Two months ago, Federal Judge John Gleeson of the Eastern District of New York issued a powerful “statement of reason” in the case of the United States v. Lulzim Kupa, in which he asserted that mandatory minimum sentences in drug cases have essentially nullified our constitutional right to a trial.
Lulzim Kupa was charged with trafficking of cocaine – an offense that carried a 10-year to life sentence. The prosecutors in his case offered him a deal: in exchange for a guilty plea he would be sentenced within the range of 9 -11 years. The offer expired within 24 hours and Kupa rejected it. In response, federal prosecutors filed an 851 notice - or prior felony information - citing two prior convictions Kupa had for marijuana offenses. Suddenly the 37-year-old Kupa was facing the possibility of life without parole for a non-violent drug offense. Under the threat of dying in prison, he pled guilty and accepted a 11-year sentence.
In his statement about the case, Judge Gleeson accused the government of misuse of its prosecutorial discretion in its filing of 851 notices.
“Prior felony informations don’t just tinker with sentencing outcomes; by doubling mandatory minimums and sometimes mandating life in prison, they produce the sentencing equivalent of a two-by-four to the forehead.”
He argued that 851 notices, enacted by Congress in the 1970s, were intended only for the most severe drug trafficking cases. However, instead they are routinely used to exhort guilty pleas from often low-level, non-violent drug offenders. The result? A system where ninety-seven percent of federal convictions are a result of plea deals, where offenders are sentenced by prosecutors rather than judges. And most frighteningly, it is a system where citizens like Kupa are afraid to exercise their constitutional right to trial as draconian sentences make the risk too great, thus relieving our government of its burden to prove guilt beyond a reasonable doubt. A system where – as pointed out by conservative columnist George F. Will – “mere probable cause, and the meager presentation required for a grand jury indictment, suffices."
