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Sandra Avery is a veteran, having served in the Army and army reserves. A survivor of childhood sexual abuse, she had overcome a crack addiction and went on to earn a college degree, eventually working as an accountant. By her mid-forties, she was married to a crack dealer and selling drugs for him to support her own resurfaced addiction. In 2005, she was arrested and indicted by a federal grand jury for possessing 50 grams of crack cocaine with intent to distribute. She is now serving life in prison.

The severity of Sandra’s sentence had little to do with her possession of a small amount of crack cocaine. She was punished for refusing to plead guilty and insisting on a jury trial.

Earlier this month, Human Rights Watch released a report about how federal prosecutors force drug defendants to plead guilty. The report highlights the devastating effects of mandatory minimum sentencing for non-violent drug offenses. The sentencing requirements cannot be overridden by judges and gives prosecutors incredible power over how much time defendants serve.

As a result, 97% of all federal drug defendants forgo their right to a trial.

This prosecutor power is used regardless of how minor the part the defendant played in the operation. According to the report, “An addict who sells drugs to support his habit can get a 10-year sentence. Someone hired to drive a box of drugs across town looks at the same minimum sentence as a major trafficker caught with the box. A defendant involved in a multi-member drug conspiracy can face a sentence based on the amount of drugs handled by all the co-conspirators, even if the defendant had only a minor role and personally distributed only a small amount of drugs or none at all.”

More than half of the more than 200,000 federal prison inmates are there for drug offenses.

With the law behind them, and judges unable to block them, prosecutors use the threat of the mandatory minimums to get defendants to accept deals with less time. Only 3 percent try their luck at trial, understanding they are risking the mandatory time for the offense, but wishing to take a shot at not being convicted.

The problem is they aren’t just facing the mandatory minimum.

Federal prosecutors offered Sandra a deal of 10 years. She declined the deal since they were not offering her less than what she would get if she was convicted at trial. In retaliation, prosecutors used a tool which would allow them to enhance the sentencing – prior convictions. In the early 1990s, she was convicted three times in Florida for possession of small amounts of crack that, all totaled, amounted to $100 dollars. She never went to prison for those charges and participated in community service as her sentence. Since she was unwilling to cooperate and plead guilty, they pursued an enhancement which allowed them to bring in her prior convictions, leading to her serving life in prison (there is no parole in the federal system).

In August of this year, Eric Holder issued a directive instructing the nearly 100 federal prosecutors across the country to create guidelines to ensure that low-level, non-violent drug offenders are charged in such a way that will not trigger mandatory minimums, giving judges some flexibility in sentencing. The new policy applies to future prosecutions, as well as cases currently in process. Prosecutors have complete discretion on what charges they bring and the directive requires them to make every effort to minimize the chances of lengthy sentences for low-level offenders.

The question is will this encourage defendants to pursue their right to a fair trial?

A case that is considered the first test of the directive involved Marko Bukumirovic, who was charged in May with conspiracy to distribute more than five kilograms of cocaine, a charge that carries a mandatory minimum of ten years. However, since Bukumirovic was a low-level, first time offender (no arrests or convictions), the charges qualified for a mechanism called a “safety-valve” which would have allowed him to avoid the minimum sentencing requirements.

After the directive was issued, the charges were amended in such a way that did not specify the amount of drugs being distributed. This carried no mandatory minimum and he faced a maximum of 20 years in prison. This is the same sentence he would have faced under the original charges.

Still, Bukumirovic pleaded guilty to the lesser charge.

The new directive is designed for cases such as Bukumirovic’s. However, it can be abused by prosecutors as yet an additional tool to force defendants into guilty pleas instead of taking their chances at trial. Now defendants will not only have to consider the risk of the type of sentence they will receive , but also the severity of the charges that they will face if they go to trial.

Changing the mandatory minimum sentencing for federal drug offenses would take a literal act of Congress, since they are the ones that created them. Starting in the 1980s, these sentencing guidelines were instituted as part of tough on crime polices on both the local and national level. Decades later, statistics show that these policies don’t work and have been detrimental, especially to poor and minority communities. The rise of multi-billion dollar a year for-profit prisons has maintained a drumbeat of the need for these tough sentences through the lobbying of Congress, preventing them from making any adjustments to the system.

Yet, many are seeing the need for change.

Senators Dick Durbin (D-IL) and Mike Lee (R-UT) introduced the Smarter Sentencing Act in July of this year, and a similar one was introduced in the House in October. The Senate bill would expand the eligibility requirements for the safety-valve mechanism for federal low-level drug offenders. It would also allow judges to review individual cases in which prosecutors use sentence enhancements for mandatory minimums, allowing them flexibility in sentencing if the enhancement is deemed too harsh for the offense (it does not remove the mandatory sentence requirement). In addition, the bill also makes adjustment to the Fair Sentencing Act of 2010.

That law dealt with the sentencing disparity between crack cocaine and powder cocaine offenses, making the sentencing requirements the same for both. The Smarter Sentencing Act would allow defendants convicted prior to the 2010 law to petition to have their sentencing reviewed and possibly reduced under the 2010 guidelines.

The Smarter Sentencing Act of 2013 is scheduled for a Senate committee hearing on Thursday, December 19, 2013.