Drug War

Eric Holder Tells Prosecutors to Stop Coercing Guilty Pleas With an Especially Terrifying Sentence Enhancement



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.

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  1. Didn’t this jackass send out a memo a some time back instructing U.S. Attorneys to respect MM dispensaries that complied with the laws of their home state? How did that go? I can’t remember.

    This must be another bright spot in his career.

    1. It went great. They got some positive headlines, and various useful idiots fell back in line.

      Which is all they were after. Mission accomplished!

  2. Guys, stop it!!!
    *wink wink*

  3. Eric Holder Tells Prosecutors to Stop Coercing Guilty Pleas With an Especially Terrifying Sentence Enhancement

    Thanks for nothing “Mr. I want less coercion now that I’m likely to be in hot water myself”!

    Truly a scumbag!

  4. I have no doubt that prosecutors nationwide will take this helpful suggestion under advisement.

  5. People who created Mandatory Minimums in an open society should be dealt with with Colonial harshness. As a peaceful man who loves gentle women I’d still throw the lot of them, roped, on a massive chair and dunk them until drowned in the Potomac.

    It’s super rare that I go violent upon the overlords but at some point when they’ve played the North Korea card what choices do we have, oh sweet friends in the Reason underbelly?

    1. Indeed. Fuck the drug war.

  6. This kind of policy/guidance from a lame duck is an exercise in pure resume/legacy buffing. Everyone knows there will be zero consequences for ignoring it, because he’s a lame duck.

    Do this kind of thing when you take office, and act like you mean it while you have power, and I’ll respect that. Tossing a memo at the staff on your way out the door, not so much.

    1. ^^^ THIS

      1. Cato does Monocle….

        Just think biatches. Cato FUCKS the WHORE Monocle…

        Eh, fail.. I’d watch it once

    2. See “Ex-LEO now against drug war”.

      By the time you get done with the headline you’ve already forgotten the most important word: EX.

  7. Oh, well, he told them they shouldn’t do that. I’m sure prosecutors will oblige and stop doing what is in their best interest to do.

    1. MJGREEN?!!

      Where did this name come from you fucking middle-western bastard?

  8. Holder should ass-rape himself

  9. For fuck’s sake, Holder!

    fwiw, a lot of the problems people trot out against MM’s are problems of implementation not problems with MM itself.

    drug laws are way too draconian already. adding MM’s makes them even worse. and of course this mostly occurs on the federal level as do all those wacky enhancements.

    federal law in general is way way way way way more draconian and imo that’s prima facie evidence they are cruel and unusual.

    if state law and filing standards gets you 1 yr for doing X, and federal law gets you 15 yrs (and that is not AT ALL an unrealistic example), how is the federal sentence not cruel/unusual, in reference to the state sentence with theoretically represents what that “community” considers appropriate

    as a matter of practice, i have seen this many times. disparities anywhere from 5 to 15 times the state punishment.

    the feds hold these insane sentences over people’s head and for even the innocent as fuck, it’s almost impossible not to take a plea deal.

    not to get into a risk aversion game theory wank, but if you offer

    1) a year incarceration and 2 yrs probation if you plead guilty
    2) 15 yrs if you force a trial

    even if you are innocent as fuck and you perceive a 15% chance of conviction would you take those odds and lose 15 yrs of your life?

    1. The state law does not take into account the perverse effect on interstate commerce that the feds are concerned with.

      That’s what I’d say if I was a prosecutor, at least.

      1. setting aside that the feds have expanded the commerce clause WAY WAY WAY WAY past its realistic boundaries, i grok that argument.

        fwiw, when I was a cop in hawaii there was a problem with a local robbery ring that was simply running up to (almost exclusively japanese) tourists who they knew tended to carry a lot of cash and stuff and rip pocketbooks from the womens hands, throw men to the ground and take their wallets. etc.

        at one point, one of them got seriously hurt and it was also creating a lot of stink in the japanese press. japan is an extremely law abiding society to put it mildly and they were (understandably) outraged.

        well, the local punks didn’t fear the cops too much because the penalties were pretty mild. also the rules of evidence in hawaii are INSANELY liberal and it made it much harder to get a provable case. search and seizure was that way,and the miranda interpretation was insane. in the real world, custody and interrogation trigger miranda. in hawaii, for example, i could call a suspect on the phone (clearly not custody) and in most circ’s had to mirandize him before asking him questions.

        the feds stepped in and prosecuted some local punks (rightly) claiming that since the targets were foreign nationals they had jurisdiction,and meted out some serious ass penalties and the local punks went back to their normal crime stuff.

        as a rule, there is plenty of violence in hawaii to put it mildly, but violent crime against tourists is extremely rare

        1. Sounds like the polar opposite of the way things are in Pittsburgh. The universities are by far the most attractive targets for muggings and other crime, especially against the large number of obvious foreign students.

          Might have something to do with PGH being in Allegheny County, which has the highest number of CCW permits of any county in the US. As opposed to Hawaii, which has the strictest gun laws in the country and 2000 miles of ocean to make it incredibly difficult to get around them.

        2. If Japanese tourists were being targeted, the Japanese press rightly got upset. Tourism should have taken a hit in Hawaii, and the bottom line of the tourism industry would have taken a hit. There would have then been pressure to increase safety in Hawaii. Instead big brother feds stepped in because those people were “special”.

          Isn’t that nice that the tourists get special protection from threat of prosecution from the feds. Ordinary Hawaii citizens don’t get that.

          1. Rather, they get special protection due to threat of prosecution by the feds for crimes against them.
            *Where is the edit button?*

    2. And given that prosecutors only go forward with the cases they figure they can win, by the time it gets to trial there’s going to be more than a 15% chance that that defendant gets locked up.

      I’ve recommended clients take cases to trial, because they were bullshit cases and they had good chances of winning them. But the prospect of losing was so bad, compared to the probation and/or minimal jail they’d receive with a plea, that they ended up taking an offer.

      1. They nicely set things up so that even if you win your trial, you’ve lost everything else in your life.

  10. No one should be surprised when Holder comes out against the drug war. Of course, there is no chance of that happening until well after he’s vacated the office. Is one year too soon?

    1. He’ll retire like a good draconian head LEO and THEN pronounce to a Nick Gillespie video in all his black-jacketed glory his indignation over the Drug War and its unfairness.

    2. Depends on whether the Drug Policy Alliance or Project SAM makes him a better job offer.

  11. He’s afraid they’ll use that tactic against him!

  12. fwiw, this shit the feds pull, fully “legal” btw is as repugnant as entrapment and should be equally verboten.

    entrapment is wrong because it is behavior that would entice a person NOT disposed to the criminal act, to commit it.

    that’s unjust

    e.g. have an undercover agent approach a heroin user, the agent moaning in pain claiming to be going through severe withdrawals and saying “hey, I got $400 here. please can you pick me up some tar? I am too sick to drive. just get me a gram, keep the change” (in that area, a gram goes for 1/4 that price). the amount of money as well as the whole “im sick” routine make it entrapment. a person not disposed to selling heroin would likely act out of either sympathy (a noble emotion we do not want to punish) or greed (not noble, but understandable)…

    contrast with leaving a bait car, keys in ignition (engine on or off) and windows rolled down.

    fwiw, tons of cars get stolen that way… usually it’s “but i just ran into starbux for a minute and…”

    the bait car stuff, which the british columbia cops really innovated well, which entraps nobody into anything, is much safer than chasing car thiefs in pursuits, and that ensures a rock solid case againt a defendant is just damn awesome police work (the bigorati of course disagreeing and whinging wrongly about “creating” crime or other such rubbish) and there aint no victimless crime, just a bona fide crime and a scumbag off the streets.

    1. Odd, I always held that bait car cops are quite fair and I’m a guy that literally hates the COPS channel due to the testosterone volcano and questionable valor in front of cam.

      Bait car cops operate simply and to the point, unlike MANY other verified entrapment exercises dealing with what should be legal and fair exchanges… I watched one bait car show where the cops wouldn’t even park ILLEGALLY to avoid fucking with society. Kudos. Stealing a 40k or 50k car is simply brutal… no reason why good dudes in a police department can’t work to stop the stealing of expensive items.

    2. Odd, I’m unaware of anyone here “whinging” about bait cars.

  13. The troll craig assured me several weeks ago that FDR began the integration of the armed forces, and posted a link to a “proclamation” and sure enough, there it was!.
    But when FDR really wanted something done, like, oh, sticking yellow people in concentration camps, why it actually *did* get done, unlike CYA memos such as that and Holder’s claims to any sort of rational sentencing.

    1. FDR ordered the end of discrimination in the armed forces in 1941 by executive order. He did not integrate the armed forces; the races were largely segregated in WW II.

      Truman ended segregation of the armed forces in 1948 by a separate EO, and by firing the Secretary of the Army for failing to desegregate the Army.

      1. CatoTheElder|10.1.14 @ 9:58PM|#
        “FDR ordered the end of discrimination in the armed forces in 1941 by executive order.”

        Which executive order was ignored.
        I repeat; if it was other than a CYA order, something would have happened.
        It didn’t; qed.

  14. It’s a subject that he and his boss care so much about that they did exactly zero to put an end to it legislatively during the two years they had a supermajority in Congress and the White House.

    At this point, I think it would be acceptable journalistic practice for Reason to stop taking Holder’s claims about what he supports and opposes at face value, especially if the proof of his support stops at a memo. The man’s a liar…who cares what he claims to believe in? How his attorneys *actually* handle cases is what he *actually* believes in.

  15. Eric Holder Tells Prosecutors to Stop Coercing Guilty Pleas With an Especially Terrifying Sentence Enhancement.

    Its amazing how many of these arseholes get all *ethical* once its *someone else’s* job to do this stuff.

    He didn’t seem to see to many problems with this sort of thing before he was a lame duck.

    Or, maybe that’s why he’s on his way out. He’s been having all these ethics fights with Obama and its finally gotten to be too much for the pres.

  16. You guys could take the minuscule step toward proving yourselves other than brainwashed partisans by praising Holder narrowly on these pro-liberty steps, even if you want to despise his position of not being the most liberal person in the world on drug law.

    1. The memo he issued is pro-liberty, but there is no weight behind it.

      He is a politician. Nothing should be taken at face value.

    2. Tony|10.1.14 @ 9:02PM|#
      “You guys could take the minuscule step toward proving yourselves other than brainwashed partisans by praising Holder narrowly on these pro-liberty steps,”…

      YOU could take steps to show that you’re other than a slug-stupid asshole by admitting he hasn’t done a damn thing.
      But then, since you ARE a slug-stupid asshole, why would you?
      Tell us again about how I can ‘keep my plan’, suuuka!

    3. Okay. the words Holder wrote are a miniscule step toward justice.

      I seriously doubt his sincerity because Holder has proven himself to be an mendacious ass and a sleazy politician.

      But, still, his order is a step in the right direction, and it may make it easier for his replacement to implement such a policy.

    4. If you think it’s a minor victory, sure, it deserves praise. If, however, you think it’s a stunt designed to quiet the voices asking for reform without actually leading to any reforms, then it’s actually a deliberate anti-liberty step.

      1. “If, however, you think it’s a stunt designed to quiet the voices asking for reform without actually leading to any reforms, then it’s actually a deliberate anti-liberty step.”

        If you have watched what the lying bastard in the WH and his entire administration has done, there is little reason to believe it is just one more lie.
        Maybe it isn’t. The lying bastard will have to prove it.

  17. Now all Obama has to do is use his magic to transport Holder to 6 years ago, so he can start implementing this policy.

    It’ll probably have about as much effect as the ICE Director’s Prosecutorial Discretion Memo of 2011, about which local offices are still “developing local office policy” — i.e., ignoring, in almost any individual case.

    I really dislike this practice by prosecutors. In Michigan, they threaten to charge with Felony Firearm all the time if a defendant doesn’t plea and instead elects to conduct a Preliminary Exam. Ditto for Habitual Offender/Repeat Drug Offender statutes, though those aren’t as scary as FF. I suppose in principle it’s not wrong to threaten, but in our screwed up criminal justice system, where you are in many ways presumed guilty, it makes a defendant really scared to maintain his or her innocence sometimes.

    1. Kure’i powers make super awesome dips. Add some japanese honey and some ghetto scrotum juice…. well fed Reason thread!!

      1. I’ll take some Japanese honey…

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    ???? http://www.netjob70.com

  19. 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.

    If we’re using legislation to turn judges into automatons, why even have judges and attorneys? Just let the police type the offenses into “Justice-O-Matic”, let the perp’s representative type in the counter-properties, and voila, instant justice.

    Or we can just have every second of our personal lives uploaded to the “Social Contract Universal Mutualizer” and we can get texts to our smart phones every day telling us our weekly scorecard of rewards/punishments and where to pick up our orders.

    Kind of unfortunate the justice system didn’t make it into Idiocracy.

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