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A New York Eastern District Court judge in a 60 page, October 9, decision, blasted the “prosecutorial practice of filing documents that trigger enhanced mandatory minimum sentences for repeat drug trafficking defendants in order to coerce guilty pleas.”

Judge John Gleeson, a former federal prosecutor, used the guilty plea and 132-month sentence of Lulzim Kupa, a repeat drug offender, to illustrate the government’s misuse of prior felony informations in coercing guilty pleas and producing excessive sentences.

In his decision, Judge Gleeson wrote, “Because there is no judicial check on the enhanced mandatory minimums prosecutors can inject into a case, they can put enormous pressure on defendants to plead guilty.”

The case of the United State versus Lulzim Kupa, is a perfect example of how the prosecution uses prior felony information to coerce a defendant into accepting a plea bargain to avoid trial.

Kupa, who ended up facing a ten year-to-life sentence for drug trafficking, was offered seven plea bargains between February 2010 and April 2013.  On March 5, Kupa refused to accept a sentence between 110-137 months in exchange for a plea.  On March 15, the prosecution filed a prior felony information and Kupa was now looking at life in prison without the possibility of parole should he be convicted in court.

Kupa, who entered a plea of guilty on April 10 twelve days before trial after his plea bargain sentence was increased to a recommended 140-175 month range,  told Judge Gleeson,  “I want to plead guilty your Honor before things get worse.”

Judge Gleeson wrote that Kupa’s plea agreement punished Kupa for not accepting earlier plea bargains.  The prosecution knew of his former felonies, but did not act on that information until Kupa’s trial date was approaching and he was still refusing to enter a guilty plea.

In his decision, Judge Gleeson said that his “focus was narrow and his point simple: the government abuses its power to file prior felony informations in drug trafficking cases…prosecutors routinely threaten ultra-harsh, enhanced mandatory sentences to coerce guilty pleas and to coerce cooperation.  The DOJ’s policy regarding prior felony informations has been unsound and brutally unfair for more than two decades.”

According to Judge Gleeson, the statute at issue, 21 U.S.C. 851 enacted in 1970, a “statute regime that is very effective in getting drug trafficking defendants to plead guilty” is wrong for the following reasons:

  • It results in the imposition of excessive sentences
  • The greater the trial penalty in any plea bargaining situation, the greater the risk that innocent people will plead guilty
  • Building plea agreements on the probable cause necessary for indictment means “many cases receive only the scrutiny the grand jury process affords”
  • The use has played a “key role in helping to place the federal criminal trial on the endangered species list”

Attorney General Eric H. Holder’s recent policy changes on mandatory minimum sentences and recidivist enhancements in certain drug cases limits the circumstances in which prosecutors can apply harsh mandatory sentences.

Gleeson writes, “Holder’s new policy has the “potential to reduce significantly both the unfairness and unnecessary expense caused by our current federal sentencing regime for drug offenses.”  However, although Gleeson praises Holder’s new policy, he states it falls short and fails to cure the prior felony information problem, as well.

Gleeson’s remedies include the following:

  • Repudiating the 1992 decision to include prior felony informations among “the most serious, readily provable offenses’ that federal prosecutors must presumptively bring in every case”
  • DOJ should prohibit filings to force pleas or “punish” those who refuse to plead guilty
  • The Attorney General needs to create a policy that prior felony informations are filed only against the hardened profession drug traffickers who deserve their extreme severity
  • For those already serving harsh sentences  as a result of the misuse of prior felony informations, relief needs to be provided.

When enacted it 1970, 851 was meant to shield those defendants with prior drug felony convictions from the hardened, professional drug traffickers who should face more severe sentencing upon conviction. Congress thought federal prosecutors would not file prior felony informations except when dealing with hardened drug traffickers and would not abuse this significant power.  Unfortunately, this is not so and 851 has been turned into a weapon that is used by prosecutors to punish those defendants who refuse to plead guilty.

The DOJ’s policy regarding prior felony informations “has been unsound and unfair“ for over twenty years, and as Judge Gleeson writes, “It is a grave mistake to retain a policy just because the court finds it constitutional.”

U.S. v Kupa can be found here.