An Offer You Can't Refuse: How U.S. Federal Prosecutors Force Drug Defendants to Plead Guilty

Convicted criminals should receive punishments commensurate with their crime and culpability. However, prosecutors often view defendants’ insistence on going to trial as a legitimate reason to pursue an increased sentence. The Supreme Court’s decision in Bordenkircher v. Hayes permits prosecutors to secure pleas through inducements. The threat of disproportionate and unjust sentences at trial pressures federal drug defendants in particular to waive their Sixth Amendment rights and plead guilty. This “trial penalty” is so widespread and severe that plea agreements—originally just a choice to consider—have become offers that drug defendants cannot afford to refuse. Numerous reforms can mitigate the trial penalty’s effects. The Attorney General can reinforce the importance of just and proportionate sentences in prosecutors’ charging and bargaining decisions. Congress should eliminate mandatory minimums and mandatory penalties based on prior convictions or gun-possession. Doing so would take unbridled sentencing discretion away from prosecutors and bestow some upon federal judges, who can review and revise as to ensure the final sentences satisfy the requirements of justice. Harsher sentences for drug defendants neither ensure public safety nor strengthen communities. These reforms would assign punishments better reflecting defendants’ crimes and not their willingness to plead.

“[P]lea bargaining as practiced in US federal drug cases raises significant human rights concerns. It is one thing for prosecutors to offer a modest reduction of otherwise proportionate sentences for defendants who plead guilty and accept responsibility for their offense. Such a discount does not offend human rights. But the threat of a large trial penalty is unavoidably coercive and contrary to the right to liberty and to a fair trial.”