Pubdate: Fri, 06 Dec 2013
Source: New York Times (NY)
Copyright: 2013 The New York Times Company
Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Erik Eckholm

PROSECUTORS DRAW FIRE FOR SENTENCES CALLED HARSH

Federal prosecutors in Baltimore offered Roy Lee Clay a stark choice.

He could plead guilty to trafficking one kilogram of heroin, and they
would recommend a sentence of 10 years. Or, if he asked for a trial,
they would invoke his earlier drug convictions from 1993 and 2004 and,
if found guilty, he would face an automatic sentence of life without
parole.

Mr. Clay, then 47, was one of the rare federal defendants to gamble on
a trial, and it proved to be a disastrous decision. The jury convicted
Mr. Clay and at his sentencing last August, Judge Catherine C. Blake,
of the United States District Court for the District of Maryland,
lamented that the mandatory punishment of life without parole seemed
"extremely severe and harsh."

While mandatory sentence laws have frustrated judges and defense
lawyers for nearly three decades, calls to revise the laws have surged
in the past year. Driven in part by budget concerns as the federal
prison population continues to grow, proposals in Congress to restrict
lengthy automatic sentences to drug-gang leaders, kingpins and violent
offenders have won bipartisan support. In August, Attorney General
Eric H. Holder Jr. instructed federal prosecutors to avoid harsh
charges for some lower-level drug defendants.

But the outcry goes beyond mandatory sentences and three-strike laws.
Using their discretionary power to apply lengthy "enhancements" on top
of required terms, critics say, federal prosecutors are strong-arming
defendants into pleading guilty and overpunishing those who do not -
undermining the fairness and credibility of the justice system.

"Prosecutors routinely threaten ultraharsh, enhanced mandatory
sentences that no one - not even the prosecutors themselves - thinks
are appropriate," said Judge John Gleeson, of the United States
District Court for the Eastern District of New York, in a court
statement Oct. 9. The way prosecutors use this hammer, Judge Gleeson
wrote, "coerces guilty pleas and produces sentences so excessively
severe they take your breath away."

A new study by Human Rights Watch, in New York, is the first to
quantify what some call the "trial penalty," the extra prison time
that federal drug defendants get if they exercise their right to a
trial and lose.

In 2012, federal drug offenders convicted at trial received sentences
averaging 16 years - triple the average of five years and four months
for those who accepted a plea bargain, according to the report,
published Thursday. The study also found that while the
prior-conviction multipliers were applied to 24 percent of eligible
defendants who pleaded guilty, they were applied to 72 percent of
those going to trial.

"The punishment is supposed to be proportionate with the crime," said
Jamie Fellner, a senior adviser to Human Rights Watch and author of
the study. "If a prosecutor thought 10 years was sufficient, how come
if you go to trial, now you're looking at life?"

Prosecutors respond that using leverage to obtain plea bargains with
clearly guilty defendants is a sound way to conserve resources and
obtain cooperation, and that the harsher sentences that defendants
like Mr. Clay receive after a trial are consistent with the law.

The result is that federal drug trials have become a rarity: 97
percent of defendants plead guilty.

Under federal sentencing laws adopted in the 1980s, drug crimes may be
subject to mandatory minimum sentences of five or 10 years depending
on the quantities of drugs involved, which can be reached by adding up
small amounts from several deals.

Prosecutors not only decide what charges to bring, but also whether to
officially make prior drug felonies a part of the sentencing -
requiring, for example, a doubling of a 10-year sentence for one prior
conviction and a life term, like Mr. Clay received, for two.
(Enhancements for the presence of a gun in certain crimes, also
applied at the discretion of prosecutors, can also add decades to 
sentences.)

Michael S. Nachmanoff, the chief federal public defender for the
Eastern District of Virginia, said that the prospect of staggering
penalties puts defense lawyers in the position of urging clients to
consider a plea to avoid them, even if the lawyers see a chance of
acquittal or reduced charges.

"I tell people, 'If you think 10 years is too long to serve and the
other option is to get 20, I want you to think, how would you feel
nine years from now?' " he said. "Those aren't the options people
should have."

Another problem with the prior-felony and gun enhancements, critics
say, is the arbitrary variation in their use. In a lengthy analysis in
August, Judge Mark Bennett of the United States District Court for the
Northern District of Iowa, in Sioux City, described a "shocking,
jaw-dropping disparity" in use of the prior-conviction enhancements,
with some prosecutors routinely invoking them and others rarely.

In a speech on Aug. 12, Attorney General Holder called for
"fundamentally rethinking" drug sentencing, saying that many
"low-level, nonviolent drug offenders" should not be charged with
"offenses that impose draconian mandatory minimum sentences."

A Justice Department spokeswoman, Ellen Canale, said this week that
the department "seeks to ensure that these enhancements are reserved
for serious, high-level or violent drug traffickers" and "agrees that
the enhancements should not be used to coerce defendants."

Mr. Holder also praised bills before the Senate Judiciary Committee
that could make sentencing more flexible for lower-level offenders.
One proposal, sponsored by Senator Patrick J. Leahy, Democrat of
Vermont, and Senator Rand Paul, Republican of Kentucky, would give
judges the power to waive mandatory minimums and enhancements. A
second bill, sponsored by Senator Richard J. Durbin, Democrat of
Illinois, and Senator Mike Lee, Republican of Utah, would reduce the
length of mandatory drug sentences.

But some conservatives and legal experts remain opposed to any major
changes in mandatory penalties.

William G. Otis, an adjunct professor at the Georgetown University Law
Center and a former federal prosecutor, said that the reason
defendants were in a poor bargaining position was not a result of
prosecutors' abuse, but because "there is solid proof they committed a
crime." The fact that violent crime has declined significantly over
the last 20 years means that the system is generally working well, he
said.

Mr. Clay, in a federal prison in Virginia, is appealing his
conviction. His lawyer claimed that he had at worst a peripheral role
in trafficking and said he had no history of violence.

But the prosecution called Mr. Clay a "leader" and defended the life
term, calling him a "classic drug-dealing recidivist."

Edward Smith Jr., the defense lawyer, said that over his 40-year
career he had taken on fewer and fewer federal cases because the odds
had become so stacked against defendants.

"I hated seeing all these people, especially young black men, going
for such long prison sentences," he said. Criminals deserve to be
punished, he said, but "not to have their lives thrown away and wasted."
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