A Knock at Midnight(94)

    Less than a year later, Chris got pulled over at a traffic light and charged with possession and intent to sell six grams of crack—about the weight of a newly sharpened pencil. He pleaded guilty and got community corrections. A year later he was arrested once more, again at a traffic light, this time with possession of less than half a gram of crack—half the weight of a mini paperclip. Just as before, the charge wasn’t major enough to warrant jail time, and he was given community corrections. The combined weight of the drugs from both charges was less than that of three pennies.

Now barely nineteen and struggling to get a job with two felony drug convictions, Chris continued doing what he knew best to survive: selling crack. In 2010, the feds were moving in on a drug conspiracy centered in Clarksville. On the night they moved on the gas station to arrest Robert Porter, the alleged leader of the conspiracy, Chris was standing at the car talking to Porter and was arrested. When they searched Chris’s car, they found the trunk packed with Christmas gifts for his niece. Chris was not one of the more than twenty-five people on the original indictment. In all probability, he would never have caught the case but for his presence at the gas station that night. At the time of the arrest, he was twenty-two years old.

Sunny Koshy, an assistant United States attorney in Nashville, was notorious for piling on enhancements and deploying aggressive, bullying tactics to ensure a plea deal, or, failing that, the longest sentence possible. Initially, Koshy offered Chris a fourteen-year plea deal. To Chris, fourteen years seemed a lifetime. Yes, he sold drugs, but he was adamant that he was not part of a larger conspiracy. He refused the fourteen years, thinking his lawyer could negotiate the prosecutor down to something he could live with. By the time Koshy came back to him with a new deal, it was for twenty-two years—and only if Chris snitched. At this point, most members of the conspiracy had pleaded guilty and received sentences ranging from three to twenty-five years—including those in leadership, with indisputable wiretap and other evidence against them. Chris could see no logical reason why his plea deal should equal the harshest punishment of the whole indictment. And he was no snitch.

    Chris opted to utilize his constitutional right to go to trial. In retaliation, nearly two years after Chris’s initial arrest, Koshy filed notice of an 851 enhancement. Now Chris wasn’t going to court to avoid a fourteen-year sentence, or even twenty-two. He was on trial for his life. And he had almost zero chance of winning.

The 851 enhancement has been described by more than one federal judge as the federal court’s “dirty little secret.” It’s a sentencing enhancement that can apply if the defendant has prior felony drug convictions no matter how old or minor, driving up the length of the mandatory minimum sentence for the current offense based on past offenses. But—and this is key—an 851 goes into effect only if the prosecutor in his or her sole discretion files “notice” of the prior felonies in the courts. If they do, regardless of the seriousness of the prior offense, mandatory minimums rise dramatically. Whether or not to file the 851 is entirely up to the prosecutor. The defense has no say in the matter, and neither does the judge or jury. And once it’s filed, sentencing is set in stone. With two prior drug felonies, the defendant’s mandatory minimum of ten years becomes a mandatory minimum of life. So when Koshy filed “notice” of Chris’s two priors—both committed when he was a teenager, for drug amounts less, it bears repeating, than the weight of three pennies, barely enough for a single high—he triggered an automatic living death sentence for Chris Young.

In 2013, Human Rights Watch issued a report warning against the practice of filing 851s, arguing that threat of the enhancement essentially created a “trial tax” for those who exercised their constitutional right. Prosecutors wield the threat of enhancement as a weapon to coerce guilty pleas and snitching. That more than 97 percent of all federal drug cases never go to trial, the report argued, is evidence not of guilt, but of prosecutorial abuse of the enhancement. Attorney General Eric Holder agreed. Six days into Chris’s trial, on August 12, 2013, Holder issued a memorandum to prosecutors instructing them not to file 851 enhancements in order to induce guilty pleas, and to abstain from its use at all unless “the defendant is involved in conduct that makes the case appropriate for severe sanctions.”

    Many prosecutors disregarded the directive. Sunny Koshy was one of them. He didn’t have to file the enhancement. And he could have withdrawn it at any time up until the date of sentencing—particularly under orders from the attorney general, orders that Holder followed up a few months later with an even more strongly worded directive. But Koshy, like many prosecutors, flouted Holder’s instruction. And under the current system of unfettered prosecutorial power, there is no check on the vindictive egos of those who wish to punish defendants for insisting upon their constitutional right to trial.

Chris spent the next four years of his young life in county jail awaiting trial and sentencing. That fact alone should seem impossible, unconstitutional, a human rights violation. But the notion that one is innocent until proven guilty is long gone from the American criminal justice system. Across the nation, the majority of people in jail—in some states more than eighty percent—have, like Chris, not been convicted of any crime. By the time the accused get to trial, they’ve already served years of their lives behind bars.

In jail, Chris did what he could to reclaim his time. There was a decent library in Warren County Jail, and he took full advantage of it. He read and studied and studied and read. “I took it like college,” he said to me later. “Pretended my cell was a dorm room. We had books, and I had all kinds of time on my hands. Jail was hard, but my escape was learning. I studied everything.” More than a year before his trial date with Judge Sharp, already fully aware of the inevitable outcome of an 851 enhancement, he began to prepare the statement he planned to deliver before sentencing. He composed and he revised, all in his head, never writing down a word. Every day, in the shower, Chris practiced his statement. Over and over and over again. He spoke the words in rhythm, and spoke them again. By the time he stood before Judge Sharp on the cusp of his twenty-sixth birthday, he was more than ready to deliver.