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Holder to Federal Prosecutors: Stop Using Threat of 851 Enhancements to Coerce Pleas

Apparently U.S. Attorney General Eric Holder’s impending retirement from government service has not extinguished his desire to rein in over-zealous federal prosecutors.  In a September 24, 2014 memo to federal prosecutors made public, Holder has instructed them to only utilize 851 sentencing enhancements in the instances where “unique facts and circumstances require its use.  The memo makes reference to an earlier Holder memo dated August 12, 2013, which stated that the filing of an 851 was not an appropriate usage of prosecutorial discretion whether a defendant seeks to exercise his constitutional right to go to trial, but had been criticized as not going far enough.

An 851 enhancement refers to that section of the U.S. criminal code which calls for additional, severe punishment for accused offenders with verifiable prior felony convictions, whether or not they are relevant to current charges or usable in the Pre Sentence Report.

According to Holder, “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 negotiation for the sole or pr3edominant purpose of inducing the defendant to plead guilty.”  In those two sentences Holder, who has presided over several watershed reforms with the Depart of Justice (DOC) and been a strong voice for sentencing reforms, delegitimzed this rampant misuse of the prosecutorial sledgehammer used to extort guilty pleas from defendants.

The uncontroverted facts the effects of prosecutorial misuse of the 851 enhancement, said a federal judge in a recent case: “trials have become rare events in our system. In 1980, 81% of federal convictions were the product of guilty pleas.  Now that number is 97%,” according to Sentencing Commission 2012 statistics quoted by federal district court Judge John Gleeson in the case U.S. v. Luzim Kupa. Many of those guilty

Pleas were induced by the real fear that prosecutors would use an 851 enhancement to gain a ten, twenty, or even a life sentence for a crime that deserved a much-less lengthy period of incarceration.

Many other judges have spoken out against this practice, but few with the directness of Judge Gleeson, who noted in the Kupa opinion several instances of prosecutorial abuse, and the “unfairness and the unnecessary expense caused by our current federal sentencing regime for drug offenses….(a) the defendant ..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.” 

The solution, the judge said, is relatively simple: utilize the 851 tool as Congress originally intended, for the worst of the worst, not low-level, non-violent drug offenders.  Accord to the judge, “The newly created Guidelines took sentencing power from judges and placed it in the hands of prosecutors...(who) found themselves in a position where they could influence sentencing outcomes through their charging decisions and plea bargaining.”  One of the results of this development, he stated was that sometimes innocent defendants with prior felonies pled guilty rather than risk an adverse trial verdict that history showed would increase their probably sentence by a factor of three.

The judge challenged federal prosecutors to do the right thing:  “The attorney General can right those wrongs and the many other like them if he has the will to do so and if the conduct of those inmates since they were sentence suggests it is appropriate.  The United States Attorneys around the country have the power to go back into courtrooms and to request sentencing judges…to vacate sentences that were mandated by prior felony information and amounted to miscarriages of justice. Any claim,” the judge continued, “that such a request can only be made if there’s a defect in the underlying proceedings would just be an excuse.  The underlying defect is the abuse of prosecutorial power that produced the sentences in the first place.  (Prisoners) will certainly not object to a request for remedial relief, and if the judges choose to vacate and resentence on the joint request of the parties, justice will have been served.  If they don’t, nothing will have been lost except the judge’s opportunity to correct an injustice.”

Sources:,, “Attorney General to Prosecutors:  stop using the longest sentences to extort guilty pleas,” by Lisa Flatow, http:/, October 4, 2014.

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