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.