Are Federal Prosecutors Still Overusing Sentencing Enhancements?

For more than 30 years now, eager-beaver federal prosecutors caught up in drug-war hysteria have been reaching for whatever laws they have on the books to punish drug offenders. Often that's meant handing out harsh sentences to low-level offenders, resulting in law and order that's way more stick than carrot. That's the situation we explored in this week's cover story on Valerie Bozeman. In 1993, the U.S. attorney in South Florida indicted the then-28-year-old mother of three for her role in a cocaine distribution enterprise. 

Owing to a provision known as 851 enhancement, Bozeman was handed a life sentence for her role in the conspiracy. The statute, legislation that offers automatic supersized prison sentences for defendants who already have felony convictions, has since become one of the central pieces in the debate over sentencing reform. The volume on this debate has grown in recent years; in 2013, then-Attorney General Eric Holder issued new, more merciful marching papers to federal prosecutors regarding 851 enhancement. 

But are these new directives being followed? If they're not, what good are these memos doing if prosecutors fail to listen?

For one, there isn't a lot of oversight — the Department of Justice isn't combing through the sentencing decision of every case passing through the cubicles of every U.S. attorney in every district. 

As we discussed in this week's feature, perhaps more than mandatory minimums, sentencing enhancements like the ones found under 851 have basically mutated the entire federal legal system. Bozeman's case illustrates the fact: Often, the threat of a sentence enhancement is enough to scare defendants away from going to trial, instead taking whatever plea the government lays on them. As a result, only 3 percent of federal cases go to trial; in 1980, 31 percent of cases went to trial. That's mind-blogging. 

Holder's memos sought to address these issues. In 2013, the attorney general instructed U.S. attorneys that they should file 851 enhancements only for defendants who met one of the following criteria: 

• Whether the defendant was an organizer, leader, manager or supervisor of others within a criminal organization;

• Whether the defendant was involved in the use or threat of violence in connection with the

• The nature of the defendant's criminal history, including any prior history of violent conduct
or recent prior convictions for serious offenses;

• Whether the defendant has significant ties to large-scale drug trafficking organizations,
gangs, or cartels;

• Whether the filing would create a gross sentencing disparity with equally or more culpable
co-defendants; and

• Other case-specific aggravating or mitigating factors. 
In September 2014, Holder's office released a second memo. This document directly addressed the statute's use as a threat against defendants going to trial — another misuse, according to the new directives. 

"Whether a defendant is pleading guilty is not one of the factors enumerated in the charging policy," the policy reads. "Prosecutors are encouraged to make the § 851 determination at the time the case is charged, or as soon as possible thereafter. An § 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty." 

But again, are prosecutors following the guidelines? It doesn't look promising, according to Kate Stith, a professor at the Yale Law School. 

"Some YLS students and I are presently engaged in an empirical project seeking to ascertain the extent to which USA Offices around the country have implemented these policies," Stith told New Times in an email. "We still have a lot of data to sift through and many interviews to conduct, but I can say that our preliminary analysis is that implementation of the new 851 policy has been uneven."

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Kyle Swenson
Contact: Kyle Swenson