Then, however, they immediately proposed another plea agreement involving about nine years' imprisonment. Given a day to decide, he acted too slowly, so prosecutors again increased the recommended sentence. Finally, Kupa caved: "I want to plead guilty, your Honor, before things get worse." If, after the 851 notice, he had insisted on a trial and been found guilty, he would have died in prison for a nonviolent drug offense. He is 37.
Tyquan Midyett, a high-school dropout from a broken home and foster care, began using marijuana at 14. He was 26 when arrested for selling less than four ounces of crack. Because this was his second offense, the best he could do pleading guilty was a 10-year sentence. When he hesitated, the government gave him a date to agree or it would file an 851 notice, which would double the mandatory minimum to 20 years. He went to trial, was convicted and is serving 240 months for an offense that, without the escalating coercions aimed at a guilty plea, would have received a sentence of 46-57 months.
In 2008, an 851 notice was filed against Charles Doutre, based on two prior convictions for distribution of $50 worth of drugs and simple possession of drugs. The judge who was required to sentence him to life in prison said, "I've imposed a life sentence six times, and it was for a murder each time." Doutre is 32.
Eleven years ago, Dennis Capps, 39, a methamphetamine addict, pled guilty to two instances of trafficking involving a quantity of drugs he could hold in his hand. He conquered his addiction for a long time, then relapsed, and in this year was convicted of another drug offense. Because he insisted on a trial, the government filed an 851 notice. He was convicted, and is serving life without parole.
Kenneth Harvey was 24 in 1989 when he committed a crack cocaine offense. He had two prior offenses that qualified as felony drug convictions even though they were not deemed serious enough for imprisonment. They, however, enabled the government to make an 851 filing. He will die in prison. Harvey is 48.
Thousands of prisoners are serving life without parole for nonviolent crimes. Gleeson, who is neither naive nor sentimental (as a prosecutor, he sent mobster John Gotti to die in a supermax prison), knows that most defendants who plead guilty are guilty. He is, however, dismayed at the use of the threat of mandatory minimums as "sledgehammers" to extort guilty pleas, effectively vitiating the right to a trial. Ninety-seven percent of federal convictions are without trials, sparing the government the burden of proving guilt beyond a reasonable doubt. Mere probable cause, and the meager presentation required for a grand jury indictment, suffices. "Judging is removed," Gleeson says, "prosecutors become sentencers." And when threats of draconian sentences compel guilty pleas, "some innocent people will plead guilty."
Barack Obama, Attorney General Eric Holder and Sens. Pat Leahy, D-Vt., and Rand Paul, R-Ky., are questioning the regime of mandatory minimum sentences, including recidivism enhancements, that began with the Anti-Drug Abuse Act of 1986.
Meanwhile, the human and financial costs of mass incarceration mount.