I 108th CONGRESS 2d Session H. R. 5103 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.

1.

Short title

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

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.

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.

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).