Debra J. Saunders

Clarence Aaron described his time in federal prison serving life without parole for a first-time nonviolent drug conviction as "a walking death sentence on" his head. Before President Barack Obama commuted his sentence last month, Aaron faced a longer sentence than some fellow inmates with multiple felonies -- even murder.

Aaron was hardly the only nonviolent offender sentenced to life without parole. Last year, the American Civil Liberties Union reported that more than 2,000 federal inmates were serving life without parole for nonviolent offenses.

How can a nonviolent first-time offender be sentenced to life without parole?

Their biggest mistake, after their crimes, was not pleading guilty. "Prosecutors give drug defendants a so-called choice. In the most egregious cases, the choice can be to plead guilty to 10 years or risk life without parole by going to trial," Human Rights Watch adviser Jamie Fellner says. She has a term for it: "the trial penalty," which can deliver longer time than drug dealing itself.

When a case goes to trial, the prosecutor gets to pick the sentence by choosing the amount of drugs for which a defendant is charged. A federal judge had to sentence Aaron to life because he was convicted of conspiracy to traffic 23 kilograms of crack and powder cocaine. The crazy part is that prosecutors got to 23 kilograms by charging Aaron for a 9-kilogram deal that did happen and a 15-kilogram deal that did not.

The career dealers knew how to game the system. Their sentences were reduced because they testified against Aaron.

The National Association of Assistant United States Attorneys is fighting back against the bad press on federal mandatory minimums. The system, prosecutors argue, protects the public from the old days when a defendant's sentence depended on which judge heard the case. Now the guilty know that some prison time is unavoidable.

Georgetown University Law Center professor Bill Otis, a former federal prosecutor, reminded me that every system, every country, has its sentencing anomalies. The federal system at least has four checks -- plea bargains, a "safety valve" that allows judges to reduce the punishment for some low-level defendants, defendants' ability to reduce their penalty by testifying against others, and the presidential pardon power that commuted Aaron's life sentence.

I should add that Otis doesn't see drug dealing as nonviolent, not when an addict could die of an overdose.


Debra J. Saunders


 
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