Commentary: Prosecutors Wrong to Oppose Sentencing Reform
By Jamie Fellner | February 4, 2014 1:28 pm

Sentencing reform efforts are finally getting some traction after three decades mandatory minimum drug sentencing laws that crammed federal prisons with low-level drug offenders.  A bipartisan bill pending in the US Senate would reduce mandatory minimums for certain drug crimes and give judges some discretion to impose lighter sentences. Attorney General Eric Holder has endorsed the legislation, saying it “could ultimately save our country billions of dollars in prison costs while keeping us safe.”

Some federal prosecutors disagree. The National Association of Assistant United States Attorneys (NAAUSA) has sent a letter to Holder saying mandatory minimums “reach only to the most serious of crimes. They target the most serious criminals. They provide us leverage to secure cooperation from defendants. They help to establish uniformity and consistency in sentencing. And foremost, they protect law-abiding citizens and help to hold crime in check.”

An impressive set of claims – but mostly false.

Mandatory minimums reserved for the most serious criminals? Hardly. According to the United States Sentencing Commission, 93 percent of federal drug defendants come from the lower or middle tiers of the drug business; 40 percent were couriers or street level dealers. In 2012, a total of five drug trafficking defendants (out of more than 24,000) qualified as “armed career criminals”; indeed, only 6 percent qualified as “career criminals” at all. As a former US Attorney told me, “The public simply does not realize how many low-level guys are in [federal] prison…. We lock up the lowest fruit in drug conspiracies.”

Because mandatory minimums are triggered by the quantity of drug involved, a street level dealer can face the same minimum sentence as the head of a large drug trafficking organization.  A typical federal drug offender is someone like Jamel Dossie, a 20-year-old, small-time street-level drug dealer’s assistant who received a five year mandatory minimum sentence for working as a go-between in four hand-to-hand sales totaling 88.1 grams or 3.1 ounces of crack (the weight of an average bar of soap). Not satisfied with a regime of five and ten year mandatory minimums, Congress also gave prosecutors the ability to trigger mandatory enhancements by which those sentences could be doubled – or even transformed into life without parole, if the defendants had one or two even minor prior drug convictions.

Nor is it true that mandatory minimums “establish consistency in sentencing.” Mandatory sentences were introduced in the 1980s and 90s amid complaints that judges in different districts were meting out wildly varying sentences for the same crimes. But mandatory minimum sentencing laws simply shifted the source of disparities from judges to prosecutors. In some federal districts, prosecutors always charge everything they can throw at the defendants and refuse to negotiate; in other districts, they’re more willing to negotiate a lower sentence.  Because of differences in prosecutorial charging and plea bargaining practices, the average drug sentence ranges from a low of 25 months in some districts to a high of 128 months in others.

What mandatory minimums do – and here we get to the heart of NAAUSA’s opposition – is provide prosecutors with “leverage” to extract guilty pleas and cooperation from defendants. Leverage is a polite word for coercion. As Human Rights Watch documented in a recent report, the laws give prosecutors the ability to strong arm defendants into giving up their right to trial.

Those who refuse the deal and go to trial get hammered. The average sentence of drug offenders who don’t plead is three times as long those who do. And in many cases, the “trial penalty” – the difference between the sentence a defendant would have received if she had pled versus the sentence imposed after trial — is extraordinarily cruel.  To cite just one case, a Florida woman named Sandra Avery rejected a plea offer of a ten-year mandatory minimum for dealing small quantities of crack. The prosecutors punished her with a mandatory sentencing enhancement that sent her to prison for the rest of her life.

The NAAUSA is wrong to assume, however, that  absent the threat of draconian mandatory minimums defendants would have little incentive to cooperate or to plead guilty.

Under the sentencing guidelines, which date from the late 1980s, defendants who plead guilty can reduce their sentencing range substantially, e.g. by 28 percent, depending on what their offense is and their criminal history.  Prosecutors  can encourage pleading by  agreeing to support lower guidelines sentences. They can persuade defendants that legally gathered evidence against them is overwhelming. Let’s not forget that even before there were mandatory minimums, three-quarters of federal drug defendants pled guilty.

In short, there are other ways to encourage pleas in federal drug cases besides threatening the mandatory sentences that federal judge John Gleeson has called  “so excessively severe, they take your breath away.”  A modest discount from an otherwise fair and proportionate sentence is a legitimate reward for sparing the government the costs of a trial.  Prosecutors will not be helpless if Congress reduces today’s egregiously long mandatory minimum sentences and sentencing enhancements.

But what if the threat of high mandatory minimum sentences were the only way prosecutors could get defendants to plead or to cooperate. Would that be good reason to keep them?  We think not, since securing pleas – or even encouraging cooperation – has never been considered a legitimate purpose of punishment. Punishment should fit the crime – not a defendant’s willingness to plead or snitch.  How is it justice to convert a refusal or inability to cooperate into a much higher sentence than a particular crime deserves?

The real issue is that prosecutors do not want judges to set sentences.  Mandatory minimum sentencing laws tie judges’ hands, leaving prosecutors with the enormous power to dictate minimum sentences through their charging decisions. Confronted with that power, 97 percent of federal drug defendants today plead guilty.  Prosecutors are able to rack up convictions without the expense, risks and burdens of trial.

No one likes to relinquish power – so it is not surprising that at least some prosecutors want to retain the advantages of mandatory minimum sentencing laws.  Cutting back on mandatory minimums would not, however open the floodgates to crime:  judges are quite capable of ensuring serious criminals get serious sentences. But sentencing law reform would make it harder for prosecutors to coerce defendants into pleading guilty.  It would deprive prosecutors of a plea bargaining cudgel they never should have been given in the first place.

Fellner is a senior advisor to the US Program of Human Rights Watch and the author, most recently, of the report, “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty.” Follow: @JamieFellner

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