Report on the Effects of Federal Sentencing Enhancements on Drug Defendants

By John Roberts, Esq.
Arseneault & Fassett, LLP

The United States Sentencing Commission has issued a report which examines the use and impact of increased penalties for drug offenders who have prior felony drug convictions. Entitled Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders, the Report provides statistics and findings which are vitally important to defendants facing federal drug charges.

A person convicted of a drug felony in federal court qualifies for a “851 enhancement” if he has one or more previous felony drug convictions — in either federal or state court. When applied, the 851 enhancement increases the mandatory minimum or statutory maximum penalty that the defendant faces. For example, the 5-year mandatory minimum that applies to some federal convictions can be increased to a 10-year mandatory prison sentence with an enhancement due to a single prior felony conviction. In other cases, a 20-year statutory maximum can be enhanced to 30 years for one prior drug felony, and two or more prior drug felonies can cause a defendant to face mandatory life imprisonment without release.

To trigger the enhanced penalties, federal prosecutors must take the affirmative step of filing an “851 information.” Prosecutors also have the discretion to withdraw the information prior to sentencing. The Report found that, nationwide, prosecutors filed enhancement informations in approximately 12.5 percent cases in which defendants were eligible. The informations were later withdrawn in 22.5 percent of those cases.

The Report found that there is wide geographic variation in the extent to which U.S. attorneys filed enhancements or later withdrew them. In other words, an otherwise identical defendant could face vastly different outcomes depending on which federal district he found himself prosecuted in. This disparity is contrary to Congress’s intent in establishing the Commission and the Sentencing Guidelines, which among other things were meant to eliminate such unfair outcomes.

The Report also found that the enhancements have a disparate impact on black defendants. Even after accounting for the fact that black defendants comprise a disproportionate share of eligible defendants (making up only 24% of all trafficking defendants but 42% of those eligible for the enhancement), the enhancements were further disproportionately applied against black defendants at prosecutors’ “discretion.” More than 51% of defendants against whom the enhancements were filed were black, as were nearly 58% of defendants who received the enhancements without later relief. These troubling statistics should be brought to the attention of the sentencing judge as the basis for a downward departure or variance from the Sentencing Guidelines in every case where they could help the defendant.

The Report relies on data from the year 2016. It therefore does not factor in the Trump administration’s policy changes, beginning in 2017, which directed federal prosecutors to apply for the most severe enhancements for which defendants are qualified, replacing the Obama administration’s previous, more lenient policies. (See our previous blog on that subject here.) Therefore, worse news may be yet to come.

The findings revealed in the Report underscore the fact that any person charged with a drug crime – whether in federal or state court – should consult with an experienced criminal attorney who is familiar with the U.S. Sentencing Guidelines and the latest research on their application before making critical decisions about how best to defend their interests.

Kathleen Kelleher

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