I 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Justice in Sentencing 

5 Act of 2004’’. 

6 SEC. 2. FINDINGS. 

7 Congress makes the following findings: 
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1 (1) In August 2003, United States Supreme 

2 Court Justice Anthony Kennedy, in a speech before 

3 the annual convention of the American Bar Associa4 tion, called for a reexamination of the issue of man5 datory minimum sentencing and a review of ‘‘. . . 

6 the inadequacies—and the injustices—in our penal 

7 correctional systems’’. 

8 (2) Justice Kennedy stated that in too many 

9 cases, mandatory minimum sentences are unwise 

10 and unjust, and that he could ‘‘. . . accept neither 

11 the necessity nor the wisdom of mandatory minimum 

12 sentences’’. 

13 (3) Justice Kennedy concluded that in the Fed14 eral criminal justice system ‘‘[o]ur resources are 

15 misspent, our punishments too severe, our sentences 

16 too long’’. 

17 (4) In response, in October 2003, the President 

18 of the ABA created the Justice Kennedy Commis19 sion to investigate the issues raised by Justice Ken20 nedy’s August 2003 speech. 

21 (5) On June 23, 2004, the Commission issued 

22 a report, which concluded that America’s criminal 

23 justice systems rely too heavily on incarceration and 

24 that they need to consider more effective alter-
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1 natives, including shorter sentences, treatment and 

2 prisoner reentry programs. 

3 (6) At its August 2004 annual convention, the 

4 ABA House of Delegates adopted the recommenda5 tions of the Justice Kennedy Commission, including 

6 the recommendation to repeal mandatory minimum 

7 sentencing statutes. 

8 (7) Since the enactment of mandatory min9 imum sentencing for drug users, the Federal Bureau 

10 of Prisons budget increased by more than 2,016 per11 cent, from $220,000,000 in 1986 to about 

12 $4,437,000,000 in 2004. 

13 (8) Mandatory minimums have not reduced sen14 tencing discretion, but rather have transferred dis15 cretion from judges to prosecutors. Prosecutors, not 

16 judges, have the discretion to reduce a charge, ac17 cept or deny a plea bargain, reward or deny a de18 fendant’s substantial assistance or cooperation in the 

19 prosecution of someone else, and ultimately, to de20 termine the final sentence of the defendant. 

21 (9) African Americans comprise 12 percent of 

22 the United States population, 15 percent of drug 

23 users, 17 percent of cocaine users, but 33 percent of 

24 all Federal drug convictions and 57 percent of Fed25 eral cocaine convictions. 
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1 (10) In 1986, before the mandatory minimums 

2 for crack cocaine offenses became effective, the aver3 age Federal offense for African Americans was 11 

4 percent higher than whites. Following the implemen5 tation of mandatory drug sentencing laws, the aver6 age drug offense sentence for African Americans was 

7 49 percent higher than whites. 

8 (11) The average dealer holds a low-wage job 

9 and sells part time to obtain for his or her own use. 

10 (12) According to the Justice Department, the 

11 time spent in prison does not affect recidivism rates. 

12 (13) Largely as a result of mandatory minimum 

13 sentencing statutes, there are now more than 

14 2,100,000 persons in prison and almost 70 percent 

15 of the people behind bars in America are persons of 

16 color. African Americans made up 40 percent of the 

17 Federal prison population in August 2003, up from 

18 31 percent in 1986 before Federal mandatory mini19 mums were enacted. 

20 (14) As a result of mandatory minimum sen21 tencing statutes, particularly with respect to drug 

22 crimes, in 2001, the average Federal drug traf23 ficking conviction was 72.7 months while the average 

24 Federal manslaughter sentence was 34.3 months, 
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1 the average assault sentence 37.7 months, and the 

2 average sexual abuse sentence 65.2 months. 

3 (15) In 1999, African Americans constituted 13 

4 percent of drug users. In that same year, African 

5 Americans constituted 35 percent of drug arrests, 

6 53 percent of drug convictions, and 58 percent of 

7 those in prison for drug offenses. 

8 (16) Though their rates of drug use are roughly 

9 equal, because of aggressive police tactics, racial 

10 profiling, and other activities heavily targeted at 

11 street level drug activity in urban areas (as opposed 

12 to the less visible drug activity prevalent in more af13 fluent areas), African Americans are arrested for 

14 drug offenses at six times the rate of whites. 

15 (17) Federal mandatory minimum sentences 

16 make African Americans more likely to be incarcer17 ated and for longer periods than their white counter18 parts. In the year 2000, 84.7 percent of crack co19 caine cases were brought against African Americans 

20 even though, in that year, African Americans com21 prised only about 26.6 percent of crack users. Only 

22 5.6 percent of crack cases that year were brought 

23 against Caucasians even though they constituted 

24 64.4 percent of crack users. 
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1 (18) In the 20 years from 1981 to 2001, the 

2 sentenced portion of the Federal prison population 

3 grew from about 20,000 in 1981 to about 115,000 

4 prisoners. During that same period, the percentage 

5 of drug offenders in Federal prison grew from 25 

6 percent to almost 60 percent. Mandatory minimum 

7 sentences for drug crimes are the largest drivers of 

8 expanding prison populations. 

9 SEC. 3. APPROVAL OF CERTAIN PROSECUTIONS BY ATTOR10 NEY GENERAL. 

11 A Federal prosecution for an offense under the Con12 trolled Substances Act, the Controlled Substances Import 

13 and Export Act, or for any conspiracy to commit such an 

14 offense, where the offense involves the illegal distribution 

15 or possession of a controlled substance in an amount less 

16 than that amount specified as a minimum for an offense 

17 under section 401(b)(1)(A) of the Controlled Substances 

18 Act (21 U.S.C. 841(b)(1)(A)) or, in the case of any sub19 stance containing cocaine or cocaine base, in an amount 

20 less than 500 grams, shall not be commenced without the 

21 prior written approval of the Attorney General. 

22 SEC. 4. MODIFICATION OF CERTAIN SENTENCING PROVI23 SIONS. 

24 (a) SECTION 404.—Section 404(a) of the Controlled 

25 Substances Act (21 U.S.C. 844(a)) is amended— 
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1 (1) by striking ‘‘not less than 15 days but’’; 

2 (2) by striking ‘‘not less than 90 days but’’; 

3 (3) by striking ‘‘not less than 5 years and’’; and 

4 (4) by striking the sentence beginning ‘‘The im5 position or execution of a minimum sentence’’. 

6 (b) SECTION 401.—Section 401(b) of the Controlled 

7 Substances Act (21 U.S.C. 841(b)) is amended.— 

8 (1) in paragraph (1)(A)— 

9 (A) by striking ‘‘which may not be less 

10 than 10 years and or more than’’ and inserting 

11 ‘‘for any term of years or for’’; 

12 (B) by striking ‘‘and if death’’ the first 

13 place it appears and all that follows through 

14 ‘‘20 years or more than life’’ the first place it 

15 appears; 

16 (C) by striking ‘‘which may not be less 

17 than 20 years and not more than life imprison18 ment’’ and inserting ‘‘for any term of years or 

19 for life’’; 

20 (D) by inserting ‘‘imprisonment for any 

21 term of years or’’ after ‘‘if death or serious bod22 ily injury results from the use of such substance 

23 shall be sentenced to’’; 
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1 (E) by striking the sentence beginning ‘‘If 

2 any person commits a violation of this subpara3 graph’’; and 

4 (F) by striking the sentence beginning 

5 ‘‘Notwithstanding any other provision of law’’ 

6 and the sentence beginning ‘‘No person sen7 tenced’’; and 

8 (2) in paragraph (1)(B)— 

9 (A) by striking ‘‘which may not be less 

10 than 5 years and’’ and inserting ‘‘for’’; 

11 (B) by striking ‘‘not less than 20 years or 

12 more than’’ and inserting ‘‘for any term of 

13 years or to’’; 

14 (C) by striking ‘‘which may not be less 

15 than 10 years and more than’’ and inserting 

16 ‘‘for any term of years or for’’; 

17 (D) by inserting ‘‘imprisonment for any 

18 term of years or to’’ after ‘‘if death or serious 

19 bodily injury results from the use of such sub20 stance shall be sentenced to’’; and 

21 (E) by striking the sentence beginning 

22 ‘‘Notwithstanding any other provision of law’’. 

23 (c) SECTION 1010.—Section 1010(b) of the Con24 trolled Substances Import and Export Act (21 U.S.C. 

25 960(b)) is amended— 
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1 (1) in paragraph (1)— 

2 (A) by striking ‘‘of not less than 10 years 

3 and not more than’’ and inserting ‘‘for any 

4 term of years or for’’; 

5 (B) by striking ‘‘and if death’’ the first 

6 place it appears and all that follows through 

7 ‘‘20 years and not more than life’’ the first 

8 place it appears; 

9 (C) by striking ‘‘of not less than 20 years 

10 and not more than life imprisonment’’ and in11 serting ‘‘for any term of years or for life’’; 

12 (D) by inserting ‘‘imprisonment for any 

13 term of years or to’’ after ‘‘if death or serious 

14 bodily injury results from the use of such sub15 stance shall be sentenced to’’; and 

16 (E) by striking the sentence beginning 

17 ‘‘Notwithstanding any other provision of law’’; 

18 and 

19 (2) in paragraph (2)— 

20 (A) by striking ‘‘not less than 5 years 

21 and’’; 

22 (B) by striking ‘‘of not less than twenty 

23 years and not more than’’ and inserting ‘‘for 

24 any term of years or for’’; 
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1 (C) by striking ‘‘of not less than 10 years 

2 and not more than’’ and inserting ‘‘for any 

3 term of years or to’’; 

4 (D) by inserting ‘‘imprisonment for any 

5 term of years or to’’ after ‘‘if death or serious 

6 bodily injury results from the use of such sub7 stance shall be sentenced to’’; and 

8 (E) by striking the sentence beginning 

9 ‘‘Notwithstanding any other provision of law’’. 

10 (d) SECTION 418.—Section 418 of the Controlled 

11 Substances Act (21 U.S.C. 859) is amended by striking 

12 the sentence beginning ‘‘Except to the extent’’ each place 

13 it appears and by striking the sentence beginning ‘‘The 

14 mandatory minimum’’. 

15 (e) SECTION 419.—Section 419 of the Controlled 

16 Substances Act (21 U.S.C. 860) is amended by striking 

17 the sentence beginning ‘‘Except to the extent’’ each place 

18 it appears and by striking the sentence beginning ‘‘The 

19 mandatory minimum’’. 

20 (f) SECTION 420.—Section 420 of the Controlled 

21 Substances Act (21 U.S.C. 861) is amended— 

22 (1) by striking subsection (e); and 

23 (2) in subsection (f), by striking ‘‘, (c), and (e)’’ 

24 and inserting ‘‘and (c)’’. 

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