Mandatory Minimum Sentencing Reform Introduced

Bill would protect low-level drug law violators from mandatory minimum sentencing

From the Drug Policy Foundation*

Responding to calls from three Supreme Court justices and scores of federal judges, Rep. Maxine Waters (D-CA) has introduced a bill that would abolish nearly all drug-related federal mandatory minimum sentences (MMS).

Rep. Waters' bill, H.R. 1681, has slim chances of passage in a Republican-controlled Congress, but is landmark legislation because it is part of a significant change in the way policymakers are thinking about sentencing.

"For the first time in years, Congress is taking note of how our mandatory sentencing laws are filling our prisons without producing the intended decrease in drug use or supply," Drug Policy Foundation Policy Analyst Rob Stewart said.

Scores of federal judges have refused to hear drug cases in protest of mandatory minimum sentencing laws. And within the last few years, Supreme Court Justices Anthony Kennedy and Chief Justice William Rehnquist, all Republican appointees, and Stephen Breyer, a Democratic appointee have also found mandatory minimums to be a flawed sentencing system. Kennedy has called them "imprudent, unwise and often an unjust mechanism."

"A more complete solution would be to abolish mandatory minimums," Breyer said in November at the University of Nebraska College of Law.

Conservative criminologist John DiIulio, once one of the staunchest proponents of long mandatory sentences, has recently written in support of the abolition of MMS.

"With mandatory minimums, there is no real suppression of the drug trade, only episodic substance-abuse treatment of incarcerated drug-only offenders, and hence only the most tenuous crime-control rationale for imposing prison terms­­mandatory or otherwise­­on any of them," DiIulio wrote in the National Review in May.

Mandatory minimums also disproportionately affect minorities. African Americans make up 12 percent of the population and roughly the same percentage of drug users, but they are 33 percent of federal drug convictions. The average drug sentence for African Americans is now 49 percent higher than sentences for the same offense for whites.

The irony of this change in sentencing thought is who's doing the thinking and who's doing the legislating. The Republicans in Congress are ignoring the advice of their own thinkers. Instead, a liberal Democrat, Waters, has seized the issue.

SPONSOR: Rep Waters, Maxine (introduced 05/04/99)
Major Drug Trafficking Prosecution Act of 1999
A bill to concentrate Federal resources aimed at the prosecution of drug offenses on those offenses that are major.

May 4, 1999

Ms. WATERS introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on 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

Congress makes the following findings:

(1) Since the enactment of mandatory minimum sentencing for drug users, the Federal Bureau of Prisons budget increased by more than 1,350 percent, from $220,000,000 in 1986 to about $3,019,000,000 in 1997.

(2) Mandatory minimums have not reduced sentencing discretion, but rather have transferred discretion from judges to prosecutors. Prosecutors, not judges, have the discretion to reduce a charge, accept or deny a plea bargain, reward or deny a defendant's substantial assistance or cooperation in the prosecution of someone else, and ultimately, to determine the final sentence of the defendant.

(3) 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 Federal cocaine convictions.

(4) In 1986, before the mandatory minimums for crack cocaine offenses became effective, the average Federal offense for African Americans was 11 percent higher than whites. Following the implementation of mandatory drug sentencing laws, the average drug offense sentence for African Americans was 49 percent higher than whites.

(5) The average dealer holds a low-wage job and sells part time to obtain for his or her own use.

(6) According to the Justice Department, the time spent in prison does not affect recidivism rates.


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.

*The Drug Policy Foundation, having merged with the Lindesmith Center is now the Drug Policy Alliance