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Presidential clemency highlights need to fix bad laws

Sandra Avery is one of the 95 lucky men and women whose sentences President Obama commuted Dec. 18.  She will walk out of prison in April after serving nine years of a life sentence she should never have received in the first place.

Decades ago, Avery was convicted three times for possessing tiny amounts of crack cocaine for personal use. But she pulled herself together, joined the army, earned an accounting degree, and on leaving the army got a good job.  Several years later, her life spun out of control. She married a crack dealer and started using again. Then she and her husband were arrested together for selling crack.

{mosads}The prosecutor offered Avery a plea deal that would have carried a 10-year mandatory minimum sentence.  When she refused, the prosecutor sought a mandatory sentencing enhancement based on her prior convictions that increased her mandatory sentence to life – and there is no parole in the federal system.

Federal law did not require the prosecutor to seek the sentencing enhancement. But under the law when Avery was convicted the judge had no choice but to sentence her to die behind bars.

By giving prosecutors the discretion to decide what sentences a defendant will face and tying judges’ hands when they do, the law permits prosecutors to wield a sledgehammer to induce defendants to plead guilty – and to punish those who don’t.  

During our research on coercive plea bargaining in federal drug cases, federal prosecutors acknowledged that current sentencing laws enable them to threaten draconian higher mandatory sentences for defendants who exercise their right to trial. Not surprisingly, almost all (97 percent) federal drug defendants plead guilty.   Avery is one of the relatively few who refused—and paid the price. 

Prosecutors also acknowledged to us that the  credibility of their threats would be weakened and  their success in getting pleas would be reduced if they failed to make good on those threats. The end result: sentences for people convicted of federal drug offenses after trial average three times longer than the sentences of those who plead guilty.

Avery was sentenced to life behind bars solely because she would not plead guilty.  I asked the federal prosecutor in Avery’s case whether he thought her sentence fair. He had “no comment.”  Other prosecutors suggested the fairness of sentences is not their responsibility, because judges set the sentence – a disingenuous stance since in a regime of mandatory sentences the minimum length of incarceration is dictated by the prosecutors’ charging decisions, not by judges. 

Sometimes lightning strikes and clemency brings justice to the fortunate few.  But for every Sandra Avery who is relieved by presidential clemency of a manifestly unjust federal sentence, there are thousands who are not.  Indeed, nearly 20,000 federal prisoners have currently passed stringent eligibility criteria to be considered for commutations in the administration’s new clemency process.

But unless the president grants several dozen of commutations every day next year – highly unlikely given  the glacial process of countless levels of review before the president signs off —most of those applicants will remain behind bars when the he leaves office. And every day more  defendants  enter prison sentenced under laws that are widely criticized – by liberals and conservatives alike – as unjust, unnecessary, unwise and wildly expensive to enforce.

Individual commutations are cause for jubilation for the lucky individuals, their family, friends and advocates.  But they cannot fix decades of overly punitive drug sentencing laws that have locked up so many people for so long for so little. Cases of individuals such as Sandra Avery should inspire Congress to redouble its efforts to reduce, if not eliminate, mandatory minimums in federal drug sentencing.

Congress should restore to judges their ability to ensure sensible and fair sentences—and it should take away from prosecutors their ability to coerce pleas and to punish with much higher sentences those who refuse to plead.  Only through such reforms can Congress prevent the sentencing injustices that today prompt the massive quest for clemency.

Fellner is senior adviser at Human Rights Watch and author of“An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty.”


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