Former federal prosecutor describes practice of “retaliation” against drug defendants who exercise trial rights
Brett Tolman, who was appointed as the US Attorney for the District of Utah in 2006 by Prez George W. Bush, has this notable recent opinion piece at Fox News headlined “I’m a former prosecutor. The ‘War on Drugs’ incentivizes convictions, not justice.” The whole piece merits a full read, and I 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. Here are excerpts:
[Alice Marie Johnson’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.
In the early 1990s, Alice was a single mother of five struggling to make ends meet while coping with the grief of losing her son. Desperate, she became a telephone mule for a drug operation. Her role was to pass along phone numbers within the organization, but she never once touched or sold a single drug. Alice was wrong to participate in this operation in any capacity, something that Alice herself has owned up to on many occasions. But what happened at her trial was a miscarriage of justice.
When Alice was arrested along with 15 others, the prosecution offered her a deal: plead guilty in exchange for three to five years in prison. Even three years seemed too long to be away from her family, especially given her minor role in the drug operation. So, 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….
Today, laws are on the books to prevent convictions without physical evidence. However, mandatory minimum sentencing laws still exist, and 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.
Prosecutors, many of whom go into the profession to pursue the noble ideals of justice and safety, are not immune to these warped incentives that put convictions over justice. Drug laws are easily manipulated, and low-level players like Alice are sent to prison while higher-level, more dangerous people remain on the streets.