United States v. Kupa
976 F. Supp. 2d 417
E.D.N.Y2013Background
- 21 U.S.C. § 841 establishes drug mandatory minimums (e.g., 5/10-year and 10-life tiers) that can be doubled or converted to life when prior ‘‘felony drug offense’’ convictions exist.
- 21 U.S.C. § 851 requires the government to file a prior felony information to invoke those recidivist statutory enhancements; Congress adopted § 851 in 1970 to make enhancements discretionary and targeted at ‘‘hardened, professional’’ traffickers.
- Since the Sentencing Guidelines era, DOJ policy (beginning in the 1990s and reinforced in 2003) treated § 851 notices as part of charging the “most serious, readily provable” offense, producing near-automatic filings or threats thereof.
- Prosecutors routinely use the threat or filing of § 851 informations to coerce guilty pleas (or cooperation) by creating enormous ‘‘trial penalties’’ — sometimes converting an otherwise nonviolent sentence exposure into decades or life — and to punish defendants who insist on trial.
- The practice produces sentences many judges view as excessive and unjust, contributes to the collapse of the federal trial rate, and creates a risk that innocent defendants will plead guilty to avoid catastrophic exposure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DOJ policy and prosecutorial practice of filing § 851 notices to induce pleas is proper | Gleeson: § 851 was intended to be used selectively for truly culpable, professional traffickers and must not be used to coerce pleas or punish trials | DOJ/prosecutors: Bordenkircher permits threats to re-indict or seek greater punishment; § 851 filings are justified when priors are readily provable | Court: Although constitutionality under Bordenkircher is assumed, the practice is abusive and unjust; DOJ should prohibit using § 851 to coerce pleas or punish trials |
| Whether Sentencing Reform and DOJ charging directives caused a return to near-automatic § 851 filings | Gleeson: Guidelines-era charging policies ("most serious readily provable offense") and the Ashcroft memorandum reinserted automaticity contrary to § 851’s purpose | DOJ: Charging the most severe provable exposure promotes uniformity and enforcement consistency | Held: The Guidelines-era charging regime shifted sentencing power to prosecutors and undermined § 851’s selective purpose; policy must change |
| Adequacy of the 2013 Holder Policy to address § 851 abuse | Gleeson: The 2013 Holder Policy is promising on initial charging but fails to cure § 851 abuse because it treats non-filing as a declination rather than making filing rare and narrowly authorized; its listed factors are too permissive | DOJ: The policy seeks individualized charging decisions and limits for low-level offenders | Held: The 2013 policy is insufficient; DOJ should explicitly ban using § 851 to coerce pleas, narrowly define eligibility, and enforce the prohibition |
| Whether relief should be provided to inmates sentenced under abusive § 851 practices | Gleeson: DOJ should seek remedial relief (motions to vacate/resentence, clemency) for those serving excessive sentences imposed due to abusive § 851 use | Government: (Implicit) finality and existing post-conviction avenues constrain relief | Held: The Attorney General should lead efforts to provide realistic avenues of relief; executive-initiated remedial steps are appropriate and necessary |
Key Cases Cited
- Bordenkircher v. Hayes, 434 U.S. 357 (U.S. 1978) (prosecutor may lawfully threaten reindictment or more severe charge as part of plea negotiations)
- United States v. Dossie, 851 F. Supp. 2d 478 (E.D.N.Y. 2012) (critique of mandatory minimums and prosecutors’ use to secure cooperation)
- United States v. Gonzalez-Ramirez, 561 F.3d 22 (6th Cir. 2009) (appellate treatment of § 851-enhanced sentence and judicial criticism of prosecutorial discretion)
- United States v. Espinal, 634 F.3d 655 (2d Cir. 2011) (procedural aspects of § 851 and plea practice)
- United States v. Harvey, 946 F.2d 1375 (8th Cir. 1991) (upholding § 851-enhanced life sentence and expressing concern about disproportionate effects)
- United States v. Capps, 716 F.3d 494 (8th Cir. 2013) (affirmance of life sentence where § 851 filing produced mandatory life and judge’s expressed reluctance)