Forced to Plead Guilty

By Allison McCabe 12/17/16

In a climate of harsh mandatory minimums and overzealous prosecutors, is it surprising that nearly all drug defendants choose to plead guilty?

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In 2004, a 53 year old Wichita Falls woman named Mary Beth Looney was arrested on methamphetamine charges. When her house was searched, police found four guns in addition to the meth. Prosecutors charged her with the following offenses, which carry mandatory minimums: 1. Possession with intent to distribute 50 grams or more of methamphetamine (10 years), and 2. Possession of three firearms in furtherance of that drug trafficking crime (5 years). There is no evidence that Looney had ever used the guns in any drug deal, nor does it appear that the guns ever even left the Looney residence.

Mary Beth suffered from serious health problems. In addition to hypoglycemia, she had circulatory problems in her legs as a result of a car accident in which her ankle was severed. When the prosecutor offered her a plea bargain—plead guilty to both counts of the indictment and do 15 years—Mary Beth declined. She was worried that because of her age and health problems, she would die in prison. After Looney opted to go to trial, the prosecutor superseded the original charge and added a charge of conspiracy to possess with intent to distribute and stacked onto that a gun possession charge related to the new conspiracy count. This effectively added another mandatory 30 years to Looney’s sentence.

It was a short trial, and Mary Beth was found guilty. Since the charges all carried mandatory minimums, the judge was unable to change Mary Beth’s sentence. She was sentenced to 45 years in prison. Mary Beth Looney had no prior arrests, no juvenile convictions, and no adult convictions. If she manages to survive in jail, she will be 98 years old on her release date.

Prosecutors give drug defendants a so-called choice—in the most egregious cases, the choices can be to plead guilty to 10 years, or risk life without parole by going to trial.

In 2007, 36 year old Lulzim Kupa of Staten Island was charged with drug trafficking. More than 5 kilograms of cocaine were involved in his crime so his sentence carried a mandatory 10 years to life in prison. In March of this year, prosecutors for the government offered Kupa a deal: plead guilty and we’ll withdraw the 10-to-life charge and give you a lesser sentence which, with good behavior credits, could end up being only 7 years and 10 months. The prosecutors gave Kupa one day to accept; he declined and opted to go to trial. Ten days later, the government sent Kupa a letter informing him that they had added on two prior felony convictions for marijuana. With this new revised charge, Kupa was looking at life in prison without possibility of parole. After 19 days, Kupa received another plea bargain from the government, this time not quite so lenient: plead guilty and get a sentence which, on the low end, could end up being about 9 years and 4 months. This plea also had a one day expiration date, and Kupa did not act quickly enough. 5 days later, he received yet another plea bargain offer. This time he would probably serve 10 years if he accepted. The trial was approaching, and Kupa was looking at dying in prison if convicted. Finally, he acquiesced. At the time of his plea, he told the judge: “I want to plead guilty, your Honor, before things get worse.”

There are no shortage of cases such as Looney’s and Kupa’s. In theory, plea bargains act as alternatives to costly court trials and provide relief to an already overburdened justice system. But in practice, drug case-related plea bargains put defendants under enormous pressure; defendants know (or are explicitly told) that if they refuse the plea they will most likely face an inordinately and disproportionately long prison sentence that may only peripherally relate to their offense. Mandatory minimum sentencing gives prosecutors inflated and unjustified power. When a prosecutor charges a defendant with a crime that carries a mandatory minimum and that defendant is convicted, the judge’s hands are tied and he has no choice but to hand down that sentence. In essence, the prosecutors become the judges and sentencers. In Kupa’s case, the prosecutorial power seems especially insidious: the longer Kupa waited before accepting the plea bargain, the longer his prison sentence became.

It’s no wonder prosecutors offer so many plea bargains and make the consequences for not accepting them so harsh: with every guilty plea, a lengthy trial is avoided and the prosecutor gets another guilty conviction on his record.

Mandatory minimum sentencing was introduced in “The Anti Drug Abuse Act of 1986 (ADAA).” The motivation behind the law was to give harsher sentences to the higher-ups in drug trafficking organizations and keep the lower, street level dealers from receiving unreasonable punishments for low-level crimes. In practice, however, the law has resulted in drug defendants at every level receiving sentences which reek of arbitrariness because of the way the mandatory minimum charges are determined.

The ADAA demands a 5 year mandatory minimum with a 20 to 40 year maximum for the mid-level traffickers of drug dealing businesses, and a 10 year minimum with a life sentence maximum for the “kingpins.” But in order to define those positions in the enterprise, congress decided to use the amount and type of drugs involved in the crime. So, for instance, the 5 to 40 year count is mandatory for crimes involving 28 grams of crack, 500 grams of cocaine, or 100 grams of heroin. The 10 to life count is determined by 280 grams of crack, 5,000 grams of cocaine, or 1,000 grams of heroin. Basically, if a crime includes the amount and type of a drug specified for a mandatory minimum, everyone involved in that transaction can be classified, at the attorney general’s discretion, as a kingpin or a trafficker, despite the role they may have actually played.

In this environment of almost guaranteed harsh sentences (90% of drug cases result in a guilty verdict), is it any wonder that 97% of drug defendants decide to plead guilty? Human Rights Watch has just published a 126 page report, “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty," which includes case studies, statistics, and interviews with defense attorneys, federal prosecutors, and judges. The report also provides data about the differences in sentences between those who go to trial and get convicted and those who choose to plea. The report calls these harsher sentences the “trial penalty,” the punishment that prosecutors give to defendants who want to go to trial. “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, who authored the Human Rights Watch report. “Prosecutors make offers few drug defendants can refuse. This is coercion pure and simple.”

The Human Rights Watch report includes many case studies in which the prosecutorial power afforded by mandatory minimums seems out of control:

In 2005, Sandra Avery faced a 10 year mandatory minimum for possession with intent to sell less than 2 ounces of crack. Prosecutors did not offer a lesser sentence plea bargain, so Avery chose to go to trial and did not plead guilty. After she was convicted, she was given a life sentence using the same prior felony law that was used to coerce Kupa to plea. Her three prior convictions were for possessing less than $100 worth of crack.

In 2004, Weldon Angelos was offered a plea bargain—plead guilty and do 15 years—for three small marijuana sales. He refused and the prosecutors added charges related to the fact that Angelos had a gun on him when he made two of the sales. He ended up with a 55 year mandatory minimum. U.S. District Paul Cassell had no choice but to impose the sentence required by the congress-established mandatory minimum law, even though he felt the sentence was “unjust, cruel, and even irrational.”

(To put Angelos’ sentence in perspective, The Constitution Project notes that Weldon’s “sentence is longer than those imposed for three aircraft hijackings, three second-degree murders, three kidnappings, or three rapes…[It] is more than twice the federal sentence for a kingpin of a major drug trafficking ring in which a death results, and more than four times the sentence for a marijuana dealer who shoots an innocent person during a drug transaction.”)

Prosecutors used the same firearm count they used with Angelos in order to punish a medical marijuana grower from Montana when he refused to plead guilty. Chris Williams was offered five years if he pled. When he refused and was found guilty, prosecutors added gun counts to the marijuana charges (even though Williams had never even handled the guns listed in his indictment). The mandatory government-imposed charges for the gun counts alone resulted in a minimum sentence of 80 years in prison. In a situation that illustrates that even prosecutors themselves recognize the egregiousness of their sentencing power, U.S. Attorney Michael Cotter offered to reduce Williams’ charges after the fact so that he would serve “as little as 10 years” if he dropped his appeal. Williams refused. Cotter came back with a better deal: drop your appeal and we’ll lessen it to the original five year mandatory minimum. Williams agreed.

The Human Rights Watch report also details the efforts that are underway to change sentencing laws and calls on lawmakers to work harder to institute reforms. In August, Attorney General Eric Holder instructed federal prosecutors to stop charging low level nonviolent offenders with mandatory minimum-carrying offenses and to stop adding prior conviction enhancements except when absolutely necessary. He did not, however, institute any policy to keep prosecutors from demanding harsh sentences when defendants refuse to take pleas. Holder’s instructions, although laudable, also do not return any power to the judges if the defendant is convicted of a mandatory minimum offense; the judge must impose the sentence, complete with any stacked charges or enhancements demanded by the prosecutor.

In another effort to reform mandatory minimum sentencing, the U.S. Senate Judiciary Committee will meet on Thursday to discuss the Smarter Sentencing Act, S. 1410. If passed, the act would help many federal drug offenders who are currently facing or serving mandatory minimum terms. It would allow judges to reduce a mandatory minimum sentence under certain conditions. Currently, even if a defendant has a legally registered gun in his or her house, the possession of that gun can tack on disproportionate sentencing enhancements to the original charge. The passage of this bill would effectively expand the “safety valve” that allows a judge to alter a mandatory minimum. Currently the safety valve can only be used by first time, nonviolent offenders whose crimes did not involve guns.

President Obama has also pledged to support revamping mandatory minimum sentencing. In a 2007 speech, he agreed with George W. Bush who had once questioned harsh mandatory minimums for first-time drug defendants. "The difference is [Bush] hasn't done anything about it. When I'm President, I will. We will review these sentences to see where we can be smarter on crime and reduce the blind and counterproductive warehousing of nonviolent offenders." It’s questionable how much Obama has fulfilled this promise. He did sign the Fair Sentencing Act in 2010 which addressed the arbitrary difference in charges between possession of crack and cocaine (before the act, possession of 5 grams of crack cocaine carried the same sentence as possession of 500 grams of powder cocaine). While the passage of the Fair Sentencing Act helped many drug defendants, it did nothing for the crack offenders who were imprisoned prior to the passage of the act. Both Obama and Attorney General Holder have remarked that certain sentences imposed on drug defendants are excessively long. Obama, however, has refused to use his commutation power to reduce these sentences.

While mandatory minimum reforms and new policies for prosecutors are a promising start to fixing a corrupt system, they are not sufficient. As long as mandatory minimum sentencing exists in any form, prosecutors will have undue power and drug defendants will pay the price. Fellner believes that congress should eliminate mandatory minimum sentencing entirely and give the power back to judges. “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.”

Allison McCabe is the Senior Editor of The Fix

(Originally published in December 2013)

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Allison McCabe is the editor in chief of The Fix. She has written for LA Weekly, Village Voice, Junk: a literary fix, Ramshackle Review, Main Street Journal and others. Follow Allison on Twitter.