Last year a New Yorker named Lulzim Kupa was indicted on federal cocaine distribution charges that carried a mandatory minimum sentence of 10 years. He nevertheless declined to plead guilty, even when prosecutors offered to forgo the mandatory minimum and recommend a somewhat shorter sentence.
Kupa remained obstinate until a few weeks before his trial was scheduled to begin, when the prosecution officially notified the court of two prior marijuana convictions that would have raised his mandatory minimum sentence to life. Then he decided to plead guilty after all. The prosecution withdrew its notification, and Kupa received an 11-year sentence.
A recent report from Human Rights Watch highlights the tremendous pressure to plead guilty that mandatory minimum sentencing laws put on defendants like Kupa. The pressure is so intense that only 3 percent of federal drug offenders exercise their Sixth Amendment right to a trial, down from about 15 percent before Congress began enacting mandatory minimums in the 1980s.
Prosecutors have long offered lenience in exchange for guilty pleas; that is what makes such arrangements possible. But the huge differences in punishment documented by Human Rights Watch make demanding a trial so risky that almost no one chooses that option.
The prosecutorial power to multiply penalties at will magnifies the injustice that results from rigid sentencing rules tied to drug weight. Even if a 10-year sentence were an appropriate penalty for a cocaine dealer, a life sentence plainly would not be appropriate for the same defendant.
Maneuvers like the one that trapped Kupa reek of arbitrariness. "Just like that," observed the judge who sentenced Kupa, "a defendant for whom the government, only ten days earlier, was willing to recommend an effective sentence of less than eight years was looking at life in prison without the possibility of parole."
And Kupa, believe it or not, was lucky. Sandra Avery, a Floridian who in 2005 was arrested for possessing 50 grams of crack cocaine (less than two ounces) with intent to deliver, initially faced the same 10-year mandatory minimum as Kupa. But prosecutors did not offer to shave any time off that sentence, so she refused to plead guilty.
After Avery was convicted (which is what happens to 90 percent of federal drug offenders who go to trial), she received a life sentence under the same prior-felony provision the government had used to beat Kupa into submission. Avery had three prior convictions for possessing small amounts of crack, worth a total of less than $100.
Another powerful source of prosecutorial leverage is a law that prescribes mandatory minimums for possessing a gun in connection with a drug offense. The first such offense triggers a five-year sentence, each additional instance triggers a 25-year sentence, and the sentences must be served consecutively.
That is how Weldon Angelos ended up with a 55-year mandatory minimum sentence for three small-time marijuana sales during which he possessed a gun, even though he never hurt or threatened anyone. Before Angelos was convicted and received what may well amount to a life sentence, prosecutors offered him a plea deal that would have resulted in 40 fewer years behind bars.
Prosecutors used the same firearm provision to punish Chris Williams, a Montana medical marijuana grower, for refusing to plead guilty. Williams, who was offered a five-year prison term under a proposed plea deal, received the equivalent of a life sentence after he was convicted. That outcome was so blatantly unjust that prosecutors essentially renewed their plea deal in exchange for Williams' promise not to appeal.
Looking at drug offenders sentenced in 2012, Human Right Watch found that, among defendants whose offenses involved guns, those who went to trial were two and a half times as likely as those who pleaded guilty to receive longer sentences under the firearm provision. Among defendants who were eligible for longer sentences based on prior felonies, those who went to trial were eight times as likely to receive such an enhancement.
The overall impact of such prosecutorial discretion is dramatic. Human Rights Watch found that in 2012 the average sentence for federal drug offenders convicted after trials was 16 years, more than three times as long as the average sentence for federal drug offenders who pleaded guilty.
This week the Senate Judiciary Committee is scheduled to consider bills that would expand the ability of federal judges to bypass mandatory minimums in the interest of justice. The latest Reason-Rupe Public Opinion Survey finds that 71 percent of Americans support eliminating mandatory minimums for nonviolent offenders. If the fact that people receive absurdly long prison sentences for engaging in peaceful transactions were not enough reason to support reform, the fact that people can be punished even more severely for exercising their right to a trial would clinch the case.
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