Pubdate: Thu, 26 Dec 2013
Source: Times-Tribune, The (Scranton PA)
Copyright: 2013 Townnews.com
Contact:  http://www.thetimes-tribune.com
Details: http://www.mapinc.org/media/4440
Author: George Will
Note: George Will writes for The Washington Post.

SENTENCING LAWS SKEW 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 prosecutors offered: For a guilty plea, he would 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 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.

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 highschool 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 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. 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, pleaded
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
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."

President 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. 
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