When he was U.S. attorney for Utah, Brett Tolman would deliver the same line in front of business leaders over and over again.
Give me the executives of any company, he would tell them, and I could prosecute them for a federal crime.
At the time, it was said with the intention of telling business leaders to shape up, stay compliant with the law, don’t dodge the IRS.
But now, after nearly eight years removed from that office, he sees things differently.
“I look back at that speech and I realize how absolutely horrifying that is,” he said. “That I could prosecute any individual because that’s how broad I felt the law was and how powerful I felt my position was? It’s pretty haunting now.”
He still stands by that notion — that a federal prosecutor could likely charge anyone with a crime — but he’s hoping to change that.
Once Utah’s top federal prosecutor, Tolman is now one of the state’s most vocal critics of the system he was a part of.
It’s a big transition for someone who, for many years, focused on being tough on crime. Now, the 48-year-old South Jordan man wants to change the criminal justice system so it’s more fair — both to those who are accused and those who have been victimized.
For him, that means pushing for things like rehabilitative help for federal inmates preparing to get out or lessening minimum mandatory sentences for some crimes. Even when it goes against the views of his former colleagues and bosses.
“I can be loud and vocal,” he said in a recent interview. “Nobody tells me what I can and can’t say.”
‘I was going to be a prosecutor’
Tolman’s interest in the law began in elementary school, when teachers had told his parents they were concerned about his ability to read and write. His father, who had been a police officer in Los Angeles, gave him a law book. If you can read this, his father said, you can read anything. So Tolman did.
Years later, he went to law school at Brigham Young University. As a law student, Tolman sought a job where he felt inspired. He thought being a federal prosecutor would be the right fit.
And there was another, more painful motivator: When he was a teenager, a family member was kidnapped and raped.
“It really shook our family,” he said. “To this day, I don’t think they’ve ever been held accountable. So I think there was a part of me that thought I was going to do that. I was going to be a prosecutor.”
By the time he left his job as U.S. attorney for Utah in 2009, Tolman had made cases involving violence against women a priority. The case he’s most proud of — prosecuting the man who kidnapped Elizabeth Smart — would come at the end of his career as a federal prosecutor.
But there were plenty of cases he looks back on now with regrets.
‘Is there an appropriate punishment?’
In his early years as an assistant U.S. attorney, Tolman took on violent crimes case after case. He nabbed lengthy sentences for offenders, which led to awards and accolades.
It was all about how big the case was, how long the punishment could be, how many felonies could he charge.
Then came Marco Antonio Rivas Jr.
Rivas, in his 20s at the time, carjacked two people in November 2000, which Tolman now describes as “incredibly foolish decisions over a two-day time.”
But those decisions, had Tolman brought the maximum penalties he could, may have landed Rivas in federal prison for the rest of his life. Instead, the young defendant took a plea deal and got 35 years behind bars.
Tolman received praise for obtaining the lengthy sentence, but he wondered if it was truly justice.
“I started to think about, is there an appropriate punishment?” he said. “It’s not 30 years. [Rivas] could learn that lesson and he could be a contributing member of society.”
But Tolman continued his work with the Department of Justice, moving from prosecuting cases in Utah to working as legal counsel for senators in Washington, D.C., including Sen. Orrin Hatch, who was then chairman of the Senate Judiciary Committee.
Tolman returned to prosecuting cases in 2006, after President George W. Bush appointed him U.S. attorney for Utah. He kept the top prosecutor post for three years, before resigning in 2009 after he received word that President Barack Obama wanted to appoint someone else.
But before he stepped aside, he wanted to take part in one more case — the prosecution of Smart’s kidnapper, Brian David Mitchell.
Tolman and a team of prosecutors worked to move Mitchell’s case, which had languished in state courts amid questions of the kidnapper’s competency, to the federal system. Just before Tolman left office, his team had successfully argued that Mitchell was faking incompetence. And after a month-long trial in 2010, Mitchell was convicted and eventually sentenced to spend the rest of his life in federal prison.
The verdict felt right to Tolman.
“I could finally see such a direct and immediate impact to a victim of crime,” Tolman said. “Which is ironic because it came at the very end of my time.”
‘I was completely helpless in the courtroom’
Tolman moved on to private practice, working at the law firm Ray Quinney & Nebeker. As he defended those businesses and people he once prosecuted, Tolman said he began to see even more clearly how imbalanced the system was.
“I had a few cases where I was a lawyer advocating for a client and I was completely helpless in the courtroom,” he said. “And I think I realized that’s not the place where you can change the system or get a result that is fair.”
So he started pushing for the rules and regulations to change, seeking to revamp the policies that govern what happens in a courtroom.
His biggest criticisms now are against the federal system. There’s too many laws, he said, and people can be charged with crimes even if they didn’t intend to break the law. Low-level drug dealers are often slapped with too-long sentences. And white collar criminals, he says, are also punished harshly based on what they had intended to steal — not the actual amount a victim lost.
Holly Harris, executive director of the criminal justice reform non-profit Justice Action Network, said Tolman’s experience as a federal prosecutor makes him someone people listen to when they lobby for changes to sentencing laws or bail reform.
“He speaks with credibility you just can’t create,” she said. “He has the ability to speak truth to power in a way the rest of us can’t because he’s been part of a very exclusive club.”
Tolman is among a growing number of former federal and state prosecutors who are asking for Congress to reform the criminal justice system. He noted that when he first started his efforts, he was able to get a couple dozen former prosecutors to sign a letter to congressional leaders.
His last letter netted 135 signatures from those who were once on the frontlines of the federal criminal justice system, including former prosecutors, judges and attorneys general. The letter voices support for a federal bill called the FIRST STEP act, which focuses on incentivizing federal inmates with possible early release so they take part in rehabilitation programs.
As he looks back on his career, Tolman said he has no regrets about leaving his life as a prosecutor behind. He’s never felt happier in his legal career than he does now pushing for government reform.