On December 5th, 2013 Human Rights Watch released a report entitled “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty.

The report illustrates how US Federal prosecutors use mandatory minimum sentences to coerce defendants to plead guilty rather than going to trial. According to Human Right Watch, US prosecutors obtain guilty pleas from drug defendants by charging them with offences that have harsh minimum sentences. Prosecutors then offer defendants a lower sentence in exchange for a guilty plea. Offering leniency in exchange for a guilty plea has always been the practice of Federal prosecutors, but the report takes issue with how minimum sentences are used to put “enormous pressure on defendants to plead”. Human Rights Watch found that, among first-time drug defendants at the same offence level, the defendants that went to trial often received double the sentence compared to those who pled guilty. In one case, “A prosecutor who was willing to accept a plea that gave the defendant a 10-year sentence, was willing to have her sentenced to life without parole because she insisted on going to trial.”

The report found that mandatory minimum sentences give prosecutors this coercive power because if the defendant is convicted a judge must impose the minimum sentence. As the report states, “Prosecutors, in effect, sentence convicted defendants by the charges they bring.” To end this coercive practice, Human Rights Watch states that “the final say over sentences defendants receive must come from independent federal judges who have no personal or institutional stake in the outcome of a case other than to ensure justice is done and rights are respected.”

The American experience with minimum sentences should provide important lessons for Canada as we appear to be following in America’s footsteps. In 2005, the Criminal Code contained twenty-nine mandatory minimums. In 2012, the Safe Streets and Communities Act added twenty more new mandatory minimums, and there are currently 60 mandatory minimums in the Criminal Code. Whether in America or Canada, minimum sentences erode judicial discretion and shift that discretion from judges to prosecutors. And, in Canada, groups like the Criminal Lawyers’ Association have expressed concerns about the lack of accountability resulting from this shift discretion. The report from Human Rights Watch highlights the unintended consequences that result “from a dangerous combination of unfettered prosecutorial power and…severe sentencing laws.” Canada should be learning from America’s mistakes not repeating them.