Jason Pye is the vice president of the Due Process Institute. He was formerly vice president for Legislative Affairs for FreedomWorks.
This transcript has been edited for length and clarity.
Federal Newswire: What is the Due Process Institute and why is due process so vitally important?
Pye: [Well due process is] constitutionally protected…The legal rights [of] defendants are outlined in the Bill of Rights; the fourth, fifth, sixth, seventh, [and] eighth amendment[s] also clearly outline various rights.
There are two different types of due process: substantive due process and procedural due process. We don’t work on substantive due process, that’s starting to get into issues like abortion. We work on procedural due process, some examples being the right to a speedy trial or access to counsel.
One of the things we worked on last year, for example, is issues involving the federal prison criminal justice system. A lot of people don't realize that in the federal prison criminal justice system, public defenders represent roughly 90% of criminal defendants who come into contact with the federal criminal justice system.
This is something that's protected by the Sixth Amendment, and what we try to do [and] what we had to do last year was fight for additional funding for public defenders to ensure that they weren't going to have to lay off. 12.5% full time equivalent employees is what they were looking at having to lay off.
…This is not an entitlement. This is not like what we're talking about [issues] like Social Security, Medicare, which are programmatic; they're funded based on the number of enrollees in those programs. This is a Sixth Amendment constitutionally protected right. We had to fight for additional funding, and I'm proud to say that we were able to get $1 million more for federal public defenders so they could adequately represent the people who were coming in contact with the federal criminal justice system.
The fact of the matter is that we have an aggressive federal prosecuting attorney's office. They always have been aggressive—about 95 to 97% of cases that come before the federal criminal justice system are plea bargain doubts. There's something called the trial penalty, where if you take something to trial, you're going to get hammered to the extent that you can extend tissue. These are all issues.
There are issues like the Brady violations, or the Brady rule, which is essentially if a prosecutor has a skull battery evidence, they're supposed to provide that to the defense counsel that could potentially exonerate the defendant. There's “mens rea,” which is …criminal intent. There's a belief… [of an LSU professor] who said that there is not one person over the age of 18 in the United States who cannot be prosecuted for some federal crime.
Federal Newswire: What drives people to take plea agreements?
Pye: You look at the potential of Pat Nolan, who's with CPAs in his own case. They had hung a sentence of [about] ten years over his head with the goal of forcing him into accepting a plea deal, [and by] pleading guilty, he got less time.
You see situations like that where they'll come at you, they'll throw everything at you, they'll throw the book at you and then they'll say it. But if you accept the plea deal, we'll give you five years with the time of supervised release. That's the situation a lot of people find themselves in. In some cases, it's easier and less costly to take the plea deal than it is to fight for your freedom, [like] if you're innocent, or know that they're exaggerating the crimes, or whatever the case may be.
There's a really good example of this. This woman, I think her name was Sharonda Jones, and she was given clemency under President Barack Obama. She was given a life sentence, she was the only person in a drug ring not to take a plea deal. They just went after her.
Same with Salisbury Johnson, who was given clemency by President Trump. She was the only person not to take a plea deal, and they gave her license. She was a first time nonviolent offender, but she wouldn't take a plea deal. This is what you deal with in the federal criminal justice system, and there is a need to have some prosecutorial accountability in the federal criminal justice system.
[In] terms of over-criminalization,...the best estimate we have is there are about 4500 to 5000 criminal, statutory criminal, offenses on the books at the federal level. These are laws passed by Congress that include some sort of federal crimes, misdemeanors or felonies. Then you look at this, the regulatory side of the equation, and there are an estimated 300,000 offenses that carry some sort of penalty.
There is [bipartisan] legislation that's been introduced by Chip Roy and David Trone called Count the Crimes to Cut. It was just recently reintroduced, and all it does is require a complete accounting of the number of statutory and regulatory offenses, the maximum length of the penalty that they carry, and then how many times they've been used in the past ten years. We need to get an understanding of this.
The last time that the Congressional Research Service, which is the research arm of Congress, tried to count this, they came back [around] 2012 or 2013 and told the House Over-Criminalization Task Force, which was headed by Jim Sensenbrenner at the time, that they didn't have the manpower to complete the task.
Federal Newswire: Are we seeing a renaissance in efforts of both the left and right to deal with criminal justice reform?
Pye: I think everybody realized [when there was a] movement in the states that really started in Texas to address the cost of corrections [which] were adding up. They were facing about $2 billion in immediate costs the next 5 or 10 years in Texas.
The chairman of the Committee of Jurisdiction was Jerry Madden. He asked the then speaker of the House in Texas what he should do, and the speaker told Madden to stop building new prisons. They cost too much. They started focusing on recidivism reduction, which depending on how it's defined in the jurisdiction can be the re-arrest rate or the re-offense rate of the people who have come out of prison or come out of the criminal justice system. That's what they did, and they lowered their recidivism rate.
Last time I looked, it was around 21%. It was re-conviction, which is great. They averted in total about $3 billion in costs, and you saw this push at the federal level beginning in about 2013 for corrections like prison reform, and then also some sentencing reform.
These were spearheaded by different senators, [like] Senator John Cornyn and Sheldon Whitehouse, who focused on corrections reform, and you had Dick Durbin and Mike Lee who were focusing on sentencing reform. But, we weren't able to get anything done until 2018 with the passage of the First Step Act.
We just got a new report on recidivism rates in the First Step Act. I have a blog post coming out, hopefully this week at Due Process Institute website that will dive into this, but the recidivism rate of the nearly 45,000 people who have been released under the First Step Act is 9.7%, and that's defined by re-arrest. That is phenomenal…We need more time. We need more data…We need more of you to compare it to [places which] boast a recidivism rate of between 43 and 45%, and we're at 9.7 %. I'll have charts that show that in this blog post.
But I'm telling you right now, the First Step Act has been successful. Unfortunately, because of the spike in crime in 2020 related to the pandemic, we saw a lot of people back away from criminal justice reform…The good news is 2022 was the fourth lowest crime rate we have seen since 1991. In 2023, the preliminary data looks like crime will decline again, [both] violent crime and homicides. The first quarter of 2024 is also very promising. Double digit declines across the board.
Federal Newswire: What has driven the right's greater interest in criminal justice reform?
Pye: Looking at the left and the right dynamic, the left is concerned about abuse of power when Republicans are in charge, and the Republicans are worried about abuse of power when Democrats are in control. Someone like me, whether you want to call me a libertarian or classical liberal, I tend to use the latter, I look at both parties as being a problem…I worked on Bob Barr's presidential campaign back in 2008 and Bob had this quote during a House Judiciary Committee in 2008, that said “each president comes into power, taking the power left by his predecessor as a floor and not a ceiling,” meaning that they're going to expand upon it, and then the next person is going to expand upon it.
That's basically been what executive presidential power has been for, particularly since the New Deal or since FDR. It's this dramatic increase in executive power, which is common or correlated with a dramatic increase in the size [and] the scope of the federal government. That's something that should concern everybody, particularly conservatives and libertarians.
There's this new breed of conservative I see that's not really afraid of governmental power, sort of like a national conservative. That really irks me, it's something that should be a concern no matter who is in power. Thankfully, you have the Supreme Court overturning Chevron, which will help mitigate some of that. But there's still a lot more the court and Congress should do.
Federal Newswire: Do you think we have lost the idea that the entire system rests upon the concept that you're innocent until proven guilty, and that we want to extend the fullest manner of protection to those accused of crimes?
Pye: That’s right – we are all innocent until proven guilty. It is a bedrock principle of our criminal justice system. It is something which is based on English common law, going back centuries, if not longer.
We're talking about the legal view of someone who's accused of a crime, and then the societal view, which is to cast judgment immediately. I wish that some of this was in the way the media handles stories, because they have a vested interest in getting viewers to tune in or getting clicks. I understand that, but I also think it's irresponsible for most of us to sit here and say that someone is guilty or not. We’ve all done it…I've done it. I think it's something we need to be better about as a society.
As for people who go through [it], there is a reason why there are protections for criminal defendants in the Constitution; it’s because of the Founding Fathers’ experiences with an adverse and overbearing monarchy. If not for criminal defendants’ protections, you're dealing with kangaroo courts, and I'm not okay with that.
Federal Newswire: Is lack of protection of individual rights really a problem in America? What about the erosion of the concept of specific intent?
Pye: It is, and this is because Congress has developed a proclivity of creating laws that are strict liability, meaning there is no “mens rea” protection in there...There are prisons across the country that have innocent people in them who broke a law that they didn't realize they were committing.
You have Harvey Silverglate’s three felonies a day concept…he pauses on the theory that Americans commit three felonies a day often and unknowingly. When you're dealing with a Congress, or any Congress, that focuses on strict liability, a lack of “mens rea” protection or “lax mens rea” protection creates a problem where you have a nation of criminals. This is why there's not a person in the country over the age of 18 that has not committed a federal crime. We've got to figure out a [better] when the Constitution itself mentions three crimes: treason, bribery and piracy.
I think it was Ken Cuccinelli who once told me that the first Federal Crimes Act, which was passed in 1790 or 1791, added 17 or 18 crimes to the federal statute. You go from 3 to 17 to almost 5000, and then you don't know how many of those are strict liability…There have been efforts in Congress to create a default “mens rea,” to place a “mens rea” in where the statute is not specifically strict liability. Those efforts haven't moved. That was once championed by Orrin Hatch, [and] now is championed by Senator Lee. This is one area where I will criticize progressives because the progressives fight us on it, and that's largely because of financial crimes and environmental crimes.
…There's a case out of DC where you have this gentleman who was a maintenance man, and had some sort of job at a retirement home in northwest DC. They were having a sewage problem. He followed SOP and directed the flow to Rock Creek Park, which is what he was supposed to do. Rock Creek Park is a tributary to the Potomac River. He was convicted of violating the Clean Water Act, and he has a criminal record now because of it. This man was just one of many examples of people who unknowingly broke the law.
Federal Newswire: Why will federal prosecutors go after a maintenance worker at a home like this who was just doing his job and why is he the one who gets the blame for it?
Pye: The last I heard was that gentleman was now working at Gallaudet University in DC. I think at the state and local level … – when you're dealing with an aggressive district attorney – it's most likely that they have some sort of political ambition. The DA wants to be a state legislator or a county commissioner or maybe run for Congress.
You see those sorts of ambitions, and the same is true at the federal level, too. You have assistant US prosecutors, AUSA is what we call them, who are looking to move up to being a United States attorney. Maybe they're looking at running for office somewhere, or maybe a state and local office. A lot of it's driven by [the desire] to prosecute anybody who throws their gum on the sidewalk.
There are people in the system who just want to lock up the litter box. That's not a majority of them, but there are many of those who are like that. It's unfortunate that the incentives of the system are set to reward prosecutors who are overly aggressive, and I am not going to say there are crimes that don’t need to be prosecuted. I am also not saying otherwise…We've decided as a society to prosecute drug crimes…Growing up in metro Atlanta, I'm very sensitive to racial issues.
Also playing punk rock at a time in the 90s when everything was about unity in the punk rock movement. I do think that when people commit crimes, they should be held accountable for committing those crimes, but I [also] think judges and prosecutors need to spend time looking at the circumstances of a situation to determine the length of a sentence. Something that's really missing in our society and in the debates about public policy is empathy. It's empathy, not acceptance. I'm not saying it's acceptance. It's understanding, and we need to have an understanding about why people [commit crimes].
…If you're being charged for certain crimes, like if you're someone who, like Alice Marie Johnson, doesn't want to take a plea deal because you don't think you've committed the crimes that the prosecution is charging you with…you're not going to be able to be sentenced for something less – you missed your opportunity for that…
I would hope because no matter the race, people who deal drugs or traffic drugs, who are addicted themselves to illicit substances, [crime isn’t justified]...This is not justification; they committed a crime and they need to be punished for that crime but we should look at punishment. That is, we should take personal circumstances more into account when deciding what a punishment is. Unfortunately, things like mandatory minimums don't allow us to do that.
…First of all, 1 in 3 Americans has a criminal record. That doesn't necessarily mean prison time, it just means a criminal record. They've had contact with the criminal justice system—state, local, or federal. When you have a criminal record, particularly if you've been convicted of a crime, it is very, very difficult to come out of prison and live a crime free life.
This is something that sort of drives me nuts. When I listen to people who oppose a lot of the second chance work that we try to do, because you're essentially acknowledging that you don't want this person to have a pathway to get out of the cycle of crime and violence that they've always known, and that's sort of frustrating. We focused on legislation like the Clean Slate Act, which is currently pending in the House…The Clean Slate Act deals with federal crimes, and it's very narrowly tailored, very specific to certain crimes, but it would allow an individual to seal their record.
Now, the records still would be accessible to law enforcement in the courts. So if they ever come back into contact with the criminal justice system, that record will be seen. Potentially, if necessary, they could be sentenced to recidivist penalties like three strikes or whatever the case may be. There's the Fresh Start Act, which provides grants to states to do essentially the same thing: record sealing and expungement.
The Kenneth B Thompson Begin Again Act deals with simple possession of controlled substances. Currently, you have to be under the age of 21 to be eligible for expungement of a simple possession offense at the federal level. When we're talking about a few hundred people a year, right. But, we want the Kenneth B Thompson Begin Again Act to get rid of that age restriction. Unfortunately, Rick Scott is holding us up in the Senate.
One of the things I'll touch on is in Baltimore and more policing and things like that. It's something that gets overlooked in a lot of the conversations we have about crime and criminal justice. I'm trying to get my friends on the Hill to understand this. Do you know what the arrest or the clearance rate for homicide is in the United States? 49.4%. Assault, 42.2%. Kidnapping and abduction is going to be 53.5%. Sex offenses, 22%. Drugs are actually really high. It's 76.6%. Pornography and obscene material, 20%.
What I'm telling my friends on the Hill is instead of creating new crimes, let's enforce the ones we already have, and let's encourage state and local and federal law enforcement to make arrests. The reason people do not commit a crime, [why] they're not afraid of committing crimes, [is not] because of the offense. They're wondering how likely it is they're going to get caught. According to this, the clearance rates for murder are one out of every two cases resulting in an arrest.
Federal Newswire: What are your two podcasts?
Pye: “Reclaiming My Time” was a podcast I did with Nathan Lemur. We actually shuttered that, and I just haven't updated my bio.
The other one, “Piece by Piece”, is something that we started doing during the pandemic. There's this website that a bunch of us had started years ago, actually founded by Erick Erickson, called Peach Pundit. We relaunched “Peach Pundit.” It’s back online at peachpundit.com, and it's just about Georgia politics.
We decided to take the website and turn it into a podcast with an audience that was really catered to Georgia politicos, state legislators, things like that. I haven't looked at viewership or listenership in a while, but my understanding is we're doing pretty well…it's composed of me and two former state legislators, Scott Turner, and Buzz Brockway, both of whom are conservative Republicans.
Federal Newswire: How do we find out more about the Due Process Institute?
Pye: You can go to our website, idueprocess.org. You can also find us on Twitter at @iDueProcess.
