ASSISTANT U.S. Attorney Donna Eide, in the Southern District of Indiana, offered Mark Young a reduced sentence in return for a guilty plea and his cooperation: forty years without the chance of parole. Kevin McShane, Young's attorney, thought the offer ridiculous: he wouldn't accept forty years as a plea bargain in a first-degree-murder case. That remained the government's only offer from May to September of 1991. Meanwhile, one by one, the other defendants in the conspiracy case "flipped," agreeing to cooperate.
Claude Atkinson had been facing a mandatory life sentence, the others sentences of ten years to life. By offering cooperation each had received a "cap" on his sentence, an upper limit, of anywhere from eight to thirty-five years. But each could also conceivably walk free, without any prison time. Their sentences would depend on their performances in court, among other things. Young and Ernest Montgomery and his wife, Cindy, were the only remaining defendants who would not plead guilty.
Under the U.S. sentencing guidelines. Mark Young's marijuana offense warranted a prison term of roughly twenty-two to twenty-seven years. The guidelines would apply in his case unless the U.S. attorney decided to file an enhancement, reflecting Young's criminal history and requiring the mandatory life sentence. Donna Eide made one last offer: eighteen years, pending cooperation. Young refused it. The government filed its enhancement on the Friday before the trial was to begin. The wheels had been set in motion, and Mark Young had a long weekend in which to make his choice: agree to cooperate or risk spending the rest of his life in prison.
Kevin McShane does not believe that the government really wanted to give his client a life sentence: that sort of threat is now common in the give-and-take of the plea-bargaining process. He does not believe that the government really wanted any information from Mark Young. Claude Atkinson, who knew more than anyone else about the marijuana farm, was talking up a storm. The identities of the New York and Florida buyers would have been of interest to federal authorities in other districts, but it was not clear that Young even knew their real names. On the eve of the trial it seemed that the government simply wanted to avoid a trial. McShane strongly advised Young to accept the offer of eighteen years; with so many potentially hostile witnesses, his chances in court were uncertain -- a roll of the dice. Young's family, which to this point had remained silent on the issue, also urged him to cooperate. His mother visited him in jail and begged. "At the end, when we saw how bad it was, I just really got on him," she recalls. "'Please, Mark, do it, do like the rest of them are, don't do this, don't end up, you know, with a life sentence, don't do it. Tell whatever you have to tell. Like the rest of them are doing, to save yourself.' But no way would he do it. No way."
The day before Mark Young's trial began, Cindy Montgomery agreed to a plea bargain. The trial was notable for the details it revealed about the marijuana-growing operation, but the outcome never seemed in doubt. McShane thinks that Young's case was hurt by being tried alongside that of Ernest Montgomery, who had organized the operation. Jerry Montgomery testified against his brother and proved unable, owing to illiteracy, to read his own plea agreement for the jury. Cindy Montgomery testified against her husband. And Claude Atkinson spoke at length about everybody's criminal activities. The atmosphere at the trial was enlivened by jailhouse rumors that Mark Young not only had threatened the lives of Cindy Montgomery and Claude Atkinson and their families but also had slept with one of the jurors, who was going to thwart any guilty verdict. Young called no witnesses in his own defense. There was no physical evidence linking him to the crime, only testimony by Atkinson and Cindy Montgomery. The jury took just two and a quarter hours to render guilty verdicts on all counts. It had not been informed that a life sentence might apply.
Claude Atkinson was angry to receive a twenty-five-year sentence despite his cooperation. One of the prosecutors later described Atkinson as a "dreamer"; he may have expected to serve only a few years. For a sixty-two-year-old man, a twenty-five-year sentence was tantamount to life in prison. Ernest Montgomery, whose only previous conviction was for disorderly conduct, got thirty-four years without the chance of parole -- also, in effect, a life sentence. His brother received eight years, his wife six, and the other defendants sentences ranging from three to ten years in prison. On February 8, 1992, Judge Sarah Evens Barker gave Mark Young a life sentence, as mandated. She also fined him $100, but did not order any of his assets forfeited; he had none, having paid his lawyer with a used car. "Mr. Young, it's a sad day for everybody in the courtroom," she said. "That concludes the matter."
A few years ago a federal judge in Utah, Thomas Green, refused to give two young drug offenders mandatory-minimum sentences of ten years each, ruling that their due process nights had been violated by the decision to prosecute them under federal law. The same charges under state law probably would have brought prison terms of about two years. Congress, Judge Green observed, had severely curtailed the discretion of federal judges at sentencing, but had placed no similar restrictions on the behavior of law-enforcement officers and U.S. attorneys. As a result, the nation now faced "de facto sentencing by police and prosecutors." During the Bush Administration, Attorney General Richard Thornburgh did try to limit the freedom of federal prosecutors. He told them to seek the maximum penalty in every drug case, regardless of mitigating circumstances. The so-called Thornburgh Memorandum, still included in the handbooks issued to all U.S. attorneys, instructs them always to pursue conviction on the most serious "readily provable" charge. U.S. attorneys, however, are not obliged to follow that advice. In some parts of the country they have faithfully adhered to the Thornburgh Memorandum. In other parts individual exceptions have been allowed when a sentence seemed particularly cruel. In a few districts U.S. attorneys who oppose mandatory minimums have been collaborating with sympathetic judges, finding ways to help low-level drug offenders avoid long prison terms.
The Supreme Court has upheld federal mandatory minimums whenever they have been challenged on constitutional grounds, consolidating the increase in prosecutorial power. A U.S. attorney wields enormous influence in drug cases by deciding how to frame a charge, what quantity of the drug to include in the charge -- and even whether to press federal charges at all. A different prosecutor might have charged Mark Young only with drug trafficking, likely bringing him a sentence of about seven years. Young's conviction for "conspiracy to manufacture" all 12,500 plants shows how broadly that crime is now being interpreted. The owners of garden-supply stores have been held legally responsible for marijuana grown by their customers -- an application of conspiracy theory similar to that which once imprisoned people for selling sugar to moonshiners. Often the most important factor in determining a sentence is the amount of marijuana involved. Mandatory minimums ignore the defendant's role in the crime: a "mule" driving a truckload of marijuana can be subject to the same penalty as the person financing the shipment. In fact, defendants with the smallest role in conspiracies often serve the longest sentences, because they have so little information to trade. According to Judge Wilkins, of the U.S. Sentencing Commission, prosecutors do not pursue mandatory minimums in about two thirds of the applicable cases. Their reasoning is not made public. Unlike sentences administered by judges, those derived through plea bargains are settled behind closed doors.
Drug offenses differ from most crimes in being subject to three jurisdictions: local, state, and federal. A U.S. attorney, simply by deciding to enter a particular case, may greatly skew the range of potential punishments. A person may even be tried twice for the same drug crime: found innocent by a state jury, marijuana growers can be -- and have been -- subsequently convicted in federal court. There are no established criteria for when a U.S. attorney will enter a marijuana case. The federal government could prosecute any and every marijuana offender in America if it so desired, but in a typical year it charges less than two percent of those arrested. In some districts there is a policy that the U. S. attorney will enter cases involving more than a hundred plants or a hundred pounds. In others a federal prosecutor may simply take a special interest in a case. Two years ago Edward Czuprynski, a liberal activist who had long irritated public officials in Bay City, Michigan, was convicted in federal court of possession of 1.6 grams of marijuana: the amount found in a large joint. Under Michigan law he most likely would have received a $100 fine. But in federal court Czuprynski was sentenced to fourteen months in prison. His license to practice law was suspended. His successful law firm closed down. "They busted me completely," he says, "and that's what they wanted to do." After spending almost eight months in prison, Czuprynski was released by order of the Sixth Circuit Court of Appeals, a decision that the U.S. attorney is now seeking to overturn. Considering his legal fees of $40,000, his lost income to ten times that amount, and the untold thousands of dollars the federal government has already spent on his case, Czuprynski says, "That may be the most expensive joint in the nation's history."
Four years ago Julie Stewart founded Families Against Mandatory Minimums, a grass-roots organization with the motto, "Let the punishment fit the crime." She had not given much thought to America's s drug laws until her older brother was convicted for having grown 375 marijuana seedlings. His sentence was five years. FAMM now has more than 90,000 members, most of them politically active for the first time in their lives. After Mark Young was arrested. his older sister, Andrea Strong, lost three housecleaning jobs in suburban Indianapolis -- a sign of the great stigma that marijuana still carries in many parts of the country. Strong is now FAMM's Midwest coordinator, a self-taught expert on federal criminal law and a tireless campaigner for the repeal of mandatory minimums. FAMM lobbies Congress for sentencing reform and compiles case histories of inmates imprisoned under mandatory-minimum laws. Among them are Michael T. Irish, a first offender sentenced to twelve years in federal prison for helping to unload hashish from a boat; Charles Dunlap, a first offender sentenced to eight years in federal prison for renting a truck used by a friend to import marijuana; and Zodenta McCarter, a sixty-six year-old woman, a first offender, poor and illiterate, suffering from diabetes, described as "naive, trusting, and childlike in comprehension," sentenced to eight years in federal prison for conspiring to sell ditchweed (a strain of wild marijuana that is rarely psychoactive). Since being incarcerated McCarter has had a heart attack, been infected with tuberculosis, and endured three operations.
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