Report on Prosecutorial Coercion in Obtaining Drug Pleas
Report on Prosecutorial Coercion in Obtaining Drug Pleas
by Derek Gilna
A report by Human Rights Watch highlighted what criminal law experts have known for years – that federal prosecutors have almost unlimited power in drug cases to coerce guilty pleas, and they are not afraid to use it. The report mentions several examples where first-time drug offenders resisted an initial plea bargain, and were shortly thereafter hit with superceding indictments seeking long mandatory minimum sentences.
When Congress passed laws requiring the application of mandatory minimum sentencing, the clear intent was for the most severe penalties to be reserved for drug “kingpins,” not couriers or street-corner peddlers. Instead, prosecutors soon learned that most drug prosecutions were “easy wins,” while judges were constrained by the language of the statutes to sentence defendants to long prison terms. Power shifted from the judicial branch to the executive branch, and prosecutors were only restrained by their consciences. In other words, some were not restrained at all.
According to the report, “prosecutors often charge or threaten to charge mandatory minimums not because they result in appropriate punishment, even in the view of the prosecutor, but to pressure defendants to plead guilty and to punish them if they do not. The pressure they could bring to bear on defendants led to soaring numbers of guilty pleas in drug cases: from 1980 to 2010, the percentage of federal drug cases resolved by a plea increased from 68.9 to 96.9 percent, where it remained in 2012.”
Jamie Fellner, senior advisor to the U.S. Program at Human Rights Watch and author of the report, said bluntly, “Prosecutors give drug defendants a so-called choice – in the most egregious cases, the choice can be to plead guilty to 10 years, or risk life without parole by going to trial. Prosecutors make offers few drug defendants can refuse. This is coercion pure and simple.” Fellner added, “Going to trial is a right, not a crime. But defendants are punished with longer sentences for exercising that right.”
Critics point to the Federal Sentencing Guidelines, which originated by act of Congress in 1984, as one of the culprits. Originally, according to the report, “[t]he guidelines were to further the purposes of sentencing (just punishment, deterrence, incapacitation, and rehabilitation) set forth in 18 U.S.C. § 3553(a)(2), while avoiding unwarranted disparities among similar defendants.”
However good those intentions, the detailed and draconian guideline sentences resulted in federal prisons being packed with generally low-level, non-violent drug dealers, who received sentences averaging 10 to 12 years – “greater than for forcible rape of an adult, killing a person in voluntary manslaughter, disclosing top secret national defense information, or violent extortion of more than $5 million involving serious bodily injury,” according to Human Rights Watch.
For example, the report notes, “[s]omeone who has one prior drug felony conviction, who runs a small drug operation of three people including himself, and who is convicted of possession with intent to distribute 20 kilograms of cocaine faces a guidelines sentencing range of 210 to 262 months (approximately 17 to 21 years).”
The unbridled discretion of a federal prosecutor to add gun charges to drug cases, whether or not they were central to the drug crime, has also resulted in unnecessarily long sentences. According to Fellner, “[o]ur research indicates that prosecutors use the threat of these sentencing enhancements to obtain pleas and will carry through on those threats for defendants who do not plead.”
The often uneven application or lack of sentence reductions for people who cooperate is another area the report criticized. Former U.S. Attorney for the Northern District of Illinois Scott Lassar stated, “It’s a bounty system. [The defendant] gets credit for bringing in other people’s heads. If they don’t need you, you’re out of luck. If [the] ringleader cooperates, he may get a better deal than people of lower culpability.”
Attorney General Eric Holder has instructed federal prosecutors to avoid overcharging certain low-level, non-violent drug offenders with mandatory minimum sentences, but it is unclear if this will have a lasting impact on prosecutors who have grown used to having almost complete discretion in bringing drug cases. The report noted that this and other factors might have an impact on federal sentencing injustices.
“Momentum is growing to end nearly three decades of harsh sentences for federal drug offenders amid growing realization that the U.S. cannot incarcerate its way out of drug use and abuse, and that long sentences neither ensure public safety nor strengthen communities. There is also growing and welcome national recognition that meaningful reform of federal drug laws must include restoring sentencing discretion to federal judges.”
Source: “An Offer You Can’t Refuse,” Human Rights Watch (Dec. 5, 2013)