(1) In August 2003, United States Supreme 
Court Justice Anthony Kennedy, in a speech before 
the annual convention of the American Bar Associa-
tion, called for a reexamination of the issue of man-
datory 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 Fed-
eral 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 Commis-
sion to investigate the issues raised by Justice Ken-
nedy’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 alter-
natives, including shorter sentences, treatment and 
prisoner reentry programs. 
(6) At its August 2004 annual convention, the 
ABA House of Delegates adopted the recommenda-
tions of the Justice Kennedy Commission, including 
the recommendation to repeal mandatory minimum 
sentencing statutes. 
(7) Since the enactment of mandatory min-
imum sentencing for drug users, the Federal Bureau 
of Prisons budget increased by more than 2,016 per-
cent, 
from 
$220,000,000 
in 
1986 
to 
about 
$4,437,000,000 in 2004. 
(8) Mandatory minimums have not reduced sen-
tencing discretion, but rather have transferred dis-
cretion from judges to prosecutors. Prosecutors, not 
judges, have the discretion to reduce a charge, ac-
cept or deny a plea bargain, reward or deny a de-
fendant’s substantial assistance or cooperation in the 
prosecution of someone else, and ultimately, to de-
termine 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 Fed-
eral cocaine convictions.
(10) In 1986, before the mandatory minimums 
for crack cocaine offenses became effective, the aver-
age Federal offense for African Americans was 11 
percent higher than whites. Following the implemen-
tation of mandatory drug sentencing laws, the aver-
age 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 mini-
mums were enacted. 
(14) As a result of mandatory minimum sen-
tencing statutes, particularly with respect to drug 
crimes, in 2001, the average Federal drug traf-
ficking 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 af-
fluent 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 incarcer-
ated and for longer periods than their white counter-
parts. In the year 2000, 84.7 percent of crack co-
caine cases were brought against African Americans 
even though, in that year, African Americans com-
prised 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. 
SEC. 3. APPROVAL OF CERTAIN PROSECUTIONS BY ATTOR-
NEY GENERAL. 
A Federal prosecution for an offense under the Con-
trolled 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 sub-
stance 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. 
SEC. 4. MODIFICATION OF CERTAIN SENTENCING PROVI-
SIONS. 
(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 im-
position 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 imprison-
ment’’ 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 bod-
ily 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 subpara-
graph’’; and 
(F) by striking the sentence beginning 
‘‘Notwithstanding any other provision of law’’ 
and the sentence beginning ‘‘No person sen-
tenced’’; 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 sub-
stance 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 Con-
trolled 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 in-
serting ‘‘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 sub-
stance 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 sub-
stance 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)’’. 
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