Since there is never a formal charge before these dismissals, there is no case before the judge and no need to appoint a defense attorney. The significance of this decision cannot be overstated. In most states, possession of cocaine is a misdemeanor with a maximum penalty of one year in jail while possession with intent to distribute cocaine and distribution of cocaine are felonies with mandatory minimum terms of imprisonment 3. Depending on the statute, the mandatory prison term may be as much as five or ten years, or even more. If the defendant has prior convictions, the mandatory term may be longer.
In the federal system, the drug laws carry even harsher penalties. Even if the amount is large enough for a judge or jury to conclude that the defendant possessed the drug for the purpose of distribution, the prosecutor may decide to charge the person with simple possession of cocaine. Conversely, even if the amount seems relatively small, a prosecutor may charge the person with possession with intent to distribute if she believes she has evidence that would prove that the defendant intended to sell that amount.
Otto Obermaier, a former prosecutor in the U. If you push and pull a whole lot you can reach almost any conclusion you want about what you actually charge a person with You can call the same act by several names, and each one brings about a different result in prison time 4. Depending on the law and the existence of mandatory jail time, he may be eligible for probation if the charge is simple possession.
If the charge is possession with intent to distribute or distribution, the judge may be required to sentence him to prison for a mandatory term of years, and that mandatory term may be lengthy. Nonetheless, Ms. Smith was charged with numerous serious offenses in federal court. After charging her with these offenses, the prosecutors attempted to make a deal that would involve dismissing most of the charges in exchange for her testimony, but Mr.
Hall was murdered before any agreement was reached. Despite her minimal involvement in Mr.
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Smith with these offenses was totally discretionary and not necessarily defensible. Her minimal, indirect involvement in Mr. But this critical decision was left totally to the prosecutor, whose discretion was almost boundless. The prosecutor had the power to dismiss some or all of the charges, with or without a plea bargain. His decision to go forward with the charges determined the outcome of the case because the sentencing laws did not permit the judge to exercise discretion, instead requiring a mandatory minimum term of imprisonment.
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Although prosecutors always have wielded a disproportionate amount of power in the criminal justice system, mandatory minimum sentencing laws and the threat of long prison terms have shifted the balance of power in a way that dangerously threatens core principals of fairness and justice. Because the mandatory minimum sentencing laws require a specific term of imprisonment upon conviction, the judge has no power to show leniency at the sentencing hearing.
Defendants plead guilty in 95 percent of all criminal cases through the plea-bargaining process 6 , which is controlled entirely by the prosecutor. Although the defendant may make a counter offer and attempt to negotiate the best deal possible, the prosecutor must agree to the final terms of the agreement. If a defendant is charged with several offenses and each offense carries a lengthy term of imprisonment, the defendant faces the prospect of many years in prison if he is convicted of all charges.
If one or more of the offenses carries a mandatory minimum term of imprisonment, that prospect becomes a guarantee.
For many defendants, the possibility that a jury or judge may acquit him of the charges is too risky and uncertain. If he accepts a plea offer, he knows how much time he faces and how much time he avoids. Before the mandatory minimum phenomenon, even if a defendant were convicted of all charges, he would at least have the opportunity to try to convince the sentencing judge that he should be given a lenient sentence, or even probation. Mandatory minimum sentencing laws remove that possibility.
Robinson was charged with a number of crack conspiracy and weapons charges. Robinson rejected the deal, which involved dismissal of some of the charges and would have exposed him to a maximum of twenty-four to twenty-seven years in prison. He went to trial, was convicted, and was sentenced to forty-five years in prison. The prosecutors argued that he should have received more 7. The purpose of this practice is to goad the defendant into pleading guilty to a lesser offense. For example, a prosecutor may charge a defendant with Possession with Intent to Distribute Cocaine that may carry a mandatory minimum sentence of five years.
Although she may have had enough evidence to convince a grand juror that there was probable cause to believe the defendant committed the offense 8 , she may doubt whether the evidence is sufficient to prove guilt beyond a reasonable doubt at a jury trial. So the prosecutor may offer the defendant a plea to possession of cocaine, a misdemeanor offense that carries a maximum term of one year in jail with the possibility of probation. Even an innocent defendant with an absolute defense to the lesser possession charge might plead guilty to the misdemeanor to avoid the risk of being convicted of the higher charge after trial and facing a certain five years in prison.
These decisions become even more difficult when the prosecutor requires the defendant to accept or reject the offer on the spot, leaving no time for substantial consultation with counsel or investigation of possible defenses. Some defendants feel compelled to accept the offer because the prospect of a certain and lengthy prison term is too frightening. However, she also serves a quasi-judicial role in that her primary duty is to see that justice is done. A report released by the Bureau of Justice Statistics found that a black male had a 1 in 3 chance of being imprisoned during his lifetime, compared to a 1 in 6 chance for a Latino male and a 1 in 17 chance for a white male These staggering statistics only begin to tell the story of the stark racial disparities that characterize the American criminal justice system.
They include socio-economic disadvantage and its consequences 14 , disproportionate offending in certain categories of crime 15 , and discriminatory treatment in the criminal justice system Thus, the causes of and solutions to the problem lie both outside and within the criminal justice system. Few, if any, prosecutors intentionally or even consciously make decisions based on race.
However, the many race neutral decisions that prosecutors make at the charging and plea bargaining stages of the process may be the result of unconscious and deeply internalized biases that have a racially disparate, and thus harmful, effect. These factors include the strength of the evidence, the likelihood of conviction, the interest of the victim in prosecution, and the cost and complexity of the prosecution and trial A prosecutor may unconsciously consider a case involving a white victim as more serious than a case involving a black victim.
This unconscious view may influence not only the charging decision, but related decisions as well. If a prosecutor deems a particular case to be more serious than others, she will tend to invest more time and resources in that case, both investigating and preparing for trial.
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Such an increased investment would consequently yield more evidence and stiffen prosecutorial resolve. The likelihood of conviction is also obviously increased by the additional investment in investigation.
Thus, although the strength of the evidence and the likelihood of conviction are facially race-neutral factors, they may be influenced by an unconsciously racist valuation of a case involving a white victim. Few would question this decision, especially if the victim of the crime considered the prosecution process too onerous and difficult. Or should a prosecutor assume that a victim is not interested in prosecution when the victim does not appear for witness conferences or respond to a subpoena? These questions demonstrate the significance of the intersection of class and race in the criminal process.
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African American crime victims who are poor and uneducated are less likely to attend meetings and communicate with prosecutors, often for reasons that do not reflect a lack of interest in the prosecution. These reasons may include lack of transportation, the inability to take time from work, or simple mistrust of the prosecutor and her role in the system. The prosecutor who is ignorant of or insensitive to these issues will cause and perpetuate racial disparity at this important stage of the criminal process.
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Defendants with prior records are more likely to be charged and less likely to receive a favorable plea offer. Prosecutors consider both arrest and conviction records, and defendants with recidivist tendencies are arguably more deserving of prosecution. In addition, policy decisions about where police officers should be deployed and what offenses they should investigate have racial ramifications.
The fact that a white defendant has no criminal arrest or conviction record may not be a reflection of a lack of criminality on his part. If he lives in a neighborhood or attends a school that resolves certain criminal offenses drug use, assault, etc. Thus, the existence or nonexistence of an arrest or conviction record may or may not reflect relative criminality in black and white defendants. A prosecutor without knowledge of or sensitivity to this issue may give prior arrests undue consideration in making charging and plea-bargaining decisions.
For some less serious offenses, prosecutors may be willing to consider dismissing a case based on the existence of alternative resolutions that serve the overall interest of justice. For example, if a defendant who has stolen is able to make restitution and the victim is satisfied with this resolution and would be burdened by numerous court appearances, dismissal of the case may be the best disposition for all parties. If a defendant with a drug addiction has the resources to pay for a residential drug treatment program, this alternative might be a reasonable alternative to prosecution.
These dismissals would also have the added benefit of eliminating the time and expense of trying another case for the prosecutor, the defense attorney, and the court. However, as with all of the otherwise legitimate factors prosecutors consider, there are often unintended but significant class and racial ramifications. A poor, black defendant without the financial resources to make restitution or pay for drug treatment would not reap the benefits of a dismissal.
Thus, racial disparities are perpetuated even though thedifferential treatment is not intentionally discriminatory. Although the racial disparity problem has many complex causes, prosecutors bear substantial responsibility because of their wide-ranging power and control over the criminal process. Thus, they should make efforts to discover the racial impact of their practices and policies and work to institute effective reforms.
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