George Will

Judge sounds alarm on drug prosecutions

Updated: 2013-12-25T23:46:38Z

By GEORGE WILL

The Washington Post

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.

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, a Vermont Democrat, and Rand Paul, Republican of Kentucky, 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.

To reach Washinton Post columnist George Will, send email to georgewill@washpost.com.

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