The government is abusing mandatory minimums: How law enforcement is ruining a generation of Americans

Federal prosecutors imposing harsh mandatory minimums are accused of disobeying Department of Justice directives.

Published December 3, 2015 12:57PM (EST)

  (Reuters/Lucy Nicholson)
(Reuters/Lucy Nicholson)

Alton Mills was 25 years old in 1994 when he was sentenced to life without parole for his role as a lowly crack courier in a Chicago drug organization. Federal sentences for drug dealing are calculated based on the quantity of drugs involved rather than the dealer's role in the organization. So someone like Mills can receive as much time as, or more time than, an elusive kingpin.

“Ooh lord,” says his mother, Marsha Mills. There's not a “day that don't go by that I don't think about him.” Alton's daughter was about 2 years old when he went to prison. He has missed graduations from kindergarten, eighth grade and high school. “It would be good if he could come,” says Marsha, to see her graduate from college.

Mills received the most serious penalty available under federal law short of death not because of the crack offense. That alone would have triggered the still-harsh 10-year mandatory minimum sentence that put so many behind bars for so long, especially black men like Mills. No, Mills got life because he had two prior drug possession convictions so minor that both resulted only in probation.

According to a Chicago Tribune article published at the time, two of the drug gangs' suppliers received substantially reduced sentences because they testified against the others. Prosecutors gave Mills this extreme repeat-offender penalty, a so-called  § 851 enhancement, because he refused to cooperate, or snitch, says his lawyer, MiAngel Cody.

“He was told by law enforcement agents investigating that he was going to get a mandatory life sentence if he did not cooperate. And Alton didn't cooperate...because he felt like that would raise issues of safety for his family," Cody said. "[He was] concerned about retaliation for cooperating."

"Mills had grown up being taught you don't tell," Cody explained. "He didn't realize that not cooperating really meant mandatory life. A jury would see that he was a low-level courier. And that, yeah, he was guilty. But he would never get life.”

But Mills did get life, and federal parole has long since been abolished. Cody did not represent Mills at trial. She was probably a freshman in high school at the time, she says.

“That gives some context for how long he's been in prison,” says Cody.

The Obama administration has called for the criminal justice system to be reformed and for the population of our enormous prison system to be reduced, encouraging reform efforts in Congress and pledging to speed up a moribund clemency process so that people serving unjustly harsh sentences can be freed. The Department of Justice has taken a lead role, forcing local police departments to clean house and, under former Attorney General Eric Holder, pledging to restrict federal prosecutors' use of harsh mandatory minimums like that applied to Mills.

There is growing concern, however, that federal prosecutors in the 94 U.S. Attorneys' Offices nationwide are implementing Holder's directives unevenly — or even resisting implementation entirely.

David Patton and Jon Sands, co-chairs of the Federal Defender Legislative Committee, wrote in a recent letter to House Judiciary Committee leadership that "there is widespread disregard of DOJ policy among line federal prosecutors about when to trigger those severe enhancements. And the enhancements are regularly used for no other reason than to force people to waive their trial rights.”

851 enhancements double five- and ten-year mandatory minimum drug sentence for offenders with one prior “felony” drug conviction, and impose a life without parole sentence for offenders with two drug priors facing a ten-year sentence. What counts as a so-called felony, however, is remarkably broad. As in Mills' case, it can include state convictions so minor that they did not result in jail time. It can even include state misdemeanors.

* * *

Whether or not to press charges carrying a harsh mandatory minimum sentence, or to file information on past offenses, thus triggering an 851 "sentencing enhancement," is the sole prerogative of federal prosecutors. One result of the creation of harsh mandatory minimums, and the enormous discretion that prosecutors have to wield them, has been to drive the explosive growth of the federal prison system, which stood at just 24,640 inmates in 1980. Today, drug offenders like Mills make up nearly half of a federal prison population of nearly 200,000.

Another result has been incredible disparities in sentencing determined not by the severity of the crime a defendant allegedly committed but by the degree to which the offender can further a prosecutor's interests. For example, according to fiscal year 2009 data analyzed by the U.S. Sentencing Commission, drug organization managers received sentencing relief for cooperating with prosecutors at a rate of 50 percent, whereas a street-level dealer received relief just 23 percent of the time. Simply put: It pays to be the boss.

Thus, prosecutors' attachment to mandatory minimums generally was clear, according to the U.S. Sentencing Commission investigators: “The overwhelming majority of the prosecutors interviewed opined that mandatory minimum penalties are effective law enforcement tools because they encourage guilty pleas and cooperation.”

Sometimes, however, a prosecutor's rationale for triggering a repeat offender penalty have been entirely inscrutable.

According to data gathered by the United States Sentencing Commission in 2011 and analyzed by federal Judge Mark Bennett, a defendant in his Northern District of Iowa eligible for a repeat drug offender penalty was 2,532 percent more likely to receive it than an equivalent defendant next door in Nebraska. A defendant in Tennessee's Eastern District was 3,994 percent more likely to receive one that a defendant in Tennessee's Western District. And so on.

In nine of 13 districts surveyed in depth, prosecutors told the Sentencing Commission that they delayed filing 851 notices pending the completion of plea negotiations. Two others said they filed 851s in every applicable case and never withdrew them.

Judge Bennett, in his 2013 opinion evaluating and criticizing mandatory minimums, suggested that prosecutors state their reason for filing an 851, and how it comports with the new directives, on the record.

Beginning in 2010, Holder instructed U.S. Attorneys, in a series of memos, to seek harsh mandatory minimums only in the most serious cases. In May of that year, Holder instructed federal prosecutors that "persons who commit similar crimes and have similar culpability should, to the extent possible, be treated similarly," and “charges should not be filed simply to exert leverage to induce a plea.”

In August 2013, Holder issued another memo directing prosecutors to reserve harsh mandatory minimums, including penalties for repeat drug offenses, for the most serious cases. For less serious offenders, prosecutors were instructed to not even charge the full quantity of drugs in question if that quantity would trigger a mandatory minimum.

"In some cases, mandatory minimum and recidivist enhancement statutes have resulted in unduly harsh sentences and perceived or actual disparities that do not reflect our Principles of Federal Prosecution," Holder wrote. "Long sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation."

In September 2014, he explicitly stated that 851s should not be used as a hammer to compel guilty pleas, though he did appear to leave open the possibility that they be used as leverage to induce cooperation.

“Cooperation is supposed to afford a break from an otherwise deserved sentence; it violates a basic principle of our system to impose an undeservedly harsh sentence based on a refusal to cooperate,” wrote John Gleeson, a federal court judge in Brooklyn, in a 2013 opinion.

The memos represented modest but substantive changes to the policy that a “federal prosecutor should initially charge the most serious, readily provable offense or offenses consistent with the defendant’s conduct,” which had been in force since Bush Attorney General Dick Thornburgh issued it in 1989. Old habits, however, are hard to break.

A recent nationwide survey of federal defenders, according to Patton and Sands, found that prosecutors in just 40-percent of districts were complying with Holder's charging instructions with regard to either drug quantity and repeat offender penalties. In 24-percent of districts, however, all or most prosecutors were not complying; in 36-percent of districts, a minority or substantial minority of prosecutors were not.

According to Yale Law professor and former federal prosecutor Kate Stith, preliminary research and data analysis by her students shows inconsistent application of the new charging instructions.

“Despite these directives, there is mounting evidence that at least some U.S. Attorneys still consider it appropriate to routinely threaten to file § 851 enhancements if defendants exercise their right to go to trial,” wrote Stith and two other legal scholars, Douglas Berman and Mark Osler, in a November 9 letter to Attorney General Loretta Lynch.

One piece of evidence they cited were recent comments to the Washington Post by Steve Cook, the president of the National Association of Assistant U.S. Attorneys, who bluntly suggested that new guidelines on mandatory minimums were not being uniformly implemented. Defense lawyers, he said, still “understand that this tool is still in our pocket.”

* * *

Cook is leading a campaign against sentencing reform legislation in Congress, and he disagrees that prosecutors use 851s to coerce cooperation.

“One of the criticisms I hear frequently from commentators is prosecutors want these mandatory minimums and 851s so they can strong arm guilty pleas. Well, that isn't the case," Cook said. "851s, those were designed to put recidivists in prison for longer.”

There is evidence, however, to suggest that that is often precisely how they are used. Judge Gleeson detailed one such instance in a 2013 opinion protesting his own sentencing of Lulzim Kupa, and the prosecutorial abuse of mandatory minimums more generally.

Based on more than five kilograms of cocaine alone, Kupa faced a 10-year mandatory minimum sentence. But Kupa had two prior marijuana trafficking convictions. If prosecutors so decided, they would trigger life without parole upon conviction.

On March 5, 2013, prosecutors offered Kupa a plea deal. The government would withdraw the 10-year mandatory minimum and instead recommend a sentence of between 110-137 months. With good time credits, Kupa could serve seven years and ten months, Gleeson wrote. But Kupa had just one day to think the agreement over, and he didn't accept it. And so prosecutors twisted the screws tighter, filing the 851 information detailing his two prior marijuana convictions. Unless prosecutors withdrew the notice, he would be automatically sentenced to life without parole upon conviction.

“Just like that, a defendant for whom the government, only ten days earlier, was willing to recommend an effective sentence of less than eight years was looking at life in prison without the possibility of parole,” wrote Gleeson.

Prosecutors then offered Kupa a new, more punitive plea deal. They would withdraw the 851 and the 10-year mandatory minimum, and recommend 130-162 months, which could result in nine years and four months behind bars. Kupa didn't agree to the offer in the day's time allotted. And so as a trial date approached, prosecutors forwarded Kupa a yet more punitive offer of 140-175 months, which could result in a prison term of 10 years.

"So Kupa found himself in a difficult position as his trial approached," Gleeson wrote. "Looming in the background was the reality that if he went to trial and the jury convicted him, the law would require that he die in prison. And with each passing day the sentence the government was willing to recommend was creeping upward. If I were to sentence at the bottom end of the government’s recommended range in the final proposed plea agreement, the five-week delay from March 5 to April 9, 2013 had already cost Kupa over two years in prison."

And so Kupa, like most defendants, gave in. This is how the federal judiciary, the idealistic right to a trial enshrined in the Constitution notwithstanding, operates: plead guilty, or snitch, or we'll destroy you. It has been estimated that less than 3-percent of cases in the federal system go to trial.

“I want to plead guilty, your Honor, before things get worse,” Kupa told Judge Gleeson.

If Kupa had gone to trial and was convicted and sentenced to life, he would have faced a “trial penalty” of 30 years, assuming that he would live to age 75. The result of this system, Gleeson wrote, is that the judiciary becomes an instrument of injustice controlled by prosecutors.

“Judging is removed, prosecutors become sentencers, drug addicts are warehoused instead of treated, prisons swell beyond their capacities, enormous unnecessary costs are incurred, futures and families and communities are ruined,” he wrote.

And when the difference between the penalties resulting from a guilty plea and a trial conviction are so vast, innocent people are incentivized to plead guilty.

But for prosecutors, Kupa's guilty plea represented a victory. They avoided a costly and time-consuming trial. If all cases actually went to trial, mass incarceration couldn't function.

* * *

The Department of Justice did not respond to specific questions posed by Salon. But they did insist, in a statement, that the Holder memos are being implemented by prosecutors.

“Since the department began implementing the Attorney General’s guidance on recidivist enhancements, we have begun to see decreases in the number of times the application of those enhancements has been used,” emailed Justice spokesperson Emily Pierce. “We are still in the process of compiling and evaluating the data, but are encouraged by what we’ve seen so far.”

The Justice Department, however, has apparently not yet changed its U.S. Attorneys' Manual to reflect that guidance, even after The New York City Bar Association sent them a letter last December asking that they do so.

“We can confirm that, to date, no such revision has been made,” emails Helen P. O’Reilly, an attorney and member of the New York City Bar's Criminal Law Committee.

Not only does the Manual not incorporate the new instructions, it directly contradicts them, stating that prosecutors must automatically file 851s “regarding prior convictions that are readily provable and that are known to the prosecutor.” One of the only exceptions for not filing is “in the context of a negotiated plea.”

“I know from first-hand knowledge that our district has done a 180-degree turn in terms of the number of 851 enhancements being filed,” says Judge Bennett. “But in talking to colleagues around the country, I'm not sure that's true in other districts.

Judge Gleeson, who has also seen major changes in his courtroom, calls the seemingly uneven implementation “kind of distressing but it's not surprising.” Attorneys General and their deputies come and go. Many prosecutors stay.

“Any policy like this, it's really only going to be effective to the extent there's buy-in on the part of the local U.S. Attorneys,” says Gleeson. “They're written, and they're issued. But it's always been the case that policy that comes down from above is filtered through the Justice Department as a whole...If the policy is not implemented in the same spirit as its been promulgated, then you're going to get disparities like this.”

Cook, of the National Association of Assistant U.S. Attorneys, tells Salon that the Holder directives are likely being interpreted differently in different districts because the new criteria for imposing mandatory minimums are open to interpretation.

“I guess I would say with respect to that, that every district is going to have a different interpretation of the criteria that are provided for implementation of the policy,” he says. “United States Attorneys are by definition, almost, rule followers. The Attorney General of the United States tells us to implement a policy...that's what we're going to do.”

Gleeson says that the Justice Department could do more to make sure that the memos are implemented nationwide, including by tracking not only when 851s are filed but, just as importantly, when prosecutors threaten to file them to coerce a plea.

There is only one way, says Gleeson, to stop the injustices caused by mandatory minimum sentences.

“Repeal 'em. Take it away,” he says, noting that no research has proven that they have had a significant effect on crime control. “Lets not lose sight of the basic proposition,” he adds. “These things shouldn't exist. Period.”

Cody, Alton Mills' attorney, says that the Holder memo means “that for people like Alton, prosecutors should look at, what's the criminal history of this person? Alton should have never gotten an 851 enhancement because Congress enacted 851 to get the really high level kingpin recidivists...if we just apply the prosecutors' own policies today, Mills never would have gotten a life sentence.”

Indeed, she says that today, county prosecutors probably wouldn't have even sought a conviction for Mills' prior possession offenses, which would have made him ineligible for a life sentence.

Not only have the policy changes apparently not reached all federal drug offenders, they have come too late to save Alton, and many others like him. His only hope is the petition for clemency he has filed, pleading that President Obama to right the wrong done against him.

“Oh yes, I pray that he do. You know. I pray that he let my son come home,” says Alton's mother, Marsha Mills. Across the phone line, it sounded as though she was starting to cry. “It's very difficult.”

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Daniel Denvir is a writer at Salon covering criminal justice, policing, education, inequality and politics. You can follow him at Twitter @DanielDenvir.

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