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Plead Guilty or Go to Prison for Life? How Federal Drug Offenders Are Punished for Seeking Trials

Drug offenders who lose to Feds in Court get triple the time behind bars.

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Avery relapsed in her 40s, “lost her job, and started delivering and selling small amounts of crack for her husband, a crack dealer.” She was arrested in 2005 and offered a deal of 10 years, but she refused. She received life without parole—as there is no parole in the federal system. “The life sentence resulted from the government’s choice to trigger a sentencing enhancement based on Avery’s previous drug convictions,” the report said. She told Human Rights Watch, “I was simply not in my right mind at the time.”

Human Rights Watch attempted to talk to prosecutors about their draconian tactics and sentences. Some “acknowledge that the quest for fairness ends if the defendant refuses to plead,” the report said. “Prosecutors also insist they are not ‘punishing’ defendants with higher sentences… but rather ‘rewarding’ defendants who, by pleading, spare them the expenditure of time and resources needed for a trail.”

In Avery’s case, the prosecutor said that “he sought the enhancement… ‘because it applied,’” the report said. When “asked whether he thought Avery’s life sentence as just, he refused to comment.”        

Excessive Tactics Are Known But Continue

This past August, U.S. Attorney General Eric Holder gave a speech at the American Bar Association annual convention saying that sentencing guidelines and practices needed to be reformed. Holder told prosecutors to go easier on low-level, non-violent offenders.

“It is too soon to tell if prosecutors will carry out the new policies,” the report said. “They contain easily exploitable loopholes and do not prohibit prosecutors from pursuing harsh sentences against a defendant who refuses to plead guilty. Indeed, Human Rights Watch noted that Clay’s life sentence without parole came after Holder delivered his speech. 

The Human Rights Watch report is stunning in its portrayal of the lack of checks and balances surrounding federal prosecutors. But as bad as the federal system is, it’s only a fraction of the more than 1.5 million drug-related arrests in the U.S. in 2012. According to DrugWarFacts.org, as of December 31, 2011, there were 94,600 drug offenders in federal prison, compared to 225,242 people in state prisons for drug offenses.   

“The federal numbers are a tiny proportion of the number of people incarcerated throughout the U.S.,” said Miles Gerety, who recently retired after several decades as a top Connecticut  public defender specializing in death penalty cases. Gerety said that all prosecutors—state and federal—have tremendous discretion to bring charges and affect sentencing. And state prosecutors can be harsher than federal ones, he said, because their deals usually are much closer to the final sentences—whether there is a trial or not.

“As harsh as it is, the federal courts are less harsh than state criminal justice,” he said. “The state [guilty plea] offer is much higher than the federal offer. I don’t see that as at all uncommon.”

Gerety also said that it was unconscionable how prosecutors prey on the mentally ill.

“People who are mentally ill whose are restored to [legal] competency,” he said, which means they are deemed fit to stand trial. “They’re not operating with a full deck. They won’t take deals. They wind up really being hurt by the system. The system has no problem with locking up people for the rest of their lives. It’s crazy.”



Steven Rosenfeld covers national political issues for AlterNet, including America's retirement crisis, democracy and voting rights, and campaigns and elections. He is the author of "Count My Vote: A Citizen's Guide to Voting" (AlterNet Books, 2008).