"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 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."
After cataloging the abuse of 851 informations, and the "bonecrushing" sentences which have resulted, Judge Gleeson turns his attention to the 2013 changes Attorney General Holder has made to 851 policy. Finding them sorely lacking, Judge Gleeson concludes that,
"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."