How Sentence Enhancements Increase Plea Deals & Reduce Transparency in the U.S. Justice System

Most Americans today are aware of mandatory-minimum sentences in federal and state criminal sentencing guidelines and the often excessive punishments they place on offenders.  What is perhaps less well known is the existence of sentence enhancements in the US judicial system.  These are defined as “facts and circumstances that, if present in your case, allow the sentencing judge to increase or 'enhance' the sentence that normally applies to the crime.”

This means a sentence determined by sentencing guidelines or mandatory-minimum requirements can be increased, or enhanced, for reasons such as the use of a weapon while committing the crime, repeat offenses, or the age of the victim.  The increase in sentence length is then decided upon solely by the judge in the case.

When offenders find themselves facing such large sentences, and their defense attorney is, from the start, likely to be far behind the prosecutors in knowing what the facts of the case are, it becomes all too easy for prosecutors to push for and achieve a plea deal.  A deal that allows for a much shorter sentence is a powerful enticement to encourage a defendant to admit guilt, regardless of whether genuinely guilty or not.

Consider this from a 2015 Texas A&M Law Review report:  “our criminal justice system...suffers from practices related to sentencing enhancements and the resulting wave of wrongful convictions by guilty plea.”

An astounding 97% of federal criminal cases are resolved in plea bargains, as of 2013, according to this article by Jed S. Rakoff, published in November 2014.  He adds that this is mirrored in state felony cases, with most states showing an average of around 95% of cases ending with plea bargains.  Rakoff writes, “in both the state and federal systems, the power to determine the terms of the plea bargain is, as a practical matter, lodged largely in the prosecutor, with the defense counsel having little to say, and the judge even less.”

The Sixth Amendment guarantees Americans the right to a public trial with an impartial jury. But, as Rakoff writes, “our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight.”  No jury of peers to hear both sides of the story and weigh the arguments and evidence, or to decide on an appropriate sentence in the case of a guilty verdict.

One enhancement that carries significant weight and is quietly being used is the terrorism enhancement.  This enhancement elevates a defendant's criminal record to the highest level, therefore allowing a large increase in the recommended sentencing range.  According to Shane Harris in this July 13, 2007 article, “the application of the terrorism enhancement has largely been overlooked by the media, legal scholars, Congress, and terrorism analysts.”

Harris writes in this article published the same day, “just figuring out how many times the government had sought the enhancement proved impossible–the U.S. Attorneys Office doesn’t track that figure. But I was able to determine that judges have applied the enhancement at least 57 times in the past eight years. I studied more than half those cases–35–and learned that prosecutors sought the enhancement more often against domestic defendants, as opposed to members of international terrorist groups.”

He adds that this enhancement most commonly targets offenders who weren't religiously motivated and often “consciously avoided human casualties” in their attacks; that most were motivated by “political outrage, and specifically targeted government facilities.”  His article highlights the case of Daniel McGowan who was arrested and charged on counts of arson and conspiracy in Oregon after starting a fire at a lumber mill in protest of logging operations.  A terrorism enhancement was added in his case, and facing a life sentence, McGowan accepted a non-cooperation plea agreement and was sentenced to seven years in prison.

In fact, Harris points out, the terrorism enhancement can be applied simply because the judge in a case is convinced by the government that “the crime in question was aimed at the government and that it 'involved, or was intended to promote' a specific act of terrorism—even one that was never carried out.”

Consider the case of Ahmed Abassi, a student from Tunisia who, upon arriving in the US, was immediately caught up in an ongoing sting operation when he moved into an apartment wired with recording devices, hosted by an FBI undercover agent.  Abassi was not one not hold back when talking about his dislike for the US.  He was caught on tape discussing “the principal that America should be wiped off the face of the earth” and suggesting “putting bacteria in the air or water supply.”

However, when pushed to action, Abassi refused repeatedly.  As Wendy Gillis points out in this March 12, 2015 article, the US federal prosecutor in the case, Michael Ferrera wrote in a court submission, “to be clear, there is no dispute that Abassi repeatedly and emphatically refused to participate in terrorist and violent plots.”

Abassi was arrested in the sting operation, and faced a terrorism enhancement in his case.  He spent months in jail, and his attorney, US federal defender Sabrina Shroff said “it was apparent to her that Abassi had not provided the evidence the FBI needed to make its case, that he had not stepped over the line into active participation...Prosecutors told Shroff they would drop the terrorism enhancements if Abassi agreed to plead guilty to the charges that included putting false information on an application for a green card...”

According to Gillis, Abassi “plead guilty to two minor immigration offenses and was deported to Tunisia last fall.”  Even though the terrorism enhancement was dropped, Abassi states, “I am still, in the eyes of the world, a terrorist.”

Plea deals are often sought to alleviate pressure on an already over-booked judicial system by keeping cases out of court, or to protect sources such as confidential informants, undercover officers, and cooperative witnesses.  But the use of sentence enhancements in cases such as McGowan's and Abassi's raises the possibility of prosecution that is the result of a particular agenda.  One possibility is that plea deals might be sought in conspiracy cases in order to put pressure on the other defendants allegedly involved in the crime.  Another agenda might be making the case for increased measures to prevent acts of domestic terrorism.  If the number of defendants charged with terrorism increase, raising fear within the American public, justification can be made for even greater loss of freedoms.

Achieving a plea deal to keep a case out of trial also allows for suppression of the evidence that would enter the public domain during a trial.  Plea deals are negotiated out of the public's view, with no scrutiny of evidence used against the defendant.  This can allow questionable investigations, illegal evidence gathering, and an unknown number of innocent people being imprisoned without trial.  Ultimately, a plea deal is an assured conviction as it eliminates the risk of a jury finding a reasonable doubt as to the defendant's guilt.

This fact certainly benefits the private prison industry since convictions usually come with a prison sentence.  According to Nicole Goodkind in this article published August 6, 2013, “private prisons bring in about $3 billion in revenue annually.”  Even though sentences are generally shortened by plea deals, the rising number of convictions due to these deals over the past decades still ensures a viable supply of prisoners to fill private prisons.

The value of this growing market isn't lost on the prison industrial complex, and companies invested in this industry have taken steps to ensure it continues to grow. Two of the largest private prison owners, Corrections Corporation of America and GEO, have become influential lobbyists, spending large sums of money to effect policy that benefits the growing business of incarcerating people.  Michael Cohen wrote in Washington Post on April 28, 2015, that Corrections Corporation of America stated in it's 2014 annual report:

“The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction of parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws.  For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.”

As long as the federal government and large corporations continue to benefit from mandatory minimum sentencing and sentence enhancements, it seems unlikely that such policies will be changed.  More laws will undoubtedly arise, creating even more crime, and America will continue to house the second largest prison population of countries with the most prisoners per 100,000 inhabitants.

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Katie Aguilera, Newsbud-BFP Columnist, is an independent researcher, author, and activist who resides in Bend, Oregon. She studied Outdoor Recreation Leadership and spent many years working in the field of wilderness therapy and as a river guide. She writes at the blog Seeking Redress.

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