Families Against Mandatory Minimums (FAMM) notes further evidence of Attorney General Eric Holder's efforts to make the criminal justice system less senselessly punitive: Last Friday he issued a memo instructing federal prosecutors that they should not use sentence enhancements based on a defendant's criminal history merely to coerce a plea agreement. Under Title 21, Section 851 of the U.S. Code, a prosecutor has the power to dramatically increase the mandatory minimum sentence a defendant faces by filing an "information" noting prior convictions. Prosecutors have often used that threat to avoid the inconvenience of a trial by scaring defendants into pleading guilty. Not anymore, says Holder:
Prosecutors should decline to seek an enhancement pursuant to 21 U.S.C. § 851 unless the "defendant is involved in conduct that makes the case appropriate for severe sanctions"…Whether a defendant is pleading guilty is not one of the factors enumerated in the charging policy….An § 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty….A practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea…is inappropriate and inconsistent with the spirit of the policy.
To give you a sense of the high-pressure tactic Holder is trying to stop, here are a couple of examples drawn by FAMM from a decision by U.S. District Judge John Gleeson in U.S. v. Kupa, a case I mentioned in a 2013 column about the penalties people can receive for exercising their right to trial:
- In 2002, Dennis Capps, a methamphetamine addict, pled guilty to trafficking "an amount of drugs you can hold in your hand." He went on to become a model prisoner and a model probationer, according to his judge. A decade later, he relapsed into substance abuse and was again caught with drugs. He refused a plea bargain, so federal prosecutors filed a section 851 enhancement to count his conviction from 2002, which actually covered two offenses that occurred a month apart. Instead of receiving the 10-year mandatory minimum that his most recent offense required, the filing of a section 851 enhancement required his judge—against her wishes—to sentence Capps, now 39, to life in prison without the possibility of parole.
- Kenneth Harvey had two prior drug convictions when prosecutors filed a section 851 enhancement against him in 1984. Neither of Harvey's prior convictions had resulted in him spending time in jail. Yet at the age of 24, he received a mandatory life sentence without the possibility of parole for selling less than $10,000 worth of drugs. Harvey's judge opposed the sentence and recommended that he receive executive clemency after 15 years.
"FAMM applauds the attorney general's repudiation of this heavy-handed practice," says Mary Price, the group's general counsel. "The trial penalty is intolerable. This guidance to prosecutors makes it quite clear that massively enhanced drug mandatory minimums may not be invoked absent cause. While the practice of threatening defendants with the trial penalty to induce them to plead guilty should be abandoned altogether, this is a good start."
As Price notes, Section 851 is just one of the mandatory-minimum provisions that give prosecutors tremendous leverage in plea negotiations. Another powerful tool of intimidation is Title 18, Section 924, which prescribes mandatory minimums for possessing a gun in connection with a drug offense. The first such offense triggers a five-year sentence, each additional instance triggers a 25-year sentence, and the sentences must be served consecutively. Pretty much any gun-owning drug offender could be charged under this provision, but that is much more likely to happen if he insists on a trial (as Weldon Angelos did). When you recognize the terrifying implications of such laws, it is easier to understand why 97 percent of federal criminal cases end in guilty pleas.