STATEMENT OF REASONS

JOHN GLEESON, District Judge.

A. Preliminary Statement

Mandatory minimum sentences for drug trafficking offenses have gotten a lot of attention lately. Attorney General Eric H. Holder, Jr. recently announced a new "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases" (the "2013 Holder Policy").1 The new policy limits the circumstances in which United States Attorneys can properly invoke these harsh mandatory sentences. It has the potential to reduce significantly both the unfairness and the unnecessary expense caused by our current federal sentencing regime for drug offenses.

The Attorney General is once again out front on desperately needed reform, as he was with regard to the shameful 100:1 crack to powder cocaine ratio2 and has been with regard to alternatives to incarceration in both the federal and state systems.3 He deserves praise for his leadership, and there are signs in both Congress4 and the United States Sentencing Commission5 that it is becoming contagious.

This statement of reasons relates to an important subset of the drug offense mandatory minimum cases6 — those in which prosecutors use or threaten to use their power to file prior felony informations pursuant to 21 U.S.C. § 851. Those prior felony informations7 dramatically increase already-harsh mandatory minimum sentences.

My focus here is narrow and my point is simple: as the defendant Lulzim Kupa's case and countless others show, the government abuses its power to file prior felony informations in drug trafficking cases. The single most important factor that influences the government's decision whether to file or threaten to file a prior felony information (or to withdraw or promise to withdraw one that has previously been filed) is illegitimate. When it enacted § 851 in 1970, Congress had in mind the world that DOJ asked it to create, in which federal prosecutors would carefully cull from the large number of defendants with prior drug felony convictions8 the hardened, professional drug traffickers who should face recidivism enhancements upon conviction. But instead federal prosecutors exercise their discretion by reference to a factor that passes in the night with culpability: whether the defendant pleads guilty. To coerce guilty pleas,9 and sometimes to coerce cooperation as well, prosecutors routinely threaten ultra-harsh, enhanced mandatory sentences that no one — not even the prosecutors themselves — thinks are appropriate. And to demonstrate to defendants generally that those threats are sincere, prosecutors insist on the imposition of the unjust punishments when the threatened defendants refuse to plead guilty.

Prior felony informations don't just tinker with sentencing outcomes; by doubling mandatory minimums and sometimes mandating life in prison, they produce the sentencing equivalent of a two-by-four to the forehead. The government's use of them coerces guilty pleas and produces sentences so excessively severe they take your breath away. Prior felony informations have played a key role in helping to place the federal criminal trial on the endangered species list.

On the bright side, like several other features of our current federal sentencing regime that need fixing, it's not difficult to identify where the appropriate use of prior felony informations went off the rails.10 The history of this prosecutorial tool explains how we got into the current situation and informs the effort to get out of it.

As just indicated, this statement of reasons assumes there exists an "appropriate use of prior felony informations." In truth, many powerful arguments have been advanced in favor of the repeal of mandatory minimums entirely,11 and I agree with them. My point here is that as long as the powers currently conferred on prosecutors to enhance drug trafficking mandatory minimums exist, they should not be used for the indefensible purposes of coercing guilty pleas and punishing those who go to trial.

Similarly, I do not address here the constitutionality of the government's use of prior felony informations, which is not a foregone conclusion.12 That issue is not presented by Kupa's case. Rather, I assume that the government's use of prior felony informations is permissible under the Supreme Court's 1978 decision in Bordenkircher v. Hayes. But "[f]ew misconceptions about government are more mischievous than the idea that a policy is sound simply because a court finds it permissible."13 DOJ's policy regarding prior felony informations has been unsound and brutally unfair for more than two decades. "It is a grave mistake to retain a policy just because a court finds it constitutional,"14 and it would indeed be a grave mistake to retain this one.

As discussed below:

B. The Legislative Scheme

1. The ADAAJ's Mandatory Minimums and Enhanced Maximums

The Anti-Drug Abuse Act of 1986 ("ADAA") created the mandatory minimum sentences and enhanced maximum sentences that are now central features of our federal sentencing landscape. As I have described elsewhere,15 the ADAA created a five-year mandatory minimum, with a maximum enlarged from 20 to 40 years (the "5-40 count" or the "five-year mandatory minimum") for the managers of drug enterprises. It created a ten-year mandatory minimum, with life as the maximum (the "10-life count" or the "ten-year mandatory minimum"), for the organizers and kingpins. But right from the start Congress made a mistake: the severe sentences it mandated to punish the specific roles in drug-trafficking offenses were triggered not by role but by drug type and quantity instead. The 5-40 count is triggered by offenses involving 28 grams of crack, 500 grams of cocaine, or 100 grams of heroin.16 And instead of hinging the 10-life count on the government's proof of a defendant's leadership or "kingpin" status, Congress simply used larger drug quantities: 280 grams of crack,17 5,000 grams of cocaine, or 1,000 grams of heroin.18 So if an offense happens to involve a drug type and quantity that triggers a mandatory minimum, every defendant involved in that crime, whatever his or her actual role, can be treated like a leader or manager at the option of the United States Attorney.19

As Attorney General Holder stated in his recent remarks to the American Bar Association, the new DOJ Policy is explicitly intended to limit the use of those mandatory minimums to the serious, high-level traffickers for whom Congress enacted them.20

2. The Effect of Prior Drug Convictions on the Mandatory Minimums

21 U.S.C. § 841 ratchets up the mandatory minimums for recidivist drug offenders. Specifically, it provides that where a defendant was previously convicted of a felony drug offense, the five-year and ten-year mandatory minimums are doubled.21 For a defendant with two or more prior drug felonies, the ten-year mandatory minimum is increased to mandatory life in prison.22 The term "felony drug offense" is defined very broadly.23 Even low-level drug possession convictions that produce probationary sentences qualify. And recency is irrelevant; even convictions so old the Guidelines do not include them in a defendant's criminal history score count. In short, the second most severe sentence in our system — mandatory life imprisonment — can be triggered by two ancient and minor drug convictions that do not even constitute felonies under federal law.24

3. Prior Felony Informations

The mandatory language of 21 U.S.C. § 841 creates the impression that every defendant with one or more prior drug felony convictions who faces a mandatory minimum is automatically subjected to the enhanced mandatory minimums.25 But another statute — 21 U.S.C. § 851 — provides that no drug trafficking defendant can face an enhanced mandatory minimum unless certain procedures, including the filing of a prior felony information by the prosecutor, are followed.26 Unless the prosecutor files a timely prior felony information pursuant to 21 U.S.C. § 851 listing the prior felony or felonies to be relied upon, the enhanced mandatory minimums will not apply.

It was not always this way. Recidivism-based mandatory minimums for drug traffickers are not new, and they used to be automatic. The first version of what would eventually become 21 U.S.C. § 851 required prosecutors to file informations identifying prior convictions.27 The Boggs Act of 1951 created mandatory minimum sentences for drug trafficking and possession offenders. Specifically, it established a minimum prison term of two to five years for the first offense, even simple possession offenses. As for recidivist enhancements, it mandated minimum prison terms of five to ten years for the second offense and ten to fifteen years for the third.28 "It was thought at the time that requiring lenient judges to impose jail terms would "dry up the traffic" in narcotics."29 Five years later, the Narcotic Control Act of 1956 raised the mandatory minimum to five years for the first offense and ten years for all subsequent convictions; suspended sentences were prohibited, as was probation.30

These mandatory enhancements had such a dramatic effect on sentences that federal prosecutors found themselves reluctant to bring any charges at all against certain defendants because the automatic mandatory enhancements were simply too severe.31 As a result, Attorney General John N. Mitchell asked Congress to enact a law affording prosecutors greater flexibility:

Commissioner John E. Ingersoll of the Bureau of Narcotics and Dangerous Drugs33 testified about the need for a penalty provision that would reserve the highest penalties for true "professional criminals":

Ingersoll acknowledged that not all second offenders are necessarily "professionals," and stated that "the burden should remain upon [the government] to prove the status of professionalism as far as the defendant is concerned."35

In 1970, Congress responded by enacting 21 U.S.C. § 851, which, as discussed above, conditions the applicability of any recidivist enhancements to the drug offense mandatory minimums on the filing of a prior felony information. The 1970 legislation thus gave the government the flexibility it requested.

But Congress did not stop there. Over the objections of DOJ, it also repealed the previously-existing mandatory minimums and created a single, ten-year mandatory minimum built into the so-called "kingpin" statute, 21 U.S.C. § 848.36 In the ensuing 16 years, prior drug felonies operated only to enlarge the maximum sentence for drug trafficking. Specifically, the 1970 statute provided for a maximum sentence of up to 15 years in prison for the first offense and up to 30 for subsequent offenses. Since the enlarged maximum sentence did not restrict judges' discretion to impose a just sentence, the controversy surrounding mandatory minimums that preceded 1970 (which would reappear after 1986) disappeared.

In sum, § 851 reflected the recognition by Congress and DOJ that a prior drug felony conviction was not per se evidence that a drug trafficking defendant was the sort of hardened professional criminal who deserves an enhanced mandatory sentence. Congress left it to prosecutors to identify the defendants who truly deserved the enhancements that remained after 1970. Whereas the previous statutory scheme made no distinctions among (for example) professional criminals, street-corner dealers, and addicts whose pay for participating in the offense consisted solely of the drugs to support their habits, § 851 trusted prosecutors to take into account such individual circumstances, vesting them with the power to be selective.37

There was no suggestion that Congress enacted § 851 so prosecutors could use their newfound discretion to trigger enhanced punishments as a tool to strong-arm federal defendants into pleading guilty or to punish those who exercise their right to a trial.

C. The Sentencing Reform Movement Brings About a DOJ Policy That Defeats the Purpose of 21 U.S.C. § 851

1. The Sentencing Reform Act of 1984 and the Anti-Drug Abuse Act of 1986

In 1984, Congress passed the Sentencing Reform Act to address, inter alia, the unwarranted sentencing disparities that characterized the indeterminate sentencing regime at the time. The statute created the Sentencing Commission and instructed it to create sentencing guidelines to cabin the discretion of sentencing judges.38

The Commission's mandate was to promulgate guidelines that would become effective on November 1, 1987. On June 19, 1986, while the Commission was creating the first Guidelines Manual, University of Maryland basketball star Len Bias died of a drug overdose. Congress promptly enacted the ADAA, which established the two-tiered scheme of mandatory minimum and enhanced maximum sentences described above. A single prior conviction for a felony drug offense doubled those mandatory minimums and two such prior convictions converted the ten-year mandatory minimum into a mandatory life sentence.

Neither the Sentencing Reform Act of 1984 nor the ADAA disturbed 21 U.S.C. § 851. Thus, Congress created the power to double drug offense mandatory minimums, and to convert some of them into life sentences, against the backdrop described above. Specifically, those recidivist enhancements were not to be automatically imposed on every drug trafficking defendant with a qualifying prior conviction. Rather, federal prosecutors were supposed to continue to exercise the discretion they asked for and received in § 851 to cull from the large number of defendants who have prior drug convictions the ones who truly deserve those extra-harsh punishments. Indeed, the new recidivist enhancements were much more severe than the ones in place prior to 1970, which themselves were so harsh that DOJ successfully asked Congress to eliminate automatic applicability in the name of fairness and just sentencing. By leaving § 851 intact and applicable to the enhancement of its newly-minted mandatory minimums, Congress ensured that those enhancements would only be triggered after careful consideration of the relevant facts about the offense and the defendant.

2. The Return to Automatic Recidivist Enhancements through DOJ Policy

a. The Most Serious Readily Provable Offense' Directive

The newly created Guidelines took sentencing power from judges and placed it in the hands of prosecutors. Prosecutors found themselves in a position where they could influence sentencing outcomes through their charging decisions and plea bargaining. DOJ welcomed the Sentencing Guidelines, which prescribed sentences that were much more severe than those previously imposed, and it was sensitive to the Commission's concern that differences in the exercise of prosecutorial discretion might result in sentencing disparities of the sort the Commission was created to eliminate. In their seminal book on the federal sentencing reform movement, Professor Kate Stith and Judge José A. Cabranes describe the results as follows:

b. The Extension of that Directive to Prior Felony Informations

Implementing the direction to charge "the most serious readily provable offense" was clear enough when it came to bringing criminal charges, but in 1992 a member of the Sentencing Guidelines Subcommittee of the Attorney General's Advisory Committee observed that the "Thornburgh Memo" was ambiguous when it came to the filing of prior felony informations.40 As the chair of the subcommittee put it, "a factor which could make an enormous difference in a defendant's sentence was not effectively covered in the Thornburgh Memo."41

The subcommittee therefore debated whether the "most serious readily provable offense" policy required the filing of a prior felony information.42 A prior felony information doesn't constitute an additional "offense," but rather elevates the sentence for an already-pending one. Nevertheless, because the goal of the Sentencing Reform Act was "to ensure uniformity of sentences," the subcommittee felt that prior felony informations introduced an undesirable potential for disparities.43 It therefore recommended to the Attorney General that the policy be clarified to require the filing of prior felony informations.44 Adopting that recommendation, DOJ issued a policy requiring the filing of a prior felony information whenever the prior conviction is provable.45 That policy has remained unchanged since 1992.46

3. The 2003 Ashcroft Policy

In 2003, Congress reacted to what it perceived as excessive sentencing leniency by clamping down on everyone — judges, the Commission, and even DOJ — in the PROTECT Act.47 In response, Attorney General John Ashcroft adopted a policy (the "Ashcroft Policy") that further cemented the use of prior felony informations in a way that was flatly contrary to the essential purpose of § 851. In a memorandum issued to all federal prosecutors on September 22, 2003, the Attorney General once again directed them "to charge and to pursue the most serious, readily provable offense," which was defined as the offense generating the "most substantial sentence."48 The memorandum also specifically addressed prior felony informations, "strongly encourag[ing]" their use since they always increase a sentence.49 Prosecutors were directed to file them in all instances unless there was some "good faith doubt, for legal or evidentiary reasons, as to the Government's ability readily to prove" the underlying facts.50 And of course prior convictions are virtually always readily provable.

Finally, the Ashcroft Policy not only legitimized the abusive use of prior felony informations to coerce guilty pleas, it virtually directed it. The memorandum expressly acknowledged that a prior felony information produces "in many cases" a statutory sentence harsher than the applicable guidelines range.51 In those circumstances, prosecutors were permitted by the policy to "forego the filing" of the prior felony information in a written plea agreement to give a defendant an "incentive to plead guilty."52

4. The 2010 Holder Policy

The Ashcroft Policy was superseded by a May 19, 2010 memorandum circulated to all federal prosecutors by Attorney General Holder ("2010 Holder Policy").53 The memorandum reiterated the "long-standing" principle that prosecutors should charge the most serious offense available, but added that they should also make individualized assessments as to whether such charges are appropriate.54 Except to say "the decision whether to seek a statutory sentencing enhancement should be guided by these same principles," the memorandum did not address prior felony informations.55 And the memorandum left intact the provisions in the United States Attorney's Manual that direct the filing of prior felony informations and authorize their use as leverage to avoid trials.56

The 2010 Holder Policy explicitly stated that "[c]harges should not be filed simply to exert leverage to induce a plea," but the cases discussed in the next section reveal the hollow nature of that admonition.57 With the apparent exception of a small number of districts in which prosecutors exercise no discretion at all58 (that is, they either never file prior felony informations or they always do), prosecutors use their authority precisely as they have been instructed and trained to use it for more than two decades. As a result, a prosecutorial tool that should be used only against the worst of the worst drug trafficking defendants has instead become a tool to prevent all recidivist drug trafficking defendants from exercising their Sixth Amendment right to trial by jury.

D. How the Government Abuses its Power to File Prior Felony Informations

My focus here is on the use of enhanced mandatory minimums, that is, the use of prior felony informations to enhance the standard mandatory minimums (which themselves enhance off-the-rack federal drug trafficking sentences) in order to procure guilty pleas and to punish defendants who refuse to plead guilty. This focus on the government's abuse of prior felony informations should not obscure the fact that it routinely uses the standard mandatory minimums for the same purposes.59 The threat of a standard mandatory minimum sentence prevents many more defendants from ever going to trial, a serious problem that I don't intend to minimize here.60 But they are small potatoes compared to what happens when prior felony informations, or the threat of them, enter the picture.

1. Using Prior Felony Informations to Coerce Guilty Pleas — Lulzim Kupa

Because there is no judicial check on the enhanced mandatory minimums prosecutors can inject into a case, they can put enormous pressure on defendants to plead guilty. In many cases only a daring risk-taker can withstand that pressure. Most people buckle under it, and Luzlim Kupa is a perfect example.

Kupa was 36 years old when I sentenced him on August 9, 2013. He was born in Staten Island to parents who had recently come to the United States from Albania. In 1999 and again in 2007 Kupa was convicted of conspiring to distribute marijuana. When he emerged from prison in 2010 after the second conviction, he engaged in drug trafficking again, leading to this case. Kupa was charged with a 10-life count based on the fact that more than five kilograms of cocaine were involved in the offense.

On March 5, 2013 the government sent Kupa a proposed plea agreement.61 Despite Kupa's prior marijuana convictions and several other convictions as well — he has a serious criminal history — the agreement promised a withdrawal of the 10-life count and a recommendation to the Court of a sentence within the range of 110-137 months if Kupa would plead guilty. Assuming good time credits, a sentence at the bottom end of the recommended range would result in Kupa serving about seven years and ten months in prison.62 The email that conveyed the proposed plea agreement stipulated that the offer would expire the next day.

Kupa did not accept the agreement and the case appeared to be headed toward the previously-scheduled April 22, 2013 trial. However, the government wasn't finished encouraging him to plead guilty. On March 15, 2013 it filed a prior felony information providing notice of the two marijuana convictions. Just like that, a defendant for whom the government, only ten days earlier, was willing to recommend an effective sentence of less than eight years was looking at life in prison without the possibility of parole.

Standing alone, the prior felony information was hardly an inducement to plead guilty. If the judge must sentence a defendant to life in prison upon conviction, there's not much reason for him to plead guilty. But the government quickly followed the filing of the prior felony information with another proposed plea agreement, which was conveyed to Kupa's lawyer on April 4, 2013. That proposal offered to withdraw both the 10-year mandatory minimum and the prior felony information that had turned that mandatory minimum into a mandatory life count if Kupa would plead guilty. It also manipulated the Guidelines range estimate to raise the recommended range to 130-162 months.63 A sentence at the bottom of that range amounts to an effective sentence of about nine years and four months.64

So the plea agreement proposed on April 4, 2013 did two things. First, it punished Kupa for not accepting the previous agreement by providing for a sentencing recommendation that, if accepted, would give him another year and a half or so in prison. But it also gave him some dramatic relief. For the preceding 19 days Kupa was facing mandatory life in prison if he was found guilty, and the proposed plea agreement offered an escape from that daunting prospect — as long as he agreed to plead guilty.

Kupa was given a single day to accept that agreement as well, and he didn't act quickly enough. With the trial fast approaching, the government forwarded yet another proposed plea agreement on April 9, 2013. Once again, the "estimated" Guidelines range and corresponding recommendation were ratcheted slightly upwards; this time Kupa lost the third "acceptance of responsibility" level that the government had added to his previous agreement.65 The upshot: the agreement provided for a recommended range of 140-175 months, an effective prison term of 10 years.66

So Kupa found himself in a difficult position as his trial approached. Looming in the background was the reality that if he went to trial and the jury convicted him, the law would require that he die in prison. And with each passing day the sentence the government was willing to recommend was creeping upward. If I were to sentence at the bottom end of the government's recommended range in the final proposed plea agreement, the five-week delay from March 5 to April 9, 2013 had already cost Kupa over two years in prison.

On April 10, 2013 Kupa finally caved and entered a plea of guilty. He told me at the time that he wanted to eliminate the potential downside of life in prison by pleading guilty.67 Also, referring to the steady increases in the sentences recommended in the last three proposed plea agreements, he said, "I want to plead guilty, your Honor, before things get worse."68 The voluntariness of a defendant's plea of guilty is an interesting issue when the cost of going to trial is three or more decades in prison. Nevertheless, I found Kupa's plea to be voluntary and accepted it.

The 140-175 month range was jointly recommended by the parties. For various reasons I have elaborated upon elsewhere, negotiated agreements like Kupa's are essentially sentence bargains.69 I saw no reason not to accept the bargain between the government and Kupa. Kupa will complete his 11-year sentence, taking into account good time, when he is about 45 years of age.70 Assuming he lives to the age of 75, his trial penalty would have been 30 years in prison if he had proceeded to trial and the jury had found him guilty.

When it became clear to me on April 10, 2013, that Lulzim Kupa's plea of guilty had been coerced by the threat of a mandatory life term if he insisted on going to trial, I informed the Assistant United States Attorneys ("AUSAs") on the case of my belief that the United States Attorney had agreed to refrain from using prior felony informations to coerce pleas after the office's longstanding practice of doing so was brought to her attention in 2010. In response, the AUSAs wrote a letter stating as follows:

That sounds nice, but actions speak louder than words. Whatever the result of the "individualized assessment" with regard to Kupa, he was indisputably stuck with a prior felony information — and a life sentence — only if he went to trial, and he was indisputably not stuck with it only if he pled guilty. Despite the government's patter, there was only one individualized consideration that mattered in his case, and it was flat-out dispositive: Was Kupa insisting on a trial or not? If he was, he would have to pay for a nonviolent drug offense with a mandatory life sentence, a sentence no one could reasonably argue was justified.

In defending its use of the prior felony information, the AUSAs' letter went on to identify the results of the individualized assessment in Kupa's case: He had a lengthy criminal history, and much of the conduct underlying his prior convictions occurred while Kupa was serving terms of supervised release. Those facts supposedly triggered the filing of the prior felony information.72 But even though the government knew those facts a year earlier, it did not file a prior felony information until he refused to plead guilty a few weeks before trial. And even though Kupa still had that criminal history when he showed up for sentencing, by then the prior felony information had been withdrawn. Why? Because he buckled under its pressure and agreed to forgo a trial. That's all that mattered when it came to the prior felony information. The government's letter claiming that something else was going on revealed an uncharacteristic lack of candor. The silver lining to the dissembling is that it suggests an understanding by the prosecutors in this district that the use to which the prior felony information was put in Kupa's case is not a proper one.

Not all prosecutors have that understanding. Many believe that using harsh mandatory minimums to strongarm guilty pleas is their birthright. In last month's hearing before the Senate Judiciary Committee, the Executive Director of the National District Attorneys Association testified as follows:

Though the power to file a prior felony information eventually produced the intended effect of squeezing Kupa into pleading guilty, it took longer in his case than in most cases. Indeed, one of the many problems associated with tracking the use of prior felony informations is defendants often plead guilty in response to the threat that one will be filed, producing an outcome that is very much the result of this prosecutorial power without any record of its use.74 The Federal Defender for both the Southern and Eastern Districts of New York has described how it works as follows: "If the client has a prior qualifying conviction, and is considering trial or a motion, the prosecutors will threaten to file a `prior felony information' that will double the mandatory minimum. Few clients have the stomach to push back against those threats (which are not idle)."75

Still, not all defendants buckle when prosecutors threaten to punish them for going to trial by filing prior felony informations. Some actually insist on their constitutional rights. In those circumstances, prosecutors believe they have little choice but to go ahead and file the prior felony informations. "Plea bargaining is what academics call a `repeat-play' game; the same lawyers negotiate pleas again and again. A prosecutor who becomes known as a pushover will be taken advantage of, not once but many times."76 That can't be allowed to happen, so those who call the prosecutors on their threat have to pay. Otherwise, as an Assistant United States Attorney in the District of Massachusetts has explained it, "you lose some credibility going forward."77 As described below, the costs of maintaining prosecutorial credibility can be jarring.

2. Using Prior Felony Informations to Punish Those Who Refuse to Plead Guilty — Tyquan Midyett

Tyquan Midyett turned 26 years old during the period he participated in user-quantity sales of crack in the Marcy Houses here in Brooklyn. Midyett's life story is all too familiar — broken home, foster care, high school dropout, and a long history of substance abuse. He began using marijuana at age 14, and smoked four "blunts" a day until he was arrested in December 2007.78

Early in the case, the prosecutor sent Midyett a proposed plea agreement setting forth the government's version of the advisory Guidelines range.79 Taking into account Midyett's minor role in the offense, the 100:1 cocaine to crack ratio then in effect, and Midyett's prior conviction in state court for criminal sale of a controlled substance, the plea agreement stated his range would be 78-97 months in prison if he pled guilty. However, as the prosecutor pointed out in the cover letter to the proposed plea agreement, Midyett had been charged with a 10-life count, so even if he pled guilty the best he could do at sentencing was a ten-year prison term. The prosecutor offered to recommend that sentence to the court.

The offer to recommend a sentence almost three and a half years above the lower end of a Guidelines range computed under the much-maligned 100:1 regime didn't give Midyett much of an incentive to plead guilty. As the case approached trial, the prosecutor needed to make a plea of guilty more attractive to him. So he told Midyett's counsel that if Midyett didn't plead guilty by a specified date, the government would file a prior felony information, which would double the mandatory minimum to 20 years.

But Midyett still wanted to put the government to its proof. So that's what he did, and the government followed through with its threat by filing the prior felony information. The trial happened, Midyett was found guilty, and in June of 2010 another judge in this district sentenced him to the mandatory 20-year prison term.

Here's the recap on Midyett: He started out as one of the defendants that Lanny Breuer, the Chief of DOJ's Criminal Division, spoke of when he told Congress in April 2009 that crack sentences are fundamentally unfair and racially discriminatory.80 According to DOJ itself, Midyett should have been sentenced on par with a similar offender who trafficked in powder cocaine. That would have reduced the estimated range in Midyett's plea agreement to 46-57 months. But the United States Attorney made any sentence below ten years legally impossible by bringing a 10-life count, conferring kingpin status on Midyett despite the government's own assertion in the proposed plea agreement that he played only a minor role in the crime.81 So the first charging decision added more than five years to what would have been a fair sentence even according to DOJ. Then, after Midyett had the audacity to exercise his right to trial, the second charging decision — the filing of a prior felony information — cost him an additional ten years. Twenty years in prison for a street-level dealer who committed a low-level drug offense involving what the sentencing judge found to be less than four ounces of crack.82

3. The Abuse of the Power to File Prior Felony Informations is Widespread and Longstanding

As mentioned above, it's difficult to gather data about the use of prior felony informations. Because a prosecutor's oral threat to file one is often sufficient to prod a defendant into pleading guilty, there is usually no record of its role in the case.83 Still, there is plenty of documentary evidence that the use of prior felony informations to coerce pleas and inflict trial penalties is widespread, in this district and elsewhere. It shows that there are different ways to use them as sledgehammers. One is to withhold the filing of a prior information and threaten to file it if the guilty plea isn't forthcoming.84 Another is to just file one ahead of time and then, as the case gets close to trial, condition a promise to withdraw it on the defendant pleading guilty. The government's handling of three of Kupa's co-defendants showcased this latter technique.85

The use of prior felony informations to coerce guilty pleas is common around the country. The Sentencing Commission's 2011 report to Congress on mandatory minimums revealed that the vast majority of both prosecutors and defense attorneys reported that filing notices under § 851 was part of plea negotiations. The Commission visited thirteen districts, conducting interviews with defense attorneys and prosecutors.86 The prosecutors in nine of those districts admitted that they "delayed filing the [§ 851] notice while engaging in plea negotiations;" in "many" of those districts, defense attorneys described the delay as a "threat" to "coerce" a plea.87

As mentioned above, the use of prior felony informations is often invisible, but on occasion it is captured by a document in a case. Sometimes the court of appeals will make reference to it in an opinion.88 Sometimes there will be reference to it in a brief on appeal89 or in a letter to the district court.90 Sometimes the proposed plea agreements themselves make the quid pro quo explicit, although those agreements are usually not on file with the court.91 More recently, the Supreme Court cases that extended the Sixth Amendment right to the effective assistance of counsel into the plea bargaining stage of a case92 have caused prosecutors to make a record of the fact that the defendant turned down a chance to avoid the doubling of the mandatory minimum by insisting on a trial.93

In addition to being widespread, the use of prior felony informations to coerce pleas of guilty is longstanding. A prominent member of the academy who once served as a federal prosecutor in the Southern District of New York described his office's practice of using the power to file a prior felony information as a "sledgehammer" to coerce guilty pleas as follows:

Similarly, another former prosecutor in that office, who later became a sentencing judge in that district and now sits on the Court of Appeals for the Second Circuit, wrote about the first sentence he imposed as follows:

E. Judicial Reaction to the Abuse of Prior Felony Informations

Judicial frustration with the use of prior felony informations is as widespread and as longstanding as the practice itself. In United States v. Doutre, a prior felony information was filed early in the case.96 The underlying convictions were based on the distribution of $50 worth of drugs (giving rise to a conviction in Massachusetts state court) and the simple possession of drugs (giving rise to a New Hampshire conviction that nonetheless qualified as a "felony drug offense" under § 851).97 On several occasions, including on the morning of jury selection, the prosecutor offered Doutre a plea bargain that, if accepted, would have resulted in a withdrawal of the prior felony information and a 14-year prison term.98 But as set forth in footnote 77, once Doutre exercised his right to trial, the prosecutor felt he had to follow through on his threat to file the prior felony information. After all, his credibility was on the line.

Still, the sentencing judge tried to find a middle ground: maybe the government might settle for just one bump-up, i.e., the 20-year mandatory minimum, rather than insisting on mandatory life. "I worry because I think that the U.S. Attorney's office has a huge amount of discretion in charging 851s," she said.99 She then asked the AUSA, "You want to stick with the two 851 s?"100 When the AUSA answered in the affirmative, the judge sentenced Doutre to life in prison, as the statute required.101 As she did so, she summed up the problem with giving prosecutors the authority to mandate draconian sentences: "I used to be a state court judge, and I've imposed a life sentence six times, and it was for a murder each time. I've never imposed before a life sentence for a drug offense.... I worry that this is an unjust sentence. Life is what happens when you murder someone."102 Doutre, who is 32 years old, is presently serving life at the United States Penitentiary in Lewisburg, Pennsylvania.103

Prosecutors don't just use prior felony informations to try to fend off trials. A case from earlier this year in the Eastern District of Missouri illustrates that even after that fails, they sometimes use them to try to fend off appeals. Dennis Capps is a 39-year old methamphetamine addict. Eleven years before his involvement in the case that resulted in his sentencing on January 22, 2013, Capps pled guilty to trafficking in "an amount of drugs that you can hold in your hand."104 After that case, Capps rebounded, becoming what the sentencing judge described as a "model prisoner on probation" who "showed the ability to conquer his substance abuse for a lengthy period."105 But he relapsed, as substance abusers often do, and that led to his involvement in the events giving rise to a 10-life methamphetamine charge.106 Unfortunately for Capps, his old guilty plea covered two separate charges based on events that occurred a month apart. Each one independently constituted a "prior drug felony" for the purposes of § 851.

Since Capps put the government to its proof at trial, he had to pay with more than just a 10-life count. A prior felony information was filed, converting a case in which the harsh guidelines for methamphetamine offenses107 recommended a sentence of 235-293 months into a mandatory life sentence.108 The sentencing judge expressed her frustration as follows:

The government's desire to bargain over decades-long chunks of Capps's life did not end when he refused to plead guilty. No doubt recognizing the injustice of its cruel insistence that Capps die in prison, the government decided to cut him some slack on the day of sentencing. But naturally it had to get something in return or it would look foolish, so on that day the prosecutor proposed a deal: if Capps would walk away from his appeal, the government would agree to a sentence bargain of 25 years. Capps turned it down, stating, "I don't feel like the 25 years is worth giving up all my appeal right.... It's still 25 years."111 The early returns suggest that Capps bet wrong: the Eighth Circuit affirmed his conviction and sentence on June 11, 2013.112

Assuming Capps lives to be 75 years old and that the sentencing court would have sentenced him at the bottom of the Guidelines range if he pled guilty, it cost him about 25 years in prison to go to trial.113 Assuming the same life expectancy, it cost him about 16 years in prison to pursue his short-lived appeal.114

Even the truly egregious miscarriages of justice are too numerous to catalog here, but a few more examples may help to place the duration and depth of the problem in clearer relief.

Kenneth Harvey came along quite early in the era of excessive severity. He was 24 years old in 1989, when he committed the crack cocaine offense that resulted in a 10-life charge in the Western District of Missouri. He had two priors that qualified as felony drug convictions even though, as his sentencing judge put it, they "were not deemed serious enough to merit imprisonment and appear to be only technically within the statutory punishment plan."115 He went to trial and lost, and because the government filed a prior felony information listing both convictions, Harvey got life for selling drugs with a wholesale value of less than $10,000.116

The sentencing judge noted that bank robbers with much more serious records generally served less than ten years in prison, and that the consequences of prior felony informations were "troubl[ing]" and were likely not "fully understood or intended by Congress in cases of this nature."117 In light of that, and of Harvey's "immaturity of judgment," the sentencing judge imposed the mandatory life sentence but explicitly recommended executive clemency after 15 years, a recommendation the Eighth Circuit, in an opinion by the highly-regarded Judge Richard Arnold, endorsed.118

The clemency recommendation turned out to be cold comfort to Harvey. The moribund clemency process is not the safety valve it used to be.119 Today Kenneth Harvey is 48, well past the point when he should have received clemency, and his request for it has been denied.120 He is more than 20 years into his life sentence for a low-level, nonviolent drug trafficking crime.

Melissa Ross's boyfriend got arrested for conspiring to distribute cocaine and crack. After his arrest, she assisted by housing fugitives, collecting money, and distributing drugs, leading to a 10-life conspiracy charge against Ross. Right off the bat, the government, "recognizing that [Ross] was a minor participant in [the] conspiracy," offered to withdraw the 10-life count if she would plead guilty to misprision of a felony and serve a three-year prison sentence.121 She refused, and as the sentencing judge described it, the prosecutor "vindictively filed the § 851 enhancement because [Ross] asserted her constitutional right to trial by jury."122 As a result, the drug dealer's girlfriend — the federal courts' paradigmatic minor player — is now doing 20 years instead of the three the government initially proposed. Consider these words of frustration expressed by the sentencing judge just this past summer:

Harvey and Ross are bookends in a way; at the time of the Eighth Circuit's Harvey opinion the era of severity was in its infancy, whereas the quoted language in Ross was written just three months ago. In between are countless similar examples, and the same thread of judicial frustration runs through all of them. And as tempting as it is to make the point by focusing on the many mandatory life and mandatory 20-year sentences, the truth is that tangible injustices that should shame us all frequently happen on a smaller scale, which unfortunately makes them easier to overlook. In United States v. Wahl, for example, the prior felony information had the relatively minor effect of doubling the five-year mandatory minimum.124 In an era where so many sentences are decades too long and too often require nonviolent drug trafficking defendants to die in prison, a measly five more years for a drug trafficker on his second conviction may seem from the outside like a minor problem or no problem at all. But in reality it is a huge problem. Judging is removed, prosecutors become sentencers, drug addicts are warehoused instead of treated,125 prisons swell beyond their capacities,126 enormous unnecessary costs are incurred,127 futures and families and communities are ruined.128

The sentencing judge in Wahl touched most of those bases in a single case. Upon imposing the ten-year sentence required by the prosecutor's filing of a prior felony information, he stated as follows:

On rare occasions judges do something about the coercive use of prior felony informations. In United States v. Jones, the defendant was arrested after "a controlled buy on April 8, 2008 of over 100 grams of crack cocaine."130 Her involvement in the offense, according to the government, was "minimal."131 Jones had an eight-year-old conviction in state court for possession of a controlled substance, which qualified as a "felony drug offense" under § 851.132 At the outset the government was tough as nails, and it looked grim for Jones. The prosecutor had charged a 10-life count based on the amount of crack involved in the offense, and had informed Jones by letter that she could avoid the filing of a prior felony information and the resulting 20-year mandatory minimum only if "she agreed to (1) submit to pretrial detention and not seek pretrial release at any time; (2) decline to litigate the case in any way or bring any motion to compel discovery, suppress evidence, or dismiss the indictment; and (3) plead guilty."133 Six days later the prosecutor further demanded that Jones make a cooperation proffer.134 Jones failed to meet all of those demands, and the prosecutor filed the prior felony information on April 17, 2009.135

Jones moved to strike the prior felony information on due process grounds, contending that it amounted to prosecutorial vindictiveness in violation of due process.136 The government argued that Bordenkircher v. Hayes authorized its conduct.137 The judge agreed, rejecting the vindictiveness claim, but she nonetheless held that the government's "ultimatum required that the defendant forfeit the procedural rights that the [Supreme] Court characterized as integral to our criminal justice system," and therefore violated due process.138 It accordingly granted the motion to strike the prior felony information.139

What a difference a judge makes: Once the judge removed the prior felony information from the picture, the same prosecutor who tried to saddle Jones with a mandatory 20-year sentence asked the court to sentence her to probation.140

If it seems heavy-handed and abusive to use the threat of a 20-year prison term to try to coerce a defendant who deserves probation to refrain from asking for bail, to forfeit all of her pretrial rights, to plead guilty, and to cooperate, that's because it is. That a federal prosecutor would do so openly and apparently shamelessly has everything to do with the history described above. Indeed, that history is critical to an understanding of how Jones's prosecutor actually believed he was doing her a favor:

In other words, when an AUSA has been trained to believe that prior felony informations are to be automatically filed, anything short of automatic filing strikes that AUSA as an act of benevolence.

In United States v. Taliaferro, the sentencing judge called the government out on its heavyhanded tactics.142 Taliaferro was another familiar, sad story — a history of family abuse; poor educational opportunities; early motherhood; and a series of arrests and convictions for misdemeanors and a felony drug conviction at the age of 18.143 At the age of 31 she was charged with a 10-life count based on a crack sale. During the almost two-year period of detention pending trial, she was "a model inmate," who "worked diligently" and "completed [a] difficult and valuable behavioral drug treatment program ..., as well as vocational programs, anger management programs and parenting programs."144

The government tried to leverage its power to mandate a 20-year sentence (by filing a prior felony information) into a 15-year sentence bargain under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Taliaferro reluctantly agreed, as the case against her was apparently quite strong. The judge discussed with her lawyer the reality of the situation:

The judge asked the prosecutor what would happen if he rejected the 15-year sentence bargain. The prosecutor answered that the government would withdraw the plea offer, as it is entitled to do under Rule 11, and file the prior felony information, thereby mandating a 20-year sentence if Taliaferro were convicted at trial. The judge, determined to do justice, rejected the 15-year plea bargain and, over the government's objection, simply imposed the 10-year mandatory minimum Taliaferro was originally charged with.146

F. The Damage Caused by the Government's Use of Prior Felony Informations

We like it when defendants admit their guilt. It spares the government and the courts the high cost of trials. And even putting cost-effectiveness aside, an admission of guilt is the first step on the road back to a law-abiding, productive life. So one might ask: what's wrong with a statutory regime that is very effective in getting drug trafficking defendants to plead guilty? Actually, there's a lot wrong with it.

First, it results in the imposition of excessive sentences. No one can reasonably argue that Tyquan Midyett's or Melissa Ross's 20-year prison term was fair. No one can reasonably argue that Charles Doutre, Dennis Capps, or Kenneth Harvey deserved life in prison. No one, not even the government, wanted those defendants to receive their sentences. The only reason prior felony informations were used against them was because the government unsuccessfully tried to coerce them to plead guilty.147 And because other defendants have to know that the government isn't kidding when it threatens to use prior felony informations against those who have the audacity to go to trial, they became examples. Their sentences may be a natural result of the way prosecutors routinely deploy prior felony informations, and as discussed above there are numerous others just like them warehoused in our prisons.148 But the fact that they are business as usual doesn't alter the fact that these sentences should instill shame in all of us. If Midyett had instead been prosecuted in the state court across the street from our courthouse, he would certainly have avoided a 20-year prison term and might have avoided a conviction altogether.149 Instead, to borrow the words of the Attorney General, Midyett's "claim to a future has been taken from" him at enormous expense to him, his family and the public.150

Second, the greater the trial penalty in any plea bargaining situation, the greater the risk that innocent people will plead guilty. If Kupa had gone to trial and lost, his trial penalty would have been the rest of his life beyond age 45, which is when he will get out of prison based on the sentence I imposed. When guilty plea discounts are that dramatic and that certain, some innocent people will plead guilty.151 I have written elsewhere that there are features of our federal system that ameliorate the "innocence problem" created by plea bargaining,152 but that problem exists, and it is no doubt most acute in the class of cases created by the government's use of prior felony informations.

Third, even if the government's use of prior felony informations accomplished nothing other than the inducement of guilty pleas from actually guilty people, it would still be an undesirable outcome. Trials have become rare events in our system. In 1980, 81 % of federal convictions were the product of guilty pleas.153 Now that number is 97%.154

An excessively high rate of guilty pleas is unhealthy for our justice system. It reduces transparency and for that reason alone diminishes the quality of justice.155 The sentencing outcomes after defendants are convicted at trial ought to be the benchmarks for sentencing outcomes in cases where the defendant has pled guilty. But when almost everyone pleads guilty, the norm is not what happens after trial but rather the sentences resulting from the plea agreements themselves.156

In addition, when only 3% of sentenced defendants have gone to trial, it is no longer an efficient use of a prosecutor's time to prepare her case for trial prior to indictment. If all you'll ever need is the probable cause necessary to indict, there's not much incentive to develop more than probable cause.157 Since plea agreements are generally conditioned on prompt guilty pleas, no motion practice, and minimal Rule 16 disclosure, many cases receive only the scrutiny the grand jury process affords. It's important to bear in mind just how shallow that scrutiny is.

Grand juries are frequently blamed for not being much of a check on federal prosecutors' ability to bring criminal charges, but that's not the fault of grand jurors themselves. Our system permits indictments to be returned based on an ex parte presentation consisting entirely of inadmissible evidence.158 Even evidence the prosecutor knows will be suppressed if motion practice occurs post-indictment is permitted in the grand jury.159 The prosecutor may properly withhold from the grand jury evidence that proves the target's innocence of the crime under investigation.160 Mere probable cause, not proof beyond a reasonable doubt, suffices, and a bare majority of the grand jurors, not unanimity, gets the job done.161 Given these features of our grand jury process, it's hard to blame the members of the grand jury for not living up to the idealized notion of a group of citizens acting as a buffer between an overreaching prosecutor and the people.

The case law that shaped the role of the grand jury reflects a commitment to keeping grand jury proceedings secret and free of litigation and also a firm belief that any resulting errors in the screening function of that body will be corrected at trial. In explaining for the Court in Calandra why evidence seized in violation of the Fourth Amendment may properly be used in the grand jury, Justice Powell found comfort in the belief that

And in refusing to impose an obligation on prosecutors to present substantial exculpatory evidence to the grand jury, the Court in Williams reasoned that such an obligation would convert an accusatory process into an adjudicative one. It adopted Blackstone's approach that "`the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined.'"163

The notion that defects in the grand jury's screening function will come out in the wash at trial is sound only if a meaningful percentage of cases go to trial. But when prosecutors can threaten defendants with outlandish and unjust sentences if they go to trial, we get what we have today — a trial rate so tiny that we can no longer be confident that the adversary process will correct the charging errors that the grand jury process tolerates.

The problem is not limited to the absence of adversarial challenges to indicted cases. Prosecutors will pay exquisite attention to the details of a case only during trial preparation. Preparing a case for trial is extremely labor-intensive for them and the agents working with them — indeed, that's why prosecutors use the powers Congress and the Sentencing Commission gave them to avoid trials. When preparing for trial, they actually debrief all the witnesses, find more witnesses, subpoena additional documentary evidence, and go back over all the evidence they already had. The results significantly enhance both the quantity and quality of the information that was available at the time of indictment. That can strengthen the case and even suggest the appropriateness of additional and more serious charges and even additional defendants. But it can also have the opposite effect, unearthing facts that call the charges into question or warrant leniency even if the charges are sound.

I don't mean to suggest that because criminal trials are disappearing federal prosecutors are running wild, obtaining indictments based on illegally seized evidence and withholding exculpatory material from grand juries. I have no reason to believe they act in anything other than good faith in their grand jury presentations. But in a world where 97% of sentenced defendants plead guilty pursuant to agreements that require such pleas to occur before the prosecutor prepares the case for trial, the sharpened focus on the offense and the defendant that results from such trial preparation rarely occurs. The thin presentation needed for indictment is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries. The entire system loses an edge, and I have no doubt that the quality of justice in our courthouses has suffered as a result.

G. The 2013 Holder Policy

Two months ago, in an address to the American Bar Association, Attorney General Holder announced DOJ's new policy (the "2013 Holder policy") regarding mandatory minimums and prior felony informations.164 He acknowledged how "coldly efficient" we've become at incarcerating people, and that almost half of the bloated federal prison population — which has grown exponentially since Congress enacted those mandatory minimums — is "serving time for drug-related crimes, and many have substance abuse disorders."165

In a time where the institutions responsible for sentencing policy function the way they are supposed to, there would be no need to wait for prosecutors to put an end to their own cruel, ineffective and needlessly expensive practices. But our country is in a different time right now, and once again Attorney General Holder is leading the way toward needed change.

The new policy specifically addresses both the initial decision to charge mandatory minimums and the separate decision to file a prior felony information.

1. Structuring the Discretion to File Mandatory Minimums

Attorney General Holder told the ABA as follows:

As for the policy itself, it states as follows:

• The defendant's relevant conduct does not involve the use of violence, the possession of a weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person;

• The defendant is not an organizer, leader, manager or supervisor of others within a criminal organization;

• The defendant does not have significant ties to large-scale drug trafficking organizations, gangs, or cartels; and

• The defendant does not have a significant criminal history. A significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions.167

Since my focus here is on the filing of prior felony informations, not the initial decision to bring mandatory minimum charges, my principal concerns about this aspect of the new DOJ policy are set forth briefly in the margin.168 But notwithstanding those concerns, the new policy is promising. Tone matters a lot, and the nation's top law enforcement officer has said out loud what everyone has known for too long: The drug trafficking sentences that we've been dishing out regularly for more than 20 years are unjust, counterproductive, fiscally irresponsible and racially discriminatory.169 There's wiggle room in the 2013 Holder Policy, as there is in every policy statement issued by Main Justice, and AUSAs looking to undermine its intended effect will find ways to do so. But if it is implemented in the same spirit in which it was promulgated, fewer nonviolent low-level drug traffickers will be charged with onerous mandatory minimums Congress explicitly meant only for their bosses.170

On the other hand, to the extent it addresses the filing of prior felony informations, the 2013 Holder Policy is not promising at all.

2. The Decision to File a Prior Felony Information — the Defects in the New Policy and the Need for Repairs

Under the 2013 Holder Policy, "[p]rosecutors should decline to file an information pursuant to 21 U.S.C. § 851 unless the defendant is involved in conduct that makes the case appropriate for severe sanctions."171 When determining whether an enhancement is appropriate, prosecutors are to consider the following factors:

The first defect in this policy is the starting point is wrong. One of the pernicious effects of DOJ's prior felony informations policies since 1992 is that they created an attitude that prior felony informations are presumptively to be filed whenever a defendant has prior drug felony convictions. The new policy's description of the decision it purports to control — whether prosecutors "should decline to file" a prior felony information — perpetuates that error. Indeed, despite its criticism of DOJ's use of prior felony informations, the recent Young case buys into that mindset by repeatedly characterizing decisions not to file them as a "waiver" or an option the prosecutor has "waived."173

It is inconsistent with the history and purpose of § 851 to say the prosecutor's mission is to make a decision about whether to decline to file a prior felony information. DOJ itself lobbied for and received, in the 1970 legislation described earlier, a different mission: to carefully choose from the pool of defendants eligible for recidivist enhancements the hardened professional drug traffickers who should face those especially harsh mandatory punishments. The job is to select the deserving few, not to include all eligible defendants absent an affirmative decision to decline.

Second, even if the approach were correct, the factors set forth in the 2013 Holder Policy do nothing to help isolate the most culpable, professional, and hardcore of the recidivist drug trafficking defendants from the large pool of recidivist drug traffickers. Instead, an AUSA can easily conclude that any one of the factors that will typically result in a mandatory minimum charge (aggravating role, use or threat of violence, ties to an enterprise, and significant criminal history) will also justify the filing of a prior felony information, as will an unspecified array of "[o]ther case-specific aggravating ... factors." An AUSA who wishes to threaten to file or to actually file a prior felony information against someone facing a 5-40 count or a 10-life count will always find comfort in the new policy. And experience has taught us that when prosecutors are free to invoke these enhanced mandatory punishments whenever they want to, they use them for the purposes discussed above, which have nothing to do with enhanced culpability and everything to do with punishing the exercise of constitutional rights.

There's nothing wrong with the 2013 Holder Policy that the Attorney General can't fix. For starters, I respectfully suggest that DOJ affirmatively repudiate the 1992 decision to include prior felony informations among "the most serious, readily provable offenses" that federal prosecutors must presumptively bring in every case. The whole point of enacting § 851 was to establish, at DOJ's insistence, the exact opposite approach: automatic applicability was repealed, and recidivist enhancements were to be invoked only after DOJ has selected the subset of drug trafficking recidivists that truly deserve them.

Second, DOJ should explicitly prohibit the use of prior felony informations to coerce defendants into pleading guilty or to punish those who refuse to do so, and it should enforce the prohibition. No matter how entrenched that practice is, and how inured we've all become to it, it isn't right. It forces too many people to waive their right to a trial, and it exacts a price for going to trial that no one should have to pay. Is it ever appropriate to use the power to file a prior felony information in plea negotiations? No, for the simple reason that there is no check on the prosecutor's chosen sentencing strategy if one is actually filed.174

Is there any appropriate use for a prior felony information? Yes: When an AUSA, guided by factors that focus on enhanced culpability, not on the exercise of constitutional rights, identifies a defendant to be among the especially culpable subset of professional narcotics traffickers whose crimes and criminal pasts make them deserving of the prior felony information sledgehammer. Just as certain mitigating factors must be present before a defendant may avoid a mandatory minimum, there ought to be a list of aggravating factors that must all be present before a prior felony information may be filed.175

In Bordenkircher v. Hayes, the Supreme Court stated as follows: "There is no doubt that the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse."176 If anything, both the breadth of prosecutorial discretion and the potential for its abuse have been magnified in the 35 years since that 5-4 decision. A footnote to that statement further observed that "[t]his potential has led to many recommendations that the prosecutor's discretion should be controlled by means of either internal or external guidelines."177 This is just such a recommendation. As it currently stands, the DOJ policy does nothing to control a prosecutor's discretion to file a prior felony information. Every factor that would cause a line prosecutor to level a mandatory minimum charge to begin with is endorsed by the new policy as a reason to file a prior felony information as well. Prosecutors will continue regarding the filing of prior felony informations as automatic. They will continue to use them abusively, that is, they will condition the withholding of the excessive mandatory sentences they trigger only if the defendant forfeits his right to trial by jury (and, in some cases, also agrees to cooperate). They will insist on their use as sledgehammers against the ever-dwindling few who have the temerity to ask for the trial the Constitution guarantees.

Finally, there is an obvious need to provide relief to the many current federal inmates who fell victim over the years to the abusive practices discussed here. The Attorney General has properly emphasized the need "to usher in a new approach," one that "ensure[s] that incarceration is used to punish, deter and rehabilitate — not merely to warehouse and forget."178 Part of that approach must be to revisit those who until now have been warehoused and forgotten. Nowhere is it written that the life sentences of Charles Doutre, Dennis Capps, and the many others like them are irrevocable, or that Tyquan Midyett or Melissa Ross must necessarily serve all 20 years of their equally indefensible sentences. The Attorney General can right those wrongs and the many others like them if he has the will to do so and if the conduct of those inmates since they were sentenced suggests it is appropriate. The United States Attorneys around the country have the power to go back into courtrooms and to request sentencing judges (or other judges in the same districts if those judges are no longer serving) to vacate sentences that were mandated by prior felony informations and amounted to miscarriages of justice. Any claim that such a request can only be made if there's a defect in the underlying proceedings would be just an excuse. The underlying defect is the abuse of prosecutorial power that produced the sentences in the first place. The individuals serving those bonecrushing sentences will certainly not object to a request for remedial relief, and if the judges choose to vacate and resentence on the joint request of the parties, justice will have been served. If they don't, nothing will have been lost except the judge's opportunity to correct an injustice.179

I mention the foregoing because the paradigmatic avenue for relief of the sort we need — executive clemency — has been essentially blocked for years. The Attorney General's leadership can also extend to helping to reinvigorate executive clemency. Given the extremely high costs of incarceration and the proven efficacy of alternatives to incarceration in reducing recidivism rates, it is important to focus on clemency as another form of needed sentencing reform. There is good reason to believe that the benefits of a robust clemency process can outweigh the costs, political and otherwise, of any erroneous decisions, particularly if the recommendations for clemency are the result of a process that includes all the relevant stakeholders.180

G. Conclusion

I sentenced Lulzim Kupa to a 132-month term of imprisonment for a variety of reasons. The most important by far was because I could, that is, I was not required to impose a sentence of life in prison for his nonviolent drug trafficking offense. And the only reason for that is Kupa buckled under the enormous pressure that looming sentence placed on him. The prior felony information ushered that 800-pound gorilla into the case at the eleventh hour and it took the case over. Once it was filed, everything that followed was done with all eyes on the draconian sentence that a jury's verdict of guilty would require me to impose. It snuffed out an imminent trial at which Kupa wanted to do what our Constitution and Bill of Rights guarantee him: hold the government to its burden of proving him guilty beyond a reasonable doubt. And indeed the desire to snuff out that trial was reason the sole reason the prosecutor filed it.

Throughout, I have assumed that both the drug offense mandatory minimums and the onerous enhancements triggered by prior felony informations are here to stay, at least in some form. After all, as a circuit judge wrote in 2009, "[t]he Judicial Conference of the United States for almost 20 years, and the Sentencing Commission for almost 10 years, have pleaded with the judiciary committees of Congress to do something about the serious injustices that these long, mandatory minimum sentences impose — to no avail."181 I have also assumed the constitutionality of using prior felony informations as bludgeons in federal prosecutors' efforts to get defendants to plead guilty. But arguing that it is not illegal for prosecutors to use prior felony informations to produce the guilty pleas and sentences described above is no way to defend such a wayward policy. Attorney General Holder's admirable leadership toward sentencing reform should lead him to refocus his attention on prior felony informations. If DOJ cannot exercise its power to invoke recidivist enhancements in drug trafficking cases less destructively and less brutally, it doesn't deserve to have the power at all.