[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 265 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 265
To target cocaine kingpins and address sentencing disparity between
crack and powder cocaine.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
January 7, 2009
Ms. Jackson-Lee of Texas 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 target cocaine kingpins and address sentencing disparity between
crack and powder cocaine.
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 ``Drug Sentencing Reform and Cocaine
Kingpin Trafficking Act of 2009''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Cocaine base (commonly known as ``crack cocaine'') is
made by dissolving cocaine hydrochloride (commonly known as
``powder cocaine'') in a solution of sodium bicarbonate (or a
similar agent) and water. Therefore, crack and powder cocaine
are simply different forms of the same substance and all crack
cocaine originates as powder cocaine.
(2) The physiological and psychotropic effects of cocaine
are similar regardless of whether it is in the form of cocaine
base (crack) or cocaine hydrochloride (powder).
(3) One of the principal objectives of the Anti-Drug Abuse
Act of 1986, which established different mandatory minimum
penalties for different drugs, was to target Federal law
enforcement and prosecutorial resources on serious and major
drug traffickers.
(4) In 1986, Congress linked mandatory minimum penalties to
different drug quantities, which were intended to serve as
proxies for identifying offenders who were ``serious''
traffickers (managers of retail drug trafficking) and ``major''
traffickers (manufacturers or the kingpins who headed drug
organizations).
(5) Although drug purity and individual tolerance vary,
making it difficult to state with specificity the individual
dose of each form of cocaine, 5 grams of powder cocaine
generally equals 25 to 50 individual doses and 500 grams of
powder cocaine generally equals 2,500 to 5,000 individual
doses, while 5 grams of crack cocaine generally equals 10 to 50
individual doses (or enough for a heavy user to consume in one
weekend) and 500 grams of crack cocaine generally equals 100 to
500 individual doses.
(6) In part because Congress believed that crack cocaine
had unique properties that made it instantly addictive, the
Anti-Drug Abuse Act of 1986 established an enormous disparity
(a 100 to 1 powder-to-crack ratio) in the quantities of powder
and crack cocaine that trigger 5- and 10-year mandatory minimum
sentences. This disparity permeates the Sentencing Guidelines.
(7) Congress also based its decision to establish the 100
to 1 quantity ratio on the beliefs that--
(A) crack cocaine distribution and use was
associated with violent crime to a much greater extent
than was powder cocaine;
(B) prenatal exposure to crack cocaine was
particularly devastating for children of crack users;
(C) crack cocaine use was particularly prevalent
among young people; and
(D) crack cocaine's potency, low cost, and ease of
distribution and use were fueling its widespread use.
(8) As a result, it takes 100 times more powder cocaine
than crack cocaine to trigger the 5- and 10-year mandatory
minimum sentences. While it takes 500 grams of powder cocaine
to trigger the 5-year mandatory minimum sentence, it takes just
5 grams of crack cocaine to trigger that sentence. Similarly,
while it takes 5 kilograms of powder cocaine to trigger the 10-
year mandatory minimum sentence, 50 grams of crack cocaine will
trigger the same sentence.
(9) Most of the assumptions on which the current penalty
structure was based have turned out to be unfounded.
(10) Studies comparing usage of powder and crack cocaine
have shown that there is little difference between the two
forms of the drug and fundamentally undermine the current
quantity-based sentencing disparity. More specifically, the
studies have shown the following:
(A) Both forms of cocaine cause identical effects,
although crack is smoked, while powder cocaine is
typically snorted. Epidemiological data show that
smoking a drug delivers it to the brain more rapidly,
which increases likelihood of addiction. Therefore,
differences in the typical method of administration of
the two forms of the drug, and not differences in the
inherent properties of the two forms of the drug, make
crack cocaine potentially more addictive to typical
users than powder cocaine. Both forms of the drug are
addictive, however, and the treatment protocol for the
drug is the same regardless of the form of the drug the
patient has used.
(B) Violence committed by crack users is relatively
rare, and overall violence has decreased for both
powder and crack cocaine offenses. Almost all crack-
related violence is systemic violence that occurs
within the drug distribution process. Sentencing
enhancements are better suited to punish associated
violence, which are separate, pre-existing crimes in
and of themselves.
(C) The negative effects of prenatal exposure to
crack cocaine were vastly overstated. They are
identical to the effects of prenatal exposure to powder
cocaine and do not serve as a justification for the
sentencing disparity between crack and powder.
(D) Although Congress in the mid-1980s was
understandably concerned that the low-cost and potency
of crack cocaine would fuel an epidemic of use by
minors, the epidemic of crack cocaine use by young
people never materialized to the extent feared. In
fact, in 2005, the rate of powder cocaine use among
young adults was almost 7 times as high as the rate of
crack cocaine use. Furthermore, sentencing data suggest
that young people do not play a major role in crack
cocaine trafficking at the Federal level.
(E) The current 100 to 1 penalty structure
undermines various congressional objectives set forth
in the Anti-Drug Abuse Act of 1986. Data collected by
the United States Sentencing Commission show that
Federal resources have been targeted at offenders who
are subject to the mandatory minimum sentences, which
sweep in low-level crack cocaine users and dealers.
(11) In 1988, Congress set a mandatory minimum sentence for
mere possession of crack cocaine, the only controlled substance
for which there is a mandatory minimum sentence for simple
possession for a first-time offender.
(12) Major drug traffickers and kingpins traffic in powder,
not crack.
(13) Contrary to Congress's objective of focusing Federal
resources on drug kingpins, the majority of Federal powder and
crack cocaine offenders are those who perform low level
functions in the supply chain.
(14) As a result of the low-level drug quantities that
trigger lengthy mandatory minimum penalties for crack cocaine,
the concentration of lower level Federal offenders is
particularly pronounced among crack cocaine offenders, more
than half of whom were street level dealers in 2005.
(15) 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, but 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.
(16) The unwarranted sentencing disparity not only
overstates the relative harmfulness of the two forms of the
drug and diverts Federal resources from high-level drug
traffickers, but it also disproportionately affects the
African-American community. According to the United States
Sentencing Commission's May 2007 Report, 82 percent of Federal
crack cocaine offenders sentenced in 2006 were African-
American, while 8 percent were Hispanic and 8 percent were
White.
(17) Only 13 States have sentencing laws that distinguish
between powder and crack cocaine.
SEC. 3. COCAINE SENTENCING DISPARITY ELIMINATION.
(a) CSA.--Section 401(b)(1) of the Controlled Substances Act (21
U.S.C. 841(b)(1)) is amended--
(1) in subparagraph (A)(iii), by striking ``50 grams'' and
inserting ``5 kilograms''; and
(2) in subparagraph (B)(iii), by striking ``5 grams'' and
inserting ``500 grams.''
(b) Import and Export Act.--Section 1010(b) of the Controlled
Substances Import and Export Act (21 U.S.C. 960(b)) is amended--
(1) in paragraph (1)(C), by striking ``50 grams'' and
inserting ``5 kilograms''; and
(2) in paragraph (2)(C), by striking ``5 grams'' and
inserting ``500 grams''.
SEC. 4. ELIMINATION OF MANDATORY MINIMUM FOR SIMPLE POSSESSION.
Section 404(a) of the Controlled Substances Act (21 U.S.C. 844(a))
is amended by striking the sentence beginning ``Notwithstanding the
preceding sentence,''.
SEC. 5. INCREASED EMPHASIS ON CERTAIN AGGRAVATING AND MITIGATING
FACTORS.
Pursuant to its authority under section 994 of title 28, United
States Code, the United States Sentencing Commission shall review and,
if appropriate, amend the sentencing guidelines to ensure that the
penalties for an offense involving trafficking of a controlled
substance--
(1) provide tiered enhancements for the involvement of a
dangerous weapon or violence, including, if appropriate--
(A) an enhancement for the use or brandishment of a
dangerous weapon;
(B) an enhancement for the use, or threatened use,
of violence; and
(C) any other enhancement the Commission considers
necessary;
(2) adequately take into account the culpability of the
defendant and the role of the defendant in the offense,
including consideration of whether enhancements should be
added, either to the existing enhancements for aggravating role
or otherwise, that take into account aggravating factors
associated with the offense, including--
(A) whether the defendant committed the offense as
part of a pattern of criminal conduct engaged in as a
livelihood;
(B) whether the defendant is an organizer or leader
of drug trafficking activities involving five or more
persons;
(C) whether the defendant maintained an
establishment for the manufacture or distribution of
the controlled substance;
(D) whether the defendant distributed a controlled
substance to an individual under the age of 21 years of
age or to a pregnant woman;
(E) whether the defendant involved an individual
under the age of 18 years or a pregnant woman in the
offense;
(F) whether the defendant manufactured or
distributed the controlled substance in a location
described in section 409(a) or section 419(a) of the
Controlled Substances Act (21 U.S.C. 849(a) or 860(a));
(G) whether the defendant bribed, or attempted to
bribe, a Federal, State, or local law enforcement
officer in connection with the offense;
(H) whether the defendant was involved in
importation into the United States of a controlled
substance;
(I) whether bodily injury or death occurred in
connection with the offense;
(J) whether the defendant committed the offense
after previously being convicted of a felony controlled
substances offense; and
(K) any other factor the Commission considers
necessary; and
(3) adequately take into account mitigating factors
associated with the offense, including--
(A) whether the defendant had minimum knowledge of
the illegal enterprise;
(B) whether the defendant received little or no
compensation in connection with the offense;
(C) whether the defendant acted on impulse, fear,
friendship, or affection when the defendant was
otherwise unlikely to commit such an offense; and
(D) whether any maximum base offense level should
be established for a defendant who qualifies for a
mitigating role adjustment.
SEC. 6. OFFENDER DRUG TREATMENT INCENTIVE GRANTS.
(a) Grant Program Authorized.--The Attorney General shall carry out
a grant program under which the Attorney General may make grants to
States, units of local government, territories, and Indian tribes in an
amount described in subsection (c) to improve the provision of drug
treatment to offenders in prisons, jails, and juvenile facilities.
(b) Requirements for Application.--
(1) In general.--To be eligible to receive a grant under
subsection (a) for a fiscal year, an entity described in such
subsection shall, in addition to any other requirements
specified by the Attorney General, submit to the Attorney
General an application that demonstrates that, with respect to
offenders in prisons, jails, and juvenile facilities who
require drug treatment and who are in the custody of the
jurisdiction involved, during the previous fiscal year that
entity provided drug treatment meeting the standards
established by the Single State Authority for Substance Abuse
(as that term is defined in section 7(e)) for the relevant
State to a number of such offenders that is two times the
number of such offenders to whom that entity provided drug
treatment during the fiscal year that is 2 years before the
fiscal year for which that entity seeks a grant.
(2) Other requirements.--An application under this section
shall be submitted in such form and manner and at such time as
specified by the Attorney General.
(c) Allocation of Grant Amounts Based on Drug Treatment Percent
Demonstrated.--The Attorney General shall allocate amounts under this
section for a fiscal year based on the percent of offenders described
in subsection (b)(1) to whom an entity provided drug treatment in the
previous fiscal year, as demonstrated by that entity in its application
under that subsection.
(d) Uses of Grants.--A grant awarded to an entity under subsection
(a) shall be used--
(1) for continuing and improving drug treatment programs
provided at prisons, jails, and juvenile facilities of that
entity; and
(2) to strengthen rehabilitation efforts for offenders by
providing addiction recovery support services, such as job
training and placement, education, peer support, mentoring, and
other similar services.
(e) Reports.--An entity that receives a grant under subsection (a)
during a fiscal year shall, not later than the last day of the
following fiscal year, submit to the Attorney General a report that
describes and assesses the uses of such grant.
(f) Authorization of Appropriations.--There are authorized to be
appropriated $10,000,000 to carry out this section for each of fiscal
years 2009 and 2010.
SEC. 7. GRANTS FOR DEMONSTRATION PROGRAMS TO REDUCE DRUG USE SUBSTANCE
ABUSERS.
(a) Awards Required.--The Attorney General may make competitive
grants to eligible partnerships, in accordance with this section, for
the purpose of establishing demonstration programs to reduce the use of
alcohol and other drugs by supervised substance abusers during the
period in which each such substance abuser is in prison, jail, or a
juvenile facility, and until the completion of parole or court
supervision of such abuser.
(b) Use of Grant Funds.--A grant made under subsection (a) to an
eligible partnership for a demonstration program, shall be used--
(1) to support the efforts of the agencies, organizations,
and researchers included in the eligible partnership, with
respect to the program for which a grant is awarded under this
section;
(2) to develop and implement a program for supervised
substance abusers during the period described in subsection
(a), which shall include--
(A) alcohol and drug abuse assessments that--
(i) are provided by a State-approved
program; and
(ii) provide adequate incentives for
completion of a comprehensive alcohol or drug
abuse treatment program, including through the
use of graduated sanctions; and
(B) coordinated and continuous delivery of drug
treatment and case management services during such
period; and
(3) to provide addiction recovery support services (such as
job training and placement, peer support, mentoring, education,
and other related services) to strengthen rehabilitation
efforts for substance abusers.
(c) Application.--To be eligible for a grant under subsection (a)
for a demonstration program, an eligible partnership shall submit to
the Attorney General an application that--
(1) identifies the role, and certifies the involvement, of
each agency, organization, or researcher involved in such
partnership, with respect to the program;
(2) includes a plan for using judicial or other criminal or
juvenile justice authority to supervise the substance abusers
who would participate in a demonstration program under this
section, including for--
(A) administering drug tests for such abusers on a
regular basis; and
(B) swiftly and certainly imposing an established
set of graduated sanctions for non-compliance with
conditions for reentry into the community relating to
drug abstinence (whether imposed as a pre-trial,
probation, or parole condition, or otherwise);
(3) includes a plan to provide supervised substance abusers
with coordinated and continuous services that are based on
evidence-based strategies and that assist such abusers by
providing such abusers with--
(A) drug treatment while in prison, jail, or a
juvenile facility;
(B) continued treatment during the period in which
each such substance abuser is in prison, jail, or a
juvenile facility, and until the completion of parole
or court supervision of such abuser;
(C) addiction recovery support services;
(D) employment training and placement;
(E) family-based therapies;
(F) structured post-release housing and
transitional housing, including housing for recovering
substance abusers; and
(G) other services coordinated by appropriate case
management services;
(4) includes a plan for coordinating the data
infrastructures among the entities included in the eligible
partnership and between such entities and the providers of
services under the demonstration program involved (including
providers of technical assistance) to assist in monitoring and
measuring the effectiveness of demonstration programs under
this section; and
(5) includes a plan to monitor and measure the number of
substance abusers--
(A) located in each community involved; and
(B) who improve the status of their employment,
housing, health, and family life.
(d) Reports to Congress.--
(1) Interim report.--Not later than September 30, 2009, the
Attorney General shall submit to Congress a report that
identifies the best practices relating to the comprehensive and
coordinated treatment of substance abusers, including the best
practices identified through the activities funded under this
section.
(2) Final report.--Not later than September 30, 2010, the
Attorney General shall submit to Congress a report on the
demonstration programs funded under this section, including on
the matters specified in paragraph (1).
(e) Definitions.--In this section:
(1) Eligible partnership.--The term ``eligible
partnership'' means a partnership that includes--
(A) the applicable Single State Authority for
Substance Abuse;
(B) the State, local, territorial, or tribal
criminal or juvenile justice authority involved;
(C) a researcher who has experience in evidence-
based studies that measure the effectiveness of
treating long-term substance abusers during the period
in which such abusers are under the supervision of the
criminal or juvenile justice system involved;
(D) community-based organizations that provide drug
treatment, related recovery services, job training and
placement, educational services, housing assistance,
mentoring, or medical services; and
(E) Federal agencies (such as the Drug Enforcement
Agency, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives, and the office of a United States
attorney).
(2) Substance abuser.--The term ``substance abuser'' means
an individual who--
(A) is in a prison, jail, or juvenile facility;
(B) has abused illegal drugs or alcohol for a
number of years; and
(C) is scheduled to be released from prison, jail,
or a juvenile facility during the 24-month period
beginning on the date the relevant application is
submitted under subsection (c).
(3) Single state authority for substance abuse.--The term
``Single State Authority for Substance Abuse'' means an entity
designated by the Governor or chief executive officer of a
State as the single State administrative authority responsible
for the planning, development, implementation, monitoring,
regulation, and evaluation of substance abuse services in that
State.
(f) Authorization of Appropriations.--There are authorized to be
appropriated to carry out this section $5,000,000 for each of fiscal
years 2009 and 2010.
SEC. 8. EMERGENCY AUTHORITY FOR UNITED STATES SENTENCING COMMISSION.
(a) In General.--The United States Sentencing Commission, in its
discretion, may--
(1) promulgate amendments pursuant to the directives in
this Act in accordance with the procedure set forth in section
21(a) of the Sentencing Act of 1987 (Public Law 100-182), as
though the authority under that Act had not expired; and
(2) pursuant to the emergency authority provided in
paragraph (1), make such conforming amendments to the
Sentencing Guidelines as the Commission determines necessary to
achieve consistency with other guideline provisions and
applicable law.
(b) Promulgation.--The Commission shall promulgate any amendments
under subsection (a) promptly so that the amendments take effect on the
same date as the amendments made by this Act.
SEC. 9. INCREASED PENALTIES FOR MAJOR DRUG TRAFFICKERS.
(a) Increased Penalties for Manufacture, Distribution,
Dispensation, or Possession With Intent To Manufacture, Distribute, or
Dispense.--Section 401(b)(1) of the Controlled Substances Act (21
U.S.C. 841(b)) is amended--
(1) in subparagraph (A), by striking ``$4,000,000'',
``$10,000,000'', ``$8,000,000'', and ``$20,000,000'' and
inserting ``$10,000,000'', ``$50,000,000'', ``$20,000,000'',
and ``$75,000,000'', respectively; and
(2) in subparagraph (B), by striking ``$2,000,000'',
``$5,000,000'', ``$4,000,000'', and ``$10,000,000'' and
inserting ``$5,000,000'', ``$25,000,000'', ``$8,000,000'', and
``$50,000,000'', respectively.
(b) Increased Penalties for Importation and Exportation.--Section
1010(b) of the Controlled Substances Import and Export Act (21 U.S.C.
960(b)) is amended--
(1) in paragraph (1), by striking ``$4,000,000'',
``$10,000,000'', ``$8,000,000'', and ``$20,000,000'' and
inserting ``$10,000,000'', ``$50,000,000'', ``$20,000,000'',
and ``$75,000,000'', respectively, and
(2) in paragraph (2), by striking ``$2,000,000'',
``$5,000,000'', ``$4,000,000'', and ``$10,000,000'' and
inserting ``$5,000,000'', ``$25,000,000'', ``$8,000,000'', and
``$50,000,000'', respectively.
SEC. 10. AUTHORIZATION OF APPROPRIATIONS AND REQUIRED REPORT.
(a) Authorization of Appropriations for Department of Justice.--
There is authorized to be appropriated to the Department of Justice not
more than $36,000,000 for each of the fiscal years 2009 and 2010 for
the prosecution of high-level drug offenses, of which--
(1) $15,000,000 is for salaries and expenses of the Drug
Enforcement Administration;
(2) $15,000,000 is for salaries and expenses for the
Offices of United States Attorneys;
(3) $4,000,000 each year is for salaries and expenses for
the Criminal Division; and
(4) $2,000,000 is for salaries and expenses for the Office
of the Attorney General for the management of such
prosecutions.
(b) Authorization of Appropriations for Department of Treasury.--
There is authorized to be appropriated to the Department of the
Treasury for salaries and expenses of the Financial Crime Enforcement
Network (FINCEN) not more than $10,000,000 for each of fiscal years
2009 and 2010 in support of the prosecution of high-level drug
offenses.
(c) Authorization of Appropriations for Department of Homeland
Security.--There is authorized to be appropriated for the Department of
Homeland Security not more than $10,000,000 for each of fiscal years
2009 and 2010 for salaries and expenses in support of the prosecution
of high-level drug offenses.
(d) Additional Funds.--Amounts authorized to be appropriated under
this section shall be in addition to amounts otherwise available for,
or in support of, the prosecution of high-level drug offenses.
(e) Report of Comptroller General.--Not later than 180 days after
the end of each of fiscal years 2009 and 2010, the Comptroller General
shall submit to the Committees on the Judiciary and the Committees on
Appropriations of the Senate and House of Representatives a report
containing information on the actual uses made of the funds
appropriated pursuant to the authorization of this section.
SEC. 11. EFFECTIVE DATE.
The amendments made by this Act shall apply to any offense
committed on or after 180 days after the date of enactment of this Act.
There shall be no retroactive application of any portion of this Act.
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