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?


The US Attorney for the District of Nebraska responds regarding § 851 enhancements

Recall my earlier post laboriously titled 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?  In that post I highlighted Judge Bennett’s remarkable opinion that found that 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.  Among other things, I also sought an explanation from Deb Gilg, our very able United States Attorney,

Mrs. Gilg came to my office last week to give me her response. Without intending to quote her, she essentially had two things to say that she hoped I would consider. First, Judge Bennett’s statistics showed that the District of Nebraska was using the § 851 enhancement like a scalpel rather than a butcher knife. In other words, if I had a legitimate concern, it ought to be directed not at the USA for Nebraska but elsewhere. Second, the US Attorney for the District of Nebraska has written procedures that govern when the government will seek such an enhancement. She asserted that those procedures were rationally related to such things as the nature of the offense and the personal characteristics of the offender including especially criminal history and the age and nature of the prior convictions. She assured me that the enhancement would never be employed to coerce a guilty plea.

I appreciate Mrs. Gilg taking the time to respond to my concerns. As a side note, I particularly enjoy her candor and sense of humor.


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