Many members of the public may be learning this right now and, not without reason, bristling at some of the treatment they are reading about without being able to place it on the table. Wider context of a federal system that is generally tough. For others, however, particularly conservative experts and politiciansWhich in theory should know more, much of the outrage seems performative and opportunistic, part of a broader effort led by Donald Trump. to downplay the events of January 6 and, ridiculously, to suggest that it is the accused participants, and conservatives in general, who are the real victims.
In fact, there are several important ways the Justice Department appears to be treating the January 6 defendants better than most defendants.
For starters, the department has taken a relatively generous approach to collecting and negotiating the plea deals it has reached thus far. According to an analysis By BuzzFeed’s Zoe Tillman, the “vast majority of guilty pleas – 80 out of 100 – have involved defendants charged solely with misdemeanors from the start,” such as disorderly conduct or “parade, demonstrate or picketOn Capitol Hill, they generally carry maximum sentences of six months in prison. Initially, five people were “charged with a felony, but pleaded guilty to a misdemeanor.”
This is difficult to reconcile with the official indictment and plea bargain policies of the Department of Justice. Prosecutors be supposed to “Accusing and prosecuting the most serious and easily demonstrable crimes”, defined as “those that carry the most substantial sentence.” And when defending a case, they are is supposed to include “Easily demonstrable most serious charge” consistent with the facts.
Like others I have indicated, virtually anyone entering the Capitol could be charged with more serious offenses than lower level misdemeanors. Include entering or staying in a restricted building (a misdemeanor with a maximum term of one year) or obstruction of an official procedure (a crime). These charges accused subjects to the application of the sentencing guidelines and their various improvements, which can quickly pile and that it can have an anchoring effect on sentencing, even if the judges ultimately reject the government’s recommendation. A felony conviction also comes with all kinds of serious collateral Consequences, including a prohibition of owning firearms.
The government appears to have reserved more serious charges for cases with obvious or particularly strong indications of the defendants’ intent, such as social media posts or let’s say taking the seat of Vice President Mike Pence after fleeing the building, but it is far from obvious that this approach is necessary. The notion that any “Stop the Steal” contestant thought they might have been allowed on Capitol Hill In that day tense credulity, and there is no shortage of evidence which could be used to establish that the purpose was to obstruct congressional certification of election results. (Some defendants they have challenged the vague obstruction charge, but his arguments are not particularly strong.)
Second, prosecutors appear to accept the allegations even when the defendants they are pretending acceptance of responsibility. This is another major procedural no-no, as the defendants get a break under the sentencing guidelines for acceptance of responsibility, and they’re not supposed to get that break if they’re not sincere.
A judge recently observed that “many of the defendants who plead guilty do not really accept responsibility” but are “trying to get this out of the way as quickly as possible, stating everything they have to say … but without changing their attitude” . This particular problem has been evident since literally the first sentence of January 6, when a woman avoided going to prison after tearfully apologizing in court one day and then on Fox News the next day to minimize the chaos of the Capitol riots.
Lastly, regarding the government’s actual sentencing recommendations after a guilty plea is entered, a recent history from the Wall street journal reported that Garland “has told other” department officials that “he is concerned that incarcerating rioters who were not staunch extremists for extended periods could further radicalize them.” The story went on to say that Garland “has stopped recommending sentences to prosecutors directly involved,” but it is hard to believe that the attorney general’s views on the matter are not reaching line prosecutors, especially when he is expressing them to other officials and have been reported in a national newspaper. (Asked about this during his testimony on Thursday, Garland said that his informed comments had been taken from a “different context”).
the daily reported that Garland’s concern with the effects of long-term incarceration is “a concern he has expressed more broadly about defendants entering the criminal justice system,” but not reflected in Garland jurisprudence and has not been equaled (yet) by any broader judgment reform efforts. In fact, prosecutors generally do not care about the effects of long-term incarceration on recidivism, risks that exist for virtually all federal criminal defendants.
No one has had the book thrown at them yet, though a judge just handed down a 14-month sentence, the longest yet for a Jan.6 defendant, on a man who had made inflammatory comments on social media during and shortly after. of the mutiny. (and that he also had 17 prior criminal convictions). This is partly a matter of selection since, generally speaking, the cases that are being sentenced at the moment are the relatively less serious and that is going to start to change.
Meanwhile, some of the most prominent arguments that the January 6 defendants are being treated too harshly have been almost ridiculous. Judge Trevor McFadden, who was appointed to the DC District Court bench in 2017 after a brief stint as a senior official in Trump’s Justice Department earlier that year, he has suggested the department was easy on violent protesters in the capital in the wake of the murder. George Floyd last year and said recently that “the United States Attorney would have more credibility if he was impartial in his concern about the riots and mobs in this city.”
The particular claim – repeated by right-wing media and members from Congress – is absurd for a Variety of reasons, not least is that “the United States attorney” last year was a completely different person – who had been carefully selected by then Attorney General William Barr, who happily pursued some of the most shamelessly corrupt objectives and that they got into a public dispute with the Democratic mayor of Washington, Muriel Bowser, after she complained that the office was not responding aggressively enough violent protesters at the time.
This is not to say that there are no credible arguments in favor of the department deviating from standard practice toward a more lenient overall stance. Otherwise, the court system in DC could be overloaded, and prosecutors may want to approve these cases quickly so they don’t drag on forever and the government can prosecute other crimes. It could also be argued that the difference between a misdemeanor and a misdemeanor is not that great and that prosecutors would be right to worry about the political volatility of the situation.
The problem is that these arguments are at odds with the spirit of the “rule of law”, that the Department of Justice should treat similar cases equally, regardless of who the defendants are or what their political affiliation is, in which Garland relies on both its public rhetoric, even in the hearing on Thursday, and that is reflected in the department’s own written policy.
There is a way to bridge this gap. The Justice Department must be forthright about what it is doing and why it is doing it, and Garland must seize this opportunity to build more public and cross-sector support for reform efforts. In fact, the rigidity and severity of the department’s indictment and plea bargaining policies are dubious; the sentencing guidelines need further reform; and the department should be more concerned about the long-term effects of incarceration.
These are concerns that must be addressed seriously and broadly, and that must apply to all federal defendants, not just those who were involved in the shameful events of January 6.