Pubdate: Fri, 27 Dec 2013
Source: Daily Home, The (Talladega,  AL)
Copyright: 2013 Consolidated Publishing
Contact:  http://www.dailyhome.com/
Details: http://www.mapinc.org/media/1632
Note:  also listed as contact
Author: George F. Will

THE SLEDGEHAMMER JUSTICE OF MANDATORY MINIMUM SENTENCES

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 months to 137 months 
- - but the offer would expire the next day. Kupa rejected the offer, 
so on March 15 prosecutors filed a "prior felony information," a.k.a. 
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 he was 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 months to 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, 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 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: Jay Bergstrom