Why 97 Percent of Federal Drug Offenders Plead Guilty

A
couple of years ago The New York Times noted
that the percentage of criminal cases ending in plea bargains has
increased during the last few decades as mandatory minimum
sentencing laws have raised the potential penalty for going to
trial. A
new report from Human Rights Watch highlights the tremendous
leverage that such laws give federal prosecutors in negotiating
plea deals with drug offenders. Under Title 21, Section 841(b)(1),
for example, prosecutors have complete discretion in deciding
whether to mention prior felony convictions in connection with a
drug offender’s sentencing, which can have a jaw-dropping impact on
the penalty he receives:

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.

That is what happened to Sandra Avery, who in 2005 was
arrested for possessing 50 grams of crack cocaine—less than two
ounces—with intent to deliver. That amount alone triggered a
10-year mandatory minimum sentence, and that is the penalty she
would have received if she had pleaded guilty. Instead she went to
trial, was convicted (as are 90 percent of federal drug offenders
who insist on their right to trial), and received a life sentence
after the prosecution called the court’s attention to Avery’s three
prior convictions in Florida for possessing small amounts of crack.
The crack involved in those earlier offenses was for personal use,
and it was worth less than $100 all together. “Among
defendants who were eligible for a sentencing enhancement because
of prior convictions” in 2012, Human Rights Watch
found, “those who went to trial were 8.4 times more likely to have
the enhancement applied than those who pled
guilty.”

Another powerful source of prosecutorial leverage is Title
18, Section 924(c), which prescribes mandatory minimums for
possessing a gun in connection with a drug offense. The first such
offense triggers a five-year sentence, each additional instance
triggers a 25-year sentence, and the sentences must be served
consecutively. That is how
Weldon Angelos ended up with a 55-year mandatory minimum
sentence for three small-time marijuana sales during which he
possessed a gun, even though he never threatened or hurt anyone.
Before Angelos was convicted and received what may well amount to a
life sentence, prosecutors offered him a plea deal that would have
resulted in 40 fewer years behind bars. “Among drug
defendants with a weapon involved in their offense,” Human Rights
Watch reports, “those who went to trial were 2.5
times more likely to receive consecutive sentences for §924(c)
charges than those who pled guilty.”

The impact of such disparate treatment is dramatic:

In 2012 the average sentence of federal
drug offenders convicted after trial was three times higher
(16 years) than that received after a guilty plea
(5 years and 4 months)….Among first-time drug
defendants facing mandatory minimum sentences who
had the same offense level and no weapon involved
in their offense, those who went to trial had
almost twice the sentence length of those who pled guilty (117.6
months versus 59.5 months).

Prosecutors have always offered lenience in exchange for
guilty pleas; that is what makes such arrangements possible. But
the huge differences in punishment documented by Human Rights Watch
make demanding a trial so risky that almost no one chooses that
option. “Only three percent of federal drug defendants go to
trial,” the report notes. “Plea agreements, once
a choice to consider, have for all intents
and purposes become an offer drug defendants
cannot afford to refuse.”

In the July 2011 issue of Reason, Timothy
Lynch explained the
pernicious impact of plea bargaining, noting that the popular
understanding of American justice “is wildly off the mark” because
only a small percentage of cases actually go to trial.