In a landmark 2012 U.S. Supreme Court decision on the right to a lawyer during plea bargaining, Justice Anthony Kennedy noted that 95 percent of convicted U.S. criminal defendants enter into a plea bargain and never go to trial. That percentage is even higher for drug defendants, who enter into plea deals in 97 percent of federal cases, according to a new Human Rights Watch report. Prosecutors have had a significant hand in turning the criminal justice system into a system of pleas, wielding in many instances the threat of harsh mandatory minimum prison terms and other sentencing enhancements so severe that defendants may frequently plead guilty simply to avert the high risk. As Human Rights Watch phrased it, prosecutors “force” defendants to plead guilty.
The consequences for those who choose to exercise their Sixth Amendment right to a trial in this system are significant. The average federal drug sentence is three times longer for those who go to trial than for those who plead guilty, at 5 years and 4 months for guilty pleas, and 16 years after trial, the report found:
Prosecutors who spoke anonymously to Human Rights Watch admitted that they effectively punish those who exercise their constitutional right to a trial. “It’s built into the DNA of prosecutors, even well-meaning prosecutors do it,” one Assistant U.S. Attorney said. “[We] penalize a defendant for the audacity of going to trial.”
“We weren’t trained to think about the lowest sentence that serves the goals of punishment,” said a former U.S. Attorney.
Another even said, “The public simply does not realize how many low-level guys are in [federal] prison.… We lock up the lowest fruit in drug conspiracies. I once asked another US Attorney with 30 years as a prosecutor how many times he’d put a major drug player in prison. He said he could count them on one hand.”
Because most of these federal drug convictions incorporate mandatory minimum sentences, it is the prosecutor, not the judge, who determines what the sentence will be if convicted by the charges they file. The so-called “trial penalty” imposed by prosecutors costs some drug defendants a life of freedom, particularly because prosecutors lob on additional sentencing factors or “enhancements” such as prior convictions for minor offenses and the presence of a gun to ratchet up the sentence of those who don’t accept a plea deal the first time around. In some instances, this coerces defendants to eventually accept a deal. Others like Sandra Avery who go to trial are made an example of:
Sandra Avery was a survivor of childhood sexual abuse who served in the army and the army reserves, earned a college degree, overcame an addiction to crack, became a born-again Christian, and worked as an accountant. But in her early forties, her life spun out of control: she became addicted to crack cocaine again, lost her job, and started delivering and selling small amounts of crack for her husband, a crack dealer.
In 2005, Avery was arrested and indicted by a federal grand jury for possessing 50 grams of crack with intent to deliver, an offense then carrying a mandatory minimum sentence of 10 years. Avery refused to enter into a plea agreement with the government because it did not offer anything less than 10 years and because, as she says, “I simply was not in my right mind at the time.” She was convicted after trial, and sentenced to life. Because there is no parole in the federal system, she will remain in prison until she dies.
The life sentence resulted from the government’s choice to trigger a sentencing enhancement based on Avery’s previous drug convictions. During the early 1990s, she had been convicted three times under Florida law for possessing small amounts of crack for her personal use; she told Human Rights Watch that the value of drugs in those three cases amounted to less than $100 and she was sentenced to community supervision.
When Human Rights Watch asked Avery’s prosecutor why he sought the enhancement in her case, he said “because it applied.” He said the policy in his office is to seek such enhancements whenever they are applicable, although there is “room to negotiate” if a defendant pleads guilty and agrees to cooperate with the government. His office policy also permits prosecutors to seek approval from their superiors not to file for the enhancement, which did not happen in Avery’s case. Asked whether he thought Avery’s life sentence was just, he refused to comment.
Human Rights Watch concludes that these sentences are in many instances “cruel and inhuman” under international human rights law because they are so disproportionate to the crimes they are intended to punish.
This summer, Attorney General Eric Holder made history when he acknowledged the over-severity of these sentences and announced that prosecutors should avert charges with mandatory minimum sentences in some low-level drug cases, particularly the sort of sentencing enhancements they use to ratchet up the sentence. Holder even added in September that this should apply to pending cases. But Human Rights Watch questions not only whether Holder’s guidance is enough to effectively alter this system, but also whether prosecutors have even changed their ways. The report provides an example of one man, Roy Lee Clay, who was sentenced to life without parole for conspiracy to distribute cocaine in Baltimore after Holder’s announcement. Human Rights Watch notes that Clay’s crime did not include any allegations of violence nor the presence of a gun. Yet when Clay didn’t take a deal, prosecutors added enhancements for two previous cocaine offenses of possession with intent to distribute. This was enough to ratchet up his sentence from ten years to life. As in countless other cases, the judge called the sentence “extremely severe and harsh,” but the prosecutor explicitly claimed that his charges fell within Holder’s guidance, even though he would not explain why he deserved a life sentence.
As with so many other problems in the criminal justice system, these mandatory minimum sentences are key to sustaining this system of plea deals. Without these laws, prosecutors would not hold the power to sentence, and could not use that as leverage in negotiations. Human Rights Watch calls for eliminating them entirely, and several bipartisan bills now pending in Congress would go a long way toward that goal by giving judges significantly more discretion to deviate from these sentences — much farther than Holder’s limited, discretionary guidance to prosecutors.