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I loved to prosecute. I was the avenging angel. I was getting the riff-raff off the street. Time proved me to be wrong. I have been on both sides of the fence: the War on Drugs is lost. After police arrest a person, prosecutors have enormous discretion in deciding whether to prosecute, what charges to bring, and how the person will experience the criminal justice system. Because any given set of facts can often support different kinds of charges, if prosecutors decide to prosecute a drug use case, they typically have a range of charges to choose from—from misdemeanor drug paraphernalia to, in most states, felony possession to possession with intent to distribute.
Despite these opportunities for discretion, many prosecutors are far too willing to throw the book at people who use drugs, to charge them high and to seek the highest possible sentences. Prosecutor Melba Pearson said she believed prosecutors have an obligation to use their discretion to address racial disparities in the cases police bring them:.
In some cases, prosecutors not only fail to confront this problem but compound it by exercising their own discretion in racially biased or at least racially disparate ways, for instance by charging Black defendants with more serious crimes or seeking sentencing enhancements more often when the defendant is Black.
In Florida, among the counties with at least 5, possession cases, there were striking disparities in the rate at which prosecutors declined to prosecute drug cases. For example, Polk County prosecutors declined to prosecute 57 percent of drug possession cases brought to them while Broward County prosecutors declined only 13 percent. Particularly in Texas and Louisiana, prosecutors did more than simply pursue these cases—our interviewees reported that prosecutors often selected the highest charges available and went after people as hard as they could.
Perhaps nothing better illustrates the harmful realities of aggressive prosecution and a charge-them-high philosophy than state jail felony cases in Texas. Depending on the type of drug, its strength and purity, and the tolerance of the user, one gram may be a handful of doses or even a dose or less of many drugs. Data provided to Human Rights Watch by the Texas Office of Court Administration, and presented here for the first time, shows case outcomes for all felony drug possession cases in Texas courts.
Although the data does not differentiate between felony degrees, we can extrapolate based on state law and sentencing options. That means some 16, people were sentenced to time behind bars for possessing less than one gram of commonly used drugs. The majority of the 30 defendants we interviewed in Texas had substantially less than a gram in their possession when they were arrested: not 0. These numbers are almost incomprehensibly small. In Dallas County, the data suggests that nearly 90 percent of people sentenced to jail or prison for possession in were convicted of possessing less than a gram.
Bill Moore, a year-old man in Dallas, was prosecuted for third degree felony possession normally one to four grams for what the laboratory tested as 0. The charge was enhanced to a third degree offense under the habitual offender law because of his prior possession charges, which he said were all under a gram as well. He spoke to us after he had pled to three years in prison for that 0. Now think about how many thousands of dollars are wasted over five dollars of that stuff. In Fort Worth, Hector Ruiz was prosecuted for an empty bag that had heroin residue weighing 0.
The prosecutor offered him six years in prison in exchange for a guilty plea. Leonard Lewis was charged with third degree felony possession one to four grams in Houston for two tobacco cigarettes dipped in PCP. Because he had two prior felonies, he faced 25 years to life in prison. He told us the actual weight of the liquid PCP on the cigarettes was microscopic. Although his attorney convinced the prosecutors to discount the filter, she said they still counted the weight of the rest of both cigarettes tobacco and paper , resulting in a final weight of 1.
Nevertheless, Leonard ended up receiving four years in prison for it.
In Dallas, Gary Baker was charged with 0. Although he was arrested for outstanding traffic tickets, he and his attorney said the police searched his car for 45 minutes without finding anything. At his arraignment, the judge informed him he was also charged with possession of a controlled substance. Am I guilty of being a drug user?
Yes, I am. Did I use drugs the day before? Yes, I did. I admitted that. Because of his priors, Matthew faced 2 to 20 years for this trace amount. The prosecutor did not have to seek these enhancements. He also could have offered Matthew a gentler plea deal. Instead, he offered a 3-year discount off the statutory maximum in exchange for a guilty plea: 17 years for a trace case.
Matthew refused and insisted on his right to trial. After 21 months of pretrial detention, Matthew finally went to trial in August A jury convicted him of possessing a trace amount of methamphetamines and sentenced him to 15 years in prison. So we want to try to get to those people early. We want to prevent the murder in a drug deal gone wrong, theft, child endangerment, the larger cases…. In a handful of cases we investigated in Texas and Louisiana, defendants had drug paraphernalia, such as pipes, straws, syringes, or even empty baggies, in their possession when they were confronted by the police.
But instead of simply charging them with misdemeanor drug paraphernalia—or letting them go—the police arrested them for drug possession because of the residue or trace amount of drugs left in or on the paraphernalia. And rather than questioning the utility of those arrests, prosecutors formally charged and prosecuted the defendants for drug possession.
In such scenarios, the prosecutor still has the authority to reduce the charges, or to dismiss the case altogether. Yet in practice prosecutors often do not deviate in their charges from what is listed on the police report. In St. Tammany Parish, Louisiana, District Defender John Lindner told us he was still seeing residue cases where needles were charged as heroin possession, which in the state carries a minimum of four years and up to ten years in prison. Tammany Parish. Prosecutors have even pursued felony indictments and accepted guilty pleas for drug possession in the absence of any evidence.
Jason Gaines said he was arrested in Granbury, Texas, for having one syringe cap in his pocket and three unused needles near him, one of which was missing a cap. He said after he had been handcuffed, the police asked if he used meth, and he said yes. On these facts, the prosecutor should not have charged Jason at all; if the needles were unused, there was no real evidence he had committed any crime, only that he might eventually inject drugs sometime in the future—and that he was preparing to do so safely with clean needles.
Instead, the prosecutor pursued a felony charge and 89 days after Jason was arrested—one day short of the maximum 90 days Texas prosecutors have to obtain a felony indictment  —Jason was indicted for his first felony: possession of methamphetamines. He said:. Jason ultimately had his probation revoked for failure to report to his probation officer, and he pled to 20 months in a Texas state jail facility. Alyssa Burns was arrested in Houston for a meth pipe and charged with drug possession, her first felony.
She said police performed a field test on the pipe, pouring a liquid inside that turned blue to show residue. Breanna told us they found an empty plastic bag under her seat which they alleged belonged to her and had methamphetamine residue on it. After a period of pretrial detention because she could not afford bail, Breanna, a single mother, pled to her first felony conviction and time served so she could return home to her young daughter.
In Houston, Nicole Bishop was charged with two counts of felony possession for heroin residue in an empty baggie and cocaine residue in a plastic straw. The charges meant she was separated from her three children, including her breastfeeding baby. She had been in pretrial detention for two months already when we interviewed her in March Miami Judge Dennis Murphy told us judges can take an active role to ensure defendants are not charged with possession for mere drug paraphernalia:. A number of interviewees were charged with felony drug possession for medications for which they could not provide the prescription.
Some interviewees said they were prescribed the medication in question but had allowed the prescription to lapse. None of them were formally accused of dealing or committing fraud in obtaining the medications. And none of them felt they should be considered criminals simply for possessing pills many other people in the United States keep in their medicine cabinets. Possession of certain prescription medications without evidence of the prescription is criminalized, sometimes at the felony level, in most states.
Some of the cases we learned about suggest a lack of reasonableness and prosecutorial investigation that might have revealed mitigating facts, where prosecutors failed to exercise discretion to decline cases or to seek lesser charges and instead pursued cases aggressively. Defendants we met were prosecuted with felony charges for possession of commonly prescribed medications including Adderall, Vyvanse, Xanax, and Klonopin. Furthermore, in some Texas cases we examined in March , prosecutors sought sentencing enhancements for these offenses or chose to charge according to the total weight of the pills, rather than the strength of the medication within them.
When he was 17 years old, George was convicted of burglary. He served three years in prison. Ten years later, George was arrested in The Colony, Texas, when police found seven 20 mg Adderall pills in his car. George told us the pills were prescribed to his girlfriend. Because of his prior felony, he faced up to 20 years in prison for possession of the seven pills, despite the fact that the combined strength of the pills was a mere 0. They ultimately offered him six years in prison in exchange for a guilty plea.
When he spoke to us, George was out on bond and had not decided whether to take the offer, but he said this case had already destroyed his life. He said it caused him to go into a depression for which he was hospitalized. His relationship with his girlfriend of 12 years was strained and eventually ended. His depression was so severe that he left his job and lost his house. Six years of your life … for seven Adderall pills.
Before being prosecuted, George said he had a small grass-cutting and construction business; he woke up every day at 8 a. He told us everybody knew they could make a little money on the side if they sold drugs but that he refused to do so:. We met many others like George. One of them was Amit Goel, a year-old college sophomore in Dallas who had been prescribed Adderall since high school but said that he let his prescription run out the previous month.
He was arrested with eight pills of Adderall and Vyvanse, another ADHD medication, and was facing a third degree felony for drug possession, which carries two to ten years in prison. She told us she was arrested in her nightgown, without shoes, having run out the door with her purse after her husband beat her. She said that her husband was prescribed Klonopin and, because he would misuse them, she carried them for him to help him comply with the prescribed dosage. Glenda told us her husband said the pills were his and tried to explain things to the prosecutor.
In all four states we visited, some defendants were arrested in possession of drugs that they said were for their own use, but prosecutors chose to charge distribution or possession with intent to distribute PWID —without making any effort, as far as defendants or their lawyers could tell, to investigate whether the drugs were in fact for personal use. Anything approaching the weight [of distribution], anything with baggies.
In most states, PWID is usually proved based on circumstantial evidence such as the presence of individually packaged bags; scales, ledgers, or records of sales; and, more problematically, the presence of cash.
In some states, drug quantity alone is presumptive evidence of possession with intent to distribute or of distribution. You get people on payday [so they have cash]. There goes your rent check, your food check. At worst, it is a flimsy pretext to bolster charges that lack real evidence to support them. In fact, poor people may be more likely to carry cash on them, not because they are drug dealers but because they are less likely to maintain a bank account.
A large percentage of poor people are unbanked having no bank account or underbanked relying more heavily on alternative financial providers than on their bank. Black and Latino households are significantly more likely to be unbanked or underbanked than white households. David Ross said he was arrested in with a couple of grams of methamphetamines and eight to ten Percocet pills. Although there was no evidence of actual dealing, he was charged with two separate counts of distribution because he had drugs and money on him. In the courtroom, David told us, the prosecutor offered to lower the charges to possession if he took 10 years in prison—5 on each charge, run consecutively.
In addition to the problems of relying solely on cash as evidence, a number of interviewees argued it is a mistake to assume a larger quantity of drugs means the person is necessarily distributing. They said they buy a larger amount because it is cheaper and so that they do not need to return so frequently to their dealer, which can be dangerous and intimidating. Carla James was arrested in Dallas in for possession of seven grams of methamphetamines. Although she said the police wrote it up as drug possession, she was indicted on distribution charges because of the quantity.
But she explained the meth was for personal use:. Where judges call foul, some prosecutors amend the charge down to possession. Bail is very wrong here, very wrong. That causes at least two problems that I see. Number one, it causes more people to have to stay in jail. They should have had an unsecured promise to come to court. Because [pleading] is going to come to haunt you down the line. Pretrial detention in drug cases contributes significantly to soaring jail and prison admissions and the standing incarcerated population in the United States.
In , approximately 64, people per day were detained pretrial for drug possession,  many of them in jail solely because they could not afford to post bail. As detailed in this section, this fact gives prosecutors significant leverage to coerce plea deals. Pretrial detention, an inherently negative experience, also separates many defendants from their families and jobs and threatens lasting harm or disruption to their lives. To avoid all of this—or because long sentences otherwise hang over their head if they lose at trial—many defendants plead guilty simply to secure their release, in cases where they might otherwise want to go to trial.
During the pretrial stages of a criminal case, judges can either release defendants on their own recognizance or set a money bond also known as bail. For people we interviewed in Texas and Louisiana, a PR bond was not offered, even though it was statutorily available to the judge. Instead, bail was set at thousands of dollars.
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Defendants who cannot afford to pay the full bail amount often use a bondsman instead. Under this scheme, defendants pay a fee to a private bondsman company sometimes 10 to 13 percent of the total bail amount , and the bondsman then takes on the obligation to ensure their reappearance. If defendants lack the financial resources to post bail, either through a bondsman or on their own, they remain incarcerated either until they come up with the money or until case disposition.
That effect is wide-reaching. In the two states for which we received court data containing attorney information, the majority of drug possession defendants were indigent—in other words, poor enough that they qualified for court-appointed counsel. In Florida, 64 percent of felony drug possession defendants relied on court-appointed rather than retained counsel. In Alabama, the rate was 70 percent, including marijuana as well as felony drug possession.
High rates of pretrial detention reflect the reality that judges set bail so high that many defendants cannot afford it. In , the most recent year for which the US Department of Justice has published data, 34 percent of possession defendants were detained pretrial in the 75 largest counties. Nearly all of those detained pretrial Because the higher the bail, the more likely someone will not be able to afford it, the average bail for those detained was even higher.
The money bail system is premised on the idea that defendants will pay to get out of jail and that, if the amount is high enough, they will return to court to get their money back. In theory, the principal goal is to ensure that defendants return: in other words, to prevent flight.
Human Rights Watch has previously examined the myth that released defendants evade justice in New York. In the 75 largest US counties in , 78 percent of people charged with possession and released pretrial made all their appearances in court; another 18 percent returned to court after their missed appearance s. This means that in total 96 percent of all possession defendants ultimately came back to court. Tammany Parish, interviewees said their bonds were set even before they had met their appointed counsel, without a formal hearing.
In a number of jurisdictions in Louisiana, bond is routinely set high, and it is up to the defense counsel to file a motion to reduce bond, which is then scheduled for a hearing sometime later. For low-income defendants unable to pay a high bond, this means they remain detained at least until the bond is reduced some weeks later. In Texas and Louisiana, we interviewed approximately 30 defendants who could not afford the bondsman amount, let alone their full bail, and as a result were forced to remain in pretrial detention until their case was resolved.
For some people, taking a case to trial may mean languishing in detention for over a year. Even for those ready to enter a plea deal, many had to spend months in detention before the prosecutor made an offer. In , the median time between arrest and adjudication for possession defendants in the 75 largest counties was 65 days,  which would be spent in jail if a person could not afford bond. For people we interviewed, the wait was often much longer. It takes at least three months to go to court for your first offer.
In our jail interviews in Texas and Louisiana, some pretrial detainees were waiting in jail while their attorneys investigated the case and filed pretrial motions, so that if they were going to consider pleading guilty, they could do so with a better sense of the strengths and weaknesses of their case. Other interviewees remained in pretrial detention because they wanted to go to trial or because they were hoping to get a better offer from the prosecutor.
Some said they ultimately gave up, because fighting a case—either at trial or through pretrial motions such as for suppression of evidence—meant waiting too many months. Delays can be caused by overburdened courts and public defender systems, laboratory testing, and lack of communication between offices. I spent my 39th birthday here, my 40th birthday here in this jail … waiting to go to trial. In Texas jurisdictions we visited, bail was set according to bond schedules that provided presumptive amounts of bail according to the charge, sometimes with enhancements for criminal history, but regardless of ability to pay.
As a one-size-fits-all model, bond schedules deprive defendants of individualized determinations. Yet the use of bond schedules is prevalent nationwide. A study of the most populous counties found that 64 percent of those jurisdictions relied on them. For example, the ACLU of California reported in that there were 58 different bond schedules in use across the state. High bonds also mean that some people we spoke with were detained pretrial even though they were only facing probation post-conviction.
In Texas, a first offense state jail felony requires mandatory probation if the person is convicted. Yet many people are detained pretrial, sometimes even for months, before they are convicted and sentenced to probation. This means that someone ends up doing jail time in a case for which the legislature, judge, prosecutor, and defense attorney all agree any period of incarceration as a form of punishment is unwarranted.
Defense attorneys in Louisiana told us defendants experienced long waits in detention before the prosecutor charged them through a formal bill of information or indictment. Under international human rights law, authorities cannot hold individuals for extended periods without charge; to do so amounts to arbitrary detention.
The US Supreme Court has held that within 48 hours of arrest, a judge or magistrate must make a probable cause determination that the detainee has committed some crime. Tammany and Calcasieu Parishes, public defenders told us that prosecutors regularly would not file charges within the mandatory 60 days, and were routinely granted extensions of time by the court—typically another 30 days—to make their charging decision. Studies show that case outcomes for those fighting their charges from outside of jail are across the board more favorable than for those who are detained pretrial.
According to the Bureau of Justice Statistics, in the 75 largest counties in , fewer than 60 percent of defendants charged with drug offenses were convicted if they were released pretrial; however, close to 80 percent of those detained were convicted. Sentences were nearly three times as long for defendants sentenced to jail and more than twice as long for those sentenced to prison than defendants released pretrial.
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One of the main reasons pretrial detention correlates with worse case outcomes is that detainees may be more likely to plead guilty when they are already in jail. In fact, our research suggests that prosecutors in some jurisdictions seek and judges set bail at an amount they expect defendants will not be able to pay in order to ensure they end up in pretrial detention, which makes them likely to accept a plea deal faster. It impacts mine. Conditioning loss of liberty on ability to pay infringes on the right to equality under the law and amounts to wealth discrimination. Pretrial detention imposed on criminal defendants accused of drug possession solely because they cannot afford bail is inconsistent with those rights.
The stress and suffering interviewees charged with drug possession endured in detention simply because of their low-income status is unfair, unnecessary, and inconsistent with human rights. They forced me. Like all criminal defendants in the United States, people charged with drug possession have a right to trial by jury.
In practice, however, jury trials are exceedingly rare, with the majority of defendants at the state and federal levels—across all categories of crime—resolving their cases through guilty pleas. For scores of individuals interviewed for this report, the right to a jury trial was effectively meaningless. Part of the problem is that the criminal justice system is overburdened, which means not only that prosecutors and judges are busy, but also that public defenders—who are often substantially underfunded—do not have sufficient time and resources to devote to each case,  disparately impacting poor defendants, who make up the majority of those charged with drug possession.
So long as dockets remain as crowded as they are today, there will be a powerful incentive for prosecutors to secure pleas in as many cases as possible—including by strong-arm means. It would be jammed up. You got to plead. According to one Texas prosecutor, prosecutors feel pressure to move cases quickly, and the pressure sometimes comes from judges:. For example, from September through January , Texas courts disposed of , drug cases misdemeanors and felonies. Of all these drug cases, 78 percent almost , cases were for simple possession.
Three quarters of all misdemeanor drug cases in the state were for marijuana possession only. In other words, there were approximately , marijuana possession cases prosecuted and disposed of in a little over five years. In total, drug possession cases accounted for over 15 percent of all county and district court criminal dockets in Texas.
There is nothing inherently wrong with plea deals as long as the plea process is not coercive. In other cases, the offer would be off the table if the defendant filed any pretrial motions, for example a motion to suppress. In Dallas, defense attorneys said plea offers were good only until grand jury indictment, which is the formal charging document.
In Slidell, Louisiana, Joel Cunningham, a Navy veteran, said he pled to 15 years in prison at his arraignment for possession of marijuana and possession of one gram of cocaine with intent to distribute. At the time he pled, he said he had not seen the evidence against him; it was his first day in court, when the charges are read against a defendant. Eight days later I was arraigned. Two hours later I pled. These practices add to the pressures, threats, and promises that lead defendants to plead guilty when they might otherwise exercise their right to require the government to prove its case.
For drug possession defendants with little to no criminal history, or in relatively minor cases, prosecutors in each state we visited often made offers of probation or relatively short incarceration terms. Numerous defendants recounted being faced with a choice: fight the case and stay in jail, or take a conviction and walk out the door with their family. Moreover, if they pled to a felony, it could serve as a predicate for enhancement of a subsequent charge down the road, or an even worse plea coercion.
But taking a case to trial until verdict may take months, all of which defendants must spend waiting in jail if they cannot afford bond. Their choice is ultimately between the right to a trial and the promise of freedom. John Lindner, District Defender in St. Tammany Parish, summarized the problem:. Interviewees explained why it was an obvious choice to plead guilty when they were in detention, although they would have fought their case if they had been on pretrial release: . Dhu Thompson, a former New Orleans and Caddo Parish prosecutor, warned that a decision to plead to probation, though it seems obvious at the time, may haunt the defendant down the road:.
Prosecutors wield so much power in the plea system that defendants often have no expectation or hope that they will receive a proportionate sentence if they lose at trial. You cannot afford the risk involved in living here. So you end up pleading to five years in prison or eight years in prison [for possession]. Those numbers are commonly passed around. In Louisiana, the habitual offender law provides for mandatory minimums,  meaning that the judge typically has no discretion to sentence below them. Mandatory minimums take sentencing authority away from the judge and place it in the hands of prosecutors instead.
After suffering an injury while serving in the Navy, Leroy Carter was given a medical discharge and prescribed pain medications. He became dependent on the medications, and eventually he turned to other drugs. Now Leroy is serving 10 years on a plea deal for possession of marijuana and heroin.
He pled guilty in in New Orleans because he was facing 20 years to life in prison if he lost at trial. His priors were all drug convictions: two marijuana possessions in the early s, a heroin possession in , and a marijuana distribution conviction in In Texas, defendants told us the habitual offender enhancements made them feel they had no choice but to plead:.
Relatively few people test whether the prosecutor and judge will follow through with the trial penalty: nationwide, as described above, between 99 and percent of drug possession defendants plead guilty. But Jennifer and Corey were among the 1 percent who insisted on their right to trial, even in the face of the trial penalty. When they lost, they were sentenced to two decades behind bars, of which Louisiana law required they serve every day.
In in Covington, Louisiana, Jennifer Edwards was charged with heroin possession for a residue amount. The prosecutor made her a plea offer of seven years in prison. Because of her three drug possession priors for Xanax, cocaine, and Ecstasy , she faced 20 years to life in prison if she refused the offer and lost at trial.
With such a high trial penalty, her lawyer encouraged her to take the plea, but Jennifer insisted on her innocence. Jennifer took her case to trial, and the jury convicted her. When we spoke to her, she was waiting for the judge to choose a sentence between 20 years and life in prison: . They are afraid to be in my situation. The [prosecutors] threaten everybody. Ten years flat?
Might as well take a chance with the jury. In , year-old Corey Ladd was arrested in New Orleans with a plastic baggie containing a half-ounce of marijuana. Years before, Corey had pled guilty to two felony convictions, for hydrocodone possession at age 18 and LSD possession at age 21, and had been sentenced to probation for each. This time, the prosecutor sought serious prison time. Because of his priors, the prosecutor chose to charge Corey as a third-time offender, so that he faced a minimum of 13 years and 4 months, up to a maximum of 40 years in prison for marijuana possession. Corey told us he was offered 10 years in exchange for a guilty plea.
In , the jury returned a guilty verdict. The judge imposed the penalty: For possessing a half-ounce of marijuana, she sentenced Corey to 20 years in prison without parole. When the trial judge resentenced Corey to 17 years without parole, he appealed yet again to the state appeals court. The appeals court wrote:. In spite of this history, the prosecutor held his ground. As of this writing, Corey is waiting for that decision. In the context of drug possession, the effect of habitual offender laws is to punish habitual drug use.
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Although any criminal sanction for drug use is inappropriate, habitual offender sentencing delivers especially disproportionate punishment. If a person is facing a subsequent conviction for drug possession, it is simply an indication that the criminal justice system has failed to stop drug use, not that the person deserves a longer sentence. Several Louisiana officials, recognizing this fact, argued that habitual offender enhancements should not be applied to drug possession.
My knee jerk reaction is no. For all these reasons, sentences for drug possession should not be subject to enhancement under habitual offender laws, regardless of the prior offense type, and past convictions for drug possession should not be used as predicates for enhancements of sentences for any other offense. Instead of the threat of enhancements at trial, some defendants face higher charges if they insist on their trial rights, and are offered a plea to the lesser charge of possession if they give up those rights.