Joshua Hoe interviews conservative commentator, former prosecutor and defense attorney Brett Tolman about his work on criminal justice reform
Full Episode
My Guest
Brett Tolman was the United States Attorney for the District of Utah from July 2006 to December 2009. Before becoming U.S. Attorney, Tolman worked as counsel in the Senate Judiciary Committee for committee chairs Orrin Hatch (R-UT) and then Arlen Specter (R-PA) Mr. Tolman now runs his own firm called the Tolman Group.
Notes from Episode 84
You will hear some noise in the background, this was a live interview at the CPAC convention (over 10k people in a hotel)
Maya Moore made incredible personal and professional sacrifices to invest in helping free people in prison.
COVID infections are increasing and prisons and jails are still a major vector of infection to and from our communities. Currently we are seeing a massive spike in California.
The National Network for Justice’s Webinar on Operation Relentless Pursuit will happen on Thursday July 9th at 1 pm EST, here is a flyer with more information:
There has been a lot of struggles getting the DOJ to fully implement the First Step Act.
You can listen to my interviews with both Rachel Barkow and Mark Osler about commutations on this podcast.
Clean Slate makes it easier for people to clear their criminal records after people remain crime free over a pre-determined period of time.
We have done a lot of work on Clean Slate here in Michigan, just recently our Clean Slate package passed the Senate Judiciary Committee and many months ago it was passed by the Michigan House of Representatives.
Transcript
A full PDF transcript of Episode 84 of the Decarceration Nation Podcast
Joshua B. Hoe
Hello and welcome to Episode 84 of the Decarceration Nation podcast, a podcast about radically reimagining America’s criminal justice system. I’m Josh Hoe, and among other things, I’m formerly incarcerated; a freelance writer; a criminal justice reform advocate; and the author of the book Writing Your Own Best Story: Addiction and Living Hope. We’ll get to my interview with Brett Tolman in just a minute. But first, the news.
I want to take a second to thank former WNBA star Maya Moore for using her platform, and even sacrificing her own game, to help earn the freedom of Jonathan Irons. I also want to send a hearty welcome home to Mr. Irons.
We are still seeing COVID infections and deaths pile up all across the country in prisons and jails. As predicted, jails and prisons are becoming one of the major vectors through which COVID is transmitted back into our communities. We are lucky that things have cooled off a great deal in my state of Michigan – not that I would love to be a prisoner stuck in the system right now in any state – but particularly during the summer without fans and with reduced privileges. Across the nation, we’re still seeing disastrous effects from this virus, and from the official response – more from the lack of response – to that threat. I hope we do better soon. I hope the governors start getting involved and start doing something to commute people, particularly people who are aged and infirm, and at risk of death from COVID.
I also want to mention my friends at NNJ [www.nationalnetworkforjustice.org]. You might remember I did a couple of episodes from NNJ’s annual conference that was here in Michigan this year. They’re having a webinar on Operation Relentless Pursuit on Thursday, July 9 at 1pm Eastern Standard Time. The speakers will be Hamid Khan and Alex Vitale, whom everyone probably knows from the book, The End of Policing. Alex will also be showing up on this podcast very soon. I will include the flyer in the show notes on the website, and hopefully all of you can tune in to that webinar.
As for me, I took a vacation this week for the first time in a very long time. It was great. But I do realize how many people have been forced into unwanted, unpaid vacations by this virus. I’m grateful for the time I got to take. But I really am hoping that this thing will turn around very soon for everyone else.
Several months ago, I was invited as a guest to CPAC, which is the largest gathering of conservatives in the United States. As you might remember, CPAC happened right at the start of the COVID outbreak. As all of you know, I very much believe that criminal justice reform is a bipartisan concern, and I was very flattered to be one of the few progressives invited to the conference.
Anyway, let’s get to my interview with former federal prosecuting attorney; former defense attorney; frequent Fox News commentator; and founder of the Tolman Group, Brett Tolman, who despite our many political disagreements is actually a good friend of mine.
Brett Tolman was the United States Attorney for the District of Utah from July 2006 to December 2009. Before becoming a US Attorney, Tolman worked as counsel in the Senate Judiciary Committee for committee chairs Orrin Hatch and Arlen Specter. Mr. Tolman now runs his own firm called the Tolman Group, and was a chief counsel for the Senate Judiciary Committee.
Hello, Brett. And welcome to the Decarceration Nation podcast.
Bret Tolman
Hey, Josh, thanks for having me.
Joshua B. Hoe
A real pleasure! This is one of those rare opportunities where I’m actually talking to someone whom I know and like a lot; and we had the privilege of working together a little bit on the First Step Act, and I’m really glad you’re here. I always ask the same first question. How did you get from where you started in life to where you are now? I know that’s a crazy common question, but I like to hear about people’s journeys.
Brett Tolman
No. And it’s been a crazy journey for me. I first thought about the criminal justice system when I was about 12 years old, when my sister was kidnapped and raped [when] she was in college. And I can still vividly recall my father and I going up and driving around and trying to find the individuals who committed the crime. And it took my sister away from us, basically for about 15 years, as she tried to deal with the emotional pain and difficulty, and they were never brought to justice. And I think that really impacted me and my father. I was the oldest son and he was a former police officer from LA. And I think that pushed me in the direction that I would eventually go, which was to become a prosecutor and [I thought} that that was going to be my career my whole life. I thought I would just put away bad guys. Then I got into it, and I did a lot of good work that I’m proud of. But I also started to see that the criminal justice system had some really broken aspects to it. And it was really tough to be part of that and know that there was a broken system in place. And so that’s why I started the Tolman Group. That’s why I have been focusing on policy and advocacy for the last 10 years or so.
Joshua B. Hoe
It’s got to be tough to make that leap from where you’re using a lot of the tools of being a prosecutor, to starting to see some of the problems with the whole process. Can you talk about some of the times . . . . I’ve heard you talk eloquently about some of the examples of things you saw in the past that started to have an impact on you, and started to change your feelings.
Brett Tolman
Yeah. I had a case I was prosecuting, and the young man was about 23 years old, and I’ll never forget this case, Marco Antonio Rebus; he’s still in prison right now. And he literally had a really bad weekend. No one was injured. Nobody killed. Nobody suffered. He had very little criminal history. But he had committed a carjacking as he was fleeing from being pulled over, and made some really bad decisions as young 20-year-olds can do. It got worse, and he jumped from one car to another car, and he had a gun with him, [which is] a violent crime under most statutes, so some punishment was appropriate. He pled guilty. But the guideline range of the sentence he was going to serve was going to be, I think we had calculated almost 70 years in federal prison. He’s 23 years old, and there’s no parole. And so I thought that that sentence was just so out of line with what this individual had done. And was there a way for me to affect that? And I had to get special permission, had to go all the way to Washington, DC to try to get permission to offer him 35 years, and he got 35 years in federal prison, and he’s serving it now. So that was the first case that I started to think very long and hard about as a prosecutor, that we may need to sit back and adjust some of these. We may need to revisit these. Little did I know what had gone into creating the system that we have, and some of the work that needed to be done.
Joshua B. Hoe
We were just at a panel – we’re at CPAC right now – and were just listening to a panel you were on. And I think at one point when the panelists mentioned that there’s this incredible power that prosecutors have, and I’ve seen in articles that you’ve written before, talking about how, before you started to change, you would use those powers. Can you talk about some of the power of the prosecutor?
Brett Tolman
Yeah, people have really no perspective on how powerful a prosecutor is. It’s the one position that you’re authorized to take away someone’s constitutional rights, their liberty and what is the heart of what this country is supposedly all about. So that is an enormous amount of power. And yet, I’ve had more power than that. I could dictate what charges were brought, I could dictate what sentence was given. I could even punish them harder if they decided to go to trial, or if they wanted to testify on their own behalf. And so when people talk about the power of the prosecutor – right now, that pendulum has swung so far towards the prosecutor, that we really don’t have a system where someone is presumed innocent. We don’t have a system where you . . . people always talk and in law school, Josh, people would talk about this – that, you know, we have a system where we’d rather 10 guilty guys go free than one innocent one be locked up. But that is not the system we have. You walk into the courtroom, and most juries in this country have a 90 plus percent conviction rate. So you’re not presumed innocent and you’re not viewed as someone . . . I mean . . . once the state says we charge this defendant with this crime, you’re a criminal until you can prove that you’re not.
Joshua B. Hoe
And I think one of the things that’s been interesting to me over the last several years is that there are certain things that really do in this area, unique to any other area, seem to bring a lot of us together. And I think some of it is what you’re talking about there, is this notion of liberty, and how important that is to the basis of our system of government. And I wonder what – me being on the other side of the fence politically – talk to me about how conservatives look at criminal justice reform since we’re here. I’m here kind of investigating . . .
Brett Tolman
Let’s face it. Conservatives and Republicans basically handed this issue over to the Democrats and let them control it for decades. And the only time that a Republican or a conservative weighed in was to make the punishment more severe, or to increase the number of crimes. And that’s changing now. You look at my friend, Senator Mike Lee, and he tells people all the time that he’s engaged in criminal justice reform and reforming government, because he’s a conservative, not in spite of it. And I think what he means is, it’s about time for conservatives to step in and say we also want a system that works. We’re the highest incarcerating nation in the world right now. There isn’t a family in this country that isn’t touched in some manner by the criminal justice system. It’s just that pervasive now. So because of that, I think both sides have stepped up and are starting to address it, which is good. But I’ve been saying for the last couple of years, nobody is addressing it as passionately as Trump and this White House and this administration. The question is why; why would he be doing this? I think it’s because he’s not born out of the same political history that everybody is so accustomed to in DC. So he’s free to make a decision based on what he thinks is right. At least that’s been my perspective on it.
Joshua B. Hoe
So a lot of times when we start having these discussions, it sounds a little bit like the point is to bash prosecutors. I’ve always had this theory that prosecutors only see the worst in people, they see only terrible crime; well not only terrible, but they see a lot of terrible crimes. And when someone comes back, they’re not seeing someone who succeeded. They’re seeing someone who’s failed.
And I wonder how we can start to have discussions with prosecutors so that we can start making change. It sounds to me like there’s a group think because of the way that happens in Prosecutors offices.
Brett Tolman
I was a brand new prosecutor, wide-eyed, not long out of law school, and we were in a meeting and one of the other prosecutors asked the question of the boss: hey, do we get involved in rehabilitation and helping to make sure some of these guys don’t reoffend, or we’re not prosecuting the same people? And you would have thought that he just slapped his mom. Because my boss said to him, and I’ll never forget it, “We are not social workers. We don’t care about them after we put them in jail.” I mean, that’s literally what he said. And that was the mentality of the office I was in, and I think in a lot of offices. Given that 95% or so come back, we’re short-sighted, fairly short-sighted. Not only that, but in the Department of Justice in Washington, DC there’s a plaque that says: The threefold mission of a prosecutor is to punish those that commit crimes; to deter others from committing crime; and to rehabilitate the criminal. But they just sort of lopped off that last one. And they only focused on . . . one and two are very popular, right? We created this culture, where it’s not, it wasn’t okay. But when we did that, we also sacrificed a lot of our humanity, we stopped seeing, like you said, we stop seeing the side that the rest of the world is seeing when they have their son or their brother, their father or mother being prosecuted and going to jail. And this is not to suggest that we shouldn’t punish people when they commit a crime, especially when you have a victim in that crime. But the difference I see Josh is that, for the first time I have seen, my eyes have sort of been opened up, and I’ve seen. And I’d like to get prosecutors to do that. So if I had a perfect magic wand, I would not allow anybody to be a prosecutor until they’ve been a defense attorney first. I wouldn’t allow anyone to become a prosecutor without having at least experienced the other side of it. And I would not put someone who has only been a prosecutor on the Bench. Because if you do that, you have now created a prosecutor who’s the judge with a prosecutor’s mentality, and a prosecutor who controls what happens in the courtroom. And that is not what this system was designed to be.
Joshua B. Hoe
I think we see another example of that in something else you’ve been working on, which is commutations and clemency, in that one of the real problems with what’s happened over the last – as long as there’s been Presidents and Governors – is that usually the Department of Justice or the state organs of that entirely control the process. And there’s a huge conflict of interest there. And I think one of the things you’ve been involved in recently is trying to come up with a different idea of that. Do you want to talk about that?
Brett Tolman
I have long held – and I know there are great advocates out there like Rachel Barkow and Mark Osler and others who have been advocating longer than I have on this – but I will tell you, I’m trying to lend my voice to the fact that we have a system right now where clemency – so pardons and commutations of sentences – are being decided by the prosecutors. I mean, that’s the fox in the henhouse analogy if I’ve ever seen one, and it’s frustrating. But it’s even more than that, because what it’s doing is it’s created a system in the prosecutor’s office where there’s almost a default rejection of a petition for clemency. And that is an important part of a governor’s or a president’s power that has really been abandoned. So this is a refreshing approach that this White House is taking; the President asked that a few people be assembled, so you have Jared Kushner leading that, and you have Matt Whittaker, former US Attorney and friend of mine, myself, Alice Johnson, others who have been incarcerated. So it’s a really thoughtful team that is trying to advise on candidates and trying to increase the likelihood that the President of the United States uses that power. Keep in mind, most presidents do it, but they do it when they’re about to leave office because they don’t want to be caught off guard by having pardoned someone that they didn’t want to. And that to me, has always sat so odd, that they would, on their way out, pardon a bunch of people. But politically, they didn’t want to do it before. We can come up with a better system.
Joshua B. Hoe
And having a little bit of independence probably helps with that I suspect. We also worked together on the First Step Act. What’s your take on where implementation is right now? I know, for the most part, a lot of it’s been implemented, [but] we’ve got some parts that are still a little bumpy.
Brett Tolman
I’ll tell you candidly, I still think there are people in DOJ fighting against having to implement it. I think it’s a massive bureaucracy, where the mentality has been only punish, only deterrence, right? And that this bill changed that narrative and changed that mentality or is attempting to change that mentality. So I think they are resisting implementation in some areas. I think what they’re doing on the crack powder cocaine, for example, this is one where retroactively, people were being sentenced disparately if they had crack cocaine rather than powder cocaine. And so this was a very bipartisan effort to try to fix that disparity. But we’re now seeing that DOJ is trying to undermine that by how they’re attacking those that might qualify for a reduction in sentence.
Joshua B Hoe
Yeah, they’re going back and finding, not the amount that was charged but the theoretical amount. Is that correct?
Brett Tolman
Yeah, the theoretical amount. That to me, is more indicative of a department that hasn’t fully embraced what the President is trying to do in First Step. And there are other areas that are not as significant or as large, but I think there needs to be very intense oversight hearings of DOJ on First Step specifically. I hope Chairman Graham, and I know that the House will do it, but I hope that the Senate will as well.
Joshua B. Hoe
And in the panel we were in earlier . . . I remember reading an article a while ago that you were in, I think the quote was that you used to give this speech, when you were still a prosecutor, about give me an executive of any company, and I could prosecute [them] for a crime. And, at the time, you were trying to help them be more compliant. But over time, at least the article suggested that. And now, you were talking about earlier today about all the 4000 crimes at the federal level, and we talked about the book Crime A Day.
Brett Tolman
Yes, there are 350 plus thousand regulations with criminal penalties. So those are basically criminal statutes as well. And then you have 4000 criminal statutes in the federal system, and I still stand by this, and it’s a little disheartening that we haven’t made any progress, because I’ve been giving that speech for many, many years. But there are so many crimes right now. This isn’t to suggest that you don’t have executives of companies that commit crime; they do. But, I can tell you that as a prosecutor, I had so much ability to fashion an indictment around gray area. And they may not even know that some of their conduct is criminal. And that’s really the tragedy, because criminal law is supposed to be aimed only at those who intend to commit a crime. But we’ve gotten away from that. And now there’s so many statutes on the books – doesn’t matter whether you intended to or not.
Joshua B. Hoe
So is there anything else you’re working on right now or that you’ve got going on?
Brett Tolman
Yes. Expungement is really important. It gives people an opportunity to get out of the cycle, the recidivism cycle, and there’s none at the federal system. So there’s a bill right now that I think is very important. It’s the Clean Slate Bill. And there’s a couple of states, Ohio and Utah, who have passed – sorry, Pennsylvania and Utah, have passed Clean Slate bills. It’s really important. That bill, to me, is very important, because it’ll be the first attempt in the federal system. And all it will do is seal some of the records on low-level drug offenses. And it gives people an opportunity when they get out, to get a job or to feel more confident, to increase their salaries, to be contributing. And when they do that, you get rid of the cycle of recidivism.
Joshua B. Hoe
And one of the really great things is – I sometimes call it economic stability for that reason you were just talking about – some people, once you get someone a good job, there’s a lot less chance they’re gonna actually [recidivate].
But, I think that it’s really important to remember that if someone has spent – the research pretty overwhelmingly shows that if someone spends a certain amount of time – depending on the category of crime – crime-free, that they’re actually less of a risk to ever recidivate than people who have never committed [a crime]. And so if you can get people economic security after they’ve served their time, and after they’ve paid their debt, there’s a real benefit to that, and it’s not just to them, but to their families.
Brett Tolman
Just think about how poorly we do this right now. We have in some areas 60, 70 even higher percent recidivism. By anybody’s measure, that is failure, we are failing; and yet nobody seems to be alarmed that we’re doubling down, we’re failing and we’re doing the same thing. So we just keep doing the same thing and they’re caught in these cycles and yet, you’re right. 95% of all individuals that are incarcerated are getting out. What shape are they getting out in? We can do a better job. I remember a judge … this brings back this memory. I love that this conversation has helped me remember this, but there was a judge in the District Court in Utah that had a photographic memory. He used to tell me, if he saw me, he would tell me, have you read all the Supreme Court reports; have you read the federal report or the F. Supp (Federal Supplement) and all that? And he wasn’t joking, because he read them as his entertainment. But there were times where the judge I was clerking for would say, hey, run and talk to Judge Boyce and ask him where this is in this decision. And he by memory would give me the page number of the words that were used by the Supreme Court Justice or whatever, and he would quote it. He was rarely wrong. He might be a page or two off sometimes. But he came in one day and he said, Hey, you’re going to be a federal prosecutor? – because I was going to go over and be a federal prosecutor – and he said, If I were you, I would start reading the Icelandic penal code and the Norwegian penal code. And he had seven different countries he wanted me to start to read, because he says, they are doing things better than we’re doing them. I used to think this guy was the oddest guy, right? Well, now I look at this, and I think he was right. He was well-educated. He was also not political. He just cared about what was a better system, and he thought I might be able to make a difference. I wish he was alive today, because I would love to be able to show him that I’ve read some of those, and I’m trying to help.
Joshua B. Hoe
That’s a great story.
So this is the Decarceration Nation podcast and I always like to ask people: what is something you think we could do that we haven’t done yet that would have a really positive and beneficial effect on decarceration?
Brett Tolman
Well, I do think that on the federal level and on the state levels, I would really like to see the knee-jerk reaction to create more crimes to solve every problem – I’d like us to stop doing that. I’d like to see decriminalization in the federal system at a minimum. I know there are senators that have worried over the years about passing, every year, more and more crimes. I would also like to clarify that our criminal system still requires criminal intent.
Joshua B. Hoe
I’m definitely with you on that one.
Brett Tolman
There’s too many of them. So let’s get to criminal intent, because those – and then I would like to see, I would like to see a shift to our prison systems being reserved for the violent predators, for those that harm victims, versus the ones that are acting out because they have an addiction. There’s a different way to approach those. There’s a different way that we as a system – and it can still all be the criminal justice system – but right now, we’re just warehousing people, and it’s creating more criminals when they come out.
Joshua B. Hoe
Sadly, for several years of my life, I lived in a 160-person pole barn; I understand warehousing. So I was asked the same last question, what is something I should have asked but didn’t; what did I mess up?
Brett Tolman
One of the questions I get a lot is: is there a way to get prosecutors to actually think a little more about what they’re doing and care a little more? They too often are like surgeons when they get called in to operate, but they know nothing about the patient at all. If we could change that. And I also want to see more accountability. I think absolute immunity has gone too far. And I think that qualified immunity – and what I mean by that is – prosecutors and investigators can do unethical and even criminal things right now, and not suffer any consequences. Until we start to see that change, what incentive do they have to maybe be a little more thoughtful, or to analyze the law a little better, or the facts a little better, and to make a better decision? To me? Yeah, I was invincible.
Joshua B. Hoe
Makes a lot of sense. And I can’t tell you how much of a pleasure it is to talk to you.
Brett Tolman
You too, Josh.
Joshua B. Hoe
We’ve been friends for a while, and it’s really good to be able to sit down and talk, and thanks so much for doing this.
Brett Tolman
It’s been an honor.
Joshua B. Hoe
Thank you.
And now my take. We get caught up in the difference between reform and transformation way too often. It doesn’t matter if you pass a reform or a fundamental transformation of our criminal justice system, as long as we’re in a democracy with legislative bodies at the local, state and national levels. It only takes one really bad event, one brutal act of recidivist crime, one sensationalist crime, one week of bad press coverage, to send legislators into a mad dash to go right back to tough-on-crime solutions; new jails or prisons; and the punishment mindset. If you shut down a jail, they can always build another one. If you get rid of a private prison – we’ve seen how quickly that can be reversed – when militarized tent cities went up the minute we had an administration committed to brutalizing immigrant communities. They get more liberal on parole and probation [but] one bad incident, and all the changes can quickly go the way of the dodo. What we are really fighting here is a battle for hearts and minds. We have to get people all across the political spectrum to understand that crime cannot be evaluated in a vacuum, and that we have to look to optimize overall outcomes, not just continue to double down on failed solutions to new problems, because those solutions are all we know. We need to be helping people understand why the punishment system and incapacitation do not solve recidivism, do not solve crime, and often make things worse for everybody. We have to convince them that they need new solutions to old problems. What will make change durable, is if enough people grow beyond looking at every criminal justice problem as a call for more punishment, incapacitation and discrimination. What will make change durable is politicians feeling like they will not lose their jobs if they respond to a crisis using a different toolkit. We have to educate and transform enough people so they will stand up for elected officials who have the courage to respond to crises in new ways; otherwise it will not make any difference, no difference at all, if we get transformative change or reforms. Either way, they will all be rolled back in one bad media cycle. Education and changing hearts and minds is the only thing that will make change durable; education and changing hearts and minds is the only thing that will lead to a radical transformation of our criminal justice system.
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