Federal prosecutors assailed in outcry over drug sentencing

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Federal prosecutors in Baltimore offered Roy Lee Clay a stark choice.

He could plead guilty to trafficking 1 kilogram of heroin, and they would recommend a sentence of 10 years.

Or, if he asked for a trial, they would invoke his earlier drug convictions from 1993 and 2004 and, if found guilty, he would face an automatic sentence of life without parole.

Clay, then 47, was one of the rare federal defendants to gamble on a trial, and it proved to be a disastrous decision.

The jury convicted Clay, and at his sentencing in August, Judge Catherine Blake, of the U.S. District Court for the District of Maryland, lamented that the mandatory punishment of life without parole seemed "extremely severe and harsh."

While mandatory sentence laws have frustrated judges and defense lawyers for nearly three decades, calls to revise the laws have surged in the past year. Driven in part by budget concerns as the federal prison population continues to grow, proposals in Congress to restrict lengthy automatic sentences to drug-gang leaders, kingpins and violent offenders have won bipartisan support.

In August, Attorney General Eric Holder instructed federal prosecutors to avoid harsh charges for some lower-level drug defendants.

But the outcry goes beyond mandatory sentences and three-strike laws.

Using their discretionary power to apply lengthy "enhancements" on top of required terms, critics say, federal prosecutors are strong-arming defendants into pleading guilty and over-punishing those who do not -- undermining the fairness and credibility of the justice system.

"Prosecutors routinely threaten ultra-harsh, enhanced mandatory sentences that no one -- not even the prosecutors themselves -- thinks are appropriate," said Judge John Gleeson, of the U.S. District Court for the Eastern District of New York, in a court statement Oct. 9.

The way prosecutors use this hammer, Judge Gleeson wrote, "coerces guilty pleas and produces sentences so excessively severe they take your breath away."

A new study by Human Rights Watch, in New York City, is the first to quantify what some call the "trial penalty," the extra prison time that federal drug defendants get if they exercise their right to a trial and lose.

In 2012, federal drug offenders convicted at trial received sentences averaging 16 years -- triple the average of five years and four months for those who accepted a plea bargain, according to the report, published Thursday.

The study also found that while the prior-conviction multipliers were applied to 24 percent of eligible defendants who pleaded guilty, they were applied to 72 percent of those going to trial.

"The punishment is supposed to be proportionate with the crime," said Jamie Fellner, a senior adviser to Human Rights Watch and author of the study. "If a prosecutor thought 10 years was sufficient, how come if you go to trial, now you're looking at life?"

Prosecutors respond that using leverage to obtain plea bargains with clearly guilty defendants is a sound way to conserve resources and obtain cooperation, and that the harsher sentences that defendants like Clay receive after a trial are consistent with the law.

The result is that federal drug trials have become a rarity: Numbers say ninety-seven percent of defendants plead guilty.

Under federal sentencing laws adopted in the 1980s, drug crimes may be subject to mandatory minimum sentences of five or 10 years depending on the quantities of drugs involved, which can be reached by adding up small amounts from several deals.

In a speech Aug. 12, Mr. Holder called for "fundamentally rethinking" drug sentencing, saying that many "low-level, nonviolent drug offenders" should not be charged with "offenses that impose draconian mandatory minimum sentences."

A Justice Department spokeswoman, Ellen Canale, said this week that the department "seeks to ensure that these enhancements are reserved for serious, high-level, or violent drug traffickers" and "agrees that the enhancements should not be used to coerce defendants."

Mr. Holder also praised bills before the Senate Judiciary Committee that could make sentencing more flexible for lower-level offenders. One proposal, sponsored by Sen. Patrick Leahy, D-Vt., and Sen. Rand Paul, R-Ky., would give judges the power to waive mandatory minimums and enhancements. A second bill, sponsored by Sen. Richard Durbin, D-Ill., and Sen. Mike Lee, R-Utah, would reduce the length of mandatory drug sentences.

But some conservatives and legal experts remain opposed to any major changes in mandatory penalties.

William Otis, an adjunct professor at the Georgetown University Law Center and a former federal prosecutor, said the reason defendants were in a poor bargaining position was not a result of prosecutors' abuse, but because "there is solid proof they committed a crime." The fact that violent crime has declined significantly over the last 20 years means that the system is generally working well, he said.

Clay, in a federal prison in Virginia, is appealing his conviction. His lawyer claimed that he had at worst a peripheral role in trafficking and said he had no history of violence.

But the prosecution called Clay a "leader" and defended the life term, calling him a "classic drug-dealing recidivist."

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