Pubdate: Thu, 26 Dec 2013
Source: Sentinel-Record, The (AR)
Copyright: 2013 The Sentinel-Record, Inc.
Contact:  http://www.hotsr.com/
Details: http://www.mapinc.org/media/1539
Author: George Will, Washington Post Writers group

HUMAN, FINANCIAL JAIL COSTS MOUNT

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 4 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.  
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MAP posted-by: Jo-D