Amazing articles and reports on 3 of CAP’s biggest issues – Part 2: Mandatory Minimums

Some amazing articles and reports on three of CAP’s biggest issues: Wrongful Convictions (including Eyewitness ID), Compassionate Release, and Mandatory Minimums. These issues are heating up and validating the reforms for which we have been advocating. 

... and a call for your help in the 2014 legislative session! Your voice is crucial in helping legislators develop sensible, humane, and sound public policy.

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An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty
Human Rights Watch, December 2013

Prosecutors are able to impose the trial penalty because judges have been reduced to virtual bystanders in cases involving mandatory sentences. When prosecutors choose to pursue mandatory penalties and the defendant is convicted, judges must impose the sentences. They cannot exercise their traditional role of tailoring sentences to each defendant’s conduct and culpability and of making sentences no longer than necessary to serve the purposes of punishment.

us1213_reportcoverThe 126-page report details how prosecutors throughout the United States extract guilty pleas from federal drug defendants by charging or threatening to charge them with offenses carrying harsh mandatory sentences and by seeking additional mandatory increases to those sentences. Prosecutors offer defendants a much lower sentence in exchange for pleading guilty. Since drug defendants rarely prevail at trial, it is not surprising that 97 percent of them decide to plead guilty.

Using sentencing data from individual cases collected nationwide by the United States Sentencing Commission (the Sentencing Commission), most of it from 2012, Human Rights Watch has developed statistics that shed light on the size of the trial penalty. Each case contains a unique mix of factors that results in the final sentence, but our findings nonetheless provide deeply troubling evidence of the price defendants pay if they refuse to plead.

Among our findings:
• Defendants convicted of drug offenses with mandatory minimum sentences who went to trial received sentences on average 11 years longer than those who pled guilty (215 versus 82.5 months).

• Among first-time drug defendants facing mandatory minimum sentences who had the same offense level and no weapon involved in their offense, those who went to trial had almost twice the sentence length of those who pled guilty (117.6 months versus 59.5 months).

• Among defendants who were eligible for a sentencing enhancement because of prior convictions, those who went to trial were 8.4 times more likely to have the enhancement applied than those who plead guilty.

• Among drug defendants with a weapon involved in their offense, those who went to trial were 2.5 times more likely to receive consecutive sentences for §924(c) charges than those who pled guilty.

These statistics cannot fully capture the leverage that prosecutors exert over individual defendants during plea bargaining. If a prosecutor’s threats are made orally, there may be no written record of them. During hearings, when the judge makes a decision whether to accept a plea agreement, it is rare for prosecutors, defense counsel, or defendants to mention the sentencing risk defendants faced if they did not plead.

The following case exemplifies the dire consequences that result when prosecutors made good on their threats to pursue increased sentences for a defendant who refuses to plead. A prosecutor who was willing to accept a plea that gave the defendant a 10-year sentence, was willing to have her sentenced to life without parole because she insisted on going to trial.

The trial penalty’s effectiveness at securing plea agreements is purchased at the cost of disproportionate and unjust sentences for those who exercise their right to trial. We believe Attorney General Eric Holder should make just and proportionate sentences a goal prosecutors keep forefront in their charging and plea bargaining decisions. But Congress must also take steps to end the trial penalty.

Legislative reform should restore judicial discretion over sentencing—either by eliminating mandatory minimums or by permitting judges to go below them in individual cases in the interests of justice. Such legislative reform would prevent prosecutors from being able to bludgeon defendants into pleading guilty with the threat of exorbitant mandatory sentences should they go to trial. Judges would also be able to provide relief to defendants who pled to disproportionately long sentences in order to avoid the risk of even longer if convicted after trial.

We recognize it is likely that were the trial penalty significantly reduced, more defendants might decide to take their chances at trial and to insist the government prove its case. The federal criminal justice system would adapt. The government might provide the resources to increase the number of prosecutors, judges, defense counsel, courtrooms, and court staff. Federal prosecutors might become more selective in the cases they prosecute and the charges they pursue. The federal government might decide to put more resources into non-penal strategies to reduce drug consumption and weaken drug markets—e.g. public health and education-based programs. We cannot predict all the possible consequences. But we can safely predict that taking away from federal prosecutors the ability to threaten drug defendants with the trial penalty will ensure fairer charges and sentences.

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Report: Threat Of Mandatory Minimums Used To Coerce Guilty Pleas
Carrie Johnson, NPR, Dec. 5, 2013

“In August, Attorney General Eric Holder told federal prosecutors to no longer hit low-level drug offenders with charges that carry mandatory minimum sentences. But it’s not yet clear how broadly that directive is being interpreted.

A new report says the Justice Department regularly coerces defendants in federal drug cases to plead guilty by threatening them with steep prison sentences or stacking charges to increase their time behind bars.

And for the first time, the study by Human Rights Watch finds that defendants who take their fate to a judge or jury face prison sentences on average 11 years longer than those who plead guilty.

In all, a whopping 97 percent of defendants plead guilty — no surprise, says author Jamie Fellner, given the enormous and essentially unchecked power that federal prosecutors wield.

Updated at 9:30 a.m. ET: DOJ Responds:

Justice Department spokeswoman Ellen Canale said in an email to NPR that “it is critical to ensure the criminal justice system operates fairly in every case, and the Department’s charging policies reflect that goal.”

She added: “Under the Department’s policy, prosecutors are instructed not to file sentencing enhancements unless the defendant is involved in conduct that makes the case appropriate for severe sanctions. This seeks to ensure that these enhancements are reserved for serious, high-level, or violent drug traffickers. The Department agrees that the enhancements should not be used to coerce defendants.” 

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The wrong people decide who goes to prison
Mark Bennett and Mark Osler, CNN, Dec. 3, 2013

Since prosecutors began to control sentencing, Mark Bennett and Mark Osler say too many people have gone to prison.

Story Highlights:
·  Writers: 30 years ago, prosecutors took over from judges controlling sentencing
·  They say this led to vast disparities in sentencing and many more people imprisoned
·  Writers: It ignores that federal judges are experienced and know to exercise discretion
·  Writers: Many prosecutors have little experience deciding who will go to prison and for how long



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