Letter to Department of Justice regarding Requested Revision to Title 9 of the United States Attorneys’ Manual

SUMMARY

The Committee on Criminal Law wrote to the U.S. Department of Justice requesting that Title 9 of the United States Attorneys’ Manual (USAM) be updated to reflect Attorney General Eric Holder’s recent memoranda on the appropriate use of statutory enhancements pursuant to 21 U.S.C. § 851. Section 851, pertaining to proceedings to establish prior convictions, vests prosecutors with exclusive discretion to elect whether to trigger enhanced mandatory minimum penalties for individuals charged with federal drug offenses based upon prior felony convictions. The sentencing impact of § 851 enhancements is severe and mandatory, and has had particular impact regarding sentencing for felony drug offenses. However, in two memoranda, Attorney General Holder instructed that prosecutors “decline to file an information pursuant to 21 U.S.C. § 851 unless the defendant is involved in conduct that is appropriate for severe sanctions,” and that prosecutors make the § 851 determination at the time the case is charged, or as soon as possible thereafter. The Committee asked that the Manual be updated to reflect these memoranda.