NEW YORK (Reuters) - In 2012, Randy Washington, a Bronx man with a history of arrests, faced a choice between a plea deal with a 10-year prison sentence or going to trial on robbery, narcotics and related charges.
There was a catch: If he turned down the plea deal and proceeded to trial, federal prosecutors in Manhattan indicated they could invoke a previous drug conviction to increase his mandatory minimum prison sentence.
Washington, 27, went to trial, was convicted and faced a minimum sentence of 52 years, 10 of which were based on the prior conviction. The judge criticized the sentence but said he was powerless to reduce it.
On Monday, in an unexpected move, prosecutors said they would no longer consider the prior felony when Washington is sentenced on Wednesday, leaving him to face a minimum 40 years.
The case is an example of how prosecutors are confronting resistance to their use of so-called prior felony informations to increase mandatory-minimum drug sentences after a plea deal is rejected.
The practice has increasingly come under scrutiny from judges and even U.S. Attorney General Eric Holder.
Prior felony informations allow prosecutors to sanction repeat offenders, but defense lawyers say they can pressure defendants to plead guilty or else suffer a harsh penalty for going to trial.
In Washington’s case, U.S. District Judge Richard Sullivan said the 52-year minimum sentence was legal but “unnecessary and unjust.”
“The court is powerless to do more than admonish, and can merely ask that the prosecutors involved in this case – at all levels – consider whether this is a sentence and an exercise of prosecutorial discretion worthy of the public’s trust and confidence,” Sullivan wrote.
Representatives for Manhattan U.S. Attorney Preet Bharara declined to comment on the case or their use of prior felony informations, also known as 851 enhancements.
In a memo the day before announcing his departure in September, Holder advised prosecutors against using the prior felony informations while negotiating pleas.
“An 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty,” Holder wrote.
David Patton, executive director of the Federal Defenders in New York, a non-profit group that defends those charged with federal crimes, said the memo still leaves “a great deal of discretion to prosecutors.”
“And the practice has been, ‘We won’t trigger the doubling of the mandatory minimum if you plea, but we will if you go to trial,’” Patton said.
Critics include U.S. District Judge John Gleeson in Brooklyn, New York, who in 2013 in an opinion wrote the filing of them had gone “off the rails.”
In 2012, Human Rights Watch found drug defendants eligible for an enhancement were 8.4 times more likely to have one applied if they went to trial than if they pleaded guilty.
Last year, U.S. District Judge Mark Bennett in Iowa called the “stunningly arbitrary application” of drug sentencing enhancements the “deeply disturbing, yet often replayed, shocking, dirty little secret of federal sentencing.”
For instance, Bennett said that defendants in northern Iowa are 25 times more likely than ones in neighboring Nebraska to receive such an enhancement.
In Washington’s case, after his trial conviction, he asked the judge to let him accept the original plea deal. Sullivan declined but raised broader concerns about the possible 52-year minimum sentence.
In an interview, Washington’s lawyer, David Gordon, called the five-decade-plus term “crazy,” asking: “How much should someone be punished for putting the government to its proof?”
In an attempt to address Sullivan’s concerns, prosecutors last month offered Washington a 25-year deal. Washington turned it down as it required giving up his right to lodge an appeal related to the original 10-year offer.
At Monday’s hearing, Assistant U.S. Attorney Kasulis Telemachus said prosecutors would simply drop the 851 enhancement without any agreement, meaning Washington faces the minimum 40 years for the counts on which he was convicted.
Sullivan said even 40 years seemed “excessive.”
“What the prosecutors will have to live with is - 10 years from now, 20 years from now, 30 years from now, 40 years if we live that long - would we be proud of this?” Sullivan said.
Reporting by Nate Raymond and Joseph Ax; Editing by Amy Stevens and Leslie Adler