Double Your Pleasure, Double Your Fun, with 21 U.S.C. § 851

In the latest in his series of sentencing “statements of reason,” Eastern District of New York Judge John Gleeson takes on one of the most onerous and offensive of the weapons of mass destruction in the prosecutor’s arsenal, 21 U.S.C. §851 in United States v. Kupa. The statute requires the government to file an information that the defendant has a prior felony conviction, which triggers enhanced penalties. Like doubling the mandatory minimums.

The initial reaction might be “great, so the government has to jump through a hoop,” and subject its claim to scrutiny. Well, yes, that’s true, but like so many laws passed by Congress, it’s been turned into a sword when it was meant as a shield. As Judge Gleeson explains:

My focus here is narrow and my point is simple: as the defendant Lulzim Kupa’s case and countless others show, the government abuses its power to file prior felony informations in drug trafficking cases. The single most important factor that influences the government’s decision whether to file or threaten to file a prior felony information (or to withdraw or promise to withdraw one that has previously been filed) is illegitimate. When it enacted § 851 in 1970, Congress had in mind the world that DOJ asked it to create, in which federal prosecutors would carefully cull from the large number of defendants with prior drug felony convictions the hardened, professional drug traffickers who should face recidivism enhancements upon conviction. But instead federal prosecutors exercise their discretion by reference to a factor that passes in the night with culpability: whether the defendant pleads guilty.

First, it is critical to remember that 851 triggers mind-bogglingly severe sentencing enhancements, such as doubling the 10 year mandatory minimum for drugs to 20 years. The threshold for mandatory minimums is already to shockingly low as to capture pretty much anyone engaged in any federal drug conspiracy, but with a prior felony (sadly, a fact for a great many defendants), it doubles.

As Judge Gleeson notes, and as too many people seem to think is a perfectly viable way to run a criminal justice system, Congress thought prosecutors would exercise discretion and not play the 851 card except in instances where they were dealing with a real, honest-to-god, drug kingpin, whatever that means. Don’t worry, you can trust prosecutors. They would never abuse the enormous powers we give them.

Naturally, things didn’t work out quite as well as expected.

To coerce guilty pleas, and sometimes to coerce cooperation as well, prosecutors routinely threaten ultra-harsh, enhanced mandatory sentences that no one – not even the prosecutors themselves – thinks are appropriate. And to demonstrate to defendants generally that those threats are sincere, prosecutors insist on the imposition of the unjust punishments when the threatened defendants refuse to plead guilty.

See what they did there? The threat of doubling mandatory minimums is a huge wedge in driving a defendant to plead or turn. And as much as a prosecutor may not believe that doubling the mandatory minimum is appropriate, they realize that the threat, without backing up by pulling the trigger, won’t do the trick.  So when a defendant refuses to succumb to the threat, they file an 851 and drop the bomb.

The rationale isn’t that the prosecutor abused the power given by Congress, but the defendant made him do it.  “He could have copped a plea. He could have snitched. He chose not to, so I had no choice.”  And they sleep comfortably believing that they merely did the hard work of a prosecutor fighting the war on drugs.

But is it such a benign use of brute force?  Is it so easily excused?

Prior felony informations don’t just tinker with sentencing outcomes; by doubling mandatory minimums and sometimes mandating life in prison, they produce the sentencing equivalent of a two-by-four to the forehead. The government’s use of them coerces guilty pleas and produces sentences so excessively severe they take your breath away. Prior felony informations have played a key role in helping to place the federal criminal trial on the endangered species list.

What criminal defense lawyers are constrained to recognize, though it’s often difficult for other lawyers and certainly non-lawyers, to see is that the risk of conviction after trial in drug cases can be so great that it can prove fundamentally irrational to fight.  Federal drug conspiracy cases are wondrous things, coming after leisurely investigations, usually involving the use of extreme measures such as long-term wiretaps, and replete with law enforcement “experts” who will explain away, or just lie about, any details that don’t fit the government’s narrative.

Judges know this but allow it anyway. Jurors don’t know this, and see a dog and pony show that’s been artfully constructed to appeal to their every bias. Agents are brave and courageous. Agents testify calmly and credibly.  No stone is left unturned, and no heartstring is left unplucked.  The brave souls who protect you at night so you can sleep comfortably would never lie, have no reason to make up stories about these heinous drug dealers.  They only come here to assure your daughters aren’t raped and your sons turned into junkies. They do this for you, dear juror. For you.

At his blog, Hercules and the Umpire, Nebraska federal Judge Richard Kopf wrote (in a comment to a post about some challenges posed to his “all drug dealers are violent” assertion) that:

If you don’t practice federal criminal law, you might assume that dope dealers are rational actors. That is seldom the case…

While he may be a federal judge, I have to pull rank on this one, as I have far more inside experience with “dope dealers” than Judge Kopf.  He’s quite wrong here. Drug dealers, with rare exceptions, are extremely rational actors. Not smart actors, perhaps, but definitely rational.

Ironically, Judge Kopf should have gotten an inkling of this when he wrote about 851 enhancements, where the US Attorney denied using enhancements to coerce pleas, and defense counsel immediately responded with “hogwash.”  Perhaps he thought only the lawyers were rational enough to understand the implications?  Oh no. Not even close. Defendants may not like it, but they most assuredly get it.

The juxtaposition of Judge Kopf’s “concern” that the government may not be entirely forthright in its use of 851 enhancements with Judge Gleeson’s views is illuminating:

DOJ’s policy regarding prior felony informations has been unsound and brutally unfair for more than two decades. “It is a grave mistake to retain a policy just because a court finds it constitutional,” and it would indeed be a grave mistake to retain this one.

Hopefully, this will filter through to the rest of the country, maybe even Washington, over time, but for now, the government retains its bludgeon and uses it at will.  Judge Gleeson sees this. Hopefully, Judge Kopf and others will see it as well.

H/T Doug Berman

5 comments on “Double Your Pleasure, Double Your Fun, with 21 U.S.C. § 851

  1. Pingback: Light rather than heat « Hercules and the umpire.

    1. SHG Post author

      As our good buddy, Bill Otis, had to say in comments to Berman’s post, Judge Gleeson is now just a younger version of Judge Jack Weinstein. On the bright side, it’s a lot more persuasive to other judges coming from John Gleeson than me.

  2. Pingback: Sentencing and the Cult of Personality (Update) | Simple Justice

  3. Pingback: Federal Sentencing Laws Need Reform, But They’re Not Out to Get You | Aggressive Raleigh Criminal Attorney

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