Use of Drug Charges Mandatory Minimums Under 21 USC Section 851

The Kupa decision by District Judge John Gleeson of the E.D.N.Y. is an amazing and memorable indictment of the "illegitimate" and deeply entrenched practice of federal prosecutors who use the sentencing enhancements, known as mandatory minimums, authorized by 21 U.S.C. § 851 as a "sledgehammer" to coerce defendants into accepting guilty pleas in drug charges rather than going to trial.

"This case presents a deeply disturbing, yet often replayed, shocking, dirty little secret of federal sentencing: the stunningly arbitrary application by the Department of Justice of § 851 drug sentencing enhancements. These enhancements, at a minimum, double a drug defendant's mandatory minimum sentence and may also raise the maximum possible sentence, for example, from forty years to life. They are possible any time a drug defendant, facing a mandatory minimum sentence in federal court, has a prior qualifying drug conviction in state or federal court (even some state court misdemeanor convictions count), no matter how old that conviction is."

In the end, Judge Bennett concluded that principal problem created by the DOJ's misuse of the § 851 enhancements was that it created a "breathtaking disparity" in the sentencing of many drug defendants. But, he also wrote that the prosecutors' decisions about when to use the § 851 enhancements are so "shrouded in such complete secrecy that they make the proceedings of the former English Court of Star Chamber appear to be a model of criminal justice transparency."

Coupled with the recent Young decision by District Judge Mark Bennett of the Northern District of Iowa, and the so-called Holder Memorandum that United States Attorney General Holder issued on August 12, 2013, federal criminal defense attorneys finally have a few weapons to battle excessive and ridiculously unfair mandatory minimum sentences in drug charges on a level playing field.

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