Report: Federal Prosecutors Trample Constitutional Rights in War on Drugs

The 7th Amendment to the Constitution allows for the right to a jury trial. The 8th Amendment prohibits "cruel and unusual punishments." A new report by Human Rights Watch shows that federal criminal defendants, especially those charged with drug crimes, are having their constitutional rights arguably stymied by aggressive federal prosecutors.

This is because, with mandatory minimums and other tools at their disposal, prosecutors have the whip-hand over federal drug defendants.

For example, in one case from central Florida where a woman rejected a 10-year plea deal for possessing 50 grams of cocaine and chose to go to trial, the federal prosecutor took measures to enhance her punishment at the sentencing phase. Because of such, she ended up receiving a life sentence. There is no parole for federal crimes, so she will die in prison. When Human Rights Watch asked the federal prosecutor if he thought the punishment was just, he refused to comment.

This is not an isolated case. The federal criminal trial has largely disappeared -- only three percent, the HRW Report tells us, of federal criminal defendants go to trial. Of those three percent who roll the trial dice (and, let's face it, make the prosecutor work; a trial is much more difficult than drafting a plea agreement) end up "receiv[ing] sentences on average 11 years longer than those who" took a plea agreement. In federal district court for the Southern District of Texas -- which includes Houston, Galveston, McAllen and Corpus Christi -- over 97 percent of criminal defendants plead guilty (all of the Texas federal courts have over 95 percent plea rates). Especially in drug cases, federal prosecutors have essentially taken on the role of the judge insofar as determining the length of a sentence for a federal criminal defendant. If the defendant does not agree to take a prosecutor's plea offer and goes to trial, the prosecutor will use prior convictions to increase the length of a sentence, and if there's a gun involved in any way in the offense, the prosecutor will use this as well as a punitive measure -- this is all done at the sentencing phase in which the jury does not participate. Moreover, prior convictions and the presence of a gun are all incidents the prosecutor can choose to ignore in making his plea agreement and recommendation to the judge. For the federal prosecutor it is a heads I win, tails you lose scenario.

To his credit, in August 2013, Attorney General Eric Holder instructed federal prosecutors to avoid some of the more egregious practices detailed above. This may be short-lived or ignored -- while U.S. Attorneys are political appointees, the assistant U.S. attorneys are career employees and largely the ones with the prosecutorial discretion. Moreover, it is difficult to imagine a Republican attorney general being sympathetic to Holder's position.

But in the final analysis it is not fair to simply blame federal prosecutors -- they are simply using the mandatory minimum statutes that Congress and the executive branch gave them. And the political branches of the government gave them that because Richard Nixon and Ronald Reagan gave us the War on Drugs -- the war came tantalizingly close to being called off under Carter -- that they, in part, manufactured in order to appeal to certain voters by racializing criminal punishment. Human Rights Watch has diagnosed an important symptom, but it is just a symptom of a serious disease.

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