Despite recent changes in the Federal Sentencing Guidelines and new policies regarding drug sentencing issued by the Department of Justice, sentences in federal drug case remain draconian.


Section 841 of Title 18, United States Code, sets forth the minimum and maximum penalties for federal drug offenses. Its sister section, 851, spells out the procedures federal prosecutors must follow to secure enhanced sentencing based on prior convictions. Basically, 851 enhancements lead to increased ranges of punishment of either 20 years to life or life in prison for repeat drug offenders.


Section 851 is an ugly byproduct of the “war on crime” declared by the federal government in the late 1960s following Richard Nixon’s ascension to the presidency. It came at a time when the government proclaimed drug use, and associated drug violence, was the primary evil responsible for ravaging the nation’s largest inner cities.


Enacted in 1970, Section 851 was designed to target major drug kingpins like New York’s Frank Lucas and Leroy “Nicky” Barnes. But as Mona Lynch, professor of criminology, law and society at the University of California, said in a June 2, 2015 Op-Ed piece in the New York Times, ‘[851] has been deployed in exactly the opposite manner.”


Professor Lynch cited the case of “Brandon,” a not so “squeaky clean” player in the drug world, who hooked up with an old high school classmate, Frank, who happened to be a major crack cocaine dealer. Each week Frank and his girlfriend made a drug supply run. One week Brandon agreed to make the drug run with the couple. It did not turn out well. The trio was pulled over by a state trooper, and an ensuing search of Frank’s vehicle revealed the stashed drug supply. All three were arrested and indicted for conspiracy to distribute hundreds of grams of crack cocaine. Professor Lynch picks up what happened next:


“All three had prior drug convictions, so the 851 threat loomed. Frank and his girlfriend succumbed to the pressure and pleaded guilty. But Brandon had a strong case. By all accounts, including law enforcement’s, he was neither Frank’s partner nor involved in any continuing conspiracy with the couple.


“So Brandon went to trial. And the prosecutor played her ace card, filing the 851 on the eve of trial. He was convicted. At sentencing, Frank received 20 years in prison and his girlfriend received probation. Brandon, who chose to exercise his right to trial, received a life sentence with no possibility of parole.”


Brandon’s case reveals how prosecutors routinely, and quite often aggressively, use the 851 threat against drug defendants with prior records to coerce guilty pleas. In Brandon’s case, the two major drug conspirators who succumbed to the 851 threat, one of whom walked away relatively unscathed, while Brandon received a virtual death sentence—life without the possibility of parole—for no other reason than he exercised his right to a trial by jury.


As Professor Lynch pointed out, there is no governmental entity that tracks either the threat or actual deployment of the 851 nuclear option, but she has personally conducted “qualitative research” and interviews in four federal districts. Through these interviews, the professor learned that the 851 threat loomed in virtually every drug case with a prior conviction case, forcing defendants to relinquish their right to a trial by jury and accept whatever plea agreement was proffered by the government. And, more often than not, 851 is “disproportionately used against black defendants,” reported Professor Lynch.


“Data also indicate that mandatory minimums and enhancements like the 851 have been disproportionately used against black defendants,” she wrote. “While research shows that illicit drug use and distribution is generally proportionate to the racial makeup of the nation’s population, black people are overrepresented as drug defendants in federal courts, constituting 30 percent of all those sentenced for drug crimes, and a full two-thirds of those who receive life sentences.


“Between 1992 and 2012, about 2,300 black men have been sentenced to life for federal drug convictions, 72 percent of whom had asserted their right to trial. While data cannot pinpoint the 851 as the trigger of those life sentences, it does indicate that 96 percent were subject to drug mandatory minimums at sentencing.”


This gross racial disparity has been recognized by the U.S. Sentencing Commission, federal judges, criminal defense organizations, and even President Obama’s Justice Department which, through former U.S. Attorney General Eric Holder, has directed federal prosecutors to “refrain from using the 851 as a threat or inducement in plea negotiations,” reported Lynch.


Odd couples like Senator Rand Paul (R-Ky) and civil libertarians have joined forces in calling for more fairness and equity in federal drug sentencing. The injustices in federal drug sentencing are as great as many abuses inflicted on the nation’s minority citizenry by law enforcement and on inmates by corrupt and lawless prison systems. And, as Professor Lynch said, “we must rein in these practices if we are to reshape our country’s criminal justice system for the 21st century.”


The only way to rein the 851 abuses is for the U.S. Justice Department to document and track the threat and use of 851 in all federal drug cases. The Department controls the policies and practices of its local prosecutors. There is simply no rational role for the specter of 851 in plea negotiations in most non-violent drug cases; especially when it is used as a threat to compel a defendant to waive his rights to trial.


That is not justice; it’s prosecutorial abuse.


Defense lawyers caught up in a case where prosecutors have threatened enhancement under Section 851 as a career offender should consult the 2013 Holder Memo and materials offered at the Defender Services Office at