly
refer those patients in need of such additional
services; and
"(10) a description of the plan that will be
implemented to expand and improve efforts to
contact and treat expectant women who use drugs and
to provide appropriate follow-up care to their
affected newborns.
"(b) SUBMISSION OF PLAN.--The plan required by subsection (a)
shall be submitted to the Secretary annually for review and
approval. The Secretary shall have the authority to review
and approve or disapprove such State plans, and to propose
changes to such plans.
"© SUBMISSION OF PROGRESS REPORTS.--Each State shall submit
reports, in such form, and containing such information as the
Secretary may, from time to time, require, and shall comply
with such additional provisions as the Secretary may from
time to time find are necessary to verify the accuracy of
such reports but are not overly burdensome to the State.
"(d) WAIVER OF PLAN REQUIREMENT.--At the discretion of the
Secretary, the Secretary may waive any or all of the
requirements of this section on the written request of a
State, except that such waiver shall not be granted unless
the State implements an alternative treatment plan that
fulfills the objectives of this section.
"(e) DEFINITION.--As used in this section, the term 'drug
abuse portion' means the amount of a State's allotment under
section 1912A that is required by this subpart, or by any
other law, to be used for programs or activities relating to
drug abuse.".
(b) REGULATIONS AND EFFECTIVE DATES.--(1) The Secretary of Health and
Human Services shall promulgate regulations to carry out
section 1916B of the Public Health Service Act (as added by
subsection (a)) not later than 6 months after the date of
enactment of this section.
(2)(A)Sections 1916B(a) (4) and (5) of such Act (as added by
subsection (a)) shall become effective on October 1
of the second fiscal year beginning after the date
that final regulations under paragraph (1) are
published in the Federal Register.
(B) The remaining provision of such section 1916B
shall become effective on October 1 of the first
fiscal year beginning after the date final
regulations under paragraph (1) are published in
the Federal Register.
SEC. 206. DRUG-FREE SCHOOLS.
(a) ELEMENTARY AND SECONDARY EDUCATION.--(1) Title XII of the Higher
Education Act of 1965 (20 U.S.C. 1001 et seq.), is amended by
inserting at the end thereof the following new section 1213:
"DRUG AND ALCOHOL ABUSE PREVENTION
"SEC. 1213. (a) Notwithstanding any other law, no
institution of higher education shall be eligible
to receive funds or any other form of financial
assistance under any Federal program, including
participation in any federally funded or guaranteed
student loan program, unless it certifies to the
Secretary that it has adopted and has implemented a
program to prevent the use of illicit drugs and the
abuse of alcohol by students and employees that, at
a minimum, includes--
"(1) the annual distribution to each
student and employee of--
"(A) standards of conduct that
clearly prohibit, at a minimum,
the unlawful possession, use,
or distribution of illicit
drugs and alcohol by students
and employees on its property
or as a part of any of its
activities;
"(B) a description of
applicable legal sanctions
under local, State, or Federal
law for the unlawful
possession or distribution of
illicit drugs and alcohol;
"(C) a description of the
health risks associated with
the use of illicit drugs and
the abuse of alcohol;
"(D) a description of any drug
or alcohol counseling,
treatment, or rehabilitation
programs that are available to
employees or students; and
"(E) a clear statement that the
institution will impose
sanctions on students and
employees (consistent with
local, State, and Federal
laws), and a description of
those sanctions, up to and
including expulsion or
termination of employment and
referral for prosecution, for
violations of the standards of
conduct required by paragraph
(1)(A);
"(2) provisions for drug testing; and
"(3) a biennial review by the institution
of its program to--
"(A) determine its
effectiveness and implement
changes to the program if they
are needed; and
"(B) ensure that the sanctions
required by paragraph (1)(E)
are consistently enforced.
"(b) Each institution of higher education that
provides the certification required by subsection
(a) shall, upon request, make available to the
Secretary and to the public a copy of each item
required by subsection (a)(1) as well as the
results of the biennial review required by
subsection (a)(2).
"©(1) The Secretary shall publish regulations to
implement and enforce this section,
including regulations that provide for--
"(A) the periodic review of a
representative sample of
programs required by subsection
(a); and
"(B) sanctions, up to and
including the termination of
any form of financial
assistance, for institutions of
higher education that fail to
implement their programs or to
consistently enforce their
sanctions.
"(2) The sanctions required by subsection
(a)(1)(E) may include the completion of
an appropriate rehabilitation program".
(2) Paragraph (1) shall take effect on October 1, 1990.
(b) DRUG AND ALCOHOL ABUSE PREVENTION.--(1) Part D of the Drug-Free
Schools and Communities Act of 1986 (20 U.S.C. 3171 et seq.)
is amended by adding at the end thereof a new section 5145 to
read as follows:
"CERTIFICATION OF DRUG AND ALCOHOL ABUSE
PREVENTION PROGRAMS.
"SEC. 5145. (a) Notwithstanding any other law, no
local educational agency shall be eligible to
receive funds or any other form of financial
assistance under any Federal program unless it
certifies to the State educational agency that it
has adopted and has implemented a program to
prevent the use of illicit drugs and alcohol by
students or employees that, at a minimum,
includes--
"(1) mandatory, age-appropriate,
developmentally based drug and alcohol
education and prevention programs (which
address the legal, social, and health
consequences of drug and alcohol use and
which provide information about effective
techniques for resisting peer pressure to
use illicit drugs or alcohol) for
students in all grades of the schools
operated or served by the applicant, from
early childhood level through grade 12;
"(2) conveying to students that the use
of illicit drugs and alcohol is wrong and
harmful;
"(3) standards of conduct that are
applicable to students and employees in
all the applicant's schools and that
clearly prohibit, at a minimum, the
possession, use, or distribution of
illicit drugs and alcohol by students and
employees on school premises or as part
of any of its activities;
"(4) a clear statement that sanctions
(consistent with local, State, and
Federal law), up to and including
expulsion or termination of employment
and referral for prosecution, will be
imposed on students and employees who
violate the standards of conduct required
by paragraph (3) and a description of
those sanctions;
"(5) information about any available drug
and alcohol counseling and rehabilitation
programs that are available to students
and employees;
"(6) a requirement that parents,
students, and employees be given a copy
of the standards of conduct required by
paragraph (3) and the statement of
sanctions required by paragraph (4);
"(7) notifying parents, students, and
employees that compliance with the
standards of conduct required by
paragraph (3) is mandatory;
"(8) provisions for drug testing; and
"(9) a biennial review by the applicant
of its program to--
"(A) determine its
effectiveness and implement
changes to the program if they
are needed; and
"(B) ensure that the sanctions
required by paragraph (4) are
consistently enforced.
"(b) Each local educational agency that provides
the certification required by subsection (a) shall,
upon request, make available to the Secretary, the
State educational agency, and the public full
information about the elements of its program
required by subsection (a), including the results
of its biennial review.
"© Each State educational agency shall certify to
the Secretary that it has adopted and has
implemented a program to prevent the use of illicit
drugs and the abuse of alcohol by its students and
employees that is consistent with the program
required by subsection (a) of this section. The
State educational agency shall, upon request, make
available to the Secretary and to the public full
information about the elements of its program.
"(d)(1) The Secretary shall publish regulations to
implement and enforce the provisions of
this section, including regulations that
provide for--
"(A) the periodic review by
State educational agencies of a
representative sample of
programs required by subsection
(a); and
"(B) sanctions, up to and
including the termination of
any form of financial
assistance, for local
educational agencies that fail
to implement their programs or
to consistently enforce their
sanctions.
"(2) The sanctions required by subsection
(a)(1) through (4) may included the
completion of an appropriate
rehabilitation program.".
(2) The Drug-Free Schools and Communities Act of 1986 is
further amended in section 5126©(2) by--
(A) striking subparagraphs (E), (F), and (G); and
(B) redesignating subparagraphs (H) through (M) as
subparagraphs (E) through (J), respectively.
(3) Paragraphs (1) and (2) shall take effect on October 1,
1990.
SEC. 207. DRUG-FREE TRANSPORTATION.
(a) SHORT TITLE.--This section may be cited as the 'Transportation
Employee Testing Act'.
(b) FINDINGS.--The Congress finds that--
(1) alcohol abuse and illegal drug use pose significant
dangers to the safety and welfare of the Nation;
(2) millions of the Nation's citizens utilize transportation
by aircraft, railroads, trucks, and buses, and depend on the
operators of aircraft, railroads, trucks, and buses to
perform in a safe and responsible manner;
(3) the greatest efforts must be expended to eliminate the
abuse of alcohol and the use of illegal drugs, whether on or
off duty, by persons who are involved in the operation of
aircraft, railroads, trucks, and buses;
(4) the use of alcohol and illegal drugs has been
demonstrated to affect significantly the performance of
persons who use them, and has been proven to have been a
critical factor in transportation accidents;
(5) the testing of uniformed personnel of the Armed Forces
has shown that the most effective deterrent to abuse of
alcohol and use of illegal drugs is increased testing,
including random testing;
(6) adequate safeguards can be implemented to ensure that
testing for abuse of alcohol or use of illegal drugs is
performed in a manner that protects a person's right of
privacy, ensures that no person is harassed by being treated
differently from other persons, and ensures that no person's
reputation or career development is unduly threatened or
harmed; and
(7) rehabilitation is a critical component of any testing
program for abuse of alcohol or use of illegal drugs, and
should be made available to persons, as appropriate.
(C) AMENDMENT OF THE FEDERAL AVIATION ACT.--(1) Title VI of the Federal
Aviation Act of 1958 (49 App. U.S.C. 1421 et seq.) is amended
by adding at the end thereof the following:
"ALCOHOL AND CONTROLLED SUBSTANCES TESTING
"TESTING PROGRAM
"SEC. 613. (a)(1) The Administrator shall, in the
interest of aviation safety, prescribe regulations
not later than 12 months after the date of
enactment of this section. Such regulations shall
establish a program that requires air carriers and
foreign air carriers to conduct preemployment,
reasonable suspicion, random, and post-accident
testing of airmen, crewmembers, airport security
screening contract personnel, and other air
carrier employees responsible for safety-sensitive
functions (as determined by the Administrator) for
use, in violation of law, of alcohol or a
controlled substances. The Administrator may also
prescribe regulations, as the Administrator
considers appropriate in the interest of safety,
for the conduct of periodic recurring testing of
such employees for such use in violation of law.
"(2) The Administrator shall establish a program
applicable to employees of the Federal Aviation
Administration whose duties include responsibility
for safety-sensitive functions. Such programs
shall provide for preemployment, reasonable
suspicion, random, an post-accident testing for
use, in violation of law, of alcohol or a
controlled substance. The Administrator may also
prescribe regulations, as the Administrator
considers appropriate in the interest of safety,
for the conduct of periodic testing of such
employees for such use in violation of law.
"(3) In prescribing regulations under the programs
required by this subsection, the Administrator
shall require, as the Administrator considers
appropriate, the suspension or revocation of any
certificate issued to such a person, or the
disqualification or dismissal of any such person,
in accordance with this section, in any instance
where a test conduct and confirmed under this
section indicates that such person has used, in
violation of law, alcohol or a controlled
substance.
"PROHIBITION OF SERVICE
"(b)(1) No person may use, in violation of law,
alcohol or a controlled substance after the date of
enactment of this section and serve as an airman,
crewmember, airport security screening contract
personnel, air carrier employee responsible for
safety-sensitive functions (as determined by the
Administrator), or employee of the Federal Aviation
Administration with responsibility for
safety-sensitive functions.
"(2) No person who is determined to have used, in
violation of law, alcohol or a controlled substance
after the date of enactment of this section shall
serve as an airman, crewmember, airport security
screening contract personnel, air carrier employee
responsible for safety-sensitive functions (as
determined by the Administrator), or employee of
the Federal Aviation Administration with
responsibility for safety-sensitive functions
unless such person has completed a program of
rehabilitation described in subsection ©.
"(3) Any such person determined by the
Administrator to have used, in violation of law,
alcohol or a controlled substance after the date of
enactment of this section who--
"(A) engaged in such use while on duty;
"(B) prior to such use had undertaken or
completed a rehabilitation program
described in subsection © of this
section;
"(C) following such determination refuses
to undertake such rehabilitation program;
or
"(D) following such determination fails
to complete such a rehabilitation
program,
shall not be permitted to perform the duties
relating to air transportation which such person
performed prior to the date of such determination.
"PROGRAM FOR REHABILITATION
"©(1) The Administrator shall prescribe
regulations setting forth requirements for
rehabilitation programs which at a minimum provide
for the identification and opportunity for
treatment of employees referred to in subsection
(a)(1) in need of assistance in resolving problems
with the use, in violation of law, of alcohol or
controlled substances. Each air carrier or foreign
air carrier is encouraged to make such a program
available to all of its employees in addition to
those employees referred to in subsection (a)(1).
The Administrator shall determine the circumstances
under which such employees shall be required to
participate in such a program. Nothing in this
subsection shall preclude any air carrier or
foreign air carrier from establishing a program
under this subsection in cooperation with any other
air carrier or foreign air carrier.
"(2) The Administrator shall establish and maintain
a rehabilitation program which at a minimum
provides for the identification and opportunity for
treatment of those employees of the Federal
Aviation Administration whose duties include
responsibility for safety-sensitive functions who
are in need of assistance in resolving problems
with the use of alcohol or controlled substances.
"PROCEDURES
"(d) In establishing the program required under
subsection (a) of this section, the Administrator
shall development requirements which shall--
"(1) promote, to the maximum extent
practicable, individual privacy in the
collection of specimen samples;
"(2) with respect to laboratories and
testing procedures for controlled
substances, incorporate the Department of
Health and Human Services scientific and
technical guidelines dated April 11,
1988, and any amendments thereto,
including mandatory guidelines which--
"(A) establish comprehensive
standards for all aspects of
laboratory controlled
substances testing and
laboratory procedures to be
applied in carrying out this
section, including standards
that require the use of the
best available technology for
ensuring full reliability and
accuracy of controlled
substances tests and strict
procedures governing the chain
of custody of specimen samples
collected for controlled
substances testing;
"(B) establish the minimum list
of controlled substances for
which persons may be tested;
and
"(C) establish appropriate
standards and procedures for
periodic review of laboratories
and criteria for certification
and revocation of certification
of laboratories to perform
controlled substances testing
in carrying out this section;
"(3) require that all laboratories
involved in the controlled substances
testing of any person under this section
shall have the capability and facility,
at such laboratory, of performing
screening and confirmation tests;
"(4) provide that all tests that indicate
the use, in violation of law, of alcohol
or a controlled substance by any person
shall be confirmed by a scientifically
recognized method of testing capable of
providing quantitative data regarding
alcohol or a controlled substance;
"(5) provide that each specimen sample be
subdivided, secured, and labeled in the
presence of the tested person and that a
portion thereof be retained in a secure
manner to prevent the possibility of
tampering, so that if the person's
confirmation test results are positive
the person has an opportunity to have the
retained portion assayed by a
confirmation test done independently at a
second certified laboratory if the person
requests the independent test within 3
days after being advised of the results
of the confirmation test;
"(6) ensure appropriate safeguards for
testing to detect and quantify alcohol in
breath and body fluid samples, including
urine and blood, through the development
of regulations as may be necessary and in
consultation with the Department of
Health and Human Services;
"(7) provide for the confidentiality of
test results and medical information
(other than information relating to
alcohol or a controlled substance) of
employees, except that this paragraph
shall not preclude the use of test
results for the orderly imposition of
appropriate sanctions under this section;
and
"(8) ensure that employees are selected
for tests by nondiscriminatory and
impartial methods, so that no employee is
harassed by being treated differently
from other employees in similar
circumstances.
"EFFECT ON OTHER LAWS AND REGULATIONS
"(e)(1) No State or local government shall adopt or
have in effect any law, rule, regulation,
ordinance, standard, or order that is inconsistent
with the regulations promulgated under this
section, except that the regulations promulgated
under this section shall not be construed to
preempt provisions of State criminal law which
impose sanctions for reckless conduct leading to
actual loss of life, injury, or damage to property,
whether the provisions apply specifically to
employees of an air carrier or foreign air carrier
or to the general public.
"(2) Nothing in this section shall be construed to
restrict the discretion of the Administrator to
continue in force, amend, or further supplement any
regulations issued before the date of enactment of
this section that govern the use of alcohol and
controlled substances by airmen, crewmembers,
airport security screening contract personnel, air
carrier employees responsible for safety-sensitive
functions (as determined by the Administrator), or
employees of the Federal Aviation Administration
with responsibility for safety-sensitive functions.
"(3) In prescribing regulations under this section,
the Administrator shall establish requirements
applicable to foreign air carriers that are
consistent with the international obligations of
the United States, and the Administrator shall
take into consideration any applicable laws and
regulations of foreign countries. The Secretary of
State and the Secretary of Transportation, jointly,
shall call on the member countries of the
International Civil Aviation Organization to
strengthen and enforce existing standards to
prohibit the use, in violation of law, of alcohol
or a controlled substance by crewmembers in
international civil aviation.
"DEFINITION
"(f) For the purposes of this section, the term
"controlled substance" means any substance under
section 102(6) of the Controlled Substances Act
(21 U.S.C. 802(6)) specified by the
Administrator.".
(2) The portion of the table of contents of the Federal
Aviation Act of 1958 relating to title VI is amended by
adding at the end thereof the following:
"Sec. 613. Alcohol and controlled substances testing.
"(a) Testing program.
"(b) Prohibition on service.
"© Program for rehabilitation.
"(d) Procedures.
"(e) Effect on other laws and regulations.
"(f) Definition.".
(d) AMENDMENT OF THE FEDERAL RAILROAD SAFETY ACT.--Section 202 of the
Federal Railroad Safety Act of 1970 (45 U.S.C. 431) is amended by
adding at the end thereof the following new subsection:
"®(1) In the interest of safety, the Secretary shall, not
later than 12 months after the date of enactment of this
subsection, issue rules, regulations, standards, and orders
relating to alcohol and drug use in railroad operations.
Such regulations shall establish a program which--
"(A) requires railroads to conduct preemployment,
reasonable suspicion, random, and post-accident
testing of all railroad employees responsible for
safety-sensitive functions (as determined by the
Secretary) for use, in violation of law, of alcohol
or a controlled substance;
"(B) requires, as the Secretary considers
appropriate, disqualification for an established
period of time or dismissal of any employee
determined to have used or to have been impaired by
alcohol while on duty; and
"(C) requires, as the Secretary considers
appropriate, disqualification for an established
period of time or dismissal of any employee
determined to have used a controlled substance,
whether on duty or not on duty, except as permitted
for medical purposes by law and any rules,
regulations, standards, or orders issued under this
title.
The Secretary may also issue rules, regulations, standards,
and orders, as the Secretary considers appropriate in the
interest of safety, requiring railroads to conduct periodic
testing of railroad employees responsible for such safety
sensitive functions, for use of alcohol or a controlled
substance in violation of law. Nothing in this subsection
shall be construed to restrict the discretion of the
Secretary to continue in force, amend, or further supplement
any rules, regulations, standards, and orders governing the
use of alcohol and controlled substances in railroad
operations issued before the date of enactment of this
subsection.
"(2) In carrying out this subsection, the Secretary shall
develop requirements which shall--
"(A) promote, to the maximum extent practicable,
individual privacy in the collection of specimen
samples;
"(B) with respect to laboratories and testing
procedures for controlled substances, incorporate
the Department of Health and Human Services
scientific and technical guidelines dated April 11,
1988, and any amendments thereto, including
mandatory guidelines which--
"(i) establish comprehensive standards
for all aspects of laboratory controlled
substances testing and laboratory
procedures to be applied in carrying out
this subsection, including standards that
require the use of the best available
technology for ensuring the full
reliability and accuracy of controlled
substances tests and strict procedures
governing the chain of custody of
specimen samples collected for controlled
substances testing;
"(ii) establish the minimum list of
controlled substances for which persons
may be tested; and
"(iii) establish appropriate standards
and procedures for periodic review of
laboratories and criteria for
certification and revocation of
certification of laboratories to perform
controlled substances testing in carrying
out this subsection;
"(C) require that all laboratories involved in the
controlled substances testing of any employee under
this subsection shall have the capability and
facility, at such laboratory, of performing
screening and confirmation tests;
"(D) provide that all tests which indicate the use,
in violation of law, of alcohol or a controlled
substance by any employee shall be confirmed by a
scientifically recognized method of testing capable
of providing quantitative data regarding alcohol or
a controlled substance;
"(E) provide that each specimen sample be
subdivided, secured, and labeled in the presence of
the tested person and that a portion thereof be
retained in a secure manner to prevent the
possibility of tampering, so that in the event the
person's confirmation test results are positive the
person has an opportunity to have the retained
portion assayed by a confirmation test done
independently at a second certified laboratory if
the person requests the independent test within 3
days after being advised of the results of the
confirmation test;
"(F) ensure appropriate safeguards for testing to
detect and quantify alcohol in breath and body
fluid samples, including urine and blood, through
the development of regulations as may be necessary
and in consultation with the Department of Health
and Human Services;
"(G) provides for the confidentiality of test
results and medical information (other than
information relating to alcohol or a controlled
substance) of employees, except that the provisions
of this subparagraph shall not preclude the use of
test results for the orderly imposition of
appropriate sanctions under this subsection; and
"(H) ensure that employees are selected for tests
by nondiscriminatory and impartial methods, so that
no employee is harassed by being treated
differently from other employees in similar
circumstances.
"(3) The Secretary shall issue rules, regulations, standards,
or orders setting forth requirements for rehabilitation
programs which at a minimum provide for the identification
and opportunity for treatment of railroad employees
responsible for safety-sensitive functions (as determined by
the Secretary) in need of assistance in resolving problems
with the use, in violation of law, of alcohol or a controlled
substance. Each railroad is encouraged to make such a
program available to all of its employees in addition to
those employees responsible for safety-sensitive functions.
The Secretary shall determine the circumstances under which
such employees shall be required to participate in such
program. Nothing in this paragraph shall preclude a railroad
from establishing a program under this paragraph in
cooperation with any other railroad.
"(4) In carrying out the provisions of this subsection, the
Secretary shall establish requirements that are consistent
with the international obligations of the United States, and
the Secretary shall take into consideration any applicable
laws and regulations of foreign countries.
"(5) For the purposes of this subsection, the term
'controlled substance' means any substance under section
102(6) of the Controlled Substances Act (21 U.S.C. 802(6))
specified by the Secretary.".
(e) AMENDMENT OF THE COMMERCIAL MOTOR VEHICLE SAFETY ACT.--(1) The
Commercial Motor Vehicle Safety Act of 1986 (49 App. U.S.C.
2701 et seq.) is amended by adding at the end thereof the
following new section:
"SEC. 12020. ALCOHOL AND CONTROLLED SUBSTANCES
TESTING.
"(a) REGULATIONS.--The Secretary shall, in the
interest of commercial motor vehicle safety, issue
regulations not later than 12 months after the date
of enactment of this section. Such regulations
shall establish a program which requires motor
carriers to conduct preemployment, reasonable
suspicion, random, and post-accident testing of the
operators of commercial motor vehicles for use, in
violation of law, of alcohol or a controlled
substance. The Secretary may also issue
regulations, as the Secretary considers appropriate
in the interest of safety, for the conduct of
periodic testing of such operations for such use in
violation of law.
"(b) TESTING.--
"(1) POST-ACCIDENT TESTING.--In issuing
such regulations, the Secretary shall
require that post-accident testing of the
operator of a commercial motor vehicle be
conducted in the case of any accident
involving a commercial motor vehicle in
which occurs loss of human life, or, as
determined by the Secretary, other serious
accidents involving bodily injury or
significant property damage.
"(2) TESTING AS PART OF MEDICAL
EXAMINATION.--Nothing in subsection (a)
shall preclude the Secretary from
providing in such regulations that such
testing be conducted as part of the
medical examination required by subpart E
of part 391 of title 49, Code of Federal
Regulations, with respect to operators of
commercial motor vehicles to whom such
part is applicable.
"© PROGRAM FOR REHABILITATION.--The Secretary
shall issue regulations setting forth requirements
for rehabilitation programs which provide for the
identification and opportunity for treatment of
operators of commercial motor vehicles who are
determined to have used, in violation of law or
Federal regulation, alcohol or a controlled
substance. The Secretary shall determine the
circumstances under which such operators shall be
required to participate in such program. Nothing
in this subsection shall preclude a motor carrier
from establishing a program under this subsection
in cooperation with any other motor carrier.
"(d) PROCEDURES FOR TESTING.--In establishing the
program required under subsection (a) of this
section, the Secretary shall develop requirements
which shall--
"(1) promote, to the maximum extent
practicable, individual privacy in the
collection of specimen samples;
"(2) with respect to laboratories and
testing procedures for controlled
substances, incorporate the Department of
Health and Human Services scientific and
technical guidelines dated April 11,
1988, and any subsequent amendments
thereto, including mandatory guidelines
which--
"(A) establish comprehensive
standards for all aspects of
laboratory controlled
substances testing and
laboratory procedures to be
applied in carrying out this
section, including standards
which require the use of the
best available technology for
ensuring the full reliability
and accuracy of controlled
substances tests and strict
procedures governing the chain
of custody of specimen samples
collected for controlled
substances testing;
"(B) establish the minimum list
of controlled substances for
which individuals may be
tested; and
"(C) establish appropriate
standards and procedures for
periodic review of laboratories
and criteria for certification
and revocation of certification
of laboratories to perform
controlled substances testing
in carrying out this section;
"(3) require that all laboratories
involved in the testing of any individual
under this section shall have the
capability and facility, at such
laboratory, of performing screening and
confirmation tests;
"(4) provide that all tests which
indicate the use, i9 violation of law or
Federal regulation, of alcohol or a
controlled substance by any individual
shall be confirmed by a scientifically
recognized method of testing capable of
providing quantitative data regarding
alcohol or a controlled substance;
"(5) provide that each specimen sample be
subdivided, secured, and labeled in the
presence of the tested individual and
that a portion thereof be retained in a
secure manner to prevent the possibility
of tampering, so that in the event the
individual's confirmation test results
are positive the individual has an
opportunity to have the retained portion
assayed by a confirmation test done
independently at a second certified
laboratory if the individual requests the
independent test within 3 days after
being advised of the results of the
confirmation test;
"(6) ensure appropriate safeguards for
testing to detect and quantify alcohol in
breath and body fluid samples, including
urine and blood, through the development
of regulations as may be necessary and in
consultation with the Department of
Health and Human Services;
"(7) provide for the confidentiality of
test results and medical information
(other than information relating to
alcohol or a controlled substance) of
employees, except that the provisions of
this paragraph shall not preclude the use
of test results for the orderly
imposition of appropriate sanctions under
this section; and
"(8) ensure that employees are selected
for tests by nondiscriminatory and
impartial methods, so that no employee is
harassed by being treated differently
from other employees in similar
circumstances.
"(e) EFFECT ON OTHER LAWS AND REGULATIONS.--
"(1) STATE AND LOCAL LAW AND
REGULATIONS.--No State or local
government shall adopt or have in effect
any law, rule, regulation, ordinance,
standard, or order that is inconsistent
with the regulations issued under this
section, except that the regulations
issued under this section shall not be
construed to preempt provisions of State
criminal law which impose sanctions for
reckless conduct leading to actual loss
of life, injury, or damage to property,
whether the provisions apply specifically
to commercial motor vehicle employees, or
to the general public.
"(2) OTHER REGULATIONS ISSUED BY
SECRETARY.--Nothing in this section shall
be construed to restrict the discretion
of the Secretary to continue in force,
amend, or further supplement any
regulations governing the use of alcohol
or controlled substances by commercial
motor vehicle employees issued before the
date of enactment of this section.
"(3) INTERNATIONAL OBLIGATIONS.--In
issuing regulations under this section,
the Secretary shall only establish
requirements that are consistent with the
international obligations of the United
States, and the Secretary shall take into
consideration any applicable laws and
regulations of foreign countries.
"(f) APPLICATION OF PENALTIES.--
"(1) EFFECT ON OTHER PENALTIES.--Nothing
in this section shall be construed to
supersede any penalty applicable to the
operator of a commercial motor vehicle
under this title or any other provision
of law..
"(2) DETERMINATION OF SANCTIONS.--The
Secretary shall determine appropriate
sanctions for commercial motor vehicle
operators who are determined, as a result
of tests conducted and confirmed under
this section, to have used, in violation
of law or Federal regulation, alcohol or
a controlled substance but are not under
the influence of alcohol or a controlled
substance as provide in this title.
"(g) DEFINITION.--(1) For the purposes of this section, the
term 'controlled substance' means any substance under section
102(6) of the Controlled Substances Act (21 U.S.C. 802(6))
specified by the Secretary.".
(2) The table of contents of the Commercial Motor Vehicle
Safety Act of 1986 (Public Law 99-570; 100 Stat. 5223) is
amended by adding at the end thereof the following:
"Sec. 12020. Alcohol and controlled substances
testing.".
(3) The Secretary shall design within 9 months after the date
of enactment of this subsection, and implement within 15
months after the date of enactment of this subsection, a
pilot test program for the purpose of testing the operators
of commercial motor vehicles on a random basis to determine
whether an operator has used, in violation of law or Federal
regulation, alcohol or a controlled substance. The pilot
test program shall be administered as part of the Motor
Carrier Safety Assistance Program.
(4) The Secretary shall solicit the participation of State
which are interested in participating in such program and
shall select four States to participate in the program.
(5) The Secretary shall ensure that the states selected
pursuant to this section are representative of varying
geographical and population characteristics of the Nation and
that the selection takes into consideration the historical
geographical incidence of commercial motor vehicle accidents
involving loss of human life.
(6) The pilot program authorized by this section shall
continue for a period of one year. The Secretary shall
consider alternative methodologies for implementing a system
of random testing of operators of commercial motor vehicles.
(7) Not later than 30 months after the date of enactment of
this section, the Secretary shall prepare and submit to the
Congress a comprehensive report setting forth the results of
the pilot program conducted under this subsection. Such
report shall include any recommendations of the Secretary
concerning the desirability and implementation of a system
for the random testing of operators of commercial motor
vehicles.
(8) For the purposes of carrying out this subsection, there
shall be available to the Secretary $5,000,000 from funds
made available to carry out section 404 of the Surface
Transportation Assistance Act of 1982 (49 App. U.S.C. 2304)
for fiscal year 1990.
(9) For the purposes of this subsection, the term "commercial
motor vehicle" shall have the meaning given to such term in
section 12019(6) of the Commercial Motor Vehicle Safety Act
of 1986 (49 App. U.S.C. 2716(6)).
(f) AMENDMENT OF THE URBAN MASS TRANSPORTATION ACT.--The Urban Mass
Transportation Act of 1964 is amended by adding at the end thereof the
following new section:
"ALCOHOL AND CONTROLLED SUBSTANCES TESTING
"SEC. 26. (a) REGULATIONS.--The Secretary shall, in the
interest of mass transportation safety, issue regulations
within 12 months after the date of enactment of this section.
Such regulations shall establish a program which requires
each recipient of assistance under this Act to conduct
preemployment, reasonable suspicion, random, and postaccident
testing of the operators of mass transportation vehicles for
use, in violation of law or Federal regulation, of alcohol or
a controlled substance. The Secretary may also issue
regulations, as the Secretary considers appropriate in the
interest of safety, for the conduct of periodic recurring
testing of such operators for such use in violation of law or
Federal regulation.
"(b) POSTACCIDENT TESTING.--In issuing such regulations, the
Secretary shall require that postaccident testing of the
operator of a mass transportation vehicle be conducted in the
case of any accident involving a mass transportation vehicle
in which occurs loss of human life, or, as determined by the
Secretary, other serious accidents involving bodily injury or
significant property damage.
"© PROGRAM FOR REHABILITATION.--The Secretary shall issue
regulations setting forth requirements for rehabilitation
programs which provide for the identification and opportunity
for treatment of operators of mass transportation vehicles
who are determined to have used, in violation of law or
Federal regulation, alcohol or a controlled substance. The
Secretary shall determine the circumstances under which such
operators shall be required to participate in such a program.
Nothing in this subsection shall preclude a recipient from
establishing a program under this subsection in cooperation
with any other recipient.
"(d) PROCEDURES FOR TESTING.--In establishing the program
required under subsection (a) of this section, the Secretary
shall develop requirements which shall--
"(1) promote, to the maximum extent practicable,
individual privacy in the collection of specimen
samples;
"(2) with respect to laboratories and testing
procedures for controlled substances, incorporate
the Department of Health and Human Services
scientific and technical guidelines dated April 11,
1988, and any subsequent amendments thereto,
including mandatory guidelines which--
"(A) establish comprehensive standards
for all aspects of laboratory controlled
substances testing and laboratory
procedures to be applied in carrying out
this section, including standards which
require the use of the best available
technology for ensuring the full
reliability and accuracy of controlled
substances tests and strict procedures
governing the chain of custody of
specimen samples collected for controlled
substances testing;
"(B) establish the minimum list of
controlled substances for which
individuals may be tested; and
"(C) establish appropriate standards and
procedures for periodic review of
laboratories and criteria for
certification and revocation of
certification of laboratories to perform
controlled substances testing in carrying
out this section;
"(3) require that all laboratories involved in the
testing of any individual under this section shall
have the capability and facility, at such
laboratory, of performing screening and
confirmation tests;
"(4) provide that all tests which indicate the use,
in violation of law or Federal regulation, of
alcohol or a controlled substance by any individual
shall be confirmed by a scientifically recognized
method of testing capable of providing quantitative
data regarding alcohol or a controlled substance;
"(5) provide that each specimen sample be
subdivided, secured, and labeled in the presence of
the tested individual and that a portion thereof be
retained in a secure manner to prevent the
possibility of tampering, so that in the event the
individual's confirmation test results are positive
the individual has an opportunity to have the
retained portion assayed by a confirmation test
done independently at a second certified laboratory
if the individual requests the independent test
within 3 days after being advised of the results of
the confirmation test;
"(6) ensure appropriate safeguards for testing to
detect and quantify alcohol in breath and body
fluid samples, including urine and blood, through
the development of regulations as may be necessary
and in consultation with the Department of Health
and Human Services;
"(7) provide for the confidentiality of test
results and medical information (other than
information relating to alcohol or a controlled
substance) of employees, except that the provisions
of this paragraph shall not preclude the use of
test results for the orderly imposition of
appropriate sanctions under this section; and
"(8) ensure that employees are selected for tests
by nondiscriminatory and impartial methods, so that
no employee is harassed by being treated
differently from other employees in similar
circumstances.
"(e) EFFECT ON OTHER LAWS AND REGULATIONS.--
"(1) STATE AND LOCAL LAW AND REGULATIONS.--No State
or local government shall adopt or have in effect
any law, rule, regulation, ordinance, standard, or
order that is inconsistent with the regulations
issued under this section, except that the
regulations issued under this section shall not be
construed to preempt provisions of State criminal
law which impose sanctions for reckless conduct
leading to actual loss of life, injury, or damage
to property.
"(2) OTHER REGULATIONS ISSUED BY
SECRETARY.--Nothing in this section shall be
construed to restrict the discretion of the
Secretary to continue in force, amend, or further
supplement any regulations governing the use of
alcohol or controlled substances by mass
transportation employees issued before the date of
enactment of this section.
"(3) INTERNATIONAL OBLIGATIONS.--In issuing
regulations under this section, the Secretary shall
only establish requirements that are consistent
with the international obligations of the United
States, and the Secretary shall take into
consideration any applicable laws and regulations
of foreign countries.
"(f) APPLICATION OF PENALTIES.--
"(1) EFFECT ON OTHER PENALTIES.--Nothing in this
section shall be construed to supersede any penalty
applicable under this title or any other provision
of law..
"(2) DETERMINATION OF SANCTIONS.--The Secretary
shall determine appropriate sanctions for mass
transportation vehicle operators who are
determined, as a result of tests conducted and
confirmed under this section, to have used, in
violation of law or Federal regulation, alcohol or
a controlled substance but are not under the
influence of alcohol or a controlled substance as
provide in this title.
"(g) DEFINITION.--(1) For the purposes of this
section, the term 'controlled substance' means any
substance under section 102(6) of the Controlled
Substances Act (21 U.S.C. 802(6)) specified by the
Secretary.".
SEC. 208. MONETARY AWARDS FOR CERTAIN INFORMATION RELATING TO THE
UNLAWFUL SALE OF CONTROLLED SUBSTANCES.
Section 524z©(1) of title 28, United States Code is amended--
(1) by striking "Justice--" and inserting "Justice:";
(2) in subparagraph (A)--
(A) by striking "the" in the first place it appears
and inserting "The"; and
(B) by striking the semicolon at the end and
inserting a period; and
(3) in subparagraph (B)--
(A) by striking "the" the first place it appears
and inserting "The"; and
(B) by striking the semicolon at the end and
inserting a period; and
(4) in subparagraph (C)--
(A) by striking "the" the first place it appears
and inserting "The"; and
(B) by striking the semicolon at the end and
inserting a period;
(5) in subparagraph (D)--
(A) by striking "the" the first place it appears
and inserting "The"; and
(B) by striking the semicolon at the end and
inserting a period;
(6) in subparagraph (E)--
(A) by striking "disbursements" and inserting
"Disbursements"; and
(B) by striking the semicolon at the end and
inserting a period;
(7) in subparagraph (F)--
(A) by striking "for" the first place it appears
and inserting "For"; and
(B) by striking the semicolon at the end and
inserting a period;
(8) in subparagraph (G)--
(A) by striking "for" the first place it appears
and inserting "For"; and
(B) by striking the semicolon at the end and
inserting a period;
(9) in subparagraph (H)--
(A) by striking "after" and inserting "After";
(B) by striking "(H)" and inserting "(I)"; and
(10) by inserting after subparagraph (G) the following:
"(H)(i) For the payment of an award to any person
or persons who provide information leading to the
arrest and conviction under Federal law of any
individual or individuals for the unlawful sale, or
possession for sale, of a controlled substance or a
controlled substance analogue. The aggregate
amount of such award shall be equal to 50 percent
of the fair market value (as of the date of
forfeiture) of all property forfeited to the United
States as a result of such conviction and pursuant
to a law enforced or administered by the Department
of Justice: _Provided_, That payment of such
awards shall not reduce the amount of such moneys
or property available for distribution to State and
local law enforcement agencies.
"(ii) For the payment to the State or States in
which the Federal offense was committed by such
individual or individuals, of an incentive award to
encourage such State or States, at their option, to
establish a program (including outreach) to pay
rewards to persons who provide information leading
to the arrest and conviction under State law of
individuals for the unlawful sale, or possession
for sale, of controlled substances or controlled
substance analogues. The aggregate amount of such
incentive award shall be equal to 5 percent of the
fair market value (as of the date of forfeiture) of
all property forfeited to the United States as a
result of the convictions referred to in clause (i)
and pursuant to a law enforced or administered by
the Department of Justice.
"(iii) For the purposes of this subparagraph--
"(I) the term 'controlled substance' has
the meaning stated in section 102(6) of
the Controlled Substances Act;
"(II) the term 'controlled substance
analogue' has the meaning stated in
section 102(32) of the Controlled
Substances Act; and
"(III) the term 'individual' does not
include an individual who is convicted
under Federal or State law for the
unlawful sale, or possession for sale, of
a controlled substance or a controlled
substances analogue.".
TITLE III--AUTHORIZATION OF APPROPRIATIONS
SEC. 301. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are necessary to
carry out this Act.
SEC. 302. SEVERABILITY.
If any provision of this Act or any amendment made by this Act, or the
application of any such provision or amendment to any person or
circumstance is held invalid, the validity of any other such provision
or amendment, and the application of such provisions or amendment to
other persons and circumstances, shall not be affected thereby.
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