IN THE SENATE OF THE UNITED STATES
June 27, 2007
Mr. Biden introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To target cocaine kingpins and address sentencing disparity between crack and powder cocaine.
This Act may be cited as
Drug Sentencing Reform and Cocaine
Kingpin Trafficking Act of 2007.
Congress finds the following:
(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.
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).
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.
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
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.
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.
Congress also based its decision to establish the 100 to 1 quantity ratio on the beliefs that—
crack cocaine distribution and use was associated with violent crime to a much greater extent than was powder cocaine;
prenatal exposure to crack cocaine was particularly devastating for children of crack users;
crack use was particularly prevalent among young people; and
crack cocaine’s potency, low cost and ease of distribution and use were fueling its widespread use.
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.
Most of the assumptions on which the current penalty structure was based have turned out to be unfounded.
Studies comparing usage of powder and crack cocaine have shown that there is little difference between the 2 forms of the drug and fundamentally undermine the current quantity-based sentencing disparity. More specifically, the studies have shown the following:
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;
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;
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;
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;
The current 100:1 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.
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.
Major drug traffickers and kingpins traffic in powder, not crack.
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.
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.
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.
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. 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.
Only 13 States have sentencing laws that distinguish between powder and crack cocaine.
Cocaine sentencing disparity elimination
Section 401(b)(1) of the Controlled Substances Act (21 U.S.C. 841(b)(1)) is amended—
(A)(iii), by striking
50 grams and inserting
(B)(iii), by striking
5 grams and inserting
Import and Export Act
Section 1010(b) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)) is amended—
(1)(C), by striking
50 grams and inserting
(2)(C), by striking
5 grams and inserting
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,”.
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—
provide tiered enhancements for the involvement of a dangerous weapon or violence, including, if appropriate—
an enhancement for the use or brandishment of a dangerous weapon;
an enhancement for the use, or threatened use, of violence; and
any other enhancement the Commission considers necessary;
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—
whether the defendant committed the offense as part of a pattern of criminal conduct engaged in as a livelihood;
whether the defendant is an organizer or leader of drug trafficking activities involving 5 or more persons;
whether the defendant maintained an establishment for the manufacture or distribution of the controlled substance;
whether the defendant distributed a controlled substance to an individual under the age of 21 years of age or to a pregnant woman;
whether the defendant involved an individual under the age of 18 years or a pregnant woman in the offense;
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));
whether the defendant bribed, or attempted to bribe, a Federal, State, or local law enforcement officer in connection with the offense;
whether the defendant was involved in importation into the United States of a controlled substance;
whether bodily injury or death occurred in connection with the offense;
whether the defendant committed the offense after previously being convicted of a felony controlled substances offense; and
any other factor the Commission considers necessary; and
adequately take into account mitigating factors associated with the offense, including—
whether the defendant had minimum knowledge of the illegal enterprise;
whether the defendant received little or no compensation in connection with the offense;
whether the defendant acted on impulse, fear, friendship, or affection when the defendant was otherwise unlikely to commit such an offense; and
whether any maximum base offense level should be established for a defendant who qualifies for a mitigating role adjustment.
Offender drug treatment incentive grants
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.
Requirements for application
To be eligible to receive a grant under subsection (a) for a fiscal year, an entity described in that 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 201) for the relevant State to a number of such offenders that is 2 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.
An application under this section shall be submitted in such form and manner and at such time as specified by the Attorney General.
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.
Uses of grants
A grant awarded to an entity under subsection (a) shall be used—
for continuing and improving drug treatment programs provided at prisons, jails, and juvenile facilities of that entity; and
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.
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.
Authorization of appropriations
There are authorized to be appropriated $10,000,000 to carry out this section for each of fiscal years 2008 and 2009.
Grants for demonstration programs to reduce drug use substance abusers
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.
Use of grant funds
A grant made under subsection (a) to an eligible partnership for a demonstration program, shall be used—
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;
to develop and implement a program for supervised substance abusers during the period described in subsection (a), which shall include—
alcohol and drug abuse assessments that—
are provided by a State-approved program;
provide adequate incentives for completion of a comprehensive alcohol or drug abuse treatment program, including through the use of graduated sanctions; and
coordinated and continuous delivery of drug treatment and case management services during such period; and
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.
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—
identifies the role, and certifies the involvement, of each agency, organization, or researcher involved in such partnership, with respect to the program;
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—
administering drug tests for such abusers on a regular basis; and
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);
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—
drug treatment while in prison, jail, or a juvenile facility;
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;
addiction recovery support services;
employment training and placement;
structured post-release housing and transitional housing, including housing for recovering substance abusers; and
other services coordinated by appropriate case management services;
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
includes a plan to monitor and measure the number of substance abusers—
located in each community involved; and
who improve the status of their employment, housing, health, and family life.
Reports to Congress
Not later than September 30, 2008, 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.
Not later than September 30, 2009, 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).
In this section:
The term eligible partnership means a partnership that includes—
the applicable Single State Authority for Substance Abuse;
the State, local, territorial, or tribal criminal or juvenile justice authority involved;
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;
community-based organizations that provide drug treatment, related recovery services, job training and placement, educational services, housing assistance, mentoring, or medical services; and
Federal agencies (such as the Drug Enforcement Agency, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and the office of a United States attorney).
The term substance abuser means an individual who—
is in a prison, jail, or juvenile facility;
has abused illegal drugs or alcohol for a number of years; and
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).
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.
Authorization of appropriations
There are authorized to be appropriated to carry out this section $5,000,000 for each of fiscal years 2008 and 2009.
Emergency authority for United States sentencing commission
The United States Sentencing Commission, in its discretion, may—
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
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.
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.
Increased penalties for major drug traffickers
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—
(A), by striking
$20,000,000 and inserting
(B), by striking
$10,000,000 and inserting
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—
in paragraph (1),
$4,000,000, “$10,000,000”, “$8,000,000”, and
$20,000,000 and inserting
“$50,000,000”, “$20,000,000”, and
in paragraph (2),
$2,000,000, “$5,000,000”, “$4,000,000”, and
$10,000,000 and inserting
“$25,000,000”, “$8,000,000”, and
Authorization of appropriations and required report
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 2008 and 2009 for the prosecution of high-level drug offenses, of which—
$15,000,000 is for salaries and expenses of the Drug Enforcement Administration;
$15,000,000 is for salaries and expenses for the Offices of United States Attorneys;
$4,000,000 each year is for salaries and expenses for the Criminal Division; and
$2,000,000 is for salaries and expenses for the Office of the Attorney General for the management of such prosecutions.
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 2008 and 2009 in support of the prosecution of high-level drug offenses.
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 2008 and 2009 for salaries and expenses in support of the prosecution of high-level drug offenses.
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.
Report of comptroller general
Not later than 180 days after the end of each of fiscal years 2008 and 2009, 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.
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.