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. . . .”