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(New York) – Federal prosecutors routinely threaten extraordinarily severe prison sentences to coerce drug defendants into waiving their right to trial and pleading guilty, Human Rights Watch said in a report released today. In the rare cases in which defendants insist on going to trial, prosecutors make good on their threats. Federal drug offenders convicted after trial receive sentences on average three times as long as those who accept a plea bargain, according to new statistics developed by Human Rights Watch.

The 126-page report, “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty,” 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.

“Prosecutors give drug defendants a so-called choice – in the most egregious cases, the choice can be to plead guilty to 10 years, or risk life without parole by going to trial,” said Jamie Fellner, senior advisor to the US Program at Human Rights Watch and author of the report. “Prosecutors make offers few drug defendants can refuse. This is coercion pure and simple.”

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. 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.

Prosecutors also pressure drug defendants to plead by threatening increased mandatory sentencing enhancements and penalties that are applicable if the defendant has one or more prior drug convictions or possessed a gun at the time of the offense. If the prosecutors carry out their threats, they add decades to the defendant’s time behind bars, resulting in punishments that, as one federal judge, John Gleeson of New York’s Eastern District, recently put it, are “so excessively severe they take your breath away.”

In one of hundreds of cases Human Rights Watch reviewed, Sandra Avery, a small-time drug dealer, rejected a plea of 10 years for possessing 50 grams of crack cocaine with intent to deliver. The prosecutor triggered a sentencing enhancement based on her prior convictions for simple drug possession, and she was sentenced to life without parole.

In addition to case reviews, the report is also based on numerous interviews with federal prosecutors, defense attorneys, and judges. It also includes new statistics developed by Human Rights Watch that provide the most recent and detailed measure of what the report calls the “trial penalty” – the difference in sentences for drug defendants who pled guilty compared with those for defendants convicted after trial. The trial penalty is, essentially, the price prosecutors make defendants pay for exercising their right to trial.

“Going to trial is a right, not a crime,” Fellner said. “But defendants are punished with longer sentences for exercising that right.”

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.

Plea bargaining is broadly accepted largely on the pragmatic ground that if every criminal case went to trial, the overburdened criminal justice system would grind to a halt, and the US Supreme Court has accepted this logic in decisions sanctioning plea bargains. But under human rights principles – and longstanding principles of criminal justice in the United States – criminal sentences should be no greater than necessary to hold offenders accountable and protect the public.

Prosecutors favor mandatory sentences because they enhance their leverage not only to get convictions via pleas, but to get defendants to cooperate with the government in the prosecution of others in exchange for a lower sentence. “We don’t let police beat suspects to get confessions,” said Fellner. “Threatening someone with a life sentence can be just as coercive – and just as wrong.”

In August 2013, Attorney General Eric Holder instructed federal prosecutors to avoid charging certain low-level nonviolent offenders with offenses 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.

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.

The attorney general should direct prosecutors to seek proportionate sentences for all drug offenders whether they plead or go to trial, Human Rights Watch said. He should prohibit prosecutors from threatening or seeking greatly increased sentences simply because defendants refuse to plead. Even more important, the US Congress should eliminate mandatory minimum sentences and sentencing enhancements for drug offenders so that judges may use their judgment 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.”

The new statistics Human Rights Watch developed for the report, based on raw federal sentencing data for 2012, include the following:

• The average sentence for federal drug offenders who pled guilty was five years, four months; for those convicted after trial the average sentence was sixteen years.

• For drug defendants convicted of offenses carrying mandatory minimum sentences, those who pled guilty had an average sentence of 82.5 months compared with 215 months for those convicted after trial, a difference of 11 years.

• Among drug defendants with prior felony convictions, the odds of receiving a sentencing enhancement based on those convictions was 8.4 times greater for those who went to trial than for those who pled guilty.

• Among drug defendants with a gun involved in their offense, the odds of receiving the statutory gun sentencing enhancement were 2.5 times greater for those who went to trial than for those who pled guilty.

The following are some of the cases documented in the report:

• After Mary Beth Looney, a first-time offender, refused a plea of 17 years for dealing methamphetamines and possessing guns in her home, the prosecutor filed a superseding indictment increasing her charges. Convicted after trial, Looney was sentenced to 45-and-a-half years in prison.

• Lashonda Hall was originally charged with conspiracy to distribute cocaine and crack and faced a 10-year sentence. When she did not plead guilty, prosecutors filed a superseding indictment increasing the drug counts and adding two weapons counts. Convicted after trial, Hall was sentenced to 45-and-a-half years.

• Roy Lee Clay faced a 10-year sentence for conspiracy to distribute one kilogram or more of heroin. When he refused to plead guilty, the government sought a mandatory sentencing enhancement based on prior convictions. Clay was convicted after trial and sentenced to life in prison.

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