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[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.
                                 <all>
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