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December 18, 2021
Lots of new January 6 riot sentencings producing lots of notable new headlines and sentencing stories
In this post about a week ago, I flagged this CNN piece reporting on the first 50 sentences imposed on those convicted for federal crimes as part of the January 6 riot. That article noted that sentences were still forthcoming in the most serious cases; one such case was sentenced yesterday setting a new "record" as reported in this Washington Post article headlined "Fla. man sentenced to 5 years for attacking police, the longest Jan. 6 riot sentence yet." Technically, the WaPo headline is off, as the defendant got sentenced to 63 months, and I am not too keen on at least one element accounting for the severity of this sentence:
Robert S. Palmer, 54, of Largo, Fla., pleaded guilty in October to assaulting law enforcement officers with a dangerous weapon, and his original plea agreement called for a sentencing range of 46 to 57 months. But after his plea, and his entry into the D.C. jail, Palmer arranged to make an online fundraising plea in which he said he did “go on the defense and throw a fire extinguisher at the police” after being shot with rubber bullets and tear gas.
That was a lie, Palmer admitted Friday. He had thrown a fire extinguisher — twice — a large plank and then a four-to-five-foot pole at police before he was struck with one rubber bullet. The falsehood indicated a failure to accept responsibility for his actions, prosecutors argued, and when U.S. District Judge Tanya S. Chutkan agreed, she increased his sentencing range to 63 to 78 months, ultimately imposing a 63-month term.
Based on the rest of the WaPo article, it seems as of the day of sentencing Palmer had truly accepted responsibility. Though it is understandable that prosecutors and the sentencing judge may have considered previous statements trying to minimize his culpability as undercutting his claims of remorse, I find it troubling that Palmer ends up facing 1 to 2 years longer in a cage simply for a few stupid comments while trying to raise money for his defense. I have long thought some prosecutors and judges are too eager to deny acceptance of responsibility credit under the guidelines based on a defendant's dumb statement or two, and this case highlights the stakes potentially involved in doing so.
Palmer's sentence, because of its length, generated the most recent January 6 sentencing headlines. But I saw a few more notable headlines and stories this past week that seemed worth rounding up here:
"Judge: Lack of charges for Trump over Jan. 6 is no basis for leniency for others"
"New York man sentenced to nearly 3 years in prison for threatening Sen. Raphael Warnock"
"Judge goes beyond prosecutors' request with sentence for Jan. 6 couple"
"Jan. 6 riot ‘not patriotism’ judge says in sentencing Ga. man"
"UK student gets 30-day sentence for involvement in Jan. 6 Capitol riot"
"Federal judge ordered Fort Pierce man to serve probation for activities at U.S. Capitol Jan. 6"
"Guardsman in Jan. 6 Mob Gets Probation, Still Serving in the Guard"
December 18, 2021 at 11:55 AM | Permalink
Comments
Interesting to compare and contrast the treatment of this guy with the treatment of similar violent rioters in Portland and DC.
Posted by: Federalist | Dec 18, 2021 8:22:01 PM
https://www.washingtonexaminer.com/opinion/byron-yorks-daily-memo-sentencing-the-january-6-rioters?_amp=true
Make no mistake—this is politicized justice.
Posted by: Federalist | Dec 18, 2021 8:28:38 PM
Federalist:
Assuming that you disagree with this sentence, what in your learned opinion would have been fair and reasonable after considering all of these facts?
Posted by: SG | Dec 19, 2021 7:31:27 AM
SG, I asked Federalist a similar question in a prior comment thread, and he failed to answer. I hope he'll respond this time!
Posted by: Curious | Dec 20, 2021 7:48:11 AM
There are really two answers here—and it’s curious by the way that you don’t address the sentencing issues that Mr York has noted.
The first answer is an admission that I don’t know all the details regarding the threat. Threatening elected officials is a serious breach of our democratic ideals. So I’d be inclined to take this crime very seriously if I were a sentencing judge.
The second answer is that politicized justice delegitimizes the whole thing. Hence if I were a sentencing judge, he’d get the same deal that many of the Portland rioters got—charges dismissed.
Posted by: Federalist | Dec 20, 2021 10:37:16 AM
Federalist, do you know when the Portland rioters charges were dismissed? Since the Portland riots occurred months before J6 (and the change in administrations), I’m wondering if we should attribute those decisions to Trump’s US Attorney or to Biden’s.
Posted by: Curious | Dec 20, 2021 11:00:38 AM
Federalist, I am curious if you are saying here that if one defendant gets a sweetheart "politicized" plea deal or sentence, then you would want other judges to give other defendants "the same deal" in the name of equity. I do not want to mischaracterize your point, but I am interested to hear if this is what you are suggesting and whether you would advance this notion in various "politicized" plea/sentencing settings.
Posted by: Doug B. | Dec 20, 2021 3:10:08 PM
Doug,
You didn't ask me, and Federalist is more than capable of speaking for himself. But your question is important generally. In my view, the fact that one defendant gets a sweetheart deal in no way means that the next defendant, in a similar case or a different one, should get the same. That view would countenance a race to the bottom, a race that only criminality would win. If anything, the fact that one defendant succeeds in conning the system in his case makes it just that more important that future courts insist on sobriety, and something at least resembling law, in handling others.
Posted by: Bill Otis | Dec 20, 2021 4:50:49 PM
Mr. Otis,
It seems (and I may be wrong) that your core belief is essentailly that anyone who has received mercy or a comparatively lenient sentence has ipso facto "conned the system".
I also sense that you believe that mercy and leniency should rarely if ever be excercised when seeking to hold one convicted of a crime accountable, otherwise, the goal of deterrence to crime in general will be weakened and never fully realized, and that chaos would certainly ensue. Did I get that right?
Posted by: SG | Dec 20, 2021 8:09:33 PM
It seems like some of the problem is the all-or-nothing approach of the guidelines here: a reduction is granted if the defendant "clearly demonstrates acceptance of responsibility for his offense." Here, we arguably have something less than a "clear" demonstration, but it's not really appropriate to treat the defendant the same as someone who has shown no acceptance of responsibility.
Maybe the guidelines should say that if there is a significant but inconsistent acceptance of responsibility, the defendant gets a 1-level decrease instead of two, plus the guilty-plea reduction if applicable? The broader question is whether the guidelines should be more granular like this in general -- if a 2-level uplift or reduction *kinda* applies, would it be better to have a 1-level change, or should we force the sentencing judge to pick between 0 and 2?
Posted by: Jason | Dec 20, 2021 10:33:02 PM
SG --
I've written over 2000 posts here plus numerous op-eds and articles in other outlets. I will let my "core beliefs" come through in the words I have used, and chosen to refrain from using, in those items. Given my roles as an AUSA and White House aide at one time and a law professor now, I tend much to prefer to choose my own wording.
I might be less wary of trying to boil it all down to a sentence or two if I knew to whom I am speaking. Thus if you would care to give your name, education, work experience and other credentials you view as relevant, that would help out. You have no obligation to do so, of course, but I have learned that conversations undertaken when one (but only one) of the parties chooses to remain unknown tend not to work out. That is something I take into account in deciding which among competing invitations for my engagement gets priority.
Posted by: Bill Otis | Dec 20, 2021 11:29:23 PM
SG --
Correction: I have written over 2000 posts on Crime and Consequences, a blog sponsored by the Criminal Justice Legal Foundation. I've written numerous comments here, but no posts.
Posted by: Bill Otis | Dec 21, 2021 12:12:06 AM
Mr. Otis
While I choose not to provide you with my name and/or other personal I.D. (e.g., home address, mother's maiden name, etc.) I have no problem sharing information pertaining to my education and work history. I am assuming that you require this so that you may make a judgement as to "where I am coming from", and thus tailor any/all of your answers (if any) accordingly.
First, and I believe this is the most salient piece of info, I am not now, nor have I ever been an attorney. Secondly, I am a former heroin addict (during my teenage years, in the 60's) who has now been clean for over 50 years. I hold two degrees, one in criminology and one in "Human Services". I worked for several years as a substance abuse treatment/rehabilitation counselor, supervisor, teacher. This was followed with a career as a legal investigator licensed by the State in which I worked, providing services to attorneys in various cases, both criminal and civil.
Throughout my career, I provided services to (typically but not always) crim. defense attorneys with varied clientele, from the common criminal to white collar clients, including politicians, attorneys, law enforcement agents, doctors, business owners/corporate executives, etc. On occassion, I provided services to candidates running for public office (typically prosecutors running for local judgeships. Surprisingly, some actually won).
My reputation was that I was above all ethical and honest, very hard working, reasonably intelligent, and dependable. State and federal courts often sought out my services for indigent defendants in high profile and complex cases (capital cases, special circumstance murder cases, major drug cases, sex crimes, etc.)
It would be an error on your part to assume that my former career path (I am now retired) is fully informative as to my political bent, core beliefs, etc. I am not "all one thing or another", and do not follow any one social, political or religous orthodoxy.
I do enjoy banter such as this in which we challenge each other's positions, assumptions, etc., or perhaps find out that we stand in agreement. Ultimately, I may influence your thinking, and you may influence mine. Isn't this the goal?
As I have now danced to your tune a bit, I would appreciate a reciprocal little jig on your part. Of course, you may choose not to answer at all, but I believe you to be principled and honest, and hold the courage of your convictions.
I look forward to your reply.
p.s. Sorry I am a bit long-winded, but you asked..so...
Posted by: SG | Dec 21, 2021 9:00:42 AM
Thanks, Bill, for jumping in while we await further explanation from Federalist. I share your sense that how we best balance fair and effective justice in individual cases and equal treatment across the range of cases serves as one of the most important and challenging and persistent issues in criminal justice generally and in sentencing in particular. Thus my follow up inquiry to Federalist.
It bears mentioning, though, that a "race to the max" can also be as big a problem as "a race to the bottom." Now that Mr. Palmer got 63 months, federal prosecutors are sure to say in some future cases some version of "well, Mr. MAGA Meanie was even worse than Mr. Palmer, so he should surely get more than 63 months." But if you think it misguided to argue that undue leniency in one case should influence the next one, the same point should be made for undue harshness (and, as explained above, I think it was unduly harsh for Mr. Palmer to lose credit for acceptance of responsibility based on news accounts).
Posted by: Doug B. | Dec 21, 2021 9:59:40 AM
I think I've gotta agree with Bill over Federalist here, although I wouldn't use the same language as he did.
The alternative would mean that anytime a new administration set new prosecutorial priorities (e.g., a Democratic president promising to go after tax cheats, or a Republican filing more charges for illegal reentry), every subsequent defendant could claim "politicized justice" and ask a judge like Federalist to set them free. The reverse would also be true - if a new administration decided to prosecute a particular category of crime less than its predecessors, then all the previously charged defendants could challenge their convictions. That wouldn't be sustainable, it seems to me.
Posted by: Curious | Dec 21, 2021 10:03:59 AM
SG --
Here is one thing that gives me significant pause: You have twice now tried to stuff words in my mouth or thoughts in my head that you either know or have strong reason to believe aren't there. This is an old and shoddy debating tactic and I won't put up with it.
In your first approach, you asked, "It seems (and I may be wrong) that your core belief is essentailly that anyone who has received mercy or a comparatively lenient sentence has ipso facto 'conned the system'."
But no honest reading of what I have said could possibly lead you to such a conclusion. There is plenty of conning the system, as I'm sure you know having worked with it, and lots of it shows up with fake contrition at sentencing (among the Jan 6 defendants and zillions of others), but no sane person could believe that "anyone" who gets a light sentence "has ipso facto 'conned the system.'" So you're just throwing a zinger and then demanding that I respond to it.
Like I say, that is the path to a real short conversation.
Then in your most recent comment, you come right down the shute with, "While I choose not to provide you with my name and/or other personal I.D. (e.g., home address, mother's maiden name, etc.)..." Of course I never asked for, or suggested I was interested in, your home address or your mother's maiden name. You know that, so why would you suggest that I did?
I think it's because you want to lump that stuff with the request for your name, to make such a request seem illegitimate. But it's not illegitimate, so the ploy is both transparent and ineffective.
I give my name because I want to be responsible for what I say. I have written publicly for decades, and not once have I done so anonymously or pseudononymously. If we are to have a conversation, I ought to be able to know your name. If as you say you have had a long career assisting courts, then surely it's already known very widely. So I ask again, what is it?
And while we're at it, while I appreciate your telling me something about your educational background, you omitted the key info, to wit, where did you go to college and grad school? There's a big, big difference between people who went to, say, Notre Dame vs. Oberlin vs. BYU vs. Berkeley. It doesn't tell the whole story, sure, but it tells a part of it.
Just to be reciprocal: My name is William G. Otis. I grew up in Main Line Philadelphia, and got my undergrad degree at UNC Chapel Hill and my law degree at Stanford (with something called the Ohlmann Prize for legal writing). I went to Main Justice for seven years, then was head of the appellate division at the USAO for EDVA for 18 years, under administrations of both parties. I also served along the way as Special Counsel to Pres. GHWB. His son, Pres. GWB, appointed me in 2003 as Counselor to the head of the DEA (an appointment not requiring Senate confirmation). I live most of the time in Northern Virginia, but I take the winters at my home in Hawaii and much of the summer at a beach house on the South Carolina shore.
I have had background checks by the White House, the FBI, the DEA. They all seemed to be happy enough with me, and I with them.
Again, please refrain from putting words in my mouth, directly or by implication, or by "asking" what will be termed as "questions."
Posted by: Bill Otis | Dec 21, 2021 11:29:45 AM
Mr. Otis,
I demanded nothing from you. My somewhat impudent and irreverent writing style, offered with a bit of humor, is and was intended only as a means of opening the door to legitimate, honest discourse, zingers and all.
Not wanting to put words in your mouth, I believe it unfortunate that one would take this as a personal attack or a ploy to decieve in some way, and to what ends, I have no idea.
And while I am duly impressed with your bona fides and accomplishments, I choose not to fall into the trap of comparing employment histories and CV's. Which college one may or may not have attended does not serve to prove or disprove the validity of one's positions.
If you do not want to discuss or address the original issues in an honest and forthright manner, you should just say so. My feelings will not be hurt. We don't need to do this dance.
Best regards.
Posted by: SG | Dec 21, 2021 1:15:30 PM
If people go back and look at what I’ve posted here, they will see that I have said that defendants aren’t entitled to cosmic fairness, I.e, the benefit of lenience shown to other criminals. However, clearly politicized justice is a very serious problem. And society doesn’t have the right to ask those subject to it to meekly submit. It is an instrument of tyranny, and that’s not really debatable.
Posted by: Federalist | Dec 22, 2021 3:15:09 PM
Federalist, I'm interested in the factual basis for your claim that the January 6 cases reflect politicized justice, as compared to the treatment of the Portland rioters. According to the article I found, linked below, 31 of the 90 Portland cases were dismissed, but only 11 of them were dropped on or after Biden's inauguration. That means 2/3 of the cases were dropped by Trump's DOJ. Are you saying that the Trump administration engaged in politicized justice by dropping 20 of the Portland charges?
https://www.kgw.com/article/news/investigations/portland-protest-cases-dismissed-feds/283-002f01d2-3217-4b12-8725-3fda2cad119f
Posted by: Curious | Dec 22, 2021 3:27:21 PM
Federalist --
"If people go back and look at what I’ve posted here..."
And there indeed is one of the main problems here. It's routine for commenters to question those of us who don't buy The Approved Woke Wisdom by starting off with, "What you seem to be saying is ________," and then they fill in the blank with some obviously absurd thing they want to jam in your mouth.
The repeated intentional (and quite annoying) distortion of the argument you actually put forward was one of the main reasons I walked away from this forum for a long time.
Posted by: Bill Otis | Dec 22, 2021 7:04:39 PM
Bill, how am I distorting Federalist's original argument? He suggests comparing and contrasting the treatment of J6 defendants and Portland rioters whose charges were dropped, claiming this is politicized justice. Yet the charges against Portland rioters were mostly dropped under the Trump administration.
Posted by: Curious | Dec 22, 2021 9:11:21 PM
Curious --
I did not say or imply that YOU are distorting Federalist's argument, which is why I did not address my comment to you or quote or refer to anything you said. I said distortion of argument and jamming words into an opponents mouth are frequent and annoying ploys, which they regrettably they are.
Posted by: Bill Otis | Dec 22, 2021 10:18:38 PM
What a miserable burden it must be for some people to reflexively categorize all those who attempt to engage with that person as somehow a threat; that people are either "adversial or friendly", "one of us or one of them", and in which any inquiry is interpreted and treated as a challenge by an "opponent". I cannot imagine going through life in such a state.
Posted by: SG | Dec 23, 2021 6:31:20 AM
It’s not just the Portland defendants—the Trump inauguration defendants were treated with kid gloves.
I linked to Byron York’s article. Many of the people charged did nothing but mill about in the Capitol building—how are they any different from the Code Pink people?
If you want to see a serious politicized prosecution, look at what happened to Bogdan Vechirko. His assailants were not prosecuted, but he was simply because the Minnesota politicians had proclaimed him as deliberately running into a crowd. The truth was that the authorities failed to close the on-ramps and this poor guy was just doing his thing until he saw a crowd of people and he frantically tried to stop. He was then set upon by a mob, and what do the cops do—arrest him, and not those who assaulted him.
Sickening. In a just world, the prosecutor would be behind bars for the rest of his life.
Posted by: Federalist | Dec 23, 2021 5:45:38 PM
And that trump was President doesn’t mean that he controlled the day to day decisions of line prosecutors.
Posted by: Federalist | Dec 23, 2021 5:46:43 PM
Federalist: in addition to still not understanding how you think judges should respond to what you consider "politicized" plea deals or sentences, I am now wondering if you are advocating against absolute immunity for prosecutors in all cases or just in so-called "politicized" cases. Here is a recent Boston Review article on the topic of getting rid of absolute prosecutorial immunity:
https://bostonreview.net/articles/kate-levine-joanna-schwartz-against-prosecutorial-immunity/
Particulars aside of what you think justified in response to a "politicized prosecution," I also have more fundamental questions about how you would distinguish your vision of what is "politicized" in the criminal justice system from others' claims in a similar vein, eg those who assail the War on Drugs as based on a "pretextual political strategy": https://thehill.com/blogs/congress-blog/politics/559031-fifty-failed-years-later-its-time-to-end-and-dismantle-the-war
I am sincerely not trying to troll here, Federalist, but rather your comments reminded me that a chief proposition for the early Critical Legal Studies movement was that all justice is a form of "politicized justice." I am not suggesting you are making this claim, but I do think the Crits were quite invested in unmasking the ideological nature of legal decisions and in encouraging legal decision-makers not to seek to hide ideological commitments behind false claims of legal neutrality.
Posted by: Doug B. | Dec 24, 2021 11:15:03 AM
I approach these questions from the perspective of whether society has the right to ask people to accept the treatment imposed on them by society. Take Edward Mero—he was a very low-ranking cop who showed on the Freddie Gray scene after he had been arrested. Mero had zero say in how Gray was to be transported—and yet Marilyn Missy had him prosecuted—shouldn’t those prosecutors be disbarred? And what right does society have to ask Mero to just accept that Mosby got to get away with trying to destroy him? I’d submit that society has no such right. Having a free society isn’t easy and when we casually accept these kind of injustices or many many many example of cop on the street injustices, our society degrades.
How are defendants in Cook County Illinois simply to accept their treatment from the Cook county state’s attorneys office? Foxx was clearly looking out for Juicy.
It’s obvious that the J6 defendants have been singled out. What does that say of the judges and Merrick garland?
Posted by: Federalist | Dec 24, 2021 1:38:31 PM
And yes , as long as humans do justice there willl be some politicization
And some of it is the assumption of the risk of bad actors—but this stuff is far different—if you’re copacetic with how Bogdan Vechirko was treated, then I feel sorry for you.
Posted by: Federalist | Dec 24, 2021 1:42:17 PM
What I am trying to better understand, Federalist, is just what makes "this stuff... far different" than, say, claims the drug war was started to enable Nixon to go after political enemies and still functions as a "new Jim Crow" or claims that "racial politics" explains why prosecutors are far more likely to bring capital charges when a murder victim is white rather than black.
I am quite open minded to assertions of all sorts that "politics" and not "law" explains various decisions in the application of criminal law by prosecutors and others. That is precisely when I am eager to hear your account of which kinds of "political justice" you think ought to lead to responses by judges and/or sanctions for prosecutors. If Chicago judges believes, for example, that federal officials targeted certain folks for "political" reasons in stash house stings, should that judge dismiss all these cases AND seek to sanction prosecutors who brought the charges? How about, as another example, the prosecutors repeatedly found to exclude African American jurors in the repeated trials of Curtis Flowers?
Again, not trying to troll, Federalist, but just seeking to understand more clearly the seemingly convergence between some of your claims about "politicized justice" and some fundamental principles of the CLS movement.
Posted by: Doug B. | Dec 24, 2021 4:59:53 PM
This response was a huge reason why I stopped posting here. One cannot look at the treatment of the anti-trump violent protesters, the Portland Antifa goons, the return of the axe to the guy who attacked hoeven’s office and the treatment of the J6 protesters.
You fail to address the horrendous treatment of Bogdan Vechirko.
And your response regarding capital punishment—weak. You and I both know that there are so many non-racial factors involved in the choice of capital prosecutions. For example, jury lenience in urban areas. Or how about anti-capital punishment prosecutors located in urban areas, where minority victims are concentrated.
Posted by: Federalist | Dec 25, 2021 1:07:24 PM
With respect to Curtis flowers, I haven’t looked at that in years. My impressions are that he did it, but who knows. Prosecutors have to m know when to give up.
There are political considerations in certain prosecutions, and not all are bad, but it’s a dangerous thing. And where you have things like the Clinesmith travesty, you have to wonder.
Posted by: Federalist | Dec 25, 2021 1:13:34 PM
Federalist, Trump didn’t control the day-to-day actions of federal prosecutors, but he did appoint the US Attorneys who directed them. It sounds to me like your beef is really with the Trump administration, which went easy on the rioters who tried to disrupt the 2016 inauguration and the federal courthouse in Portland.
I, for one, am glad that the Biden administration is taking a tougher line on rioters after all the chaos of 2020. And of course, changes in prosecutorial priorities between administrations are common and not politicized justice (see, eg, the Trump administration’s harder line on illegal reentry beginning in 2018).
Posted by: Curious | Dec 26, 2021 7:36:55 AM
Federalist, after you posted something which argued, in essence, that judges and others ought to respond in unique and controversial ways to "politicized justice," I asked about what you mean by "politicized justice" and about what responses you consider appropriate. If the treatment of Bogdan Vechirko bothers you as "political," I wonder about your take on the Chicago stash-house stings. The Vechirko charges were dismissed, but you suggest his prosecutor ought still be subject to an LWOP criminal sentence (though I am unaware of any prosecutor ever subject to criminal prosecution for non-fraudulent behavior). So do you think the federal prosecutors in the stash house cases --- which led to dozens of persons serving very long prion terms --- also merit criminal prosecution and perhaps LWOP? How about the state prosecutors in the Flowers case? More fundamentally, how do you respond to folks who would call these cases and many others (especially those with distinct race or class realities) a form of "politicized justice"? Was every federal crack case under the 100-1 ratio a form of "politicized justice"?
In this context (and others as I recall), you seem to expound a "rule of Federalist" rather than a "rule of law" approach to various legal topics. Of course, we may all tend to "personalize" our own vision of justice. But my main point is that leftist critics of law have long complained of "politicized justice" and have long urged unique and controversial "critical" responses to laws they consider to be in service to the "wrong" politics. And so I remain eager to understand if you are signing off on the general idea that legal doctrines and legal actors ought to change what they do if and whenever they perceive "politicized justice." But if you do not want to try explain the import of your claims and the implications of your statements, so be it.
Posted by: Doug B. | Dec 26, 2021 2:42:53 PM
Once again, the miasma of Professor Berman. Raiding stash houses (unless there were the errors as in the Harris County raids instigated by corrupt cops or the wiretapping of Carter Page) is much different from the prosecution of Bogdan Vechirko. No sane observer could look at the videotape and conclude that this guy is completely innocent. The prosecution alleged that after he came to a complete stop he moved forward and someone was slightly injured. He had a right to. His truck was being attacked by a crazed mob and he was assaulted. No one involved in that assault was arrested, and he was held without bond for 48 hours. My pointing out that society does not have the right to expect Mr. Vechirko to just take it. It may have the power, but it does not have the right. And when you have prosecutors ignoring the law, who says that ignoring the law is only the province of the government? When we operate in the realm of power not law, it’s hard to expect citizens to stay only within the bounds of the law.
This isnt about the “law of Federalist,” this is about the rights of a free people. As for “law,” when I am talking about law, you know it—just ask your buddy Judge Bibss as the law-based rhetorical whipping i administered.
The fact is that I believe in the rule of law, not the rule that says that some poor bastard driving a truck who comes upon a mob on a highway (talk about cognitive dissonance) does his level best to stop safely, gets set upon by said mob, and is then prosecuted, while those in the mob who assaulted him didn’t even get arrested. When stuff like that happens, then it’s painfully obvious that the entire system has lost its legitimacy.
And when law professors try to make niggling points about definitions and what have you, the debate is just not worth having. It is a truism that there will be abuses in the criminal law and law enforcement. Just watch Audit the Audit. But what happened to Vechirko was the entire state mustered against a guy who did nothing wrong. I get it that the “law” says that the prosecutors are immune. The law also says that Vechirko didn’t do anything illegal. (Watch the video). And yet here we are. The law also says that you can’t get arrested for posting something critical of your ex-husband cop, but yet that happened. I merely point out that either the words on the page have meaning or they do not,
If you think that the law has the moral authority to ask a guy like Vechirko to just take it, then I don’t know what to say, other then the fact that you should own your statism
Posted by: Federalist | Dec 28, 2021 1:00:33 PM
And you constantly try to act like my posts are borne of a “well it was my ox that was gored” mentality. You know that’s not true. My stuff is very consistent.
Posted by: Federalist | Dec 28, 2021 1:03:14 PM
Federalist, I do not think you understand the reference to stash-house stings. Here is the first sentence of a Chicago federal court opinion from 2018 discussing these types of cases: "Since 2006, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (the "ATF") has engaged in sting operations wherein undercover agents present individuals in this District with an opportunity to rob a fictitious drug stash house." https://casetext.com/case/united-states-v-brown-2080. I have also blogged about these cases multiple times, with links here: https://sentencing.typepad.com/sentencing_law_and_policy/2021/10/terrific-review-of-some-ugly-realities-of-stash-house-stings.html
The cases are arguably involve comparable abuses of government power because they often involve "some poor bastard[s]" the feds have decided to target and lure into a fake crime, and these cases have certainly lead many to conclude "the entire system has lost its legitimacy." The opinion by Chief Judge Castillo linked above in many respects speaks to your concern about police and prosecutors misusing their power with an added worries about a racialized past and enforcement patterns. EG: "Our society simply cannot accept a 'win at all costs' mentality in the delicate world of criminal law enforcement.... The inherent problems of this District's false stash house cases must be seen through the lens of our country's sad history of racism. Every time our country's law enforcement system can be perceived as contributing to that sad history, our justice system suffers and needlessly alienates minority communities who no longer wish to come forward as witnesses or victims."
I am not trying to make a niggling point. I am trying to understand if the outrage you feel toward Bogdan Vechirko's treatment by the government makes you supportive of --- or at least understanding of --- the outrage many feel about the hundreds of persons incarcerated via stash-house stings. I am trying to understand if you would call the stash-house stings a kind of "politicized justice [that] delegitimizes the whole thing."
I am anything but statist; indeed, I recall you were the one aghast when I suggest a commitment to freedom could underwrite complains about how our carceral state wages the drug war. Your complaints about how government power was used again Vechirko strike me as well founded, I am trying to understand if you would extend similar complaints to those subject to stash house stings (many of whom, I fear, are still imprisoned). It is because I think you do aspire to be consistent, Federalist, that I am trying to better understand just what you are prepared to call "politicized justice" which may justify, at least in your mind, a special response and a special sanction for those in government who put power over law.
Posted by: Doug B. | Dec 28, 2021 4:52:37 PM
I don't have enough information about the stash house stings to form a judgment. It's really that simple. If the idea is that the stash house stings were entrapment pure and simple, then I'd share your views. But entrapment is a tough sell, and I'd ask what you say about the FBI tactics vs. the attempted kidnappers of Gretchen Whitmer. I don't know the details of those cases either. I will say this--Whitmer's appalling orders got a lot of people killed (remember, she shipped COVID-19 patients to nursing homes a la Cuomo). Not that it makes it legal to kidnap her, but it is nice to remember what people did.
I'd say that the Vechirko case and the stash house cases differ (and whether that makes a difference is up to you): The entire political establishment in MN came out against Vechirko, with the governor actually lauding the mob, which unquestionably put improper political pressure to do something to Vechirko and to not do anything to those who assaulted him. The stash house cases at worst are just mundane victims of a zealous federal government. At best, they seem to be heavy-handed tactics against (hopefully) "bad guys." Either way, I doubt that I would support what was done.
My larger point is what is to be done. Vechirko has a legit beef with a lot of people, but no way to get justice. Does society have the right to make him stand down?
Posted by: federalist | Dec 19, 2022 7:32:12 PM
OK, just looked at one New Yorker article about stash house stings. Guy is (technically) guilty as sin, but you really have to wonder if this is what we need to be doing as a government--searching out drug abusers to get them to take a substantial step towards a crime in order to puff up stats and justify one's existence. I'd pardon the lot of them, ok? I don't think that it delegitimizes the CJ system, but it discredits it big time and rightfully so.
Vechirko, on the other hand, was completely innocent AND A VICTIM OF CRIME. The entire political establishment in Minnesota jumped to conclusions, and this guy was forced to pay "victims" in order to get out of a politicized prosecution. That's a real problem, and it's a quantum leap more of a problem than the stash house cases, even though the consequences to the stash house case defendants were far worse.
Posted by: federalist | Dec 19, 2022 7:45:07 PM
Not sure of why you are returning to this thread a year later, federalist, but I am sure that many folks view many crimnal drug cases as "politicized prosecutions." What seems like an improper "politicized prosecution" is often in the eye of the beholder; indeed, the fact that many state prosecutors and judges are directly elected largely ensures that many criminal cases will be impacted by obvious and subtle politics. Depending on one's political views, assessment of good politics and bad politics --- for the Jan 6 defendants and others --- can vary dramatically.
Posted by: Doug B. | Dec 19, 2022 9:58:52 PM
