Judge Bennett skewers DOJ like a shish kebab of little lamb , prompting me to ask: What in the name of bloody blue hell is going on at the US Attorney’s office in Nebraska that allows for the disparity that Judge Bennett writes about?

Judge-BennettAlthough we often disagree, Mark Bennett is a dear, dear friend. More relevant to this post, he is one of the nicest, most intellectually honest, smartest and prolific of all federal trial judges. He has written an opinion regarding disparity in drug sentencing regarding section 851 enhancements for prior drug sentences. Mark’s opinion is featured in Professor Berman’s preeminent sentencing blog here. From London, I can see that the opinion has already generated 22 comments on SL&P. With all this in mind, here is my take:

This opinion is one of the most important federal sentencing decisions to be issued by any court at any time. It highlights dramatically and exactly what happens when we ignore unwarranted sentencing disparity whether that disparity is generated by judges doing their own things or by prosecutors using the Guidelines and statutory minimums as bargaining tools to extort guilty pleas from defendants who dare to say, “prove it.” Again, this is a big, big deal.

Pursuant to the penalty provisions set forth in 21 U.S.C. § 841(b)(1), enhanced penalties, including
increased mandatory minimum and maximum terms of imprisonment, apply if the
defendant has a prior conviction for a “felony drug offense.” “Felony drug offense” is
defined as “an offense that is punishable by imprisonment for more than one year under
any law of the United States or of a State or foreign country that prohibits or restricts
conduct relating to narcotic drugs, marijuana, anabolic steroids, or depressant or
stimulant substances.” 21 U.S.C. § 802(44). These enhancements are usually referred to as
“§ 851 enhancements” because 21 U.S.C. § 851 establishes and prescribes certain
notice and other procedural requirements that trigger them.

Among other things, Mark found that a few miles (as between Sioux City, Iowa and Sioux City, Nebraska) can make a damning difference.  He writes:

Recent statistics obtained from the U.S. Sentencing Commission (Commission) — the only known data that exists on the eligibility and applications of the DOJ’s § 851 decision making — reveal jaw-dropping, shocking disparity. For example, a defendant in the Northern District of Iowa (N.D. of Iowa) who is eligible for a § 851 enhancement is 2,532% more likely to receive it than a similarly eligible defendant in the bordering District of Nebraska. Equally problematic is that, at least prior to August 12, 2013, decisions to apply or waive § 851 enhancements were made in the absence of any national policy, and they are still solely within the unreviewed discretion of the DOJ without any requirement that the basis for the decisions be disclosed or stated on the record. This is true even for non-violent, low-level drug addicts.

Id. at slip op. p. 3 (emphasis added).

I have a lot of reactions to Mark’s opinion. But, here are my two strongest ones, framed in the form of questions.

  1. What the hell is going at the United States Attorney’s office in Omaha (and elsewhere) that allows disparities like this to exit–if a section 851 enhancement applies, why is the government not pressing it on a principled and consistent basis whether or not the defendant elects to go to trial?
  2. What, if anything, should the judges in Nebraska (and elsewhere) do to see to it that such disparities are reduced?

I trust that Deb Gilg, our very able United States Attorney, will have an answer to my first question. Once I have that, I will press hard  for an answer to the second one.


9 responses

  1. The answer to § 851 enhancements should not be systematic enforcement, 100% across the board, because such policy results in many injustices. That type of wholesale enforcement is like shooting a mosquito with a shotgun. Essentially, you’ll have many low level drug sellers/users doing astronomically lengthy sentences, which makes no sense.

    At some point, the sentencing arsenal must be taken out of the hand of prosecutors and given to the sentencing judge. Let the judge use his/her best judgment in determining the appropriateness of the enhancement. Will disparities occur by giving the judge discretion? Yes, but today we have enormous disparities caused by prosecutors whose goal is to extort pleas rather than arriving at a proper sentence. Accordingly, judges necessarily will bring about less disparities and fairer sentences.

  2. Don’t Federal judges have the authority to disregard the prosecutor’s sentencing recommendations/demands?

    If so, then I have to ask after the judges’ role in, for instance, that 2500% sentencing disparity.

    Separately, that large per centage difference is a red flag for me, from the august heights of my stat minor: on what n is that difference calculated?

    Generally, though, based solely on environmental parameters, I’d expect to see considerable similarity in sentence enhancements within a region, with differences across regions, and differences growing with increasing distance.

    I’d also want to see a measure of sentencing similarity between regions with substantially similar environmental conditions. Which is a measure hard to assess; however, crimes exist within the context of community; they don’t just coalesce out of the æther.

    Eric Hines

  3. Jose,

    Good point. What I want is a consistent and principled approach. Perhaps something in writing and made public that everyone can read and understand would be a good first step for each US Attorney to take.

    If you want to exempt everyone who sold small quantities that is fine by me. But, it is a different question whether you exempt kilo quantity dealers who enter pleas and assert the enhancement when kilo quantity dealers go to trial. Of course, the same concern is true, and even more pronounced, when you extract a plea from small timers but impose the enhancement on small timers who go to trial.

    All the best.


  4. The thinking Eric is that the charging document controls the statutory minimum and only prosecutors get to write the charging documents. If a minimum is not triggered by the charging document, arguably there is nothing a judge can do. All the best.


  5. What should a judge do if the response from the U.S. Attorney is something along the lines of, “whether to file a section 851 information of prior conviction is something the statute places in the sole discretion of the prosecutor. If a court were to insist on a rationale that explains when an information is filed and when it is not, that is judicial interference in executive branch decision making.”?

    If I were a prosecutor (I am not), I might be tempted to answer like that. After all, if I give a reason or rationale and the judge strongly disagrees with it, what happens next? What if I give a rationale, but later a particularly unpleasant defendant shows up who would clearly qualify for mercy under my stated policy but I want to withhold it?

  6. Bryan,

    You have a good point. The court has no business instructing the Executive what to charge. On the other hand, it is also the duty of the court to avoid unwarranted sentencing disparity under the sentencing statute. In that vein, a court is on surer footing when, if push comes to shove, the court equals things up at sentencing. The specifics of that I leave to an individual case.

    All the best.


  7. Pingback: The US Attorney for the District of Nebraska responds regarding § 851 enhancements « Hercules and the umpire.

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