A grandmother from Houston with no prior history of committing a federal crime, has been given a life sentence for allegedly smuggling at least a ton of drugs. Elisa Castillo, 56 years old, was convicted of conspiring — of managing a conspiracy, in fact — to smuggle cocaine on tour buses from Mexico to Houston. Now Castillo is serving life in prison without parole, a longer sentence than many drug lords.
Castillo claims that her involvement with the smuggling operation was the result of being set up by a “smooth-talking” Mexican resident with whom she partnered to open a bus company based in Houston. The buses ended up being light on people and heavy on drugs and money. Castillo claims that she never knew the true intent of the bus trips. Rather than plead guilty and accept a lighter sentence, Castillo chose to go to trial and was convicted.
Her experience has left Castillo angry and frustrated with the federal criminal justice system. She argues that the reason she was given a heavier sentence than some notorious drug lords was that unlike the drug lords, she had no secrets to offer law enforcement about the criminal underworld. Castillo’s disgust is shared by others who regularly work with the criminal justice system. Terry Nelson, a federal agent with more than 30 years of experience, argues that the system needs to be revamped, because as it stands now, judges and prosecutors hold the power. “If you don’t play the game, they’ll throw the book at you,” Nelson claims. Mark White, a former prosecutor, also agrees that Castillo might have benefited had she simply had information to share. Of the 1,766 defendants prosecuted for drug offenses in 2010, more than 93% pled guilty rather than go to trial.
There is a ring of truth to these claims- but the problem lies, in my experience, with the complex system called the Federal Sentencing Guidelines, created by Congress to weaken the power and independence of federal judges. One effect of the Guidelines is to reward cooperation and punish the exercise of the right to a jury trial. On top of that, article 5(k)1 of the Federal Rules of Criminal Procedure allows the departure from the prescribed sentence for cooperation. This is done through a letter from the prosecution to the judge asking for the downward departure of a certain number of “levels”. If someone like Ms. Castillo does not know any bad guys, the result can be very unfair, as in this instance. The badder a guy is, the more he knows, and the more he can help himself by “flipping” on somebody up the chain.
An individual who is merely going along, or who is a co-conspirator subject to being hit for a very large load of drugs, often gets slammed, as did Ms. Castillo.
If Castillo is actually innocent like she claims, it would not be the first time that drug smugglers took advantage of naïve, or just plain unaware, people to deliver drugs across the U.S.-Mexico border. In unfortunate cases like this, the first question that comes to mind is who served as Castillo’s federal criminal defense attorney.
The Sixth Amendment gives all criminal suspects the right to the assistance of counsel. That means even indigents — low-income people — receive an attorney, although one appointed by the government. The known facts about Castillo do not make clear whether she received an appointed public defender or hired her own attorney. Regardless whether he or she is hired or appointed, a competent attorney would keep his or her client fully informed and aware of the risks of going to trial. Often Defendants “de-brief”, or talk to the Government, in an attempt to lower their exposure. This is usually done in the presence of their attorney and often at the attorney’s advice. At the same time, it is possible that Castillo’s attorney did keep his client fully informed, but she chose to plead not guilty and go to trial anyway. An attorney always has to respect the wishes of his or her client.
Plea bargaining is very common in the criminal justice system. In other border areas, criminal defense attorneys frequently try to get lighter sentences for suspects. Without knowing more, it is difficult to say whether the system Castillo faced was uniquely at fault. All one can hope for is that she gets another chance to prove her innocence through post-conviction remedies researched and prepared by a competent Federal appeals lawyer.