On Nov. 2, 2000, Erma Faye Stewart, then 30 and a single mother of two, and Regina Kelly, then 24 and a single mother of four, were arrested as part of a major drug sweep in Hearne, Texas. As reported by “Frontline,” the 27 individuals arrested in the sweep was indicted by a single informant later proven to be unreliable.
All but one of the 27 are African-American. Both women proclaimed their innocence and were given public defenders who offered them little guidance and insisted that they plead guilty – Stewart’s lawyer reported not remembering Stewart, despite signing her plea agreement.
Kelly and Stewart were both told that if they did not agree to a plea bargain, which amounted to probation, they would face “five to 99 years.” With a bail of $70,000 and two small children at home, Stewart took the deal and was sentenced to 10 years probation.
But after a five-month wait for the trial to begin, the state’s case fell apart. Everyone that didn’t take a plea bargain, including Kelly, was found not guilty. Stewart, on the other hand, fell into destitution because of the plea bargain – unable to secure food stamps or federal education money, unable to vote, evicted from public housing and forced to pay a $1,000 fine and court fees on a minimum-wage salary.
Kelly and Stewart’s stories are far from isolated incidents. In the United States, almost 95 percent of all felony convictions are secured without a jury. They are settled via a plea bargain — a unique facet of American law that allows the prosecutor to offer a reduced sentence in exchange for defendants waiving their rights to a jury trial and pleading guilty to the charges presented.
However, as reported in Human Rights Watch’s newly-released report, “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty,” threats of exuberantly higher sentences are being used to convince drug defendants to plead guilty. This has resulted in a 97 percent guilty plea rate.
“Prosecutors give drug defendants a so-called choice – in the most egregious cases, the choice can be to plead guilty to 10 years, or risk life without parole by going to trial,” said Jamie Fellner, senior advisor to the U.S. Program at Human Rights Watch and author of the report. “Prosecutors make offers few drug defendants can refuse. This is coercion pure and simple.”
Due to the fact that mandatory minimum sentencing statutes take in consideration the quantity and type of drugs the defendant was alleged to possess and not the role the offender played in the transaction, a drug courier and a drug kingpin can be sentenced similarly. While 48 percent of all federal drug defendants are low-level members of the drug trade, such as couriers and street pushers, half to three-quarters of them received mandatory minimum sentences.
Prosecutors have the ability to modify sentences under mandatory sentencing enhancements and penalties that may be applicable. Such enhancements include the possession of a gun at the time of the arrest, a previous conviction or if minors were present at the time of the offense. If a prosecutor threatens to use such modifiers and follows through, this can create sentences “so excessively severe they take your breath away,” said federal judge John Gleeson of New York’s Eastern District.
As presented by HRW as an example, Sandra Avery, a street pusher, rejected a plea of 10 years for possession of 50 grams of crack cocaine. As she had previous convictions and she intended to deliver, the prosecutor “enhanced” her sentence to life without parole.
This presents a significant problem. Under the U.S. Constitution, individuals have a right to a fair and speedy trial by their peers. Using the threat of excessive punishment to persuade a person to waive this right is a constitutional violation.
However, this oversight is generally accepted because bypassing the trial relieves pressure on an overloaded judiciary. Despite this, this practice violates longstanding American jurisprudence practice that punishment should be no more excessive than needed to protect the public.
“We don’t let police beat suspects to get confessions,” said Fellner. “Threatening someone with a life sentence can be just as coercive – and just as wrong.”
Even though Attorney General Eric Holder ordered federal prosecutors in August to reform the way they pursue and prosecute drug offenses, it is unknown how this will affect prosecution rates or even if the prosecutors will obey the attorney general’s order. But considering that 50.1 percent of the federal prison population are incarcerated for drug offenses, the federal prison system is at 35 to 40 percent over-capacity, and that the average drug sentence nearly doubled from 38.5 months in 1984 to 74 months in 2011, a solution to this problem is desperately needed.