Prosecutors have discretion, largely unreviewable by judges, as to what charges to bring, what promises or threats to make in plea bargaining, and whether to carry out those threats if the defendant does not plead.

While all prosecutors are in a powerful position vis-a-vis criminal defendants, the power of federal prosecutors in drug cases is strengthened by mandatory sentencing laws that curtail the judiciary’s historic function of ensuring the punishment fits the crime. When prosecutors choose to pursue charges carrying mandatory penalties and the defendant is convicted, judges must impose the sentences. Prosecutors, in effect, sentence convicted defendants by the charges they bring.

Prosecutors typically charge drug defendants with offenses carrying mandatory minimum sentences. Mandatory minimum drug sentences are keyed to the weight of the drugs involved in the offense (and the weight of filler substances, like cornstarch, used to dilute the drug). For example, the mandatory minimum sentence for dealing 5 kilograms of cocaine is 10 years and the maximum is life, regardless of the defendant’s role or culpability. The sentence imposed upon conviction will usually be higher than the minimum, as judges—taking their cue from the federal sentencing guidelines—take into account the actual amount of drugs involved in the crime, the defendant’s criminal history, and other aggravating and mitigating factors.

In fiscal year 2012, 60 percent of convicted federal drug defendants were convicted of offenses carrying mandatory minimum sentences. They often faced sentences that many observers would consider disproportionate to their crime. An addict who sells drugs to support his habit can get a 10-year sentence. Someone hired to drive a box of drugs across town looks at the same minimum sentence as a major trafficker caught with the box. A defendant involved in a multi-member drug conspiracy can face a sentence based on the amount of drugs handled by all the co-conspirators, even if the defendant had only a minor role and personally distributed only a small amount of drugs or none at all.

Drug defendants have only three ways to avoid mandatory sentences: they can go to trial and hope for an acquittal, even though nine out of ten defendants who take their chances at trial are convicted; they may (if they are a low-level, nonviolent drug offender with scant criminal history) qualify for the limited statutory safety valve that permits judges to sentence them below the applicable mandatory sentences if they are convicted—although most defendants do not qualify; and they can plead guilty.

Most prosecutors will offer drug defendants some sort of plea agreement that reduces their sentence, sometimes substantially. Indeed, they file charges carrying high sentences fully expecting defendants to plead guilty. To secure the plea, prosecutors may then offer to lessen the charges, they may offer to reduce the ones that do not carry mandatory sentences, to stipulate to sentencing factors that lower the sentencing range under the sentencing guidelines or, at the very least, to support a reduced sentence based on the defendant’s willingness to accept responsibility for the offense, i.e., to plead guilty. Prosecutors may also agree to file a motion with the court to permit the judge to sentence below the mandatory sentences when the defendant has provided substantial assistance to the government’s efforts to prosecute others.

But prosecutors also threaten to increase defendants’ sentences if they refuse to plead. Perhaps their most powerful threats are based on two statutory sentencing provisions that can dramatically increase a drug defendant’s sentence. Under 21 U.S.C. §841(b)(1) prior felony drug convictions can dramatically increase a mandatory minimum drug sentence. Under 18 U.S.C. §924(c) prosecutors can file charges that dramatically increase a defendant’s sentence if a gun was involved in the drug offense. Prosecutors will threaten to pursue these additional penalties unless the defendant pleads guilty – and they make good on those threats.

Prior Convictions

Sentencing enhancements based on prior drug convictions are triggered only if prosecutors choose to file a prior felony information with the court. If a prosecutor decides to notify the court of one prior conviction, the defendant’s sentence will be doubled. If the prosecutor decides to notify the court of two prior convictions for a defendant facing a 10-year mandatory minimum sentence on the current offense, the sentence increases to life—and there is no parole in the federal system.

Many defendants plead when faced with the threat of such sentences. Early in 2013, for example, Lulzim Kupa refused to plead even though he was looking at a mandatory minimum of 10 years for distributing cocaine. A few weeks before the scheduled trial date, the government filed a prior felony information providing notice of two prior marijuana convictions. It then offered to withdraw the notice (as well as the original 10-year mandatory minimum) if Kupa would plead to a lower charge. He did, and avoided the prospect of life in prison—eventually receiving a sentence of 11 years.

Involvement of Weapons

If a weapon was involved in a drug offense, prosecutors will press the defendant to plead by raising the specter of consecutive sentences under 18 U.S.C §924(c). The first §924(c) conviction imposes a mandatory five-year sentence consecutive to the sentence imposed for the underlying drug crime; second and subsequent convictions each carry 25-year consecutive sentences—resulting in grotesquely long sentences for drug defendants. In 2004 for example, Marnail Washington, a 22-year-old with no criminal history, was sentenced to 40 years after conviction of possession with intent to distribute crack cocaine and two §924(c) counts based on possessing, but not using, guns in connection with his drug offenses. That is, 30 years of his 40-year sentence were on gun counts.

It is entirely up to prosecutors whether to pursue these increased penalties against an eligible defendant. If they do and the defendant is convicted, the penalties are mandatory and judges must impose them. In one case in 2002, Judge Paul Cassell was so distressed at his powerlessness to avoid imposing an unduly harsh sentence on a young marijuana dealer (55 years for convictions on three §924(c) counts) that in his sentencing memorandum he called on President George W. Bush to commute the sentence. The president did not do so. And in a 2010 case, Judge Kiyo Masumoto said that she thought a 20-year sentence was “quite more than necessary” in the case of Tyquan Midyett, a low-level drug dealer who refused a 10-year plea and the prosecutors then doubled his sentence by filing a prior felony §851 information. Still, the judge said she did “not have discretion under the law to consider a lesser sentence.”[5]

Punishment to Fit the Crime?

Under well-established criminal justice principles, reflected in US and international human rights law, convicted criminal offenders should receive a punishment commensurate with their crime and culpability and no longer than necessary to serve the legitimate purposes of punishment. Those purposes include holding offenders accountable for their wrongdoing, protecting the public by keeping them in prison, deterring crime, and rehabilitating the offenders. They do not include penalizing defendants for going to trial or discouraging future defendants from doing so.

Prosecutors nonetheless believe a defendant’s insistence on going to trial is a perfectly legitimate reason to pursue an increased sentence—even one that is wholly disproportionate to the underlying offense. As a former US Attorney told us: “We weren’t trained to think about the lowest sentence that serves the goals of punishment.”

Even prosecutors who try to achieve fair sentences through plea bargains acknowledge that the quest for fairness ends if the defendant refuses to plead. Prosecutors also insist they are not “punishing” defendants with higher sentences when they refuse to plead guilty, but rather “rewarding” defendants who, by pleading, spare them the expenditure of time and resources needed for a trial. From the perspective of the defendant looking at a significant trial penalty, this is no distinction.

Once they have made a threat during plea negotiations, prosecutors believe they must follow through with it if the defendant goes to trial, both because a defendant who refuses to plead deserves “no mercy,” and because they want to be sure future defendants take their threats seriously. They think they will lose credibility if they permit defendants to reap the same sentencing “concessions” after a trial as they had been offered if they pled. Asked if they thought these much higher post-trial sentences are just, prosecutors dodged the question.

In 2012, 26,560 federal drug defendants were prosecuted by 93 US Attorneys and over 5,400 assistant US attorneys in 94 federal districts. Determining prosecutorial practices and policies in each district is beyond the scope of this report. Our research shows that prosecutorial charging and plea bargaining practices vary dramatically from district to district. It also shows that the trial penalty is widespread across the country.