Rethinking Recidivist Enhancements: The Role of Prior Drug Convictions in Federal Sentencing

Abstract

Recidivist sentencing enhancements, which increase criminal sentences for defendants with prior convictions, are a prominent feature of the federal criminal justice system. This Article considers the policy rationales supporting recidivist enhancements and reexamines them in light of two recent Supreme Court cases, United States v. Booker and Shepard v. United States. Recidivist enhancements are traditionally justified based on rationales of retribution, deterrence, and incapacitation; proponents justify recidivist enhancements on the theory that people who reoffend are more culpable and more likely to recidivate. There is considerable doubt, however, regarding whether these rationales support the expansive federal enhancements currently tied to prior drug convictions. The Supreme Court’s decisions in Booker and Shepard, which provide judges with additional sentencing discretion, allow judges to reexamine these rationales in the cases before them. Booker rendered the sentencing guidelines advisory, and judges may now decline to apply guidelines enhancements on policy grounds. Shepard limits the types of evidence that a judge may consider in determining whether a prior state conviction triggers a federal sentencing enhancement and allows judges to avoid applying statutory and guideline enhancements in many cases. Innovative Shepard litigation in the District of Connecticut has recently led to a marked reduction in the number of enhancements based on drug convictions applied by judges in the District. Judges nationwide can apply this Shepard analysis. Although rigorous application of Shepard increases sentencing discretion and may lead to more just and effective sentences in individual cases, Shepard can also create sentencing disparities for similarly situated defendants. Under Shepard, the application of an enhancement may depend solely on factors such as the availability of court transcripts or whether the defendant’s state conviction precisely matches the language of a federal enhancement. Given the potential for unwarranted disparities – and the serious doubts as to whether the enhancements further any of the purposes of sentencing – Congress and the U.S. Sentencing Commission should reduce the magnitude of enhancements based on prior drug convictions or even eliminate them altogether.