AG Eric Holder: No More Super Mandatory Minimums to Punish Defendants Who Want a Trial

Post Date: October 1, 2014

Attorney General Eric Holder has issued a memo prohibiting prosecutors from using the threat of enhanced mandatory minimum sentences solely to force criminal defendants to plead guilty in drug trafficking cases. These super-sized mandatory minimums, called “section 851 enhancements,” allow prosecutors to ensure a defendant’s mandatory minimum sentence is doubled or even increased to life in prison.

“FAMM applauds the Attorney General’s repudiation of this heavy-handed practice,” said FAMM General Counsel Mary Price in a statement. “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.”

How the 851 enhancement works: If the prosecutor advises the court of its intention to “notice” a drug defendant’s prior convictions, the court must double the underlying mandatory minimum facing a defendant with one prior drug trafficking conviction. In some cases, if the defendant has two priors, the section 851 enhancement requires the court to impose a sentence of life in prison.

In short, the section 851 enhancement provides federal prosecutors complete discretion to seek, and requires judges to impose, life sentences for even non-violent drug offenders.

Prosecutors routinely used the section 851  threat to pressure defendants to plead guilty. If the defendant agrees to plead guilty, the government would not “notice” the priors and the defendant would serve the unenhanced mandatory minimum of five or ten years. If instead the defendant rejects the offer, goes to trial and is convicted, she suffers the “trial penalty,” and the section 851 enhancement transforms a sentence of five years into 10, a sentence of 10 years into 20, or even life without parole.

Here are some examples, courtesy of a recent ruling from Federal Judge John Gleeson of the Eastern District of New York, showing how section 851 enhancements are used to excessively punish non-violent drug defendants:

  • 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, and 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 an 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.

In August 2013, the Attorney General advised prosecutors to refrain from using the section 851 notice unless the defendant’s conduct called for such severe sanctions. The Attorney General outlined factors that helped prosecutors determine when the defendant might deserve the longer sentence.

The September 24, memo took that guidance one step further.  Entitled “Guidance Regarding section 851 Enhancements in Plea Negotiations,” it bluntly states: “Whether a defendant is pleading guilty is not one of the factors enumerated in the charging policy. . . . A practice of routinely premising the decision to file a section 851 enhancement solely on whether a defendant is entering a guilty plea . . . is inappropriate. . . .” 

30 Responses to “AG Eric Holder: No More Super Mandatory Minimums to Punish Defendants Who Want a Trial”

  1. carolyn.thurmon

    About time because they keep threatening the wrong people and these sentences are ridiculous.

  2. Daryl williams

    This is sad but their are just as many white collar crimes in the prison system as drug crimes filing false taxes is a bigger problem in the federal prison system they are using a charge called A.I.T aggravated identity theft which carries a mandatory 24 months for first time offenders and we are not going to talk about the money you have pay back on release from prison eric holder do something about that my wife is a victim of mandatory minimum Natacia Webster

  3. Mary nixon

    This is what happened to my son he is servings 40 years. People put their self on his case to get out early and lied
    The prosecutor was going down to the holding cell telling them what to say. The judge told her not to and she still did it. His cousin was there that’s how we found out but the judge told her not to in the court room. The judge didn’t want to give him this much time but the prosecutor had more say so then he did.

  4. tamatha root

    my husband is dealing with all of this right now. his own attorney hasn’t even tried to put a defense together for him because the government has bullied, manipulated, and withheld information until tbe last minute. they’ve bought and paid for (plea deals for lesser charges and no charges at all filled) with nothing more than cercumstantial evidence, hearsay of uncredible witnesses, illegal search on a invalid search warrant, and most of this all while he was in jail facing down a hearsay indictment in another state by the government but the government drug him back to his home state to recharge him with the same charges because the first state dismissed. he wants to go to trial but faces something like 55years (or more) if he doesnt take their 15yr deal (while they wantd a guilty plea of 5 years from the first state that dismissed). his judge is not unbiased and has helpd the government attack his attorney at hearings, so hes rolld over and wont even fight. with no one to help him and others like him deal with these government prosecutors and judges it really isnt ganna matter whats passed because it wont make a difference. mg husband goes to trial on 10/20/2014, but he’s considering taking the 15yr deal because hes scared, hes loosing faith, and he thinks that even with corrupt pilice, witnesses and unethical prosecutors the nury will still beleive them over him. my fingers are crossed that he’s wrong.

  5. pansy white

    My son is in federal custody he pleaded guilty to 10 years the prosecutor filed an 851on his behalf and he got 20 years for a little crack- cocaine, now he can’t get any relief from the 2010 New law bc of the mandatory minimum



  6. Sayonara

    Finally, someone who has some sense and cares about people’s lives! Kudos to Attorney General Eric Holder!

  7. William Ward

    I hope that FAMM will start a grass roots effort to put forth the outrage on the backwards sentencing at the federal level. The government needs to hear a ground swell of voter support to change the guidelines that are putting non-violent offenders (not just drug offenders) behind bars for way too long. The use of social media to include blogging needs to be activated as soon as possible. A man was recently sentenced to 22 years in prison for an economic crime. He elected to go to trial and paid the ultimate price. This is outrageous on the judge’s part. This is costing the tax payers billions of dollars. These individuals should be allowed a trail without the fear of brutal sentences. The guidelines are so out of whack, that people who made mistakes are sent away for 5-10-15-20 years. This is insane and the public needs to let the government hear it. I hope FAMM will use the tactics that the current President used to get elected, social media at the grass roots level. It is time for change. Social media is powerful. I hope FAMM will use it and really get a ground swell going in this Country. It is time. The Government expects to hear from the defense attorney’s but they are not expecting to hear from the America public on this issue.

  8. Barbara Wilson

    My son was told unless he entered a plea of guilty he would face an enhancement on his sentence and would face a minimum of 20 years. This was just wrong and is very unjust. We need Reform on these mandatory minimums. These prosecutor should not be aloud to use this technique to scare guilty please out of the defendants.

  9. shirlene crain

    10 years son and his family has served 7 years because of this injustice; we believed in has failed us; A MOTHER &GRAND CHILDREN

  10. Nanette C

    How is this real American justice? It’s time to change the laws and review convictions retroactively to release those who I believe have been OVER PUNISHED in the past. Give judges back the power to actually judge from the bench and not make punishments ‘one size fits all’!

  11. b gaddy

    Consider making change retroactive. There have been many unfair sentences. In particular nonviolent, no prior convictions. Even charges of misdemeanors were counted against defendant.

  12. Kachiri Robinson

    These Mandatory Minimums are out of control!! My love got sentenced to 10 YEARS because of the mandatory minimum guidelines and the Judge, herself, made clear ON RECORD that she believed it to be a WAY over-sentence, but she didn’t have the authority to step in under the current law. What a shame. LAWMAKERS: PLEASE PUSH FOR MANDATORY MINIMUM REVISIONS!!! IF NOT FOR POLITICAL POPULARITY REASONS WITH VOTERS (who show strong support for reduced sentencing guidelines), & NOT FOR MONETARY SAVINGS (which our government needs now more than ever to continue thriving), THEN FOR YOUR OWN CONSCIENCE AS A HUMAN BEING!!!!! THEY ARE WRONG. THEY ARE UNJUST. THEY ARE UNFAIR. & THESE PEOPLE (9 times out of 10) DO NOT DESERVE IT!!! It is way too “one size fits all” for what our Constitution was based on and frequently the punishment does NOT fit the crime.

  13. Lakisha Henderson

    I’m against mandatory minimum and the 851 Bill. My husband is in federal custody right now going through the hardship that the prosecutors in the Eastern District of Louisiana(New Orleans) is threatening him with. Its not right wat is going on and something really needs to be done. The prosecution has to much power and they are misusing the power that they have. My convictions

  14. Veronica Burney

    It’s awful that our tax dollars are being wasted on incarcerating individuals using the mandatory minimum law for conspiracy. You get more time for conspiracy than you do for committing murder. How sad is that? The mandatory minimum law need to be abolished period.

  15. David M

    Mandataory minimums should be eradicated. Anyone who is serving a mandatory minimum sentence for a NON-VIOLENT crime and has done 30% or more of their time, should be released from federal prison, especially if they were forced to plead guilty because of a threat of a “super-mandatory minimum” if they went to court and lost, as most of them are.
    The money (tens to hundreds of thousands of dollars) that would have been spent to luck them up should be used to establish educational grants which will reduce recidivism by at least 80%, and help these citizens contribute to society.

  16. Lakeisha Walker

    Mandatory Minimums are harsh and need to be eliminated!! How can we as loved ones help to get Congress moving into changing these laws?

  17. Miriam

    So grateful that some has finally heard the cry of families whom are victims of this mandatory minimums it’s so unfair and unjust.

  18. bette davis

    SERIOUSLY, stop these TRAGIC SENTENCES FOR NON VIOLENT DRUG OFFENDERS xespecially 1st time OFFENDERS. Families are torn apart, it is all about profit.alcohol is asxor far wors e than marijuana. LEGALIZE MARIJUANA

  19. Mrs. Tonika Berry

    I think the structure to which federal prosecutors are using the 851 enhancement unfairly sentences defendants and should definitely be restructured to fit the crime. The cookie cut sentencing guidelines have left our nation with an enormous financial tab & should take into account the aftermath once a person is sentence & the ever rising cost to to house these inmates. I am more than sure, we as a nation can be much more creative and fair when it comes to sentencing nonviolent individuals. Prosecutors have used the 851 enhancement as a leverage & scare tactic to get defendants to agree & cop out for heavy sentences of which they don’t deserve & are not educated enough to know they are being unfairly sentenced, nor are they financially able to fight for their freedom with adequate representation.

  20. Barry Miller

    I have a 22 year old son at the time who pleaded to a federal child porn charge. the search warrant was a implemented with Gestapo tactics by ICE. The case remained in federal hands but prosecution was handed over to a “state” prosecutor simply because there was no “glory” in this one. His attorney wanted to push it trial but warned that if he didn’t take the plea deal he could face 20 years instead of 10. So the plea deal was taken for 10 years for one count of “an internet crime” of distribution & plus 15 years supervised release plus 25 years as a tier 2 sex offender. 12 hours before this all went down he was invited by the local young republicans to begin attending their meetings. Certainly there are many ethical questions concerning this internet problem but throwing the book at someone for pictures they didn’t take is certainly not the answer. I had no idea the penalty was that severe and it did no do one thing to solve the problem. These tactics are the same that they tried to use for the war on drugs. It didn’t work for drugs and will not work for this. Even Homeland Security has made this statement. This will not be behind him until he is 58 or so years old.

  21. Mary L Phillips

    If only you could have been inside that courtroom on 12/13/2014 to see just how demonized the legal processes are when it involves an African American male. It did not matter that there was a defense attorney. They went after him, as if he had broken the law for acting as defense attorney. How can we expect things to get better in a society where all odds are against you. How can we promise to protect our children when the rules are ignored due to bias and or racism in a trial court.

    Having said that, Mandatory Minimum needs to go away, so we can breathe again, so that families can at least see into the future for our love ones. This country needs to stop allowing this so called just prison system, to continue fating their pockets on the backs of our sons and daughters.

  22. Misty Merritt

    The laws have to be changed without a doubt. So I’m pleading for someone to stop these prosecutors for all the unjust over sentencing they are doing. My brother has never had a violent crime against him and still he was sentenced to life in prison because he wouldn’t do what they wanted. He have not ever committed a violent crime. My fiance also have never committed a violent crime and he was sentenced to 30 years in prison. They used the section 851 on him also and thats wrong. These prosecutors and judges are just tearing up people families which is wrong. Its like they are saying unless you do what we want or tell you to do we will destroy you and thats exactly what there doing especially here in Pensacola Florida. Please help stop this because i need my family back.

  23. When a killer plan and kill he gets less years than a drug sale. He gets a more severe one .

    Why not get the killers out off the streets and put them behind bars.let these less dangerous prisoners out!!!

  24. angela jefferson

    I am so happy to hear that they are doing something about these prosecutors from railroading our men into taking these deals in fear of ending up with a life sentence. My husband should of at the most received 5 to 10yrs but with relative conduct and a 851 on top of it he is looking at doing 20 yrs. So thank you ERIC HOLDER for pushing to help get my husband home in the amount of time that he would have originally have. It bothers me as an American that they can give someone convicted of a drug crime more time than they would a murder.

  25. Angel Flores

    Very Unfair These Are Human Beings NOT Animals Substance Abuse Is A Sickness It Is Called Addiction! Think About Your Family You Never Know…

  26. robert thomas

    Yes my son got 20 years for a marijuana charge, he was going to take a plea but did not because of other reasons, and was going to get 10 years, because he did not take the plea he got 20 years, that is wrong because of the 851 enhancement the prosecutor has free rain with. It’s not right when I watch on TV about all the people making money on marijuana and the federal government won’t do any thing to them, it is still against the law on a federal level, so why are some setting in prison for it and others getting rich, that is very unjust if you ask me and a million others.


Leave a Comment

Note: All comments are held for moderation before being published.