Posted November 27th, 2018.
Roughly 800 federal inmates are sentenced to life under an obscure sentencing enhancement that lawmakers in Congress might soon vote to reduce.
In 2014, 26-year-old Tennessee resident Chris Young was sentenced to life in federal prison for a drug offense. The judge in his case had no choice but to sentence him to die behind bars under an obscure “three strikes” law for prior drug crimes after prosecutors filed what’s known as an 851 notice.
The filing, known for the section of the U.S. Code from which it’s derived, was originally intended to give prosecutors leeway to avoid some of the harshest mandatory minimums on the books. But as the drug war expanded, the threat of an 851 filing became a prosecutorial bullying tactic used to dissuade defendants from exercising their constitutional right to a jury trial. It also ties the hands of judges, taking away any discretion they have over sentencing, and has sent hundreds of drug offenders to prison for life. Congress may take up reforms soon—but only if “tough-on-crime” conservative senators and President Trump’s new acting attorney general don’t scuttle the legislation.
‘The sentence that everybody knows is coming is certainly more harsh than is necessary.’
Young has since become the poster child for criminal justice reforms that would limit the length of those sentencing enhancements. And one of his strongest supporters is Kevin Sharp—the judge who was forced to sentence him to death behind bars. Sharp dealt with a lot of drugs and guns cases as a U.S. district judge in Tennessee, and Chris Young’s case was in many ways not unusual.
Young was a peripheral figure in the bust of large drug ring. Yet even though he was facing serious charges for cocaine trafficking, he rejected the plea deal that federal prosecutors dangled in front of him.
Prosecutors responded by filing an 851 notice against him, using two prior low-level crack cocaine offenses that he’d caught when he was 18 and 19 years old. The combined weight of the drugs in Young’s previous convictions amounted to about 7.5 grams, or roughly the weight of three pennies.
In 2013, a jury found Young guilty of drug conspiracy and possession with intent to distribute more than 500 grams of cocaine, attempted possession with intent to sell within 1,000 feet of a school, and possession of a firearm in the furtherance of a drug crime. Because Young had at least two prior drug convictions, Sharp was bound by the law to sentence the 26-year-old to life in federal prison.
For Sharp, Young’s 2014 sentencing hearing was little more than judicial theater. “The sentence that everybody knows is coming is certainly more harsh than is necessary, and I wish it was not that way,” he said at the hearing.
It was then Young’s chance to address the court. He launched into a long speech about what he’d been reading and learning over the past four years he’d spend in county jail while his case dragged on. He referenced Greek philosophers and figures from early American history, such as the lesser-known signers of the Declaration of Independence. He talked about monetary policy, the leadership of the Federal Reserve, Adam Smith, John Maynard Keynes, and his heroes in the world of business and finance.
Young also talked about where he came from, how he grew up with a drug-addicted mother in a house where the electricity and water was often turned off. How, as a kid, he reeked of the kerosene used to light his house and took showers at neighbors’ places when he could swallow his pride. How, when Young was 18, his older brother committed suicide, and he found the body.
Sharp recalls listening to this speech from behind the bench. “I’m just listening to this thinking, ‘Oh my God, what are we doing?'”
Sharp wasn’t a bleeding heart. He believed Young deserved hard time—seven to nine years, if the judge had his way. Young had also accumulated a long rap sheet during his teenage and young adult years. But to Sharp, the thought of condemning him to die in prison seemed insane.
At one point, Sharp stopped to talk about books with Young, and recommended some novels by British author C.P. Snow. He was trying to draw out the hearing.
“Just so I didn’t have to say …” and here the former judge’s voice still catches on the word four years later: “Life.”
The ‘shocking, dirty little secret of federal sentencing’
An estimated 800 federal inmates are, like Young, currently sentenced to die in prison under 851 enhancements, according to The Buried Alive Project, an advocacy group that works to raise awareness of life sentences for drug offenses.
Section 851 of the U.S. Code is applied in only a small chunk of annual federal drug cases, but “the shocking, dirty little secret of federal sentencing,” as one U.S. district judge called it, is an incredibly powerful tool that prosecutors use to coerce defendants into plea deals and hammer those who reject them.
Federal judges, criminal justice advocates, and former prosecutors say they are used arbitrarily. Studies by the U.S. Sentencing Commission have found 851 notices are filed more, and withdrawn less often, against minority defendants. In some federals districts, the notices are almost never filed at all, while in others prosecutors use them in almost every drug case they can.
The decision by a federal prosecutor to file an 851 notice is no small thing. When an 851 notice is filed in a drug case, it makes an offender’s third felony drug offense—state or federal, no matter how long ago the previous two offenses were—subject to mandatory life in federal prison without the possibility of parole. Judges have no way to deviate from the sentence.
“I don’t know any other federal criminal law where the prosecutor has the total and complete unchecked power to decide whether a person will die in prison,” says MiAngel Cody, a former federal public defender who now represents inmates serving life in prison for drug offenses.
A bipartisan group of senators have introduced a bill, the FIRST STEP Act, that would, among other things, reduce those penalties: 15 years for a second drug offense, and 25 years for a third offense, rather than life.
Criminal justice advocates are also pushing President Trump to continue granting clemency to federal inmates, like Chris Young, who are serving life sentences for nonviolent drug offenses.
Earlier this year, after a personal appeal from mega-celebrity Kim Kardashian, Trump commuted the sentence of Alice Johnson, who was serving life in federal prison for a nonviolent drug crime. “You have many people like Mrs. Johnson,” Trump said on Fox News in October. “There are people in jail for really long terms.” “There has to be a reform, because it’s very unfair right now,” he said. “It’s very unfair to African-Americans. It’s very unfair to everybody.”
‘The sentencing equivalent of a two-by-four to the forehead.’
Sharp is not the only federal judge who’s been bothered by such incredibly punitive enhancements. The results when prosecutors file 851 notices “don’t just tinker with sentencing outcomes,” U.S. District Court Judge John Gleeson wrote in a 2013 opinion. “By doubling mandatory minimums and sometimes mandating life in prison, they produce the sentencing equivalent of a two-by-four to the forehead.”
The defendant in that case, Lulzim Kupa, was facing a 10-year mandatory minimum sentence for cocaine trafficking. Prosecutors gave him 24 hours to decide whether to plead guilty in exchange for seven years in federal prison. When he turned down the offer, prosecutors filed an 851 notice, informing him that, because of two prior state-level marijuana convictions, he was instead looking down the barrel of a mandatory life sentence if he exercised his constitutional right to go to trial and lost. When prosecutors came back with another plea offer—this time ratcheted up to 10 years—Kupa, quite rationally, buckled. “I want to plead guilty, your Honor, before things get worse,” he told Gleeson.
“The government’s use of [851 filings] coerces guilty pleas and produces sentences so excessively severe they take your breath away,” Gleeson wrote in Kupa’s case. “Prior felony informations have played a key role in helping to place the federal criminal trial on the endangered species list.” Kupa was referring to the staggering 97 percent of federal prosecutions that end in plea deals.
Critics of the practice refer to such filings as a “trial penalty,” and it’s not hard to see why. In Chris Young’s case, prosecutors offered him 14 years in prison if he pleaded guilty. The only defendants in the sweeping drug trafficking prosecution who received life sentences were Young and two others who went to trial. The ringleader in the case, Robert Porter, pleaded guilty and received 25 years, according to court filings.
“When you think of it as a rational person, there is a hell of a difference between 14 years and life,” says Brittany K. Barnett, Young’s current attorney and co-founder of The Buried Alive Project. “How is 14 years OK at the outset, but because I’m decide to utilize my constitutional right to go to trial, now I’m going to die in prison? It’s fundamentally a death sentence. It’s mind-blowing and quite frankly infuriating.”
Both state and federal felony drug offenses can count toward an 851 enhancement. Or not, depending on the whims of the prosecutor, who can end up with more power over sentencing than the judge.
The case of Arlana Moore, a Texas woman who was sentenced at age 51 to life in federal prison for a third drug offense, shows how 851 enhancements strip judges of their ability to determine individually appropriate sentences.
In 2010, Moore was convicted of drug conspiracy for trading Sudafed pills to a meth cook in exchange for the finished product.
Moore’s two prior convictions, 16 years apart from each other, were for possession of a small amount of meth and some Codeine pills. Both resulted in probation. The prosecutor filed two 851 notices in her case: The first was filed several days before her arraignment, and the second, which resulted in her mandatory life sentence, was filed several months after she pleaded not guilty.
“I had never dreamed anything like that was possible,” Moore says. “I mean, I wouldn’t have bought one box of Sudafed if I had known I would be facing life, because I had never been to prison before.”
However, Moore’s lawyer convinced her she could win at trial, and at her age, the difference between 20 years in prison and life seemed negligible.
At her sentencing hearing, the judge in Moore’s case, Robert Junell of the Western District of Texas, described the penalty as “so severe, I took extra time yesterday making sure that this was correct.” None of the co-conspirators in Moore’s case, including the meth cook, received a life sentence.
“For the life of me, I don’t know what we bought when we got that sentence,” Molly Gill, vice president of policy at FAMM, a nonprofit advocacy group that works to repeal mandatory minimum sentences says. “I don’t feel any safer because [Moore] went to prison. She wasn’t a kingpin. She wasn’t involved with any guns. She didn’t threaten anybody.”
Moore’s roommate in federal prison was Sandra Avery, who was also sentenced to life in prison for a crack cocaine offense under an 851 enhancement after she turned down a 10-year plea deal offered by federal prosecutors.
President Obama commuted Avery’s sentence in 2015 and Moore’s in 2016, seven years to the day after she’d been arrested, but until Congress amends the statute, repeat drug offenders will face death behind bars. Unlike Moore and Avery, precious few of them will win the clemency lottery.
‘These people are set to die in prison.’
Congress passed the “three strikes” enhancement for drug offenses in 1970. The original intent of Section 851 was, strangely enough, to stop judges from levying sentences that prosecutors considered too harsh, unless the government gave notice that it intended to pursue an enhanced sentence.
However, in practice, there was no national policy for when and how prosecutors should use 851 notices—if they should be filed as soon as possible, whether they should be used when the prior drug offense was for simple possession, if they should be reserved for the most serious traffickers.
As the federal war on drugs escalated in the late 1980s and early 1990s, the number of life sentences imposed for drug offenses across the country began to rise. Between 1988 and 1992, federal courts returned 507 life sentences for drug offenses, according to data collected by The Buried Alive Project. Between 1993 and 1996, that number rose to nearly 800.
The number dipped over the 2000s and then dropped sharply during the Obama administration. Yet in total, The Buried Alive Project found 3,384 people were sentenced to life in federal prison for a drug offense between 1988 and 2016. The group estimates there are currently around 2,000 still incarcerated. The rest either had their sentences overturned through successful post-conviction appeals, were released under President Obama’s clemency initiative, or died.
“Life without parole is the 2nd most severe penalty permitted by law in America,” Barnett says. “To impose such a severe sentence where the drug offense is the most serious conviction is unconscionable. These people are set to die in prison.”
The Bureau of Prisons, however, doesn’t track how many of those offenders received 851 enhancements. The Buried Alive Project, through painstaking inmate surveys, reviews of denied clemency petitions, and federal court records, has identified around 800 federal lifers who received 851 enhancements.
What is known is that the lack of guidelines for prosecutors and the wide latitude they are given to choose whether to file an 851 notice has resulted in geographic and racial disparities in their application.
A July report by the U.S. Sentencing Commission studying federal drug cases in 2016 found that 851 notices were rarely filed. In fact, they were only used in 12 percent of the cases in which offenders were eligible, and were ultimately withdrawn in all but 4 percent of those cases.
However, the Central District of Illinois filed 851 notices in nearly 75 percent of the cases in which they were eligible, while in 19 federal districts, prosecutors filed zero notices. Similar disparities existed in whether prosecutors withdrew those notices before sentencing.
Black defendants were also the most likely to be eligible for an 851 enhancement, and notices were filed against them at a higher rate than white defendants: 14.9 percent compared to 11.4 percent, respectively.
“Given the arbitrary nature of § 851 enhancements, there were no assurances that the most objectively deserving defendants, nationwide, were actually the defendants receiving enhancements. Likewise, there were no assurances that the least deserving defendants, nationwide, were the ones that actually received a waiver,” U.S. District Judge Mark Bennett, a vocal critic of federal mandatory minimums, wrote in a scathing 2013 opinion. Bennett argued that 851 enhancements resulted in no good outcomes. “Individual prosecutor’s wholly insulated § 851 charging decisions resulted in both unwarranted sentencing disparity and unwarranted sentencing uniformity—the worst case scenario imaginable.”
Brett Tolman, who served as the U.S. attorney for the district of Utah from 2006 to 2009, says in an interview with Reason that he recalls conversations where federal prosecutors told defense attorneys, “Look, your client doesn’t want to cooperate. That’s fine. I’ll go back, I’ll add 851, and he’ll spend the rest of his life in prison.”
“It really was going on,” Tolman, who now works on criminal justice reform issues, says, “and it’s going on now.”
There was a brief period where it wasn’t happening, or at least wasn’t supposed to be. In 2014, former Attorney General Eric Holder issued a memo ordering U.S. attorneys not to use 851 filings to coerce plea deals.
“Prosecutors are encouraged to make the § 851 determination at the time the case is charged, or as soon as possible thereafter,” Holder wrote. “An § 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty.”
However, the recently resigned Attorney General Jeff Sessions rescinded that memo in 2017, along with several others encouraging federal prosecutors to avoid seeking the longest possible sentence by default. The move effectively gives prosecutors the green light to once again use 851 information filings at their discretion.
‘We need to shift the power in the courtroom consistent with the Constitution back to judges.’
While in office, Sessions opposed reform measures. In a February letter to the Senate opposing the Sentencing Reform and Corrections Act (SRCA), which would have cut mandatory sentences for repeat offenders. Sessions wrote that the bill would “reduce sentences for a highly dangerous cohort of criminals, including repeat dangerous drug traffickers and those who use firearms.” His replacement, Matthew Whitaker, has told President Trump that he also has concerns about a newer bill that would reduce the “three strikes” penalty for drug offenders like Young.
The Senate version of the FIRST STEP Act, a major criminal justice bill introduced earlier this month, includes a provision to eliminate mandatory life sentences for a third felony drug offense.
The bill is supported by the White House and a bipartisan alliance of conservative organizations, libertarian-leaning Republicans, Democrats, and criminal justice advocacy groups, who say the modest reforms will still give prosecutors all the leverage they need while eliminating some of the most draconian enhancements.
“We think we need to shift the power in the courtroom consistent with the Constitution back to judges, and this will be a way to do it,” says Mark Holden, the general counsel of Koch Industries and a prominent conservative advocate for criminal justice reform. “And to the extent these 851s and some of the other provisions that are in the FIRST STEP Act will make it a more equitable, more just system, and still be able to use long sentences for people who need them, we think that’s the way to go. But the way it works now is not fair or just.”
Several police organizations, like the Fraternal Order of Police, have also endorsed the FIRST STEP Act, but opponents of the bill, such as Sen. Tom Cotton (R-Ark.), one of the staunchest defenders of mandatory minimum sentences in Congress, say it will result in the “early release” of dangerous criminals.
The National Association of Assistant U.S. Attorneys (NAAUSA) did not respond to a request for comment on its position on the FIRST STEP Act, but it previously warned that the SRCA would “gut the mandatory minimums and will allow major federal drug traffickers to avoid the stiff sentences they deserve while crippling law enforcement’s ability to gain cooperation.” The NAAUSA’s position is that a prosecutor’s job is to faithfully execute the laws passed by Congress. If lawmakers aren’t comfortable with such sentences, it’s up to them to change the law.
One point both sides can agree on is that Congress is ultimately responsible for sentencing law.
“I don’t like to see it being left up to the whims of which particular party is in charge of the attorney general’s office, which is why I think the reform is so important,” Tolman says. “Look, I’ll tell you, there’s a lot of mixed feelings among federal prosecutors about this because it is such a heavy hammer.”
A judge—or a rubber stamp?
In the federal courtroom in 2014, Sharp could no longer delay saying the words he dreaded.
“Each defendant is supposed to be treated as an individual,” he told Chris Young at his sentencing hearing. “I don’t think that’s happening here. But you are sentenced to a term of imprisonment in the custody of the Bureau of Prisons for life.”
Afterward, the case gnawed at him. Was he a judge, or just a rubber stamp?
“Am I making a difference by being part of this, where the judge is just a character in this theater that we call our criminal justice system?” Sharp recalls asking himself. “Am I more useful to the world sitting up here doing that?”
Sharp came to an answer. He quit a lifetime appointment to the federal bench and now works in private practice, where he’s been advocating for the White House to issue clemency to the man he sentenced to life in prison. The effects of such life sentences, he says, ripple far beyond the defendant.
“It hasn’t just hurt Chris,” Sharp says of 851 sentences. “It’s hurt Chris’s family. It’s hurt Chris’s community. It’s hurt all of us as a society for doing this. I think we’re better than that. Or we should try to be.”
Christian Britschgi and Paul Detrick contributed reporting.