Imagine you were raised in a "bad" neighborhood where your older brothers and many of your friends sold drugs, most commonly, crack. Imagine your own father used crack throughout your childhood. He was an addict. Your brothers were fairly successful at selling crack and were able to provide for your family – they put food on the table. It does not require rocket science to understand how you might get involved with selling crack yourself.
You start off as the "runner," delivering small amounts of crack for your older brothers to customers down the block. When you are 17 years old, before you finish high school, you get stopped by the police while delivering crack to a customer and get arrested. You ultimately plead guilty in state court to felony possession of crack/cocaine and serve a small amount of time in state prison.
When you get out, you've got a felony on your record and you never finished high school, so you are basically unemployable. Even though you wanted to get a job, no one would hire you. Somehow you've got to survive. Your brothers offer you the opportunity to start delivering for them again and you agree. Their operation has grown and you're delivering a bit more now to a local dealer.
A year goes by, you're on probation, and sure enough, you get caught in a sting operation delivering crack. This time its federal. You are charged with a drug conspiracy offense that carries a 10-year mandatory minimum sentence because the Drug Enforcement Administration (DEA) and United States Attorneys' Office (AUSAO) believe you are part of a larger conspiracy with your brothers and the dealers your brothers sold to. As such, they hold you accountable for the combined weight of all drugs sold by your older brothers, more than 280 grams of crack, even though you were just the runner and didn't make much money at all.
After being arrested, the Court remands you and you are denied bail even though you have never committed an act of violence because federal law provides for a presumption of detention for those charged with drug crimes. So now you're sitting in jail while your case is pending, the months creep by, and things are happening in your case but you don't know about them and don't understand. You hear talk about wiretaps and surveillance, but you don't have a way to review all of this material because the technology in federal prison barely works, and there are hundreds of other prisoners waiting to review the evidence in their cases as well.
Your lawyer meets with you and explains that the prosecutor wants you to cooperate against your brothers. Ratting on your family is not an option, so you refuse. The prosecutor threatens that if you do not cooperate, she will file a "prior felony information," (18 U.S.C. § 851) which will double your mandatory minimum sentence from 10 to 20 years. You refuse to cooperate and the prosecutor files the "prior felony information." Now you are facing a mandatory 20 years to life in prison if you are convicted. That means, no matter how much a judge wants to, she cannot sentence you to below 20 years if you are found guilty after trial or plead guilty before trial.
Your lawyer confirms that the government had a wiretap on your older brothers' phones and there are many incriminating calls and texts between you and them. The lawyer also explains that the government has surveillance of your deliveries: both videos and photos. The evidence is very strong against you. Your lawyer files motions to suppress but they are denied. Your lawyer tells you that if you plead guilty you will probably get 20 years, but if you go to trial, you may get more. Since you were caught essentially red handed, and you would likely lose at trial, you decide to plead guilty in hopes of getting the lowest possible sentence of 20 years.
At your sentencing, your lawyer makes a number of persuasive arguments explaining your limited role in the offense, your lack of ownership interest in the drugs, and your personal history being raised in a broken home where drugs and the streets were the only things you knew. In addition, you have a number of character letters that were written on your behalf that reveal, aside from the instant offense, you are a very nice person. The judge agrees with all your arguments and wants to sentence you to 3 years in prison, but can't. The judge cannot sentence you to anything less than 20 years because of the mandatory minimum laws, so the judge imposes a sentence of 20 years.
The prosecutor races out of the courtroom with a glimmer of hope that you will decide to cooperate pursuant to Rule 35 once you are in jail to lower your sentence. But if you don't, the prosecutor feels no regret for charging the 20-year mandatory minimum, for she comes from a privileged background that offered a slew of opportunities you never had, and has not once dipped a toe in the world in which you lived.
You get taken to prison and spend the next 20 years of your life behind bars, where you meet hundreds of others just like you. Your older brothers, having no prior drug felony on their record, plead guilty and get 10 years each.
Wake Up Call - The Issues:
- Mandatory Minimums: (to be posted on 2.5.14)
- Why are there mandatory minimum sentences for drugs?
- What are the statutory drug sentences?
- Federal Drug Conspiracies: How does the federal conspiracy law interact with these drug sentences?
- Narcotics Charges and Pre-trial Detention: The Irony of the Presumption
- Prior Drug Felonies:
- The hammer of the "prior felony information."
- How this power, along with the mandatory minimums, have shifted the adversarial system to give more power to the prosecutors.
- Is there hope for change?
