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Report: Federal Prosecutors Push Defendants to Take Plea Deals by Threatening Harsh Sentences

prison2A powerful report released by Human Rights Watch reveals the horrific effects of the U.S. plea bargain system on criminal defendants who are often strong-armed by federal prosecutors to forgo trials and take shorter prison terms if they plead guilty because of the threat of excessive sentences.

It’s a system that, as author Michelle Alexander exposed in her book, “The New Jim Crow,” has had a devastating effect on African-American males and the African-American community over the past 30 years, sending a generation of Black men to prison for, in many cases, low-level drug offenses.

The 126-page report, called “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty,” shows that coercive tactics of prosecutors to extract plea bargains abound in state and federal criminal cases, with prosecutors having the all-powerful discretion to charge defendants who 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.”

Unbelievably, just 3 percent of drug defendants in federal cases choose to go to trial instead of taking a guilty plea, the report found.

The threat of higher sentences puts “enormous pressure [on defendants] to plead,” Mary Pat Brown, a former federal prosecutor and senior official in the Justice Department, is quoted as saying in the report.

“Human Rights Watch believes this historically low rate of trials reflects an unbalanced and unhealthy criminal justice system,” the study’s author, Jamie Fellner, writes in the report.

“Prosecutors can say, ‘Take these 10 years or, if you get a trial and are convicted, you’re going to look at life,’” said Fellner, an attorney who specializes in criminal justice issues at Human Rights Watch. “That’s a pretty amazing power that unfortunately they are more than willing to wield.”

When drug defendants decided to go to trial, 89 percent of them lost—and they received sentences that were on average more than three times as many years in prison as those who took a plea, according to the report’s analysis of data from the United States Sentencing Commission, a government agency.

The culprit is the system of mandatory minimum sentencing that forces judges to impose pre-determined sentences for particular offenses.

“In the 1980s, when Congress enacted mandatory minimum sentencing statutes, lawmakers intended 10-year minimum sentences for drug kingpins and five years for mid-level traffickers,” Fellner writes. “But because the laws key the sentence to the weight and type of drug, and not the specific role of the offender, prosecutors can levy the same charges with the same mandatory sentence against a courier who delivers a package of drugs and the head of a drug organization to whom the drugs are delivered. Nearly half – 48 percent – of federal drug defendants have low-level functions such as street-level dealer or courier, and half to three-quarters of them are convicted of offenses carrying mandatory minimum sentences.”

The report reveals that in fiscal year 2012, 60 percent of convicted federal drug defendants were convicted of offenses carrying mandatory minimum sentences—usually sentences that Fellner writes would be considered disproportionate to their crime to most observers. For instance, she says an addict who sells drugs to support his habit can get a 10-year sentence, while someone hired to drive a box of drugs across town faces the same minimum sentence as a major trafficker caught with the box.

Attorney General Eric Holder is trying to make changes in the system, in August instructing federal prosecutors to avoid charging certain low-level nonviolent offenders with crimes carrying mandatory minimum sentences, and to avoid seeking mandatory sentencing enhancements based on prior convictions unless the defendant’s conduct warranted such severe sanctions.

“It is too soon to tell how prosecutors will carry out the policies, but they contain easily exploited loopholes and do not prohibit prosecutors from pursuing harsh sentences against any defendant who refuses to plead,” Fellner writes. “Moreover, if prosecutors ignore the letter or spirit of Holder’s policies, there is no remedy. If a defendant is convicted, the judge must impose the applicable mandatory minimum sentences or sentencing enhancements sought by the prosecutor.”

Human Rights Watch would like to see Holder prohibit prosecutors from threatening or seeking greatly increased sentences simply because defendants refuse to plead. The group is calling on Congress to eliminate mandatory minimum sentences and sentencing enhancements for drug offenders so that judges may use their discretion when setting sentences.

“Independent federal judges who have no personal or institutional stake in the outcome should have the final say over sentencing,” Fellner said. “Judges should have the discretion to ensure that defendants in drug cases receive sentences proportionate to their crimes, not their willingness to plead guilty.”

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