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 prison 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 C. 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 last 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 H. Holder Jr. 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,” Judge John Gleeson, of the U.S. District Court for the Eastern District of New York, said in a court statement Oct. 9. The way prosecutors use this hammer, he 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, 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.
In a speech Aug. 12, 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.”
Edward Smith Jr., defense attorney for Clay, said that over his 40-year career he had taken on fewer and fewer federal cases because the odds had become so stacked against defendants.
“I hated seeing all these people, especially young black men, going for such long prison sentences,” he said. Criminals deserve to be punished, he said, but “not to have their lives thrown away and wasted.”