United States v. Kupa

• Decision Date: 09 October 2013
• Docket Number: No. 11–CR–345.,11–CR–345.
• Citation: 976 F.Supp.2d 417
• Parties: UNITED STATES of America, v. Lulzim KUPA, Defendant.
• Court: U.S. District Court — Eastern District of New York

976 F.Supp.2d 417

UNITED STATES of America,

v.Lulzim KUPA, Defendant.

No. 11–CR–345.

United States District Court,

E.D. New York.

Oct. 9, 2013.

Rachel J. Nash, United States Attorney's Office, Brooklyn, NY, for United States of America.

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 ratio ² 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 Congress ⁴ and the United States Sentencing Commission ⁵ that it is becoming contagious.

This statement of reasons relates to an important subset of the drug offense mandatory minimum cases ⁶—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 informations ⁷ 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 convictions ⁸ the hardened, professional drug traffickers who should face recidivism enhancements upon conviction. But instead federal prosecutors exercise their discretionby 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:

• Since 1986, our legislative scheme of drug offense mandatory minimums has included recidivist enhancements that double down on those mandatory minimums or convert them into mandatory life in prison;

• Earlier recidivist enhancements, enacted in the 1950s, were automatically applicable until 1970, when Congress made them discretionary at DOJ's request because they mandatedexcessively long sentences in too many cases;

• The post–1970 regime, specifically designed by prosecutors to allow them to subject only the truly hardened, professional drug traffickers to harsh recidivist enhancements, was derailed by the sentencing reform movement. Prompted by the United States Sentencing Guidelines, DOJ created a policy that essentially made the filing of prior felony informations automatic again, with an exception for those who plead guilty;

• The reversion to automatic filing of prior felony informations resulted in the past two decades in the entrenched practice of using them to strongarm guilty pleas and to punish those who refuse to plead guilty;

• This practice routinely produces egregiously severe sentences, and judges have uniformly expressed frustration at being required to impose them;

• Prior felony informations have helped to create the dramatically reduced trial rate in the federal system, and the disappearance of trials threatens great damage to our system;

• The 2013 Holder Policy fails to cure the prior felony information problem;

• The Attorney General needs to expressly prohibit the use of prior felony informations to coerce defendants into pleading guilty or to punish those who refuse to do so;

• The Attorney General needs to create a policy that narrows the field of eligible defendants so that prior felony informations are filed only against the hardened professional drug traffickers who deserve their extreme severity;

• The Attorney General needs to lead the way toward providing realistic avenues of relief for the many who are serving excessive sentences because of the abusive use of prior felony informations over the past 25 years; and

• If DOJ's power to affect sentencing outcomes so dramatically through the filing of prior felony informations can't be exercised properly, Congress should take that power away.

B. The Legislative Scheme1. 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. §...