I 113th CONGRESS 1st Session H. R. 3088 IN THE HOUSE OF REPRESENTATIVES September 12, 2013 Ms. Waters (for herself, Mr. Ellison , Mr. Lewis , Ms. Norton , Ms. Brown of Florida , Mr. Rush , Mr. Cárdenas , Mr. Carson of Indiana , Mr. Cohen , Mr. Quigley , Mr. Payne , and Ms. Jackson Lee ) 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 2013 . 2. Findings Congress makes the following findings: (1) 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. (2) In the Anti-Drug Abuse Act of 1986, and at the height of the public outcry over crack cocaine, Congress acted hastily, without sufficient hearings, and enacted hard line penalties that targeted low-level drug offenders. These penalties included new, long mandatory minimum sentences for such offenders. (3) According to the Bureau of Prisons, in 1986, when the new drug law containing lengthy mandatory minimum sentences passed, the prison population was 36,000. Today, the Federal prison population is over 215,000 prisoners, up almost 600 percent in 26 years. (4) According to the Bureau of Prisons, the cost to keep one prisoner in Federal prison for one year is approximately $26,000. (5) According to the Department of Justice, since the enactment of mandatory minimum sentencing for drug users, the Federal Bureau of Prisons budget increased from $994 million in 1987 to almost $6.2 billion in 2009. (6) According to the U.S. Sentencing Commission, between 1995 and 2010, over 400,000 drug offenders were sentenced under Federal law; of these, almost 250,000 (61 percent) received mandatory minimum sentences. (7) According to the U.S. Sentencing Commission, 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. In 2010, almost two-thirds of all drug offenders received a mandatory sentence, with most receiving a 10-year minimum. Most of these offenders are nonviolent or lower-level offenders with little or no criminal history: in 2010, 51.6 percent had few or no prior convictions, 83.6 percent did not have weapons involved in their offense, and only 6 percent were considered leaders, managers, or supervisors of drug operations. (8) 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. African-American drug defendants are 20 percent more likely to be sentenced to prison than White drug defendants. (9) According to the U.S. Sentencing Commission, between 1994 and 2003, the average time served by African-Americans for a drug offense increased by 62 percent, compared to a 17 percent increase among White drug defendants. (10) According to the Substance Abuse and Mental Health Services Administration, government surveys document that drug use is roughly consistent across racial and ethnic groups. While there is less data available regarding drug sellers, research from the Office of National Drug Control Policy and the National Institute of Justice has found that drug users generally buy drugs from someone of their own racial or ethnic background. But, according to the U.S. Sentencing Commission, over 70 percent of all Federal narcotics offenders sentenced each year are African-Americans and Hispanic Americans, many of whom are low-level offenders. (11) As a result of Federal prosecutors’ focus on low-level drug offenders, the overwhelming majority of individuals subject to the heightened crack cocaine penalties are African-American. According to the U.S. Sentencing Commission’s 2007 Report to Congress on crack cocaine, only 8.8 percent of Federal crack cocaine convictions were imposed on White Americans, while 81.8 percent and 8.4 percent were imposed on African-American and Hispanics, respectively. (12) According to the U.S. Census, African-Americans comprise 12 percent of the U.S. population and, according to the Substance Abuse and Mental Health Services Administration, about 10 percent of all drug users, but almost 30 percent of all Federal drug convictions according to the U.S. Sentencing Commission. (13) According to the U.S. Sentencing Commission, 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). (14) According to the U.S. Sentencing Commission, in 2010, almost 30 percent of women entering Federal prison did so for a drug offense. 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 a defendant’s participation in the charged offense, women have been exposed to increasingly punitive sentences to incarceration. (15) Low-level and mid-level drug offenders can be adequately prosecuted by the States and punished or supervised in treatment as appropriate. (16) 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. Low-level drug offender investigations and prosecutions divert Federal personnel and resources from prosecuting high-level traffickers. (17) 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. (18) Congress has an obligation to taxpayers to use sentencing policies that are cost-effective and increase public safety, in addition to establishing a criminal justice system that is fair, efficient and provides just sentences for offenders. Mandatory sentences have not been conclusively shown to reduce recidivism or deter crime. (19) Prisons are important and expensive; the limited resources in the Federal criminal justice system should be used to protect society by incapacitating dangerous and violent offenders who pose a threat to public safety. The Federal judiciary has the expertise and is in the best position to sentence each offender and determine who should be sent to Federal prisons and the amount of time each offender should serve. 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 ; and (3) 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 ; and (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 ; and (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 ; 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 substance 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) 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) .