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February 4, 2014

"Prosecutors Wrong to Oppose Sentencing Reform"

The title of this post is the headline of this new commentary appearing at Main Justice and authored by Jamie Fellner, who is a senior advisor to the US Program of Human Rights Watch and the author "An Offer You Can't Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty" (discussed here).   Here are excerpts:

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 diagree.  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....  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."...

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.... 

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....

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.

A few recent related posts:

February 4, 2014 at 04:19 PM | Permalink


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I'm going to head S. Claus off at the pass and argue that the charges are not what is true and that the plea bargain is often truer, but even the plea bargain could be an exaggeration or false. There are a few reasons for believing this.

One bargain we never talk about it the bargain between the police and the prosecutor. They police can book a person for just about anything. There is of course no proof beyond a reasonable doubt requirement to book someone.

The police also know that once the suspect is booked he/she will become a defendant, and a plea is likely. Therefore, the more charges in the booking, the more charges the prosecutor can leverage during the plea. Anyone familiar with barter knows you start high and go low, and the high can be and often is charges that the government could never prove beyond a reasonable doubt. They are still on the negotiating table though. The prosecutor might even jack up (stack) the charges. These can be so compelling that even innocent people will plead guilty to murder, to avoid the dead penalty for example. Innocent people have even ratted out innocent friends because the coercion as so fierce.

See the TalkLeft post: False Confessions and Plea Bargains.

And see Beyond Good Cop/Bad Cop: A Look At Real-Life Interrogations.

Posted by: George | Feb 4, 2014 5:10:22 PM

In my experience, the greatest concern about mandatory minimum sentencing is that it can render the judge irrelevant, thereby upsetting the separation of powers. The story I like to tell is the judge's comment to the clerk when he realized he did not have a copy of the sentencing grid with him, "excuse me, madam clerk, I have left the judge in my car."


Posted by: bruce cunningham | Feb 4, 2014 5:29:08 PM

"Power tends to corrupt, and absolute power corrupts absolutely."

It should come as a surprise to no one that those who wield power in the war on drugs are corrupt and they will corruptly resist any encroachments upon their power.

Posted by: Damien | Feb 4, 2014 7:07:37 PM

"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."

Are there any hard facts to buttress this claim? By that I mean has anyone ever compared the variances between sentences pre-MM and post-MM for the same crime.

"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."

That's a dodge. The issue as it was framed is not whether there are large variances. The claim is that the variances haven't been reduced. So the author isn't winning any credibility points by claiming one thing and then offering statistics that illustrate a completely different thing.

Posted by: Just me again | Feb 5, 2014 1:38:45 AM

Damien --

"Power tends to corrupt, and absolute power corrupts absolutely."

Which is exactly why courts should not enjoy absolute sentencing power. That power should be subject to a check by the legislature, and mandatory minimums are one form of that check.

Posted by: Bill Otis | Feb 5, 2014 2:31:57 AM

While I think that mandatory minimums are generally a bad idea for all the reasons mentioned in this post, I wonder if a compromise would not be to drastically reduce the length of the mandatory minimum sentences. Rather than a 5 or 10 year mandatory minimum for some non-violent drug offense which routinely results in unjust and unnecessary sentences, one might set the mandatory minimum to, say, six months in jail or house arrest or a fine or something of that nature. This would allow prosecutors to keep some of the power that they currently enjoy while also allowing judges more discretion. They could impose harsher penalties on a case by case basis as circumstances dictate. The problem isn't just that mandatory minimums exist but, rather, that the minimums are often very severe. No?

Posted by: Jean-Paul | Feb 5, 2014 1:25:46 PM

From my quick review of PACER, (unless I located the wrong case) it looks like the article has somewhat mischaracterized the case of USA v. Sandra Avery (M.D. Fla.). Instead of being a low-level crack dealer as the article suggests, it looks like Avery sold a fair amount of crack, and she was a repeat offender with three prior convictions for selling crack.

The article states that Avery dealt "small quantities of crack." But, the verdict form tells a different story. From my review of the verdict form, it looks like the jury found Avery sold relatively large quantities---conspiracy to distribute 50 grams or more of crack, 500 grams or more of powder, and multiple substantive counts of possessing with intent to distribute 50 grams or more of crack cocaine. Additionally, it appears that two search warrants were involved in the case. After the first search warrant, Avery was arrested on state charges for selling crack. She was released on bond. Despite being on bond, Avery resumed her crack dealing. A second search warrant was issued, and distribution quantities of crack were found throughout Avery's house, as well as in her car and garage.

So (unless I pulled up the wrong case or am misunderstanding the facts from the publicly available information), I don't think Avery is a poor little first-time low-level crack dealer who got hit with a mandatory minimum. Instead, it looks she was a person who chose to sell crack---over, over, over, over, over, and over (including while on bond for selling crack). She had multiple chances to change her lifestyle, but she chose to keep selling crack. Sorry, but I don't want her living next door to me. I don't want her living next door to my child's school. I don't want her living in my community.

Posted by: Zachary B. | Feb 5, 2014 2:00:08 PM

Zachary B. --

Welcome to the site, and thank you for your fact-specific response.

It has been my experience that fully willing, repeat dealers get characterized as "low-level, non-violent" offenders. Your comment illustrates why facts are better than characterizations.

Posted by: Bill Otis | Feb 5, 2014 2:21:06 PM

Zachary B's fact-based response sets the record straight and is just one example of how federal offenders sentenced under mandatory minimums are mischaracterized as low-level, non-violent offenders.

First, feds prosecute only the most serious and violent drug gangs in their communities.

Second, low-level members of any drug gang are most always given the opportunity to cooperate in the investigation and earn a 5K departure which would allow sentence below any mandatory minimum term.

Thirdly: those hardened offenders who choose not to admit guilt and prefer to "roll the dice" most often have aggravating circumstances in relation to their "real offense behavior" or prior criminal history as did Sandra Avery noted above.

Posted by: mjs | Feb 5, 2014 4:25:34 PM

"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." [from the report]

Zachary B.'s comment that "I don't want her living next door to me. I don't want her living next door to my child's school. I don't want her living in my community" moves past a "fact specific response" that tells part of the story to supply a "characterization."

The alternative was not "living next door to me." It could have been a few years in prison & release subject to her following the path of her old life. I am willing to give her that option as compared to her sentenced to life. Anyway, the "facts" include all of the facts.

Posted by: Joe | Feb 6, 2014 12:26:01 PM

Joe --

"Sandra Avery was a survivor of childhood sexual abuse..."

Ah, yes, the ubiquitous abuse excuse. And just how, other than her self-serving story, do we know that?

"But in her early forties, her life spun out of control..."

And what does that mean, exactly? A life isn't an inanimate object that "spins out of control." What the sentence actually means is, "But in her early forties, she decided she wanted to do some crack, knowing but not caring that it was against the law, and she really liked getting high, so she became a dealer to allow her to buy more and more."

"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.'"

More self-serving tripe. She didn't accept the plea bargain because she was so arrogant and self-justifying that she thought could beat the rap, especially if she lied convincingly enough.

"The alternative was not 'living next door to me.' It could have been a few years in prison & release subject to her following the path of her old life."

It's all true. She didn't have to live next door to you and your kids. She could have lived next door to someone else and THEIR kids.

Well that's just super!

Posted by: Bill Otis | Feb 6, 2014 1:09:36 PM

I have known Sandra Avery since she was born. And yes, I do know she was a victim of childhood sexual abuse (her father, who had his own problems, gambling and alcoholism among them). Of course not everyone who suffers this turns into a criminal, but not everyone has the same personality or mental make up either.

Before you pass your own judgements, I'd like to remind you of a native American saying "don't judge a man (or woman) until you have walked in his/her moccasins." My own upbringing was entirely different than Sandra's because, thankfully, I did not "walk in those moccasins". I also do not have a particularly addictive personality, nor, I suspect, do the writers, above. I think we are more fortunate than Sandra.

Did Sandra commit crimes for which she should be punished? Absolutely, she did, and she, no doubt, contributed to the downfall of other human beings. So, at that time as intelligent as I believe she is, she certainly made some very poor choices.

However, a life sentence is not a just sentence for her crimes. Why would she have received only ten years if she had pleaded guilty? Was she anymore guilty because she took advantage of her right to plead not guilty? If you read the newspapers, nearly everyone pleads not guilty regardless of their crimes, many of which are violent and far worse than Sandra's. Some of them have gotten off with far lighter sentences (every sentence except death is lighter than life) even though their crimes were violent and often murderous. Some of them may even be living in your neighborhood or mine, and they may still be violent.

Finally, consider the waste of life and taxpayer money keeping someone like Sandra in prison for life without parole.
When Sandra had at one point beat her addiction she actually was a good, kind productive member of society. And, why couldn't she be that again? She could move in next door and you would never know she had been a felon. Felons live everywhere now without detection, and some have committed far worse crimes than Sandra. So your comments about "not living in my neighborhood" are futile and you should hope that you are not already living next to a former violent felon. Actually, many violent people never go to prison at all, and they may very well be living in your neighborhood. Much better to have a "Sandra" living next door.

Posted by: Art | May 6, 2014 4:17:56 PM

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