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. Kulpa, 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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