Pubdate: Thu, 26 Dec 2013
Source: News Herald (Willoughby, OH)
Copyright: 2013 The News-Herald
Contact:  http://www.news-herald.com
Details: http://www.mapinc.org/media/305
Author: George Will, Washington Post Writers Group

TIME FOR END TO 'SLEDGEHAMMER JUSTICE'

WASHINGTON - Federal Judge John Gleeson of the Eastern District of New
York says documents called "statements of reasons" are an optional way
for a judge to express "views that might be of interest." The one he
issued two months ago is still reverberating.

It expresses his dismay that although his vocation is the
administration of justice, his function frequently is the infliction
of injustice. The policy of mandatory minimum sentences for drug
offenses has empowered the government to effectively nullify the
constitutional right to a trial. As Lulzim Kupa learned.

Born to Albanian immigrants, he was convicted in 1999 and 2007 of
distributing marijuana. Released from prison in 2010, he again engaged
in trafficking, this time with enough cocaine to earn him charges
involving a sentence of 10 years to life. On March 5, 2013,
prosecutors offered this: In exchange for a guilty plea, he would
effectively be sentenced within the range of 110-137 months - but the
offer would expire the next day. Kupa rejected the offer, so on March
15 prosecutors filed a "prior felony information," aka an 851 notice,
citing the two marijuana convictions. So, 10 days after saying a
sentence of perhaps less than eight years (assuming good time credits)
would be appropriate, prosecutors were threatening a sentence of life
without parole. This gave him no incentive to plead guilty.

Then, however, they immediately proposed another plea agreement
involving about nine years' imprisonment. Given a day to decide, he
acted too slowly, so prosecutors again increased the recommended
sentence. Finally, Kupa caved: "I want to plead guilty, your Honor,
before things get worse." If, after the 851 notice, he had insisted on
a trial and been found guilty, he would have died in prison for a
nonviolent drug offense. He is 37.

Tyquan Midyett, a high-school dropout from a broken home and foster
care, began using marijuana at 14. He was 26 when arrested for selling
less than four ounces of crack. Because this was his second offense,
the best he could do pleading guilty was a 10-year sentence. When he
hesitated, the government gave him a date to agree or it would file an
851 notice, which would double the mandatory minimum to 20 years. He
went to trial, was convicted and is serving 240 months for an offense
that, without the escalating coercions aimed at a guilty plea, would
have received a sentence of 46-57 months.

In 2008, an 851 notice was filed against Charles Doutre, based on two
prior convictions for distribution of $50 worth of drugs and simple
possession of drugs. The judge who was required to sentence him to
life in prison said, "I've imposed a life sentence six times, and it
was for a murder each time." Doutre is 32.

Eleven years ago, Dennis Capps, 39, a methamphetamine addict, pled
guilty to two instances of trafficking involving a quantity of drugs
he could hold in his hand. He conquered his addiction for a long time,
then relapsed, and in this year was convicted of another drug offense.
Because he insisted on a trial, the government filed an 851 notice. He
was convicted, and is serving life without parole.

Kenneth Harvey was 24 in 1989 when he committed a crack cocaine
offense. He had two prior offenses that qualified as felony drug
convictions even though they were not deemed serious enough for
imprisonment. They, however, enabled the government to make an 851
filing. He will die in prison. Harvey is 48.

Thousands of prisoners are serving life without parole for nonviolent
crimes. Gleeson, who is neither naive nor sentimental (as a
prosecutor, he sent mobster John Gotti to die in a supermax prison),
knows that most defendants who plead guilty are guilty. He is,
however, dismayed at the use of the threat of mandatory minimums as
"sledgehammers" to extort guilty pleas, effectively vitiating the
right to a trial. Ninety-seven percent of federal convictions are
without trials, sparing the government the burden of proving guilt
beyond a reasonable doubt. Mere probable cause, and the meager
presentation required for a grand jury indictment, suffices. "Judging
is removed," Gleeson says, "prosecutors become sentencers." And when
threats of draconian sentences compel guilty pleas, "some innocent
people will plead guilty."

Barack Obama, Attorney General Eric Holder and Sens. Pat Leahy, D-Vt.,
and Rand Paul, R-Ky., are questioning the regime of mandatory minimum
sentences, including recidivism enhancements, that began with the
Anti-Drug Abuse Act of 1986. Meanwhile, the human and financial costs
of mass incarceration mount.  
- ---
MAP posted-by: Jo-D