The Evils Of Plea Bargaining, Ctd.

Last January, in the wake of the suicide of Aaron Swartz–the 26-year-old computer programmer wiz kid who faced serious charges for allegedly violating the Computer Fraud and Abuse Act–I wrote a post about the serious issues raised by the practice of plea bargaining, in particular, whether plea bargaining imposes a penalty on defendants who want to exercise their Sixth Amendment right to a trial.

Jacob Sullum continues this discussion in a recent column on Reason.com, entitled “Your Guilty Plea or Your Life: How mandatory minimums punish drug defendants for exercising their right to trial.”  He writes about a man named Lulzim Kupa, who was indicted on federal cocaine distribution charges, which carried a minimum manadatory sentence of 10 years.  Prosecutors offered him a reduced sentence if he pled guilty.  He decided to exercise his right to a trial–that is, until the prosecutors notified him that they intended to alert the court to his two prior marijuana convictions, which would have raised the mandatory minimum sentence to life.

Sullum writes:

A recent report from Human Rights Watch highlights the tremendous pressure to plead guilty that mandatory minimum sentencing laws put on defendants like Kupa. The pressure is so intense that only 3 percent of federal drug offenders exercise their Sixth Amendment right to a trial, down from about 15 percent before Congress began enacting mandatory minimums in the 1980s.

Prosecutors have long offered lenience in exchange for guilty pleas; that is what makes such arrangements possible. But the huge differences in punishment documented by Human Rights Watch make demanding a trial so risky that almost no one chooses that option.

The prosecutorial power to multiply penalties at will magnifies the injustice that results from rigid sentencing rules tied to drug weight. Even if a 10-year sentence were an appropriate penalty for a cocaine dealer, a life sentence plainly would not be appropriate for the same defendant.