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March 10, 2022
Highlighting some disparities identified in recent "Dealing in Lives" report on federal life sentences for drug offenses
In this post a few days ago, I spotlighted this terrific new research paper authored by Alex Fraga, who serves as a Senior Research Associate at Ohio State's Drug Enforcement and Policy Center (DEPC). The paper, titled "Dealing in Lives: Imposition of Federal Life Sentences for Drugs from 1990–2020," is the focal point of this new Filter article titled "Federal Life Sentences for Drugs: Unconscionable and Massively Biased." Here is some of the coverage:
Studying federal life and de facto life sentences for drugs in federal courts from 1990 to 2020, Dr. Fraga found stunningly awful racial disparities. Federal life sentences are practically reserved for defendants who are Black (62.4 percent) or Hispanic (22 percent). Crack cocaine was the drug involved in roughly half of federal life sentences, yet the disparities held independent of drug type.
In addition, many people were punished more harshly for wanting to exercise their constitutional rights. As Fraga writes, “An astonishing 72% percent of those sentenced to life or de facto life for drug trafficking exercised their right to trial.”
When the system is largely a conveyor belt of plea bargains, with over 90 percent of cases never going to trial, “astonishing” is right. Defendants who demand that prosecutors meet their burden of proof are often hit with harsher charges and sentencing outcomes....
Yet another layer of inconsistency and arbitrariness in federal drug sentencing exposed by the report covers is geography-based. Just five districts — three in Florida, one in Virginia and one in South Carolina — accounted for 25 percent of all federal life and de facto life sentences imposed for drug trafficking during the study period. For context, there are 93 federal court districts in the nation. Each has its own presidentially-appointed US attorney, who enjoys a wide band of discretion on who to charge and with what.How could this happen? Despite ostensible efforts toward uniformity, federal courthouses in different parts of the country have developed their own local legal cultures. For example, in southern Georgia, there is no public defender office for impoverished people charged with federal crimes; they receive appointed attorneys who are often uninvested and lack expertise in criminal law. That district also has some of the harshest sentencing outcomes in the country.
I am grateful to see this engagement with some of the data in the new report, and there are so many other interesting findings therein. As mentioned previously, a number of the paper's key findings (and visuals) can be viewed at this DEPC webpage.
Prior related post:
March 10, 2022 at 05:18 PM | Permalink
Comments
“An astonishing 72% percent of those sentenced to life or de facto life for drug trafficking exercised their right to trial.”
I'm not sure how astonishing that is, we would need to know what the pretrial offers were. If the prosecutors demanded life sentences and never came off that position, then it would not be so surprising that the defendants went to trial. No reason to plead guilty. On the other hand, probably many of these sentences are the result of trial taxing. I imagine one common scenario in federal drug cases would be that you must choose between pleading to a 20-year mandatory minimum and risking mandatory life at trial.
Posted by: Eric Fish | Mar 10, 2022 5:33:13 PM
When you knowingly commit a crime to make some quick dough, and that crime carries a potential life sentence, and you try a fancy dance at trial to try to wriggle your way out of it, and the jury doesn't buy it, and the judge takes note of your belligerent and complete lack of contrition -- then the fact that you wind up at the top of the sentencing range is neither surprising nor disturbing. You had a lot of chances to change your behavior to get to a better outcome. You blew them off. Next time wise up.
Posted by: Bill Otis | Mar 10, 2022 8:33:11 PM
I trust you realize, Bill, that a life sentence in the federal system formally means there is no "next time." The person given life for seeking some "quick dough" and exercising his constitutional right to a trial has been condemned to die in prison, and thus sentenced for a federal drug crime much more severely than the average federal sentences given out for murderers and sex offender and kidnappers with lengthy criminal histories.
Posted by: Doug B. | Mar 10, 2022 8:52:39 PM
Doug --
"I trust you realize, Bill, that a life sentence in the federal system formally means there is no 'next time.'"
There will be hundreds or thousands of "next times" where he can choose to behave honorably or at least more-or-less honestly, and that's what I'm talking about.
Once again, it's everybody's fault but the guy who committed the crime and then tried to do a shake-and-jive with the jury. Sorry, the "it's everybody else's fault" line has run out of steam. This is not to mention that it's not accurate, not by a long shot.
Posted by: Bill Otis | Mar 10, 2022 11:56:44 PM
Framers: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." And "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury."
Bill Otis: If you decide to exercise the procedural rights twice stressed by the Framers via the express text of the Constitution, you are involved in "shake-and-jive" that makes it "neither surprising nor disturbing" when we impose an LWOP sentence that the rest of the world views as a human rights violation (and that is far harsher than the average federal sentences given out for murderers and sex offender and kidnappers with lengthy criminal histories).
Do you think, Bill, that a drug offense sentence which is clearly *many decades* longer as a direct consequence of a decision to put the government to its proof at trial would have been endorsed by the Framers and demonstrates true fidelity to the text of the Constitution?
Posted by: Doug B. | Mar 11, 2022 9:10:33 AM
Actually, even without a deal the defendant is always free to plead guilty. While fairly rare now I do have to wonder how open plea results end up comparing with those who chose to go to trial. Actually, I suppose the real difference is that deals very often make a majority of charges go away (even often more serious charges) and not just limit the arguments a prosecutor will make in favor of a longer sentence. An open plea does not accomplish that.
Posted by: Soronel Haetir | Mar 11, 2022 1:43:32 PM
Doug --
"Bill Otis: If you decide to exercise the procedural rights twice stressed by the Framers via the express text of the Constitution, you are involved in "shake-and-jive" that makes it "neither surprising nor disturbing" when we impose an LWOP sentence..."
Any number of your sleazy and shrewdly anonymous commenters mangle my position, but you're usually better than that. I never said (which is why you don't quote me), and don't believe, that simply demanding a trial is a shake-and-jive. But if at that trial you lie or intentionally mislead about your behavior, or sponsor witnesses who are similarly deceitful, that most certainly is a shake-and-jive.
So let me ask you this: All other things being equal, should a judge give the same sentence to (a) a defendant who owns up to what he did as to (b) a defendant, who like liberal hero Jussie Smollett, lies about his behavior to the cops, lies about it to the jury, and then continues to lie about it to the court at sentencing?
Do those two defendants deserve the same sentence?
Posted by: Bill Otis | Mar 11, 2022 3:54:12 PM
Doug --
To continue: "... that the rest of the world views as a human rights violation (and that is far harsher than the average federal sentences given out for murderers and sex offender and kidnappers with lengthy criminal histories)."
Ha! In the great majority of the rest of the world, namely Asia, the Subcontinent, Africa and the Middle East, the punishments for drug dealing are much harsher than in the USA, and include not merely lengthy prison terms but the death penalty. But if we are to be guided in law by "the rest of the world" -- i.e., the huge parts of it that are non-Caucasion -- shouldn't we also start with Item A, to wit, capital punishment? Yes? No? Or do non-white parts of the world not count in thinking about that most grave of punishments?
"Do you think, Bill, that a drug offense sentence which is clearly *many decades* longer as a direct consequence of a decision to put the government to its proof at trial would have been endorsed by the Framers and demonstrates true fidelity to the text of the Constitution?"
As noted, the sentence is longer because the defendant was dishonest, not because of his invocation of procedural rights. But for however that may be, I will let the text of the Constitution speak for itself rather than indulge the (admittedly quite common) belief in legal academia that modern professorial guessing about intent should displace the founding document's text, cf. Harmelin v. Michigan.
Posted by: Bill Otis | Mar 11, 2022 4:09:59 PM
I am sorry if I did not fairly characterize your views, Bill, and maybe a few questions can allow me to avoid doing so. As always, this forum does not make this conversation easy, but let see how we can do:
1. Do you think a LWOP sentence for drug offenses is likely to be generally just and justified?
2. Do you think a LWOP sentence for drug offenses is likely to be more just and justified if the defendant exercises his right to trial?
3. Do you think a LWOP sentence for drug offenses is likely to be more just and justified if the defendant exercises his right to trial and lie or intentionally misleads about his behavior?
As a general matter, I do not think an LWOP sentence is just or justified for any non-violent offense -- the vast majority of the countries that impose life sentences do so with the possibility of parole: https://www.penalreform.org/issues/life-imprisonment/key-facts/. Most of the rest of the world views LWOP as problematic and views long sentences for drug offenses as problematic. But you are right, there are a handful of other nations with drug offense sanctions comparable to the US, and I should have not been so sweeping in my statement.
I do think sentencing judges and juries should consider remorse, honesty and even the consequentialist benefits of a conservation of limited resources as reasons to lower a sentence. Because I am a consequentialist who sees a link between justified punishment and post-offense behaviors, having some sentencing "delta" for pleading guilty makes sense. But, I think we dishonor the text of the Constitution's emphasis on trials and trial rights and the Framer's vision of law and justice and liberty if that "delta" is measured in decades so that certain offenders who plead guilty typically get 10 years but comparable offenders who go to trial (and maybe even lie) may often get LWOP.
At issue is not the "sentence getting longer" because a drug defendant went to trial and was dishonest. At issue is the drug defendant getting LWOP because he went to trial and was dishonest. I welcome a quote of the "the text of the Constitution" supporting that approach to federal government punishments.
Posted by: Doug B. | Mar 12, 2022 10:18:01 AM
Doug --
"I do think sentencing judges and juries should consider remorse, honesty and even the consequentialist benefits of a conservation of limited resources as reasons to lower a sentence."
DING DING DING!!!!! Give that man the brass ring!
I'll answer you questions in the next comment, but I wanted to flag that one seminal sentence. I think I'll paint it on a lunch board and, for the next couple of weeks, walk around campus wearing it.
Posted by: Bill Otis | Mar 13, 2022 3:45:18 PM
Doug --
To answer your questions:
1. No, with the note that the word "generally" is doing a lot of work in your question.
2. No, not MERELY if the defendant goes to trial. But if he presents a deceitful story, that's another matter.
3. Yes, an LWOP sentence is likely to be "more" justified under those conditions, but with the caveat that a half of a percent is "more" than a tenth of a percent. LWOP sentences should doubtless be rare. In 25 years at DOJ and the USAO, I never asked for one. But never say never.
Posted by: Bill Otis | Mar 13, 2022 8:55:33 PM
Bill, we agree that LWOP sentences --- I would say for any crime --- should be rare. And it seems to me especially troublesome that the data in the "Dealing in Lives" report shows are not so rare for federal drug defendants who exercise their right to trial. This kind of extreme sentence should only be given if the awfulness crime (and criminal history) so clearly justifies locking a human in a cage for the rest of his life. If the crime is not so awful, a defendant's desire to put the government to its proof should not be, in essence, a fatal decision if we sincerely regard jury trial rights.
Posted by: Doug B. | Mar 13, 2022 9:59:13 PM
