Holder Tells Prosecutors to Stop Overcharging

Attorney General Eric Holder may be retiring, but he’s still doing something good in terms of dealing with overly harsh sentences and coercive plea bargains. He’s telling all federal prosecutors to stop overcharging, a key tactic in forcing defendants to plead guilty rather than going to trial.

In a memo to U.S. attorneys, Holder directed his prosecutors not to use a particularly draconian brand of mandatory minimum sentence against defendants solely for the purpose of extracting a guilty plea.

“An 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing plea negotiations,” Holder wrote in the memo.

In the box of draconian tools available to federal prosecutors in drug cases, the 851 enhancement is what one federal judge called “the sentencing equivalent of a two-by-four to the forehead” and so severe that “they take your breath away.” Families Against Mandatory Minimums dubbed it the “super mandatory minimum.” The provision in federal law allows prosecutors to seek mandatory minimum sentences that are at least double the original already draconian mandatory minimum sentence for anyone who has a prior conviction. If defendants have a second prior felony conviction, they can face life without parole.

Ultimately, mandatory minimum sentences need to end entirely, as does the war on drugs itself. But in a “justice” system in which a full 97% of all drug charges end in a plea bargain, this is at least a small step in the right direction. When it comes to the Bill of Rights, the Obama administration has been mostly a disaster, but they’ve made some good strides in this regard at least.

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  • D. C. Sessions

    What would be really great would be if defense attorneys would reduce their charges so people could afford them.

    Oh, wait — that’s not what Holder means?

  • daved

    Actually, I think it’s something to do with prosecutors and their credit cards.

  • colnago80

    The problem is that if more defendants went to trial, more judges and prosecutors would have to be hired. That would cost money and who would be willing to pay for it by raising taxes, a big no no.

  • D. C. Sessions

    As distinct from the cost of incarcerating someone for decades. Indeed, we can’t afford justice.

  • http://www.clanfield.net janiceintoronto

    Our drug laws are terrible.

    Yours are terrifying.

    All the prohibition needs to go.

  • http://denkeensechtna.blogspot.com Deen

    By the way, another reason to abolish the death penalty.

  • Artor

    doing something good… He’s telling all Federal prosecutors…

    Hmm… telling & doing seem to be entirely different things. Has he actually taken steps to end this, or is it a case of “Stop doing that, or I’m going to tell you to stop doing that again?”

  • lorn

    The issue is that the law says what it says. Yes, executive action, in this case coming from Holder, may deter exploiting the laws as they are written in individual cases and/or a short period of time but the change is leveraged only by political loyalty, and convenience, not actual limits of any law. All progress made at that operational level are going to be fleeting and more a mater of optics than substance. Another president and/or AG and all the progress can be lost in the time it takes the ink to dry.

    If you want to stop immoral prosecution and outrageous sentencing in any significant and permanent way you need to change the laws. To do that you need to arrange coalitions of people strong and resilient enough to get select candidates elected and support them in office to clear their way and calm their main fear, not getting reelected.

    Figure ten years, a lot of messy compromises, and $50,000,000 minimum.