Americans who fight federal drug charges in court but lose after a trial are likely to spend nearly three times as long in prison compared to those who accept a guilty plea deal, a new Human Rights Watch study of federal prosecutions and sentences has found.
“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,” said Jamie Fellner, author of the 126-page Human Rights Watch report. “Prosecutors make offers few drug defendants can refuse. This is coercion pure and simple.”
Fellner’s analysis is a grim and disturbing look at a system that is intent on branding and jailing people as criminals for years, rather than a system where justice, rehabilitation or proportional sentencing is valued. The average sentence for federal drug offenders who accepted a plea deal in 2012—which was 97 percent of 25,560 offenders—was five years and four months. The average sentence for those convicted after a trial was 16 years.
What accounts for that difference is a mix of prosecutors abusing their authority to pile on charges if the accused demands a trial, the introduction of other factors at sentencing hearings if the accused is convicted—such as prior convictions or the presence of guns related to the crime, and the inability of judges to override mandatory jail terms created by a congressional sentencing commission, Human Rights Watch explained.
“There is nothing inherently wrong with resolving cases through guilty pleas—it reduces the many burdens of trial preparation,” the report said. “But in the U.S. plea bargaining system, many federal prosecutors strong-arm defendants by offering them shorter prison terms if they plead guilty, and threatening them if they go to trial with sentences that, in the words of Judge John Gleeson of the Southern District of New York, can be ‘so excessively severe, they take your breath away.’”
The report, “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty,” is filled with examples illustrating how prosecutors prey on drug charge defendants, some of whom have little or no relationship to gangs or drug dealers besides being a family member, or being in the wrong place at the wrong time, or being a substance abuser or an addict with untreated mental illness.
Consider the report’s harrowing summary of the case of Darlene Eckles, a first-time offender who received 19 years, while her drug-dealing brother was sentenced to 12 years.
“Darlene Eckles was arrested on federal narcotics charges in 2006, one of 40 defendants allegedly involved in a drug trafficking business led by her brother, Rick. In late 2003, he needed a place to live after he got out of prison and Darlene permitted him to live with her. Against her wishes, he began operating his drug business out of her home and after a while, she collected and counted money for him. After six months, when her brother would not stop dealing from her house, she kicked him out. He went to live with another sister, and continued his business from her house.
“A nursing assistant with no criminal record and the mother of a young son, Darlene Eckles’ only involvement with drugs was during the limited time her brother lived with her. The government offered her a plea deal of 10 years for one drug conspiracy count, but she refused to plea, believing she was innocent of drug trafficking. After trial, the jury convicted Darlene of a lesser included drug offense that carried no mandatory minimum.
“At her sentencing in March 2007, the government argued that she was a “facilitator” of her brother’s drug business, should be held accountable for the full drug weight involved in the conspiracy (1.5 kilograms or more of crack), and should not receive a reduced sentence for her minor role. The judge agreed and calculated her sentencing range under the federal sentencing guidelines as 235 to 293 months. He sentenced her to 235 months—19 years and seven months—about twice as long as the pre-trial plea offer.
“Her brother, the conspiracy ring leader, received a sentence of 11 years and eight months after pleading guilty and cooperating with the government, including by testifying against his sister. Darlene’s sister, whose involvement in the conspiracy was the same as Darlene’s, also pled guilty and was a cooperating witness for the government; she received two years’ probation.”
The Human Rights Watch report is filled with examples like this. What’s notable here is that Darlene Eckles’ biggest offense in the prosecutor’s eyes apparently was not being in a drug-dealing conspiracy, but her refusal to testify against her brother—which her sister did. Her dirtbag brother took the government’s deal and testified against Eckles, which was despicable; but so are the prosecutor’s tactics to destroy Darlene Eckles’ life.
Here is another example of how prosecutors can pile on charges if they do not get their guilty plea, as well as introducing factors at the sentencing hearings that judges cannot ignore as they must follow the federal sentencing guidelines. There were first created three decades ago. Many are so severe that judges have declared that they disagree with the mandated punishment.
“On August 27, 2013, a federal court sentenced part-time house remodeler, Roy Lee Clay, 48, to life behind bars without possibility of parole. He was convicted after trial of one count of conspiring to distribute one kilogram or more of heroin—a crime that normally carries a 10-year sentence. Prosecutors asserted he was part of a 14-person heroin trafficking group centered in Baltimore, Maryland, and that for two-and-a-half years, Clay distributed heroin to other dealers and to users as well. There was no evidence in his case that he used violence to further his drug activities.
“Clay had two prior drug convictions: a 1993 federal conviction for possession with intent to distribute 100 grams of a mixture containing heroin for which he was sentenced to 87 months in prison, and a 2004 state conviction for possession with intent to distribute controlled substances.
“The government offered to let Clay plead to 10 years on the drug charges. It also threatened to file an information with the court seeking a penalty enhancement to life based on the two prior convictions if Clay insisted on going to trial. He rejected the plea offer and went to trial, which ended with a hung jury. The government renewed the 10-year plea offer, but Clay again refused. After the second trial, Clay was convicted. The government made good on its threat and sought the mandatory enhancement based on the two prior convictions.
“Previously willing to accept a 10-year sentence, prosecutors ensured Clay would spend the rest of his life behind bars. At his sentencing, Judge Catherine Blake called the life without parole sentence “extremely severe and harsh.”
This example reveals another important facet about federal drug prosecutions. Addicts can be mentally ill and often are not competent to make legal decisions that will affect the rest of their lives. The report cites the case of Sandra Avery, “a survivor of childhood sexual abuse who served in the army and army reserves, earned a college degree, overcame an addiction to crack, became a born-again Christian, and worked as an acountant.”
Avery relapsed in her 40s, “lost her job, and started delivering and selling small amounts of crack for her husband, a crack dealer.” She was arrested in 2005 and offered a deal of 10 years, but she refused. She received life without parole—as there is no parole in the federal system. “The life sentence resulted from the government’s choice to trigger a sentencing enhancement based on Avery’s previous drug convictions,” the report said. She told Human Rights Watch, “I was simply not in my right mind at the time.”
Human Rights Watch attempted to talk to prosecutors about their draconian tactics and sentences. Some “acknowledge that the quest for fairness ends if the defendant refuses to plead,” the report said. “Prosecutors also insist they are not ‘punishing’ defendants with higher sentences… but rather ‘rewarding’ defendants who, by pleading, spare them the expenditure of time and resources needed for a trail.”
In Avery’s case, the prosecutor said that “he sought the enhancement… ‘because it applied,’” the report said. When “asked whether he thought Avery’s life sentence as just, he refused to comment.”
Excessive Tactics Are Known But Continue
This past August, U.S. Attorney General Eric Holder gave a speech at the American Bar Association annual convention saying that sentencing guidelines and practices needed to be reformed. Holder told prosecutors to go easier on low-level, non-violent offenders.
“It is too soon to tell if prosecutors will carry out the new policies,” the report said. “They contain easily exploitable loopholes and do not prohibit prosecutors from pursuing harsh sentences against a defendant who refuses to plead guilty. Indeed, Human Rights Watch noted that Clay’s life sentence without parole came after Holder delivered his speech.
The Human Rights Watch report is stunning in its portrayal of the lack of checks and balances surrounding federal prosecutors. But as bad as the federal system is, it’s only a fraction of the more than 1.5 million drug-related arrests in the U.S. in 2012. According to DrugWarFacts.org, as of December 31, 2011, there were 94,600 drug offenders in federal prison, compared to 225,242 people in state prisons for drug offenses.
“The federal numbers are a tiny proportion of the number of people incarcerated throughout the U.S.,” said Miles Gerety, who recently retired after several decades as a top Connecticut public defender specializing in death penalty cases. Gerety said that all prosecutors—state and federal—have tremendous discretion to bring charges and affect sentencing. And state prosecutors can be harsher than federal ones, he said, because their deals usually are much closer to the final sentences—whether there is a trial or not.
“As harsh as it is, the federal courts are less harsh than state criminal justice,” he said. “The state [guilty plea] offer is much higher than the federal offer. I don’t see that as at all uncommon.”
Gerety also said that it was unconscionable how prosecutors prey on the mentally ill.
“People who are mentally ill whose are restored to [legal] competency,” he said, which means they are deemed fit to stand trial. “They’re not operating with a full deck. They won’t take deals. They wind up really being hurt by the system. The system has no problem with locking up people for the rest of their lives. It’s crazy.”
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