Making an Offer They Can’t Refuse: How Prosecutors Are Sending Small Time Offenders to Prison for Years

by Geoffrey Nathan on May 20, 2014

Federal prosecutors often threaten long prison sentences to force drug defendants into waiving their right to a trial and to plead guilty, according to a recent report release by Human Rights Watch.

Attorney Nathan of Geoffrey Nathan Law Offices in Boston says, “In the cases where the defendants do go to trial, prosecutors follow through and make sure they get very long sentences if convicted. The report showed that federal drug offenders convicted during trial receive a sentence that is three times longer than those who take the plea bargain.”

The report, which is titled ‘An Offer You Can’t Refuse – How Us Federal Prosecutors Force Drug Defendants to Plead Guilty’, shows how federal prosecutors in the US get guilty pleas from these drug defendants by threatening to charge them with crimes that carry very long, mandatory prison sentences. They also threaten to seek more mandatory increases to the sentences if the defendants do not go along. Federal prosecutors will offer defendants lower sentences if they plead guilty. Drug defendants almost never prevail at trial, so about 97% plead guilty in federal court.

The senior advisor to the US Program at Human Rights Watch, Jamie Fellner, noted in the report that prosecutors give drug defendants a very stark choice – usually plead guilty and get 10 years, or go to trial and get life without parole if convicted. These prosecutors make an offer that is very hard for the defendant to refuse. She termed it nothing less than coercion.

Federal prosecutors use mandatory minimum sentences to their full advantage. In the 1980s, Congress enacted these laws, intending a 10 year minimum to be for a drug kingpin, and the five year minimum to be for the mid level dealer. But the law bases the sentence upon the type and weight of the drug, not the role of the defendant, so prosecutors are able to make identical charges against the head of a drug organization, as well as against a drug courier who was delivering a package of the drugs.

The report shows that 48% of federal drug defendants had rather low level functions, including street level dealer or courier. About ¾ of them are convicted with a mandatory minimum sentence.

Prosecutors often pressure defendants to plead guilty by hitting them with mandatory sentence enhancements and penalties that can be applied if the defendant has prior drug convictions or had a gun on them when arrested. If the prosecutor does follow through, this can add decades to the prison sentence.One federal judge, John Gleeson in NY, said the punishments are so excessive that they can take one’s breath away.

One example of hundreds in the report was that of Sandra Avery. She is a small time drug dealer who turned down a plea agreement of 10 years for carrying 50 grams of crack with intent to sell. The prosecutor added a sentence enhancement due to prior convictions for possession. She got life in prison without parole.

The report also contains many interviews with prosecutors, defense attorneys and judges. It also has statistics by Human Rights Watch that shows what the report terms ‘the trial penalty.’ That is the difference in the length of the sentences for the defendants who plead guilty, compared to the sentence that defendants get after they plead guilty at trial. Essentially, the report argues, the trial penalty is the price the defendant must pay to exercise their rights.

Feller noted that going to trial is an American right, and we should not be discouraged from exercising that right.

Prosecutors have been able to use this coercive trial penalty because judges do not have much discretion in a case where there is a mandatory sentence. If the prosecutor goes for a mandatory penalty and the defendant loses, then the judge has no choice but to impose the sentence. They are not able to tailor a sentence depending upon the conduct and culpability of each person.

This is not to say that there should be plea bargaining in the US justice system. If every case went to trial, the criminal justice system would be completely swamped and could not function. But, Human Rights Watch argues that sentences should not be longer than necessary to just hold offenders accountable and to provide protection to the American public.

There now is movement on the federal level to limit the use of these mandatory sentences. Attorney General Eric Holder in August 2013 ordered federal prosecutors to not charge low level, non violent drug offenders with crimes that carry mandatory minimum sentences. He also told them to not seek mandatory sentence enhancement based upon earlier convictions, unless the conduct of the defendant truly warranted it.

The authors of the report hope that the publishing of the document will lead to more reforms of the US justice system, so that small time offenders no longer are sent away for unfairly harsh prison terms.

Geoffrey Nathan
Attorney Geoffrey Nathan is a top criminal defense & personal injury attorney in the Commonwealth of Massachusetts. He is a nationally recognized lawyer with more than 20 years of experience
Geoffrey Nathan

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