A recent report by Human Rights Watch underscores an obvious fact of federal drug prosecutions: the Government uses the threat of sentencing enhancements to all but force criminal defendants to plead guilty. As a result, 97 percent of federal drug cases result in guilty pleas.
By statute, criminal defendants receive extreme mandatory enhancements in some drug cases if they already have drug convictions. At certain drug quantities, a person with two prior drug convictions can receive a life sentence for a routine offense – if he has the nerve to exercise his constitutional right to a jury trial.
This is how it works. Under the federal drug statute, 21 U.S.C. § 841, mandatory minimum sentences are set for certain quantities of drugs. For example, someone caught with more than one kilogram of heroin faces a mandatory 10-year sentence. If that person has one prior felony drug conviction, the mandatory sentence becomes 20 years. If he has two priors, it becomes life.
These enhancements are not applied, however, unless the Government files what is called an “851 notice.” This is the notice of prior convictions, under 21 U.S.C. § 851. The Government prosecutor will not normally file an 851 notice until right before trial – once it has become apparent that the defendant is not accepting a guilty plea. Once the notice is filed, the defendant is essentially on trial for his life – if he loses, the sentencing judge has no choice but to give him the enhanced mandatory sentence. And, because the conviction rate is very high in federal court – especially for drug cases – the defendant is very likely to lose.
With this in mind, it is not hard to imagine why so many drug defendants plead guilty on the Government’s terms – regardless of whether they are actually guilty.
This phenomenon causes all kinds of problems to our criminal justice system. First, in some sense, this system gives more power to federal prosecutors than it does to judges. The prosecutor essentially chooses the sentence, while the judge is bound by law to follow the statute. While there are certainly some prosecutors who have good judgment, there are others who do not. Prosecutors are paid to be advocates, not to be neutral.
Another problem is that this system encourages corruption. Defendants cannot take their cases to trial because the risk is too great. That means false or tainted evidence is never challenged – we have to accept it as fact, even if we know it is far-fetched. If someone looks guilty, we have to work under the assumption that they are guilty. Defendants, meanwhile, can do nothing but nod their heads in agreement, for if they challenge the Government’s version of the facts, they will probably pay dearly.
Defense attorneys have a duty to make sure their clients do the smart thing – accept the guilty plea. Of course, the decision of whether to plead guilty ultimately rests with the defendant himself, but the attorney must provide good advice and, in most cases, advocate for what is in the defendant’s best interest. How can an attorney in good conscience allow his client to go to trial in a petty drug case if he is risking a life sentence? The answer is simple. He cannot.
This is a sad, highly dysfunctional system that needs to be reformed. Then again, so is the whole “war on drugs.”