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?