I 111th CONGRESS 1st Session H. R. 1466 IN THE HOUSE OF REPRESENTATIVES March 12, 2009 Ms. Waters (for herself, Mr. Scott of Virginia, Ms. Corrine Brown of Florida, Mr. Meeks of New York, Ms. Kilpatrick of Michigan, Ms. Norton, Mr. Johnson of Georgia, Ms. Clarke, Mr. Cohen, Mr. Hastings of Florida, Mr. Ellison, Mr. Pastor of Arizona, Mr. Stark, Ms. Fudge, Mr. Fattah, and Mr. Davis of Illinois) 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 concentrate Federal resources aimed at the prosecution of drug offenses on those offenses that are major.

1.

Short title

This Act may be cited as the Major Drug Trafficking Prosecution Act of 2009.

2.

Findings

Congress makes the following findings: (1)Since the enactment of mandatory minimum sentencing for drug users, the Federal Bureau of Prisons budget increased from $220 million in 1986 to $5.4 billion in 2008. (2)Mandatory minimum sentences are statutorily prescribed terms of imprisonment that automatically attach upon conviction of certain criminal conduct, usually pertaining to drug or firearm offenses. Absent very narrow criteria for relief, a sentencing judge is powerless to mandate a term of imprisonment below the mandatory minimum. Mandatory minimum sentences for drug offenses rely solely upon the weight of the substance as a proxy for the degree of involvement of a defendant’s role. (3)Mandatory minimum sentences have consistently been shown to have a disproportionate impact on African Americans. The United States Sentencing Commission, in a 15-year overview of the Federal sentencing system, concluded that mandatory penalty statutes are used inconsistently and disproportionately affect African American defendants. As a result, African American drug defendants are 20 percent more likely to be sentenced to prison than white drug defendants. (4)In the Anti-Drug Abuse Act of 1986, Congress structured antidrug penalties to encourage the Department of Justice to concentrate its enforcement effort against high-level and major-level drug traffickers, and provided new, long mandatory minimum sentences for such offenders, correctly recognizing the Federal role in the combined Federal-State drug enforcement effort. (5)Between 1994 and 2003, the average time served by African Americans for a drug offense increased by 62 percent, compared with a 17 percent increase among white drug defendants. Much of this disparity is attributable to the severe penalties associated with crack cocaine. (6)African Americans, on average, now serve almost as much time in Federal prison for a drug offense (58.7 months) as whites do for a violent offense (61.7 months). (7)Linking drug quantity with punishment severity has had a particularly profound impact on women, who are more likely to play peripheral roles in a drug enterprise than men. However, because prosecutors can attach drug quantities to an individual regardless of the level of culpability of a defendant’s participation in the charged offense, women have been exposed to increasingly punitive sentences to incarceration. (8)In 2003, the States sentenced more than 340,000 drug offenders to felony convictions, compared to 25,000 Federal felony drug convictions. (9)Low-level and mid-level drug offenders can be adequately prosecuted by the States and punished or supervised in treatment as appropriate. (10)Federal drug enforcement resources are not being properly focused, as only 12.8 percent of powder cocaine prosecutions and 8.4 percent of crack cocaine prosecutions were brought against high-level traffickers, according to the Report to Congress: Cocaine and Federal Sentencing Policy, issued May, 2007 by the United States Sentencing Commission. (11)According to the Report to Congress, The majority of federal cocaine offenders generally perform low-level functions …. (12)The Departments of Justice, Treasury, and Homeland Security are the agencies with the greatest capacity to investigate, prosecute and dismantle the highest level of drug trafficking organizations, and investigations and prosecutions of low-level offenders divert Federal personnel and resources from the prosecution of the highest-level traffickers, for which such agencies are best suited. (13)Congress must have the most current information on the number of prosecutions of high-level and low-level drug offenders in order to properly reauthorize Federal drug enforcement programs. (14)One consequence of the improper focus of Federal cocaine prosecutions has been that the overwhelming majority of low-level offenders subject to the heightened crack cocaine penalties are black and according to the Report to Congress only 8.8 percent of Federal crack cocaine convictions were imposed on whites, while 81.8 percent and 8.4 percent were imposed on blacks and Hispanics, respectively (15)According to the 2002 Report to Congress: Cocaine and Federal Sentencing Policy, issued May, 2002 by the United States Sentencing Commission, there is a widely-held perception that the current penalty structure for federal cocaine offenses promotes unwarranted disparity based on race. (16)African Americans comprise 12 percent of the US population and 14 percent of drug users, but 30 percent of all Federal drug convictions. (17)Drug offenders released from prison in 1986 who had been sentenced before the adoption of mandatory sentences and sentencing guidelines had served an average of 22 months in prison. Offenders sentenced in 2004, after the adoption of mandatory sentences, were expected to serve almost three times that length, or 62 months in prison. (18)According to the Justice Department, the time spent in prison does not affect recidivism rates. (19)Government surveys document that drug use is fairly consistent across racial and ethnic groups. While there is less data available regarding drug sellers, research finds that drug users generally buy drugs from someone of their own racial or ethnic background. But almost three-quarters of all Federal narcotics cases are filed against blacks and Hispanics, many of whom are low-level offenders.

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; (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; (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; (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; (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)in each of subsections (b) and (c), by striking the sentence beginning Except to the extent; (2)by striking subsection (e); and (3)in subsection (f), by striking , (c), and (e) and inserting and (c).