I 115th CONGRESS 1st Session H. R. 3800 IN THE HOUSE OF REPRESENTATIVES September 14, 2017 Ms. Maxine Waters of California (for herself, Ms. Norton , Mr. Pocan , Ms. Lee , and Mr. Ellison ) 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 eliminate mandatory minimum sentences for all drug offenses.

1. Short title This Act may be cited as the Mandatory Minimum Reform Act of 2017 . 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, often pertaining to drug 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 defendant’s role and degree of involvement. (2) In the Anti-Drug Abuse Act of 1986, and at the height of the public concern 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 187,000 prisoners, up over 400 percent in 31 years. (4) According to the Bureau of Prisons, the average cost to keep one prisoner in Federal prison for the fiscal year of 2015 was $31,977.65, which equates to $87.61 per day. (5) Annual spending on the Federal prison system rose by over 600 percent, from roughly $966,000,000 to more than $6.9 billion in inflation-adjusted dollars, between 1980 and 2015. (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 fiscal year 2016, the average sentence for drug offenders subject to a mandatory minimum penalty at sentencing was more than 10 years (with relief, 64 months). (8) In fiscal year 2016, many of those offenders convicted of an offense carrying a mandatory minimum sentence were nonviolent or low-level offenders. According to the U.S. Sentencing Commission, only 28.7 percent of convictions for drug trafficking offenses carrying a mandatory minimum penalty involved the use of a weapon, violence or threats of violence. Only 11.7 percent of offenders convicted of such offenses played a leadership role. (9) Mandatory minimum sentences have historically 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. According to another United States Sentencing Commission report, in fiscal year 2016, of the 8,342 offenders who were subject to a Federal mandatory minimum penalty at sentencing, Black offenders were the largest group, representing 35.5 percent, followed by White offenders, who represented 31.1 percent, and Hispanic offenders, who represented 30.9 percent. (10) 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. (11) According to the Substance Abuse and Mental Health Services Administration, surveys have documented 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, about 74.4 percent of all drug offenders sentenced in 2016 were African American and Hispanic, many of whom are low-level offenders. (12) 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, in fiscal year 2016, of those offenders sentenced on Federal crack cocaine charges, only 5.5 percent were White, while 82.6 percent and 11.4 percent were African American and Hispanic, respectively. (13) According to the U.S. Census, African Americans comprise 13.3 percent of the U.S. population, but according to the U.S. Sentencing Commission, in fiscal year 2016, African Americans made up about 23.6 percent of all Federal drug convictions. (14) According to the Bureau of Justice Statistics of the Department of Justice, by 2003, 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). (15) According to the U.S. Sentencing Commission, in fiscal year 2016, about 34.6 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 historically 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. (16) Low-level and mid-level drug offenders can be adequately prosecuted by the States and punished or supervised in treatment as appropriate. (17) 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. (18) 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. (19) 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 or serious bodily injury results from the use of such substance shall not be less than 20 years or more than life ; (C) by striking which may not be less than 20 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to imprisonment for any term of years or for life imprisonment and inserting for any term of years or for life ; (D) by striking the sentence beginning If any person commits a violation of this subparagraph ; and (E) by striking the sentence beginning Notwithstanding any other provision of law and the sentence beginning No person sentenced ; (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 or years or for ; (C) by striking which may not be less than 10 years and not more than and inserting for any term of years or for ; (D) by inserting imprisonment for any term of years or for 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 the sentence beginning No person sentenced ; and (3) in paragraph (1)(C), by striking of not less than twenty years or more than life and inserting for any term of years or to life imprisonment . (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 striking and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment ; and (E) by striking the sentence beginning Notwithstanding any other provision of law and the sentence beginning No person sentenced ; (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 striking and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment ; and (E) by striking the sentence beginning Notwithstanding any other provision of law and the sentence beginning No person sentenced ; and (3) in paragraph (3), by striking of not less than twenty years and not more than life and inserting for any term or years or for life . (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— (1) by striking the sentence beginning Except to the extent each place it appears and by striking the sentence beginning The mandatory minimum ; and (2) by striking subsection (d). (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) .