[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5103 Introduced in House (IH)]






108th CONGRESS
  2d Session
                                H. R. 5103

 To repeal mandatory minimum sentencing for certain Federal crimes and 
     restore justice and fairness to Federal sentencing practices.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 15, 2004

  Ms. Waters introduced the following bill; which was referred to the 
Committee on the Judiciary, and in addition to the Committee on Energy 
    and Commerce, for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
 To repeal mandatory minimum sentencing for certain Federal crimes and 
     restore justice and fairness to Federal sentencing practices.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Justice in Sentencing Act of 2004''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) In August 2003, United States Supreme Court Justice 
        Anthony Kennedy, in a speech before the annual convention of 
        the American Bar Association, called for a reexamination of the 
        issue of mandatory minimum sentencing and a review of ``. . . 
        the inadequacies--and the injustices--in our penal correctional 
        systems''.
            (2) Justice Kennedy stated that in too many cases, 
        mandatory minimum sentences are unwise and unjust, and that he 
        could ``. . . accept neither the necessity nor the wisdom of 
        mandatory minimum sentences''.
            (3) Justice Kennedy concluded that in the Federal criminal 
        justice system ``[o]ur resources are misspent, our punishments 
        too severe, our sentences too long''.
            (4) In response, in October 2003, the President of the ABA 
        created the Justice Kennedy Commission to investigate the 
        issues raised by Justice Kennedy's August 2003 speech.
            (5) On June 23, 2004, the Commission issued a report, which 
        concluded that America's criminal justice systems rely too 
        heavily on incarceration and that they need to consider more 
        effective alternatives, including shorter sentences, treatment 
        and prisoner reentry programs.
            (6) At its August 2004 annual convention, the ABA House of 
        Delegates adopted the recommendations of the Justice Kennedy 
        Commission, including the recommendation to repeal mandatory 
        minimum sentencing statutes.
            (7) Since the enactment of mandatory minimum sentencing for 
        drug users, the Federal Bureau of Prisons budget increased by 
        more than 2,016 percent, from $220,000,000 in 1986 to about 
        $4,437,000,000 in 2004.
            (8) Mandatory minimums have not reduced sentencing 
        discretion, but rather have transferred discretion from judges 
        to prosecutors. Prosecutors, not judges, have the discretion to 
        reduce a charge, accept or deny a plea bargain, reward or deny 
        a defendant's substantial assistance or cooperation in the 
        prosecution of someone else, and ultimately, to determine the 
        final sentence of the defendant.
            (9) African Americans comprise 12 percent of the United 
        States population, 15 percent of drug users, 17 percent of 
        cocaine users, but 33 percent of all Federal drug convictions 
        and 57 percent of Federal cocaine convictions.
            (10) In 1986, before the mandatory minimums for crack 
        cocaine offenses became effective, the average Federal offense 
        for African Americans was 11 percent higher than whites. 
        Following the implementation of mandatory drug sentencing laws, 
        the average drug offense sentence for African Americans was 49 
        percent higher than whites.
            (11) The average dealer holds a low-wage job and sells part 
        time to obtain for his or her own use.
            (12) According to the Justice Department, the time spent in 
        prison does not affect recidivism rates.
            (13) Largely as a result of mandatory minimum sentencing 
        statutes, there are now more than 2,100,000 persons in prison 
        and almost 70 percent of the people behind bars in America are 
        persons of color. African Americans made up 40 percent of the 
        Federal prison population in August 2003, up from 31 percent in 
        1986 before Federal mandatory minimums were enacted.
            (14) As a result of mandatory minimum sentencing statutes, 
        particularly with respect to drug crimes, in 2001, the average 
        Federal drug trafficking conviction was 72.7 months while the 
        average Federal manslaughter sentence was 34.3 months, the 
        average assault sentence 37.7 months, and the average sexual 
        abuse sentence 65.2 months.
            (15) In 1999, African Americans constituted 13 percent of 
        drug users. In that same year, African Americans constituted 35 
        percent of drug arrests, 53 percent of drug convictions, and 58 
        percent of those in prison for drug offenses.
            (16) Though their rates of drug use are roughly equal, 
        because of aggressive police tactics, racial profiling, and 
        other activities heavily targeted at street level drug activity 
        in urban areas (as opposed to the less visible drug activity 
        prevalent in more affluent areas), African Americans are 
        arrested for drug offenses at six times the rate of whites.
            (17) Federal mandatory minimum sentences make African 
        Americans more likely to be incarcerated and for longer periods 
        than their white counterparts. In the year 2000, 84.7 percent 
        of crack cocaine cases were brought against African Americans 
        even though, in that year, African Americans comprised only 
        about 26.6 percent of crack users. Only 5.6 percent of crack 
        cases that year were brought against Caucasians even though 
        they constituted 64.4 percent of crack users.
            (18) In the 20 years from 1981 to 2001, the sentenced 
        portion of the Federal prison population grew from about 20,000 
        in 1981 to about 115,000 prisoners. During that same period, 
        the percentage of drug offenders in Federal prison grew from 25 
        percent to almost 60 percent. Mandatory minimum sentences for 
        drug crimes are the largest drivers of expanding prison 
        populations.

SEC. 3. APPROVAL OF CERTAIN PROSECUTIONS BY ATTORNEY GENERAL.

    A Federal prosecution for an offense under the Controlled 
Substances Act, the Controlled Substances Import and Export Act, or for 
any conspiracy to commit such an offense, where the offense involves 
the illegal distribution or possession of a controlled substance in an 
amount less than that amount specified as a minimum for an offense 
under section 401(b)(1)(A) of the Controlled Substances Act (21 U.S.C. 
841(b)(1)(A)) or, in the case of any substance containing cocaine or 
cocaine base, in an amount less than 500 grams, shall not be commenced 
without the prior written approval of the Attorney General.

SEC. 4. MODIFICATION OF CERTAIN SENTENCING PROVISIONS.

    (a) Section 404.--Section 404(a) of the Controlled Substances Act 
(21 U.S.C. 844(a)) is amended--
            (1) by striking ``not less than 15 days but'';
            (2) by striking ``not less than 90 days but'';
            (3) by striking ``not less than 5 years and''; and
            (4) by striking the sentence beginning ``The imposition or 
        execution of a minimum sentence''.
    (b) Section 401.--Section 401(b) of the Controlled Substances Act 
(21 U.S.C. 841(b)) is amended.--
            (1) in paragraph (1)(A)--
                    (A) by striking ``which may not be less than 10 
                years and or more than'' and inserting ``for any term 
                of years or for'';
                    (B) by striking ``and if death'' the first place it 
                appears and all that follows through ``20 years or more 
                than life'' the first place it appears;
                    (C) by striking ``which may not be less than 20 
                years and not more than life imprisonment'' and 
                inserting ``for any term of years or for life'';
                    (D) by inserting ``imprisonment for any term of 
                years or'' after ``if death or serious bodily injury 
                results from the use of such substance shall be 
                sentenced to'';
                    (E) by striking the sentence beginning ``If any 
                person commits a violation of this subparagraph''; and
                    (F) by striking the sentence beginning 
                ``Notwithstanding any other provision of law'' and the 
                sentence beginning ``No person sentenced''; and
            (2) in paragraph (1)(B)--
                    (A) by striking ``which may not be less than 5 
                years and'' and inserting ``for'';
                    (B) by striking ``not less than 20 years or more 
                than'' and inserting ``for any term of years or to'';
                    (C) by striking ``which may not be less than 10 
                years and more than'' and inserting ``for any term of 
                years or for'';
                    (D) by inserting ``imprisonment for any term of 
                years or to'' after ``if death or serious bodily injury 
                results from the use of such substance shall be 
                sentenced to''; and
                    (E) by striking the sentence beginning 
                ``Notwithstanding any other provision of law''.
    (c) Section 1010.--Section 1010(b) of the Controlled Substances 
Import and Export Act (21 U.S.C. 960(b)) is amended--
            (1) in paragraph (1)--
                    (A) by striking ``of not less than 10 years and not 
                more than'' and inserting ``for any term of years or 
                for'';
                    (B) by striking ``and if death'' the first place it 
                appears and all that follows through ``20 years and not 
                more than life'' the first place it appears;
                    (C) by striking ``of not less than 20 years and not 
                more than life imprisonment'' and inserting ``for any 
                term of years or for life'';
                    (D) by inserting ``imprisonment for any term of 
                years or to'' after ``if death or serious bodily injury 
                results from the use of such substance shall be 
                sentenced to''; and
                    (E) by striking the sentence beginning 
                ``Notwithstanding any other provision of law''; and
            (2) in paragraph (2)--
                    (A) by striking ``not less than 5 years and'';
                    (B) by striking ``of not less than twenty years and 
                not more than'' and inserting ``for any term of years 
                or for'';
                    (C) by striking ``of not less than 10 years and not 
                more than'' and inserting ``for any term of years or 
                to'';
                    (D) by inserting ``imprisonment for any term of 
                years or to'' after ``if death or serious bodily injury 
                results from the use of such substance shall be 
                sentenced to''; and
                    (E) by striking the sentence beginning 
                ``Notwithstanding any other provision of law''.
    (d) Section 418.--Section 418 of the Controlled Substances Act (21 
U.S.C. 859) is amended by striking the sentence beginning ``Except to 
the extent'' each place it appears and by striking the sentence 
beginning ``The mandatory minimum''.
    (e) Section 419.--Section 419 of the Controlled Substances Act (21 
U.S.C. 860) is amended by striking the sentence beginning ``Except to 
the extent'' each place it appears and by striking the sentence 
beginning ``The mandatory minimum''.
    (f) Section 420.--Section 420 of the Controlled Substances Act (21 
U.S.C. 861) is amended--
            (1) by striking subsection (e); and
            (2) in subsection (f), by striking ``, (c), and (e)'' and 
        inserting ``and (c)''.
                                 <all>