The arbitrary manner in which AUSAs file §851 prior conviction enhancements has lead to substantial sentencing disparities nationwide. Some districts file §851 enhancements with impunity while some never file them. As a result, several academics have challenged AG Lynch to establish contours that will guide when this enhancement will be applied. The upshot of the plea goes as follows:
“We write to urge you to issue renewed guidance to all U.S. Attorneys to reiterate and enhance compliance with former Attorney General Eric Holder’s September 2014 Memorandum (“Holder Memo”) instructing U.S. Attorneys not to leverage 21 U.S.C. § 851 enhancements to induce defendants to plead guilty. Recent statements by Steven H. Cook, head of the National Association of Assistant United States Attorneys (NAAUSA), as well as field research being conducted by students at Yale Law School, suggest that at least some federal prosecutors are not consistently complying with this policy. This creates prosecutor-driven disparities that are plainly unwarranted….
[T]here is mounting evidence that at least some U.S. Attorneys still consider it appropriate to routinely threaten to file § 851 enhancements if defendants exercise their right to go to trial. Last week, the Washington Post reported that Steven Cook of NAAUSA “said the rates of cooperation have not changed in part because mandatory sentences are still in play as leverage in negotiations. The Holder memo, he said, has been interpreted differently by individual prosecutors, sometimes in the same office. Defense attorneys ‘understand that this tool is still in our pocket.’”
Though the study is still ongoing, preliminary inquiries and data analysis by students at Yale Law School likewise reveal inconsistent application of the Holder Memos. Moreover, prosecutors in many districts continue to wield the explicit or implicit threat of § 851 enhancements to induce defendants to plead guilty. In numerous districts across the country, it is common knowledge that a prosecutor will almost certainly file an enhancement if a defendant elects to go to trial. Such practices contravene the spirit and letter of the Holder Memos.
We urge you to issue renewed guidance to all U.S. Attorneys in order to ensure compliance with and consistent application of the August 2013 and September 2014 Holder Memos. Additionally, in order to foster and facilitate consistent application of federal sentencing laws nationwide, we recommend that you (1) include these policies in the U.S. Attorneys’ Manual, and (2) require U.S. Attorneys to report when they file § 851 enhancements, and their reasons for doing so pursuant to the Holder Memos.”