Light rather than heat

Although I weary of reading rants whining about whacking serial drug offenders under 21 U.S.C. § 851, to a degree, I share Judge Bennet’s, Judge Gleeson’s and defense lawyer Scott Greenfield’s sincere disquiet over using section 851 enhancements to coerce guilty pleas and the sentencing disparity that may result. That is true even though I won’t “go full Gleeson” on prosecutors. But, I do have a suggestion.

Assuming we all agree that the decision to seek a section 851 enhancement belongs exclusively to the Executive, and assuming that we all agree that not everyone who could receive an enhanced sentence under section 851 should receive such a sentence, each US Attorney should make public his or her written criteria for when such enhancements will be sought. This would (1) insure that line prosecutors have specific written direction that would likely be followed rather more strictly because of its public character, and (2) allow the judiciary, the defense bar and the public to determine (a) whether the reasoning behind the policy is sound and (b) whether the policy is in fact being followed.

How ’bout more light than heat?


12 responses

  1. Amen too, though it then requires some follow through by a person with clout to assure that the government adheres to its policy (without rhetorical flourishes) and a sanction if it fails to do so.

    And I’m definitely stealing “go full Gleason.”

  2. Shg,

    Please note that I misspelled Judge Gleeson’s name in the original post. That sloppy error has now been corrected.

    Your point about “follow through” is exactly right. I have some thoughts about that, but, at least for now, I don’t think I should blog about specifics.

    All the best.


  3. If I were a US Attorney, and fortunately I am not, then my immediate response would be “Oh my goodness, no!” And the reason I would never publish them is the same reason that judges hate minimum sentences.

    As soon as you publish guidelines, you start running into cases where the guidelines don’t make sense. There will be cases where some little known, sensitive, or even worse inadmissible, factor carries the decision. Since the defense is undoubtedly going to mention my apparent variance from policy, I now have essentially just handed the defense attorney a stick to beat me with. All I have to do to avoid this predicament is not to publish my policy.

    I cannot agree with Mr. Greenfield that congress was so ignorant as to miss the possibility that 21 USC 851 might come up in plea bargaining. It seems to me far more likely that Mr. Greenfield’s clients (felons regarding whom the government has done a second lengthy drug investigation) simply evoke little sympathy from the legislature. But even if the problem is as serious as Mr. Greenfield sees it, the executive fitting itself with a muzzle would be a worrisome solution.

    I agree that transparency is essential at the highest levels of government — the sovereign people cannot command a government that they do not comprehend. However in the hum-drum everyday business of governing, I have seen many public servants utilize their discretion confidentially to do much justice on the small scale.

    For example I had a patient who, the week after she was raped, had a psychological decompensation and did some bizarre, illegal, and nonviolent things. A call to the prosecutor, enabled all to see that incarceration and prosecution were counter-productive, and charges were never filed. Imagine now that an office policy had said “all X get charged with Y” and some watchdog was monitoring the policy. The prosecutor would have to either A) charge a sick person with a crime or B) publicize my patient’s rape to explain why in this case mercy was more prudent than justice,

    Our constitution and tradition invest the executive with wide discretion. We charge the executive to be the heart as well as the arm of the law. Discretion is abused, but abuses of executive discretion need to be addressed either within the executive branch, or if that fails in the next election. When we restrain the discretion of the executive we lose our governments only capacity for mercy — and that is a sore loss, indeed.

  4. Dear John,

    You make good points. But, for a moment, let me wax idealistic. (A rare thing for me.)

    21 USC § 851 gives the Executive enormous, unchecked power to cause unwarranted sentencing disparity. 18 USC § 3553(a)(6) requires federal trial judges to avoid unwarranted sentencing disparity. To harmonize those two statutes, the Executive would be well-advised to provide written criteria for utilization of section 851 so that judges could perform their sentencing obligations. While there is some risk to the Executive by doing so, the risk is merely tactical. Since the Executive has a duty to seek justice, and to assist the judiciary in that endeavor, an Executive committed to justice should be willing to accept the tactical risk in order to seek the greater good.

    All the best.


  5. I have two former clients serving mandatory life based on enhancements under 21 USC § 851 for two prior drug felony convictions . Each could have avoided mandatory life by pleading guilty, but would have faced sentences around 25-30 years. The evidence against each was strong.

    One the one hand, each should have understood the consequences of the choice they were making. Plead guilty and hope for release sometime in your mid- to late 50’s or go to trial and die in prison. I understand why the prosecutors threatened to file the second prior conviction information if there was no plea. Once you have threatened to do something you need to follow up if you expect to retain credibility.

    On the other hand, each of these guys got twenty to thirty extra years of imprisonment because they exercised their right to a jury trial. Out of ignorance or arrogance, they miscalculated the odds of acquittal. Yes, each in each case the government had to expend resources to try them that would have been saved had they pleaded guilty. But does a few days of prosecutorial and court resources used up justify tacking on that much time, if the crime they actually committed did not provided they simply ‘fessed up?

    Whether a person admits or denies guilt has long been a factor in the punishment imposed. I’m not sure that much extra punishment is justified. Each will serve about 25 years for the crime he committed, after that they will be serving time for a bad tactical decision.

  6. Dear Bryan,

    I have seen that happen as well and I have sentenced several such folks who rolled the dice and are now serving the life sentence I imposed. I felt awful for their lawyers who did everything they could to get them to take the plea offered by the government. I also felt some empathy for the defendants, but, to tell the truth, not nearly as much as I felt for the lawyers who were just wrung out emotionally. Hang in there.

    All the best.


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  9. I’m a young attorney, so this has probably been litigated over the years and I am late to the party, but how is it not a violation of the separation of powers for the legislative branch to grant judicial power (sentencing authority) to the executive (through mandatory minimums, enhancements)? I read Gleeson’s opinion (thank you for posting, it was educational) and was struck by the judge’s claiming their hands were tied, they were figureheads, they had no power, etcetera. After all, they are ARTICLE III JUDGES with lifetime appointments – how is it possible an essential judicial power can be usurped by the executive?

  10. Ross P,

    Two things:

    1. Interesting point on the delegation issue–that is, giving the Executive the power to elect whether to charge a section 851 enhancement. I had not thought about the issue in those terms. I suppose why section 851 is not an improper delegation is that the legislative branch has defined the underlying offense, and the maximum punishment for that offense, in the main statute. The enhancement is not an element of the underlying crime but rather a matter of punishment that is within the range of punishments allowed by the underlying statute defining the crime and enacted by Congress.

    2. Regarding the power of Article III judges, the best answer to your frustration is that Article III judges have power but ought never to exercise that power unless there is a clear legal justification. If it is the Executive’s rightful power to charge an enhancement, what legal precept do you propose that would allow a judge to determine that the Executive may not charge a section 851 enhancement in a particular case?

    All the best.


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