We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
TRUE CONFESSIONS
The focus on federal criminal justice lately has been on the Espionage Act and obstruction of justice (if you’re Donald Trump) and on drug users possessing guns and forgetting to report $10 million in income (if you’re Hunter Biden).
Nevertheless, two pieces last week provided support to criminal justice from surprising sources.
First, the conservative Washington Times published an opinion piece decrying attacks on Republican presidential candidates for having supported the First Step Act, legislation that “has garnered overwhelming support among Republican voters, underscoring the power of prudent and popular conservative criminal justice reform.”
The writer noted that violent crime is rising for a lot of reasons, but “none of which are related to the First Step Act.” He observed that “an impressive 86% of polled Republicans said the First Step Act reflected their views” and argued that “with a focus on evidence-based recidivism reduction programs and judges’ discretion in sentencing, the First Step Act exemplifies a sustainable and thoughtful approach” to public safety.
The column reports that the “First Step Act’s recidivism rate of just over 12% for those released under it, compared with the 43% rate for the general population released from federal prisons, attests to its success.”
Meanwhile, on Fox News, former U.S. Attorney for Utah Brett Tolman argued that Republicans going after the First Step Act ignored the realities of federal drug prosecutions.
Citing the case of Alice Johnson, famously granted clemency by President Trump based on Kim Kardashian’s intervention in her favor, Tolman said, “Alice’s story was first warped during her trial by prosecutors who manipulated drug laws – not to nab a drug “queen pin,” but to pin the blame on the little guy. As a former prosecutor, I’m peeling back the curtain on this practice and setting the record straight.”
Tolman noted that Alice was offered a plea deal for 60 months, but “at the urging of her attorney, Alice chose to exercise her constitutional right to a fair and impartial trial. What the prosecution did next can only be described as retaliation. It brought new drug conspiracy charges against Alice that had not been considered before, accusing her of attempted possession of 106 kilograms of cocaine. No physical evidence was ever found to support this, but physical evidence was not required at the time. Instead, to make its case, the prosecution coerced two of Alice’s co-defendants to change their testimonies in exchange for reduced sentences, pinning the blame on Alice… The “trial penalty” — the increase in sentencing for those who choose to go to trial rather than take a plea deal – is very much alive. Alice’s trial is the perfect example of how perverse incentives within the criminal justice system, spurred by the failed “War on Drugs,” ruin lives and tear families apart while doing nothing to improve public safety.”
Writing in his Sentencing Policy and the Law blog, Ohio State law professor Doug Berman “found notable that this former US Attorney so readily and clearly highlights how prosecutors impose a ‘trial penalty’ as a form of ‘retaliation’ for defendants who exercise their constitutional rights to trial.”
Washington Times, GOP voters support the First Step Act; our candidates should, too (August 8, 2023)
Fox News, I’m a former prosecutor. The ‘War on Drugs’ incentivizes convictions, not justice (August 8, 2023)
Sentencing Law and Policy, Former federal prosecutor describes practice of “retaliation” against drug defendants who exercise trial rights (August 10, 2023)
– Thomas L. Root