While penalty enhancements for federal drug offenders are rarely used, they disproportionately impact black offenders,said a report released Thursday by the United States Sentencing Commission (USSC).
The report, the fourth in a series on mandatory minimum penalties, examines the use of 21 U.S.C. § 851, a penalty enhancement for drug offenders with a prior felony drug conviction. To trigger an “851 enhancement,” a prosecutor must file an information citing which prior convictions support the enhanced penalties.
Subjecting an offender to an 851 enhancement significantly affects his or her sentence length, the USSC analysis found. Offenders’ sentences increased by over five years on average when the government filed an 851 information. Offenders who remained subject to the increased minimum at sentencing received an average sentence of nearly a decade longer than the average sentence for offenders who received relief from the filed 851 information.
Relatively few drug offenders actually saw their sentences increase, however – only 3.9 percent of eligible offenders. This is due in large part to a low filing rate. In 2016, the government filed an 851 information against only 12.3 percent of offenders eligible for an increased penalty under the statute – 757 individuals – and withdrew the information in 22.5 percent of those filings.
The application of 851 enhancements showed great geographic variation. For example, prosecutors in five judicial districts sought 851 enhancements against over half of eligible drug trafficking offenders, while the government in 19 districts did not seek a single 851 enhancements against any eligible offenders.
In cases where 851 enhancements are used, the USSC found, mthere was a ore significant impact on black offenders than on other racial groups.
Blacks were more likely to have the requisite prior convictions to qualify for the enhancement: they comprised 42.2 percent of eligible offenders. Even after accounting for eligibility, however, black offenders made up an increasingly large proportion of offenders as they progressed through each stage of the 851 process.
Black offenders constituted the majority (51.2 percent) of offenders against whom the government filed an information seeking an 851 enhancement, followed by white offenders (24.3 percent), and Hispanic offenders (22.5 percent).
The prevalence of black offenders was even more pronounced for offenders who remained subject to an enhanced mandatory minimum penalty at sentencing, with black offenders representing 57.9 percent of such offenders.
In its 2011 Mandatory Minimum Report, the USSC recommended that Congress more finely tailor the scope and severity of recidivist enhancements for drug offenses to reduce inconsistency. This report calls into question whether that recommendation has truly been put into action.
This summary was prepared by TCR News intern Elena Schwartz. She welcomes readers’ comments.