Republican Judges Are Letting The Insurrections Off With Incredibly Light Sentences

I would have guessed Texas for the state that sent the most insurrectionists to sack the Capitol last Jan. 6. But Texas was second, tied with Pennsylvania. Numero uno was Florida-- at least in terms of the ones who have been caught. Florida Congresswoman Kathy Castor: "People pledged allegiance to (Trump) rather than to our Constitution and history will judge them harshly." No firing squads. In fact no real jail sentences either-- just slaps on the wrists which not only don't discourage the domestic terrorists, but encourage them! The hard core extremists feel a sense of accomplishment and martyrdom and are heroes in their circles. The Justice system has sent out a clear message; there is no price to pay for sedition or treason.

In fact, it's even worse than that. Writing for the Washington Post this morning, Rachel Weiner, Tom Jackman, Spencer Hsu reported that federal judges are basically letting the seditionists off extremely lightly-- just the way the Weimer judges did with Hitler after the Munich Beer Putsch. Apparently, these assholes-in-robes don't understand how serious this was and don't understand the kind of signal they're sending to other domestic terrorists and extremists. It didn't start that way though.

"When federal judges in Washington began hearing guilty pleas from some of the hundreds of riot participants who attacked the Capitol on Jan. 6 last year," wrote the trio of reporters, "some were highly critical of prosecutors for pursuing only misdemeanor charges, and not seeking jail time, for many defendants. 'Is it the government’s view that the members of the mob that engaged in the Capitol attack on January 6 were simply trespassers?' Chief U.S. District Judge Beryl A. Howell asked incredulously in October. 'Is general deterrence going to be served by letting rioters who broke into the Capitol, overran the police … broke into the building through windows and doors … resolve their criminal liability through petty offense pleas?' But for all four defendants Howell has sentenced, she has imposed less jail time than prosecutors sought, saying that government plea deals in most misdemeanor cases are forcing judges to choose whether short jail terms or years of probation pose a stronger deterrent. And her decisions are not unusual, a Washington Post analysis found."

Federal judges in D.C. have gone below the government recommendation in 49 out of 74 sentencings held for Capitol riot defendants one year after the attack, about two-thirds of the cases. In eight cases where prosecutors asked for jail time, the judges instead opted for probation. Of the 74 people sentenced so far, 35 have been given jail or prison time, 14 home detention and 25 probation alone.

About a quarter of cases in what the government has called the largest investigation in U.S. history have resulted in guilty pleas as of Jan. 6 this year; out of 701 people charged in federal court, 174 have pleaded guilty. (One case was dropped against a man who never went inside the building; two defendants have died.) While half the defendants face felony charges, nearly 90 percent of pleas involve misdemeanors, as prosecutors so far have focused on closing less serious cases to marshal resources for more complex trials ahead.

Before the pandemic, about half of federal felony cases in Washington were resolved within a year. But the system has moved slowly for those accused of the most serious crimes due to the pandemic and the vast amount of electronic evidence, whether videos or social media, which had to be reviewed and shared. Prosecutors are also using the felony charge of “obstruction of Congress” in a novel way against 275 defendants, prompting legal challenges that have delayed plea talks. Those challenges are easing, however, likely speeding up guilty pleas, cooperation deals and the overall investigation, as well as increasing average sentences as more felony cases are decided.

Of the 367 people charged with at least one felony as of Thursday-- including 156 charged with assaulting law enforcement-- only seven cases have reached sentencing, and just three of those involved attacks on the police. No trials have been held, with the first set to begin in February. None of the 39 people charged with conspiring to stop the vote count, including members and associates of the Oath Keepers and Proud Boys, have been sentenced.

Although the Justice Department has argued generally that higher sentences would deter domestic terrorism, prosecutors so far have not formally asked judges to apply terrorism-related enhancements that could more than double the sentencing guidelines. Instead, they have used the threat of that enhancement to encourage guilty pleas, lawyers have said.

In addition to those charged, the government estimates more than 1,000 other people took part in the riot, including more than 350 who committed acts of violence in the insurrection that resulted in attacks on scores of police officers and left at least five dead.

It’s not unusual for federal defendants who plead early and cooperate to get better sentencing deals. And judges regularly sentence below government recommendations and the advisory guidelines calculated by probation officers, which factor in criminal and personal history, remorse and the seriousness of the offenses. Defendants also get to make recommendations at sentencing, with courts often splitting the difference. And Jan. 6 prosecutors began asking for jail time more often after judges’ initial complaints.

Nevertheless, U.S. district judges in Washington have lamented that they are limited by prosecutors’ decisions to let many rioters plead to a “petty offense” of illegally parading inside the Capitol or other misdemeanors, including at least 14 allowed to plead down from felonies. And even among seven felony cases sentenced so far, alongside 67 misdemeanor cases, judges have reduced the government’s proposed sentence in five of them.

...Some felony defendants have gotten a break for pleading early. Prosecutors sought an 18-month sentence for Paul Hodgkins, who pleaded guilty to the felony of obstructing a joint session of Congress while carrying a “Trump 2020” flag into the well of the evacuated Senate on Jan. 6. Hodgkins was the first riot participant to face sentencing for that felony charge, which other defendants have argued is unconstitutional. U.S. District Judge Randolph Moss, an appointee of President Barack Obama, sentenced him to eight months.

Judge Amy Berman Jackson, another Obama appointee, gave the largest departure from a government recommendation to Cleveland Meredith, who headed to D.C. armed and threatening to kill House Speaker Nancy Pelosi but failed to make it in time for the riot. Prosecutors sought a roughly 41-month sentence; Jackson gave him 28, citing his mental health problems and “need of a comprehensive assessment and an intensive, multilayered treatment plan.”

...The refusal to routinely impose heavy sentences shows “the prosecutors and judges are doing exactly as their oaths require,” said Jay Town, a former U.S. attorney in Alabama who served on a Trump-era law enforcement commission. “Judges are thoughtfully curating sentences for defendants under the totality of the circumstances, not just heedlessly following the government’s recommendations.”

The sample size of 74 sentencings is small, but a split has emerged among some judges appointed by presidents of different parties. Of the 11 sentences above the government’s recommendation, nine were exceeded by Democratically appointed judges, with Obama appointee Tanya S. Chutkan going higher than requested in seven. There are 10 judges appointed by Democratic presidents and eight appointed by Republicans who are handling Jan. 6 sentencings at the district court in Washington.

Of the 49 sentences that have been below the government recommendation, 30 were by Republican-appointed judges, though they are a slender minority on the court. As of Jan. 6 this year, Judge Carl Nichols went lower than requested in eight of his 10 sentencings. Judge Trevor McFadden went below the government’s request in five of the seven cases he has heard, while going higher in one. Both judges were appointed by Trump.

The results appear to have flipped some judges’ sentencing tendencies, given their backgrounds. Chutkan is a former public defender, and McFadden is a former Justice Department official, prosecutor and police officer.

When prosecutors asked for a two-month home confinement sentence for a defendant from Oklahoma who climbed into the Capitol through a broken window and pleaded guilty to parading, McFadden instead gave her two months of probation.

“I think the U.S. attorney would have more credibility,” McFadden said, “if it was evenhanded in its concern about riots and mobs in this city.”

Hundreds of people were arrested in D.C. during racial justice protests in 2020; not all were charged, and police were accused of sweeping up nonviolent protesters and observers. McFadden has rejected prosecution requests for home detention in four Jan. 6 cases, saying he thought it was ineffectual.

Chutkan stands out in exceeding government requests in seven of her eight cases so far, sentencing defendants who pleaded guilty to unlawful parading to prison terms of 14 to 45 days-- above prosecutors’ requests for no time or 30 days.

“There have to be consequences for participating in an attempted violent overthrow of the government, beyond sitting at home,” Chutkan said in an October sentencing.

“People gathered all over the country last year to protest the violent murder by the police of an unarmed man-- some of those protests became violent,” Chutkan said, apparently referring to McFadden’s comments. “But to compare the actions of people protesting mostly peacefully for civil rights to those of a violent mob seeking to overthrow the lawfully elected government is a false equivalency and ignores the very real danger that the Jan. 6 riot posed to the foundation of our democracy.”

Chutkan also gave the longest sentence thus far-- to Robert Palmer, who got the 63 months in prison prosecutors sought for repeatedly attacking police officers at the Capitol with a fire extinguisher and a pole. In two other police assault cases, judges went slightly below government requests, issuing sentences of 46 instead of 48 months, and 41 instead of 44 months.

McFadden is not alone in regularly rejecting prosecutors’ suggestions, though his reasoning may be different from others. Historically tough sentencing judges Royce Lamberth and Reggie Walton, both Republican appointees, have repeatedly sentenced below government recommendations in misdemeanor cases.

“Even for people who were just there for a short period and walked through, the seriousness of what happened that day … the effect on the country is such that the courts have to treat it like a serious offense,” Lamberth told a defendant who was briefly in the building. But the judge also believed the 81-year-old veteran had “lived a life that is to be emulated,” and Lamberth “encouraged others” to plead guilty rather than go to trial.

“I hope others will follow your lead,” he said, in giving the man three months of home detention-- a month shy of the government request.

Walton told a Florida man who recorded officers being assaulted and tried to open doors inside the Capitol that he had “disgraced this country in the eyes of the world.” But Walton gave him three years of probation for illegal parading, rather than the four months in jail prosecutors wanted.

Prosecutors have allowed 58 of the 74 sentenced defendants to plead guilty to “illegal parading or picketing,” a misdemeanor punishable by no more than six months in jail. Probationary terms could be longer, but legal precedent indicates judges cannot combine both supervision and incarceration for the parading charge.

In a recent sentencing memorandum, the Justice Department explained that those who “did not carry a weapon into the building, engage in violence or property destruction, or conspire or coordinate with groups intent on breaching the building” have been “permitted to plead guilty to a misdemeanor of their choosing.” Most have chosen parading; other misdemeanors can carry more jail time and a mix of probation and incarceration.

By allowing some defendants initially charged with felony obstruction to plead to misdemeanors punishable by up to a year in prison, and defendants facing such misdemeanor charges to plead down to parading, prosecutors have created a three-tier system that incentivizes defendants to plead guilty, defense lawyer have said.

Today Rashida Tlaib reminded her own Detroit constituents what's at stake here. "Brandishing antisemitic and racist paraphernalia, the mob brutally attacked U.S. Capitol police officers-- killing one-- and sought to harm and kill elected officials. Black officers on the scene described feeling fear as groups of people hurled the n word at them."

One of those officers, Henry Dunn, said that 'one of the scariest things about January 6th is that the people that were there, even to this day, think that they were right. They think that they were right. And that makes for a scary recipe for the future of this country.'

I agree, it is scary.

Recent polls have shown that nearly 80% of Republicans still believe the 'Big Lie' that Biden did not win the election, and a majority of Republicans support the use of violence for political means.

Surveys have found that the millions of people who believe both of these things also believe racist conspiracy theories-- based on false assumptions that non-white people get special privileges they have not earned.

Such folks don’t understand the very real and persistent racial wealth gap, which keeps growing and holds constant even when controlling for education level, income level, and more. Or the other myriad ways in which racism is systematized into our institutions.

Ever since building our country’s wealth while enslaved, Black Americans have not gotten an equitable share in the wealth they’ve created. Clearly, they’re not the people who are benefiting from generations of unearned privileges.

This is by design. For hundreds of years, white conservatives have been excluding Black Americans from our country’s electoral process and erecting other barriers to equality.

During and after the civil rights movement, conservative white Democrats moved to the Republican Party, which was becoming the party of resisting racial equality. Today, white supremacy is a mainstream feature of the Republican Party. And it’s clear that, like the Confederacy, the GOP cares more about maintaining unequal power than about our country or our democracy.

In order to maintain our unjust status quo and preserve a power structure designed to benefit white wealthy people at the expense of everyone else, right-wingers are actively seeking to destroy our system of multi-racial democracy. And this is increasingly mainstream.

...[I]t's no coincidence that many of the January 6th insurrectionists came from U.S. counties that have lost the most white population in the United States.

Nor is it a coincidence that Trump and his supporters targeted Black and brown communities with their election fraud conspiracies, angry that communities of color voted out Trump.

Black and brown communities have always been the targets of voter suppression in this country.

And since January 6th, state legislators have introduced and passed bills to make it harder to vote (which will disproportionately impact Black and brown voters) and to make it easier for partisan legislatures to tamper with democratic elections and overturn the will of voters.

Meanwhile, Republican members of Congress have largely sided with Trump and the insurrectionists he incited.

A Data For Progress poll of 4 battleground districts-- CA-25, PA-10, AZ-06, and NY-11-- released today shows that a majority of voters disapprove of the January 6 insurrection and efforts by Republican lawmakers to overturn the election results and would be less likely to vote for candidates who voted against certifying the election results.

In CA-25, PA-10, AZ-06, and NY-11, likely voters disapprove of lawmakers’ attempt to overturn the election by a -27-point margin, a -21-point margin, a -18-point margin, and a -11-point margin, respectively. Independent voters in CA-25 and AZ-06, meanwhile, disapprove of these Republican lawmakers by a -32-point and a -30-point margin, respectively, while those in PA-10 and NY-11 disapprove by margins of -23 and -12 points, respectively.

Data for Progress also finds that in all four congressional districts, a majority of voters find their representative’s decision to vote against certifying the 2020 election results to be a convincing reason to vote against them. In AZ-06, 58% of voters find it convincing, while 57% of voters say the same in CA-25. Similarly, 56% of voters find it convincing in both PA-10 and NY-11.

The same poll also surveyed statewide likely voters in Georgia, a critical swing state for the upcoming Midterms. In Georgia, likely voters disapprove of these actions by a margin of -15 points. Across partisanship, a majority of Democrats (88%) and a plurality of Independents (49%) say they disapprove of Republican efforts to overturn the 2020 election.