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.

RGK

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