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August 10, 2023

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.

August 10, 2023 at 09:51 PM | Permalink


Another sellout to the Left so he can get some good PR. Not exactly news at this point. But it's remarkably dishonest even by sellout standards.

"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."

Let's translate: "For being a front office cog in a gigantic drug ring, she got a perfectly reasonable offer of 3-5. But any real accountability was too much for her exalted self, so, AT THE URGING OF HER SLICK DEFENSE ATTORNEY TO BE DISHONEST INSTEAD OF COMING CLEAN, she chose to attempt to flim-flam the jury with a concocted story about how she was "not guilty." The flim-flam failed and the jury saw the truth (which she now admits).

"The prosecution, which had in the beginning taken a pass on readily provable charges of which she was also guilty, then went forward with those charges, a practice explicitly approved by the Supreme Court. A jury convicted her beyond a reasonable doubt based on the truthful testimony of her drug co-workers."

Ms. Armstrong was not penalized for going to trial. She got a worse outcome than than she was initially, generously offered because (1) she had a dishonest defense lawyer who encouraged her to be dishonest as well; (2) she went along with it; (3) she wasn't that good a liar so the jury saw through it.

The transparent foolishness in Tolman's tale is conflating (a) the right to your trial with (b) the "right" to lie at your trial and be rewarded for it. The problem is that (b) does not exist, and people who would like to scam us into believing otherwise make their own beds.

Well isn't that too bad. Next time, they can try stuff like getting a normal job when you need money, and telling the truth.

Posted by: Bill Otis | Aug 11, 2023 9:35:32 AM

Bill - don't be so quick to dismiss alternative points of view to yours (more incarceration and more police). Brett Miler

Posted by: Brett Miler | Aug 11, 2023 3:31:46 PM

Brett --

Thank you for not disputing or giving a reason to dispute a single specific thing I said

Posted by: Bill Otis | Aug 11, 2023 3:51:02 PM

Bill - I was just saying that you have a tendency to dismiss as irrelevant or dishonest the main point you make on this blog (and used to make on Crime & Consequences blog) to wit that the only strategy that works to reduce crime is more police and more prisoners. Mr. Tolman makes a valid point in his article about the drug laws (people who go to trial should not receive longer sentences for that reason alone) but you dismiss it because you like to see longer sentences even on people who don't need to be incarcerated like Alice Johnson (who was pardoned by President Trump). I know you were an AUSA and that you base your views on your experience on that and working for DOJ but it would be nice if you were more open minded and compassionate. Brett Miler
P.S. Bill I enjoy reading your comments and I do thank you for taking the time to respond to them
Brett Miler

Posted by: Brett Miler | Aug 11, 2023 4:18:37 PM

Bill, I will engage substantively by starting with these questions: why would the prosecution offer Ms. Johnson only 3-5 years in prison for a serious readily-provable drug offense for which Congress mandated a minimum LIFE prison term? Was Congress wrong to provide that this crime must always result in an LWOP sentence or was the federal prosecutor in this case guilty of nullification of what Congress demanded by offering such a sweetheart deal to Ms. Johnson? In other words, how should one reconcile Congress mandating LIFE for Ms. Johnson and the federal prosecutor inventing his own punishment scheme?

Posted by: Doug B | Aug 11, 2023 4:18:46 PM

I will not comment on the Alice Johnson case as I did not work on it. But stories like this, to the extent that it is true, represents only a portion of the prosecutors in this country.

My experience is that most prosecutors consider three things in making a plea offer: 1) the "expected value" of a case; and 2) any significant mitigating factors; and 3) general office policies regarding when prison is appropriate and when probation is appropriate.

For those who are not statisticians, expected value is simply adjusting the possible sentences by the likelihood of getting a particular sentence and having it stand up on appeal. For example, in a murder case with strong evidence including strong aggravating evidence, the State might very well take a "no offer" position and seek the death penalty. But if the evidence of defendant's guilt is somewhat less strong, the State might offer a twenty-year sentence. That offer is not based on the feeling that twenty years is appropriate, but rather comes from the State's understanding that there is a realistic chance of an acquittal and, thus, the State is willing to accept a lesser sentence to avoid the risk of an acquittal. The defendant is willing to accept that offer because she knows that there is a realistic chance that she will get convicted and get a greater sentence. Short of courts having a not-yet-invented computer program that can accurately assess the probabilities of different outcomes, the parties are guesstimating the risk and the likely sentences based on counsel's experience.

Now, obviously, the other considerations survive the finding of guilt. But, it is human for prosecutors to say, "We were willing to give defendant this chance six months ago, but when he was hoping for an acquittal he did not want it. Why should we reoffer that chance now?"

I know over my career I have had several cases in which I had a strong case of guilt but still some not insignificant chance that the jury would find the defendant not guilty. We made offers that would have allowed the defendant to avoid the mandatory sentencing provisions that applied to the offense which we believed that he committed. But the defendant went to trial and, when the jury found that our view of the evidence was accurate, those offers were off the table because of the sentencing provisions that applied to his true offense. Nut the choice to run the risk of the severe sentence was the defendant's, and it seems to me to be more likely to result in more severe sentences if you place limits that create a disincentive for the proseution to offer mercy.

Posted by: tmm | Aug 11, 2023 4:55:52 PM

Doug --

What? All of a sudden you don't want the prosecution to make generous plea offers?? Offers that would cut back on the "over-incarceration" we hear so much about? Goodness gracious!

As to specifics:

"why would the prosecution offer Ms. Johnson only 3-5 years in prison for a serious readily-provable drug offense for which Congress mandated a minimum LIFE prison term?"

Congress acted against a known backdrop in which almost all cases are plea bargained, and knew that such bargains routinely give away more serious charges and more serious sentences for less serious ones. Ms. Armstrong got the benefit of that routine practice until she decided that she thought she could sell a pack of lies to the jury. That is not the prosecution's fault or Congress's fault. It's her fault. Unless you think lying is OK.

"Was Congress wrong to provide that this crime must always result in an LWOP sentence or was the federal prosecutor in this case guilty of nullification of what Congress demanded by offering such a sweetheart deal to Ms. Johnson?"

Oh brother. The prosecutor was no more guilty of "nullification" than is ANY prosecutor who offers a plea deal with concessions (concessions eagerly sought and accepted by defense counsel).

If you want to outlaw plea bargaining, make your case to Mr. Garland or to Congress -- and good luck with that! (Of course then the defense bar will complain even more loudly about being "forced" to trial).

"In other words, how should one reconcile Congress mandating LIFE for Ms. Johnson and the federal prosecutor inventing his own punishment scheme?"

By understanding (as you only pretend not to) that under long settled law, and under administrations of both parties, the prosecutor is not required to push for the harshest punishment regardless, and has discretion to advance other strong public interests (such as speed, certainty and finality) by offering some goodies to the defendant to cement a plea deal.

Was that supposed to be hard?

Posted by: Bill Otis | Aug 11, 2023 4:57:40 PM

To be clear, Bill, you are explaining that Congress knows when it passes severe mandatory sentencing laws that it is giving the agents of an administrative agency (DOJ prosecutors) broad power and unregulated discretion to decide who gets what sentences regardless of whatever mandates that Congress places on judges. And that these DOJ agents get to decide when and how to give "goodies" to criminals without explaining why and that these "goodies" can be handed out simply because prosecutors do not want to take the time to prove guilt through the procedures set forth in the Constitution. And that criminals will lose these "goodies" and can receive decades more time in prison not because of the specifics of their criminal activity, but because they have lawyers who give them bad advice and/or because they want to make prosecutors take the time to prove guilt through the procedures set forth in the Constitution.

As you know, Bill, I do understand how our federal system tends to function with huge hidden powers in the hands of prosecutors. And I think Brett Tolman has good reason to criticize a system that, inter alia, puts extraordinary and unregulated and unreviewed sentencing powers in the hands of unelected and largely unknown agents of an administrative agency.

Posted by: Doug B | Aug 11, 2023 5:21:26 PM

Bill, Doug, whoever,

What are the motives and impact behind today’s decision for a “special counsel?”

It seems like a ploy to keep information away from House investigators and prevent Weiss from having to testify.

I guess McCarthy is saying it is not legal because the special counsel must come from outside government. Would a lawsuit brought forth on this point stall the investigation and run out the clock?

I’m cynical as hell and not an attorney, but this DOJ seems to be corrupt to the core and needs to be torn out by the roots. As the article states, Garland already claimed to have given Weiss the power to do anything (bring charges in the district he wants to) that SC status gives him.

Someone make sense of this for me. Lol


Posted by: TarlsQtr | Aug 11, 2023 5:52:05 PM

Doug --

"To be clear, Bill, you are explaining...." and then we're off to the races with your rendition of what I'm explaining.

Well golly, I think I'll stick with my own words rather than the words you would like to jam in my mouth. Sorry!

There are people crazy enough to think that DOJ lawyers are the agents of Satan you portray, but you're not one of them. Is Merrick Garland an agent of Satan? Gads, you're sounding more MAGA every day.

DOJ is an executive agency (not an administrative agency). As a component of the executive branch, it is not subordinate to but co-equal with Congress. Now if Congress wants all the minute regulation you support, fine, go for it. But it has never imposed that kind of micro-management of DOJ functions, and it isn't going to now, as you surely know.

Your basic gripe is with plea bargaining itself. But it's legal and the defense bar lives off it (doesn't it?) so it's not going anywhere.

Ms. Johnson was offered a good deal but preferred a trial, thinking she could get away with a bunch of lies. Fortunately she failed.

She made her own bed with her drug dealing, arrogance and dishonesty. From what you say and omit to say, you have no problem with any of it.

I respectfully dissent. She made her own bed.

Posted by: Bill Otis | Aug 11, 2023 7:30:38 PM

TarlsQtr --

From what I'm hearing, the administration understands that there is an unfortunate substance under the rug that is about to come seeping out, and wants to do preemptive damage control by pretending to give Weiss more independence.

Posted by: Bill Otis | Aug 11, 2023 7:33:55 PM

Bill, your affinity for different words to describe the extraordinary, unregulated and unreviewed sentencing powers of federal prosecutors does not alter the fact that our system functions in a manner wholly inconsistent with the rule of law and the values of our Constitution. Former prosecutor Tolman said out loud what everyone who watches the system in action knows full well: prosecutors function as sentencing kings, and they can sometimes be ruthless toward those who do not cater to their regal plans.

Of course, some kings seek to use their powers in benevolent ways, and most think they are serving "strong public interests ... by offering some goodies" to those who are willing to bend the knee. But I sense that federalist and Master Tarls and some others are finally starting to see that it may often be partisan and parochial interests, not public interests, that best explain a disconcerting amount of DOJ decision-making.

Sadly, despite new concerns from newly awaken folks on the right, I think you are correct that we will not see significant reforms to rein in DOJ power from Congress or other quarters. The shrewdest bullies know how pick their targets and use their powers so as to remain among the popular kids.

Posted by: Doug B | Aug 12, 2023 1:10:29 AM

"DOJ is an executive agency (not an administrative agency)."

Bill, I'm curious what this distinction means? Is there an official definition of "executive" versus "administrative" agency? I'd thought they were the same thing...

Posted by: Curious | Aug 12, 2023 9:15:20 PM

Curious --

The important point is that DOJ is within the executive branch and, contrary to what Doug seems to think, the executive branch is not a subordinate of the legislative branch. Under the Constitution, they are co-equal. But even if Congress theoretically could, if it wanted, prevent the executive branch from offering plea bargains to less than the most potent arguably chargeable offense, it has never done so and shows absolutely no signs of wanting to.

Posted by: Bill Otis | Aug 12, 2023 10:13:54 PM

Bill, the DOJ is corrupt--does it deserve this power? Forget about Hunter--what about all the DOJ personnel who have gotten kid-glove treatment? What about the Gibson Guitar raid? The list goes on and on.

Posted by: federalist | Aug 14, 2023 11:59:25 AM

federalist --

I agree that DOJ isn't what it used to be when I was there (in the last century). Indeed, I quit when, under Clinton, it fell short of its duties (story here: https://www.crimeandconsequences.com/crimblog/2017/01/sally-yates-and-me.html). When you have a months-long concocted investigation aimed solely at handicapping Trump's presidency, which is what we had in Russiagate; and that is compounded by an FBI agent's getting convicted of forging evidence given to the FISA court but getting zero jailtime from an Obama-appointed judge; and now the massively late appointment of a not-so-special counsel to investigate the Biden family's raking in millions from foreign sources year after year while Joe was VP -- it all smells to high heaven.

That said, it's not a question of whether DOJ deserves its executive branch power. Under the Constitution, it has that power, and will continue to have it until the Constitution is changed. And there are plenty of garden variety criminals -- smack pushers, bank robbers and and Medicare swindlers, etc. -- who deserve and need to be prosecuted in the meantime.

Posted by: Bill Otis | Aug 14, 2023 1:44:56 PM

"That said, it's not a question of whether DOJ deserves its executive branch power. Under the Constitution, it has that power, and will continue to have it until the Constitution is changed. And there are plenty of garden variety criminals -- smack pushers, bank robbers and and Medicare swindlers, etc. -- who deserve and need to be prosecuted in the meantime."

Don't disagree--but it's hard to believe that the abuses that you've catalogued (and some of the others) haven't crept into the day to day operation of the DOJ--e.g., the Catholic monitoring, the Gibson Guitar raid etc. That's unacceptable, and the categorical imperative has to be that those with the badge have to be purer than Caesar's wife. They aren't, and at some point, people aren't going to tolerate it. In the Ashley Biden diary prosecution, James O'Keefe was roughed up by FBI agents---that sort of lawless behavior invites a response. Let's say O'Keefe was a boxer and dropped one of those thugs with a hard right hand, you'd support prosecution. I don't think the DOJ would be morally justified in doing so. The federal agents who detained O'Keefe were little better than Russian FSB agents. And I think everyone agrees that ordinary law-abiding Russian citizens are justified in using violence against the FSB.

Posted by: federalist | Aug 14, 2023 2:45:04 PM

federalist: you say "I don't think the DOJ would be morally justified" in prosecuting O'Keefe if he cold-cocked an FBI agent. Are you conceding DOJ would still be legally justified? Or are you inclined to make the bold point --- one we sometimes hear from some in the BLM crowd --- that long-standing "abuses" by law enforcement undercut both the moral AND LEGAL authority to exercise state power?

I find it quite telling, federalist, that you keep asserting "at some point, people aren't going to tolerate it." Do you not realize that the entire BLM movement grows from some "people" --- namely some black people --- saying they no longer wish to tolerate law enforcement that they perceive as not much different than Russian FSB agents. You and many others may disagree with the perceptions of the BLM crowd, but I sense you are lately getting a better sense of how ugly the world looks if/when you perceive law enforcement to be targeting your crowd unfairly.

Posted by: Doug B | Aug 14, 2023 3:36:00 PM

I think we can all agree that the use of force against O'Keefe was awful. This dude handed over the diary to the cops. He was entirely innocent, and the DOJ was abusing him. That is not to be tolerated. The BLM stuff is different--they assert the right to disobey the law and harm innocent people--look at the justification for looting. So the situations are entirely different.

And yes, Okeefe would have been legally justified in my opinion--not just for the abusive search, but for any application of force, as it was, in my opinion, illegal. Would a woman have legal justification for resisting a cop fondling her? Um yep. So it's difficult to separate resistance to any unlawful application of force. Now, in the real world, there has to be some play in the joints, but for FBI agents doing thug government things to a journalist--nope, any illegal application of force can be resisted. Let's say the cops are effecting a search warrant on a business that employs me, do they have the right to throw me up against a wall--nope, so if they do, I can resist. May not be the smartest thing, but we are talking about rights, and in a free society, a person has the right to resist any unlawful application of force to his person.

And pointing out how ugly the world would be means that LE agents have to not do stuff like what was done to O'Keefe.

Posted by: federalist | Aug 14, 2023 7:04:23 PM

Bill, I would be curious if you agree that James O'Keefe would have been legally justified physically attacking FBI agents seeking to carry out a search warrant at his house. I think that is what federalist is claiming, but I am never quite sure where his vision of a right to attack law enforcement leads him.

And federalist, my point is that the BLM crowd, like you, just advocates for LE agents not to do the stuff they consider objectionable. You and the BLM folks have the exact same concerns with LE using their powers to abuse, just different LE targets serve as the focal point of concern.

Posted by: Doug B | Aug 14, 2023 8:15:20 PM

No Doug. As I've said, BLM gets mad when ordinary criminals are arrested. And they justify riots (i.e. the looting and destruction of property). And, in case you haven't been paying attention, a whole lot of BLM leadership has been caught with their hands in the cookie jar. Why don't we start by getting that right.

What happened with O'Keefe is entirely different. It's objectionable in a society that supposedly has a free press. He was roughed up. This was in service of a Praetorian Guard like action to protect Biden from allegations in that diary that he took showers with his adolescent daughter. They took all sorts of stuff--just a total abuse. Muddying the waters as you try to do keeps you from having to call out BLM and lumps me in with that organization. Weak.

And the issue isn't "attacking"--remember, they applied force to O'Keefe--so he would be defending himself. The rule of law means that the cops gotta follow the law.

Posted by: federalist | Aug 15, 2023 12:04:47 PM

federalist: if you are just making the anodyne point that citizens --- whether named O'Keefe or George Floyd --- can resist the use of excessive force by police, you will not get an argument from me. But I thought you have been claiming that the use of standard force by police or prison guards or other law enforcement can be forcefully resisted when there are claims that an underlying search warrant or conviction or prison term is hinky. I thought you were claiming individuals have a lot more authority to resist LE, but perhaps not; sorry to think you were trying to say a lot more than you now seem to be saying.

As for BLM, I cannot speak for them or their cause, but I can note the similarities I see between their worries that racial biases corrupt LE activity and your worries that political biases corrupt LE activity. Not trying to muddy any water, just noticing how similar claims of bias flow therein.

Posted by: Doug B | Aug 15, 2023 4:46:02 PM

I think that citizens have the right to resist the unlawful use of force by LEOs. I think that people have the right to resist arrests for things like criticizing cops. I think that when the police are acting like a Praetorian Guard, e.g., with James O'Keefe, there's no "play in the joints" giving them some leeway in the amount of force.

I think the facts of what happened to James O'Keefe are clear LEO abuse. I don't think it remotely debatable, and the cops executing the warrants should either relinquish citizenship and leave the country or spend the rest of their lives in a prison cell. You simply cannot have this behavior in a free society.

By the by, the George Floyd prosecution of the other cops shows demonstrably that a citizen would have been justified in shooting the cops there to protect Floyd's life. I am not saying that's necessarily right, but the logic is clear.

Posted by: federalist | Aug 17, 2023 12:24:43 PM

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