October 16

No More Mandatory Minimum Trial Penalty

Attorney General Eric Holder, in a Memo to federal prosecutors dated September 24, 2014, prohibits using the threat of enhanced mandatory minimum sentences (21 U.S.C. § 851) to force criminal defendants to plead guilty.

For example, a defendant charged with conspiracy to distribute 5kg. or more of cocaine would be subject to a mandatory minimum sentence of 10 years. But if the defendant had one prior controlled substance conviction, the prosecutor could threaten to file a “§ 851 notice” doubling the mandatory minimum sentence to 20 years, if the defendant did not plead guilty. This is the so-called “trial penalty” used by federal prosecutors to pressure defendants to plead guilty and to give up their constitutional right to a trial by jury.