Fully Informed Jury Association

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Function of Juries & Jury Nullification | 02 Oct 2014

-Are the Feds Dialing Back Punishment for Trial by Jury?


AG_851_Letter_MedFamilies Against Mandatory Minimums (FAMM) yesterday reported on a recent memo issued by outgoing Attorney General Eric Holder with regard to what is known as the “trial penalty”—the effective punishment of a defendant’s use of the Constitutionally guaranteed right to trial by jury, with prosecutors adding extra penalties for which the defendant is at risk if he or she turns down a plea bargain in favor of trial by jury.

AG Eric Holder: No More Super Mandatory Minimums to Punish Defendants Who Want a Trial

Attorney General Eric Holder has issued a memo prohibiting prosecutors from using the threat of enhanced mandatory minimum sentences solely to force criminal defendants to plead guilty in drug trafficking cases. These super-sized mandatory minimums, called “section 851 enhancements,” allow prosecutors to ensure a defendant’s mandatory minimum sentence is doubled or even increased to life in prison.

“FAMM applauds the Attorney General’s repudiation of this heavy-handed practice,” said FAMM General Counsel Mary Price in a statement. “The trial penalty is intolerable. This guidance to prosecutors makes it quite clear that massively enhanced drug mandatory minimums may not be invoked absent cause. While the practice of threatening defendants with the trial penalty to induce them to plead guilty should be abandoned altogether, this is a good start.”

The subset of the trial penalty in question in this memo is known as the section 851 enhancement. FAMM explains what the 851 enhancement is and how it is abused by prosecutors to coerce defendants to forego their right to trial by jury:

How the 851 enhancement works: If the prosecutor advises the court of its intention to “notice” a drug defendant’s prior convictions, the court must double the underlying mandatory minimum facing a defendant with one prior drug trafficking conviction. In some cases, if the defendant has two priors, the section 851 enhancement requires the court to impose a sentence of life in prison.

In short, the section 851 enhancement provides federal prosecutors complete discretion to seek, and requires judges to impose, life sentences for even non-violent drug offenders.

Prosecutors routinely used the section 851 threat to pressure defendants to plead guilty. If the defendant agrees to plead guilty, the government would not “notice” the priors and the defendant would serve the unenhanced mandatory minimum of five or ten years. If instead the defendant rejects the offer, goes to trial and is convicted, she suffers the “trial penalty,” and the section 851 enhancement transforms a sentence of five years into 10, a sentence of 10 years into 20, or even life without parole.

We know, of course, that a memo is far from a legally binding policy. Given that the memo explicitly acknowledges that the department has a long-standing policy that “[c]harges should not be filed simply to exert leverage to induce a plea” and yet it seems to be an acceptable practice so long as plausible deniability is maintained, one might question how effective another memo will be that merely restates a policy that seems to be ignored.

And, of course, Holder did not issue and enforce this memo in the culture of the Department of Justice years ago when he could have shepherded his prosecutors in proper implementation of it, but rather the memo is dated the day before he announced his resignation. If it is to be enforced, or even maintained in name only, that task will fall to some, as of yet unknown, successor who may or may not agree with it.

While perhaps there is a glimmer of encouragement to be taken from the fact that not undermining a person’s Constitutional rights by leveraging the threat of double the risk or more if they exercise them is now apparently a politically tenable position for a high-ranking government official to take—at least when he’s on his way out the door—the fact remains that this is cold comfort to those who have already been strong-armed into unjust plea deals and to those who may still be bullied by this or similar tactics in the future.

Ultimately, jurors have the final say in whether or not unaccountable prosecutors will continue to be allowed to leverage their power against peaceful people to coerce them to accept plea bargains rather than to take their cases before those who represent the conscience of the community. Jurors can rein in this abusive practice with just two words- Not Guilty. By refusing to convict people of victimless crimes, and otherwise refusing to aid and abet prosecutorial abuse by rubber stamping charges without understanding the full consequences of their verdicts, jurors can serve notice to prosecutors and judges that this kind of treatment of their neighbors under color of law but in direct opposition to justice will not be tolerated. In judiciously exercising the right of jury nullification, a single juror can immediately put a stop to an injustice. But beyond that, as a pattern of hung juries and acquittals becomes apparent over time, prosecutors are forced to determine at what point they have suffered enough embarrassing losses in the courtroom and eventually abandon the strategies and tactics that are undermining their credibility.