A Closer Look at First Step Act Changes to 851 Enhancements

The First Step Act is a criminal justice reform bill that has passed the House of Representatives and is awaiting a vote in the Senate.  It has been endorsed by President Trump.

The bill covers lots of subjects but one important one is changes to enhancements for repeat drug offenders.  Defense lawyers and federal prosecutors often refer to these as “851 enhancements” after the code section that sets forth the procedures for imposing them.

As the law stands now a defendant convicted of a 10 year minimum federal drug offense with at least one felony drug prior can have his mandatory minimum raised to twenty years if the government files an 851 enhancement based on the prior conviction.  If the same defendant has two such priors, the government can enhance the mandatory minimum to life.  (Hence the nickname “three strikes law”).

For those defendants facing a 5 year mandatory minimum federal drug offense, the 851 enhancement for one prior doubles the mandatory minimum to ten years.

Under the First Step Act as currently amended, the 851 enhancements for defendants convicted of 10 year minimum drug charges would change to 15 years for those with one prior and 25 years for those with two.  Thus, mandatory life would be abolished, although those defendants could still be sentenced to life in prison if the district judge decided such a sentence was called for.

For defendants facing 5 year mandatory minimums, the potential 851 enhancement would remain the same at 10 years.  However, it would be limited to those defendants with a “serious” felony drug prior – a more stringent definition that does not cover all drug felonies.


Under the current scheme, the government often does not seek 851 enhancements where the defendant agrees to plead guilty.  So, if the new law is passed, it could result relatively less leverage for the government in plea negotiations and more federal drug cases may go to trial.

At the same time, the new scheme could potentially increase the government’s negotiating leverage by encouraging greater enforcement of the now-diminished penalties.  As things stand now, federal prosecutors often decline to seek mandatory life due to the perceived severity of that sentence, even for repeat offenders.  However, with the enhancement for two priors reduced from life to 25 years, we could see more energetic enforcement of the enhanced penalties for defendants with two priors.

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