Coercing guilty pleas still a problem in Senate sentencing bill
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U.S. attorneys, already armed with the ability to cudgel federal drug defendants into guilty pleas, could soon have more options under the Senate's Sentencing Reform and Correction Act.

There has been much enthusiasm for reform and for this bill, and it indeed includes some positive measures. But proponents fail to recognize that the bill leaves a powerfully coercive sentencing structure intact — and even offers prosecutors new tools.

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It's not as if they need the help: 97 percent of federal drug defendants ultimately plead guilty. That surprisingly high rate — it was 78 percent 30 years ago — stems in part from the increased drug enforcement and harsh sentencing laws that began in the '80s.

Under these laws, federal prosecutors can and do threaten defendants with mandatory minimums of five to 10 years if they don't plead guilty instead of going to trial. Prosecutors can also threaten to double those sentences, or even require mandatory life in prison, depending on whether the defendant has prior drug convictions.

Our research found that sentences for federal drug defendants who exercise their right to go to trial are three times as long as those who forgo that right. The federal judiciary is well aware of the misuse of these mandatory sentences. Judge John Gleeson wrote in 2013 that the use of these "ultra-harsh, enhanced mandatory sentences" to coerce pleas is "illegitimate."

Under the proposed bill, a new "safety valve" for the 10-year drug mandatory minimum would allow judges to hand down lighter sentences under certain conditions. But prosecutors can keep judges from sentencing under the minimum if they maintain that defendants haven't fully cooperated. So even with this new safety valve, the prosecutor holds almost all the cards, and can continue to threaten the 10-year mandatory to push people into guilty pleas.

Defendants would still remain vulnerable to extreme enhanced sentences if they exercised their right to trial. The prosecutor wields a "sledgehammer" under current law for someone facing a federal drug charge who has a prior drug felony: The 10-year mandatory minimum can become a 20-year mandatory sentence for one prior drug felony, and mandatory life for two. The judge plays no role in determining whether to seek the enhanced sentence — it's all up to the prosecutor. Plead and get 10 years; go to trial and risk getting life. Not much of a choice.

Under the Senate bill, prosecutors could seek a 15-year mandatory minimum for one prior drug felony and 25 years for two. In a positive change, the person would actually have had to serve a year in prison for that earlier charge, not just have been convicted of a crime that was punishable with a year or more.

But the bill actually expands the types of crimes that could trigger these enhanced penalties — not just drug crimes. A state-level firearm charge or robbery could trigger the enhancement.

So threatening big mandatory sentences for a broader range of prior crimes will continue to help prosecutors drive drug defendants to plead guilty. Gleeson noted that "prosecutors insist on the imposition of the unjust punishments when the threatened defendants refuse to plead guilty." Our research bears that out: Only 24 percent of eligible defendants who pled guilty ended up with a sentencing enhancement, compared with 72 percent who went to trial. This is unlikely to change under the new bill.

So under this new Senate bill, the prosecutor's choices may be modified, but it's hard to argue that they would be weaker. Take it from Deputy Attorney General Sally Yates, who testified in favor of the bill before the Senate Judiciary on Oct. 19. Speaking specifically of all the new types of earlier charges that can trigger sentencing enhancements, Yates said, "[T]his proposal gives us some other tools that we didn't have before."

Maybe that's why the White House and the Justice Department are embracing this particular measure while distancing themselves from the House of Representative's SAFE Justice Act. That bill, currently awaiting a hearing in the Judiciary Committee, makes sentencing enhancements more difficult, limits the application of the 10-year drug mandatory minimum depending on the role of the offender in the drug crime, and includes open-file discovery, which would require federal prosecutors to be more forthcoming in disclosing favorable information from their investigative and case files to defendants.

No question, there is much to applaud about many of the bill's provisions. It allows many people sentenced under previous, unfair sentences to seek a sentence reduction. It provides a safety valve for people without a long record of serious offenses. It allows for the possibility of resentencing after 20 years for people sentenced to life without parole for crimes committed under the age of 18, and it bans federal solitary confinement for children under 18.

Yet those encouraged by the bipartisan drive to fix the federal criminal justice system should take pause about the bill's new "tools" for prosecutors. It's one thing to expect a smaller, incremental bill in gridlocked Washington. It's another to make changes that do more harm in the name of reform. For the sake of a fair system, one that doesn't continue to coerce defendants into guilty pleas, Congress should be wary of these new tools.

Ginatta is the U.S. advocacy director at Human Rights Watch. Follow him on Twitter @amginatta.