Sentencing Abuse Alleged by Judge

Post Date: October 22, 2013

(Devlin Barrett, The Wall Street Journal) — A federal judge said that the Justice Department routinely abuses its power to bully defendants into giving up their constitutional right to a trial.

Judge John Gleeson, who as a federal prosecutor sent the late mafia boss John Gotti to prison, said in an opinion earlier this month that prosecutors are using the threat of decades or life in prison to extract guilty pleas even if the defendants’ alleged crimes fall far short of meriting such long sentences.

Such tactics are “unsound and brutally unfair” and create “the sentencing equivalent of a two-by-four to the forehead,” the judge said in a 60-page sentencing opinion on a New York drug case.

“The fact that they are business as usual doesn’t alter the fact that these sentences should instill shame in all of us,” Judge Gleeson wrote, saying the tactic will force some innocent people to plead guilty. Nominated to the federal bench by President Bill Clinton, Judge Gleeson has been a district court judge in Brooklyn, N.Y., for nearly two decades.

The long-standing practice has helped federal prosecutors garner an enviable conviction record. Currently 97% of criminal charges in all federal jurisdictions end in a guilty plea, which means the vast majority of federal criminal cases never go to trial.

Attorney General Eric Holder recently announced major changes to Justice Department use of mandatory minimum prison sentences in drug cases, saying prosecutors should use their discretion to seek fewer long sentences for nonviolent offenders.

Judge Gleeson praised those efforts but said the problems created by mandatory minimums are “small potatoes” compared with the problems with plea negotiations. While Mr. Holder’s memo also included some cautions on using threats in plea negotiations, Judge Gleeson called the guidance weak and said it wouldn’t stop prosecutors from using hardball tactics as “sledgehammers against the ever-dwindling few who have the temerity to ask for the trial the Constitution guarantees.”

At issue is what lawyers call a prior felony information, or 851 notice—a legal warning that prosecutors intend to lengthen a mandatory sentence for drug offenses based on a defendant’s prior convictions. Once prosecutors file the notice, the longer sentence, often life, is mandatory if the defendant is convicted. The law was originally intended to hit narcotics kingpins and hardened criminals, but the judge said it has been abused to coerce pleas because the 851 notice can trigger automatic sentences of decades or life. Prosecutors often threaten to file 851 notices in verbal negotiations conducted without a judge—leaving no trace in a written records.

A Justice Department spokeswoman said the agency “agrees that sentencing enhancements should not be used to coerce defendants. Moreover, the attorney general’s reforms seek to further ensure that they [851 notices] are used only in cases appropriate for severe sanctions.”

William Otis, a former federal prosecutor, questioned whether an 851 notice would force an innocent person to plead guilty. “The reason people plead guilty is because they are guilty,” he said. “Judge Gleeson is saying that something that has been approved by the Supreme Court for decades is a kind of extortion. Since when is it extortion for a federal prosecutor to follow Supreme Court law?”

Mary Price, a lawyer for Families Against Mandatory Minimums, said it isn’t enough merely to tell prosecutors they can use discretion in handling nonviolent offenders. “There is incredible pressure on the system to push people through,” she said. “The 97% guilty plea rate shows that in a lot of ways, the system is broken.”

Judge Gleeson’s opinion involved Lulzim Kupa, a New York City man charged with selling cocaine after two prior drug convictions. In March, prosecutors gave him a day to accept a deal in which he would likely serve about eight years in prison for pleading guilty. When he didn’t accept it, prosecutors filed an 851 notice—meaning that if he was convicted, he would automatically get a life sentence.

The prosecutors offered to withdraw the 851 notice if he pleaded guilty in a deal to serve about 91/2 years in prison. Again, he was given a day to decide and didn’t act. He finally took the third plea offer, which gave him a likely prison term of 10 years. “I want to plead guilty, your honor, before things get worse,” Mr. Kupa told the judge.

Mr. Kupa’s lawyer, Gerald McMahon, said Judge Gleeson “is a purist, who loves the law. He is Don Quixote tilting at windmills, but I love him for it.” He said prosecutors “manipulate the guidelines, they do it all the time, and nobody calls them on it, except for the rare, rare exception.” Mr. McMahon said Judge Gleeson’s opinion is important “because he’s very well respected. It helps incrementally. It’s not going to turn it around in one day, but to the extent the ball is rolling, this gives it another push.”