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January 15, 2014

"Congress should scrap drug sentencing 'enhancements'"

The title of this post is the headline of this notable new commentary by Jamie Fellner published earlier this week in The Hill. (Ms. Fellner is senior advisor to the U.S. Program of Human Rights Watch and author of this recent HRW report, An Offer You Can’t Refuse: How Federal Prosecutors Force Drug Defendants to Plead Guilty .) Here is how the commentary starts and ends:

When President Obama recently commuted the extraordinarily severe sentences of eight men and women convicted on federal crack cocaine charges, he rightly noted they had all been sentenced under an "unjust" law that mandated vastly harsher prison terms for crack than for powder cocaine offenses.

But the injustice in these cases wasn't limited to that disparity – nor even to fact that all were charged with offenses carrying harsh mandatory minimum sentences keyed solely to the type and amount of drug involved in their crime and not their role in the offense.

Prosecutors in half the cases used a 1986 sentencing provision that enables them to pursue sentences "enhanced" far beyond the mandatory minimum if the defendant has prior convictions. For defendants with one prior, their sentence can be doubled. If a defendant facing a ten-year minimum sentence has two prior drug convictions, the prosecutors can transform his sentence into life. The decision to use “enhancements” is in the prosecutor’s sole discretion and the courts have no choice but to impose the egregiously harsh enhanced sentences.

Take Stephanie Yvette George, one of the eight. She was convicted in 1997 because, as the judge said, she was the “bag holder and money holder” for crack-dealing boyfriends. She had been looking at a ten-year mandatory minimum sentence on crack conspiracy charges – already too severe a punishment for a bit player in the drug business. But prosecutors chose to increase her sentence to life because she had two earlier convictions for selling a total of $160 worth of crack – offenses for which she served nine months in a work-release program. Because there is no parole in the federal system, her life sentence was a sentence to die behind bars.

As George’s case illustrates, even a small-time drug offender with some petty prior convictions can be sentenced to life if a prosecutor decides to trigger the sentencing enhancement. Because mandatory sentences take no account of an offender's role in a crime, ten years is the minimum most street level dealers, bit players, and even couriers face unless they can secure a lower sentence through a plea agreement. Moreover, the prior convictions that turn ten years into a life sentence could have happened long ago, the defendant may never have been sentenced to prison (e.g. the sentence was for probation), and the crimes could have been as minor as simple possession of marijuana for personal use.

Some prosecutors use the enhancement provision in every case in which it's applicable. Most, however, use the threat of enhancements to strong-arm defendants into pleading guilty -- a threat they make good on if the defendant refuses. As one former prosecutor told me, "We would only invoke [the enhancement]…to penalize a defendant for the audacity of going to trial."...

In August 2013, Attorney General Eric Holder instructed federal prosecutors to avoid seeking sentencing enhancements in drug cases unless the circumstances warranted such severe sanctions. But he provided such broad criteria for determining whether such circumstances exist that, as Judge John Gleeson of the Eastern District of New York has pointed out, any capable prosecutor who wants to seek the enhancement can justify doing so.

The attorney general should prohibit prosecutors from threatening or seeking greatly increased sentences simply because defendants refuse to plead. But as long as the drug sentencing enhancement provision remains on the books, prosecutors are likely to use it. Congress should abolish the provision as part of a broader reform to the regime of mandatory minimum sentencing laws that have sent tens of thousands to prison with sentences that are neither just nor fair.

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January 15, 2014 at 09:02 AM | Permalink


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One must answer who they are before saying unjust. If they are mass murdering thugs terrorizing the are, we need the enhancements.

Posted by: Supremacy Claus | Jan 15, 2014 10:08:34 AM

|| In August 2013, Attorney General Eric Holder instructed federal prosecutors to avoid seeking sentencing enhancements ||

Holder’s corruptus in extremis has become so punishing and frequent that he’s perhaps as trustworthy as a Lance Armstrong
or Alex Rodriguez, as dangerous as a Lynne Stewart or Lois Lerner.

E.G. Sec. Holder promised to validate Utah's same-sex "weddings" after the Supreme Court stayed them. In plain rebellion to the justices' June ruling,
Holder announced that DOJ would autocratically offer 1,300 federal benefits to couples, who, under state law, aren't legally married!
This is lawless contempt for SCOTUS, similar to how he was held in Contempt of Congress.

▼ Holder: "I am confirming today that for purposes of federal law these marriages will be recognized as lawful”, though Utah officials and 66% of her state’s voters
categorically decided otherwise, and contrarily the Supreme Court has chosen to honor "state sovereign choices about who may be married."
Even Pres. Obama has claimed that he supports states' rights on marriage.

▼ “Mr. Holder did not detail the administration’s legal reasoning” and his “legal authority…dubious” to Cornell Professor Dorf, and baffling
to one reporter how the Attorney General could "find a constitutional right the Supreme Court has not yet recognized."
..........................................Undermining state laws and Supreme Court actions; such is AG Holder......................

-- www.nytimes.com/2014/01/11/us/politics/same-sex-marriage-utah.html?_r=0
-- www.humanevents.com/2012/05/09/obama-supports-samesex-marriage-cites-states-rights/

Posted by: Adamakis | Jan 15, 2014 12:06:37 PM

So take it to the next step. IMO they should get rid of enhancements, period.

Posted by: Daniel | Jan 15, 2014 12:59:30 PM

I am a student in professor Berman's Sentencing Law class at Ohio State.

It seems these enhancement provisions clearly worsen an already accepted problem.

It is fairly accepted that sentencing guidelines which treat crack cocaine differently from powder cocaine tend to have a disparate racial impact with little justification for the differentiation between the two.

Adding enhancement provisions to a law which already results in inconsistent sentencing between races exacerbates this significantly since recidivism rates among minorities are much higher than those among whites.

Posted by: kasommerville | Jan 15, 2014 1:19:12 PM

Kas. Crack is more addictive than powder, so enhancement has a justification. It also was associated with a surge in murder, making our cities unlivable. You are being indoctrinated by pro-criminal ideologues.

Posted by: Supremacy Claus | Jan 15, 2014 1:33:39 PM

Daniel --

"So take it to the next step. IMO they should get rid of enhancements, period."

You're on the right track. Since the enhancements are merely an expression of an already excessively punitive regime; and since, as kasommerville notes, they are only a poorly disguised instrument of the Racist White Devil; we should get rid of, not just the enhancements, but of sentencing altogether.

When criminals see that there are no serious consequences to their behavior, and thus that society has become merciful and redemptive, they will transform their ways of thinking and, instead of recidivism (which was never more than a mendacious construct of the White Devil), they will turn around their lives and go on to become Jonas Salk and Steve Jobs.

To those mean-spirited Neanderthals who think differently, I would say: Hey, guys, get looser underwear and lighten up. Even if on the off chance that there might be some minor recidivism, look, the sky won't fall.

C'mon, people, Give Peace a Chance!

Posted by: Bill Otis | Jan 15, 2014 2:18:46 PM

Actually, adamkis, in the Utah marriag situation Holder is following the June ruling. You're argument for contempt of court resembles what we typically get from rodsmith -- citing to one sentence of reasoning as if it were the holdings.

The holding in June was that DOMA was unconsititutional and the federal government could not deny benefits to same-sex couples that were legally married. Between the trial court's ruling finding that the couples had the right to marry and the issuance of the stay, those couples had the right to marry and did legally marry.

In that way, they are similar to a party winning a court case holding that they own 100 head of cattle. If they sold 20 of those cattle before the other party could get a stay to freeze the winner from disposing of his/her cattle, those sales are still valid sales. At some future point, those sales might be invalidated, but the issuance of the stay does not invalidate those sales.

Posted by: tmm | Jan 15, 2014 3:53:29 PM

That was humorous Bill O. but my stance here is principled. I view myself as a criminal justice minimalist. I oppose sentencing enhancements for the same reason I oppose "hate" crimes. In my view a crime is a crime is crime, no modifiers or enhancements of any kind are necessary.

Posted by: Daniel | Jan 15, 2014 4:17:01 PM

The Pacific air has made Bill's heart grow three sizes. I finally agree with his remarks even though they were of the typical strawman variety. Still, a step in the right conservative direction is welcome, no matter the sarcasm.

Posted by: albeed | Jan 15, 2014 8:48:59 PM

The Sentencing Commission has proposed an amendment to the guidelines but once again left out the same people who wont see relief with the 2010 FSA. If sentencing someone to life for a 1st time, non-violent offense was so bad you dont do it anymore then why not provide relief to those railroaded in the 80s and 90s?

The new proposed guidelines dont help anyone above a level 38, so if one person owned a gun in a conspiracy case all in the conspiracy have a gun charge and have an extra 5 years tacked on.

US Marine 93-99

Posted by: Chris | Jan 24, 2014 10:27:09 AM

The reality is these enhancements are being used to punish people who refuse to cooperate. It seems to me the prosecutors do as the agents instruct them to do. If an individual refuses to cooperate, the Drug Enforcement Agents immediately threaten you with these enhancements. Faced with such harsh sentencing people rarely take the case to trial. After all 15 years seems better than 25 years. This is what I’ve witnessed in my hometown in VA.

At the age of 18 my brother (a non violent offender) was arrested and sentenced on a drug distribution charge in 2003. His charges were in the city and county of the same town. He was arrested once, sentenced twice (in the same court on the same day). He served a combined 6 years (3 for one charge, 3 for the other). He was released in 2008 under supervised probation which he successfully completed.

Last year he was rearrested on a similar charge, drug distribution (small street dealer quality). After refusing to cooperate he will now be sentenced as a career offender with enhanced sentencing. This means he will receive 15 years. I believe in the saying “you do the crime, you do the time”. However after living in a city where child molesters/rapist and murders sentences are equal, if not than someone dealing drugs, the time does not match the crime here. I know of people who are serving 10 years in jail for murder. Or serving 5 or 6 years for rape/molestation. In addition I know people whom have gone to jail for similar charges as my brother, been released and jailed again a few months, or a year later. Only to serve less time. It’s sickening to me these enhancements have not been addressed. They are being used in lieu of the mandatory minimums, so how is this solving anything? If prosecutors can’t give you a harsh sentence through mandatory minimums they will just enact enhancements/career offender sentencing.

Please address this issue or the Smart Sentencing Act will not be as effective.

Posted by: Natasha | May 6, 2014 10:12:04 AM

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