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Amy Coney Barrett Could Help Repair Unconstitutional Aspects of the Criminal Justice System

The opinions expressed by columnists are their own and do not necessarily represent the views of
AP Photo/Susan Walsh, Pool

Editor's Note: This column was co-authored by Shon Hopwood.

The Constitution matters. Yet, in our current criminal justice system, every day a fundamental component of the U.S. Constitution is trampled upon. When a person accused of a crime chooses to defend themselves and to exercise their Sixth Amendment right to a “speedy and public trial” instead of accepting a plea deal, they should not be punished more severely for exercising this constitutional right.  As the nation watched the confirmation hearing of constitutional scholar and jurist Amy Coney Barrett, it was apparent that her intellect, her adherence to the text of the Constitution, and her discipline in preserving constitutional rights and protections make her a fitting replacement to Justice Ruth Bader Ginsburg and a justice poised to help repair a broken and unconstitutional aspect of the criminal justice system: the trial penalty.


The “trial penalty” isn’t just some law school exam hypothetical, but the real-life consequence of choosing to exercise a constitutional right and make the government actually prove their case.  A 2018 report from the National Association of Criminal Defense Lawyers found that “Guilty pleas have replaced trials for a very simple reason: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose.” Former federal judge, John Gleeson, wrote in the introduction to this “trial penalty” report, “[p]utting the government to its proof is a constitutional right, enshrined in the Sixth Amendment; no one should be required to gamble with years and often decades of their liberty to exercise it.”

It’s not every day that a former federal prosecutor and a formerly incarcerated (turned law professor) come together to expose a serious flaw in the criminal justice system, but this issue is no ordinary issue and its implementation is wreaking havoc unnecessarily and all voices are needed to expose and rectify the issue.  If judges and prosecutors punish defendants with sentences of many decades or even hundreds of years in prison for merely choosing to make the government prove its case at trial, it effectively shreds dear protections enshrined in the Bill of Rights. The trial penalty threatens not only the Sixth Amendment right to a trial but also the Fourth and Fifth Amendment rights to not be deprived of liberty without “due process of law.” Not even the Eighth Amendment prohibition on “cruel and unusual punishment” provides any relief.


Consider the case of Sholam Weiss. Weiss is nearly 70 years old, a nonviolent offender, and has already spent almost 20 years in prison. While he has been incarcerated, 33 grandchildren and two great-grandchildren have been born, most of whom he has not met. His sentence, 835 years, is the longest ever imposed in U.S. history for a white-collar crime and is largely a result of Weiss’ choice to go to trial. And the kicker? His restitution, $125 million, has been paid in full.  Yet he sits in prison still—with only 815 more years to serve.

Besides the fundamental question, how can one justify a life sentence for a nonviolent case in which zero restitution is owed, we are compelled to also ask: why such an extraordinarily long sentence, when equally culpable co-defendants in the very same case received much shorter sentences such as 25 years or another less than 6 years? Where is the fairness? In an interview with “Best Reviews,” an insurance trade publication, Assistant U.S. Attorney Judy Hunt, the main prosecutor on the case, acknowledged that Weiss' co-defendants received lighter sentences because they pleaded guilty. Weiss received an astronomically larger sentence because he did not take the plea and instead exercised his constitutional right to defend himself at trial and put the government to its burden.

Prior to deciding to go to trial, Weiss was offered a plea deal sentence of five years for his actions in connection with the collapse of a small insurance company. So, at some point, the prosecution assessed Weiss’ criminal exposure at 5 years in prison.  While extreme in this case, the difference between five years and 835 years is not the result of additional criminal behavior by Weiss.  It is a direct result of a flaw in the criminal justice system. It is not uncommon for the trial penalty to be five to ten times the amount offered in a plea deal. Here, it was 167 times the plea offer.  As Judge Gleeson warned, the Department of Justice has become accustomed to using the threat of long sentences “to strong-arm guilty pleas, and to punish those who have the temerity to exercise their right to trial.”


To be certain, Congress or the Supreme Court needs to fix this tragic flaw in our criminal justice system—to restore the jury trial system and to preserve a citizen’s ability to exercise their constitutional rights to due process of law. Jury trials may be time-consuming and costly, but there is no better way of getting at the truth, preventing prosecutorial abuses, and protecting liberty. Public policy should encourage trials, not intimidate defendants into avoiding them. Until Congress or the Supreme Court fixes the trial penalty problem, the only relief available for someone like Sholam Weiss is a presidential pardon or commutation.

We need a Supreme Court Justice who is an originalist, a textualist, and not afraid to rein government in to protect constitutional rights.  

Brett Tolman, the former U.S. Attorney for Utah and former chief counsel for crime and terrorism in the U.S. Senate Judiciary Committee, founded the Tolman Group and focuses on public policy and reforming government. Shon Hopwood is an Associate Professor of Law at Georgetown University Law Center and the author of Law Man: Memoir of a Jailhouse Lawyer. 

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