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January 20, 2022

January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing

This morning I saw two interesting, though not especially surprising, reviews of some of federal criminal justice realities being put in the spotlight by the many prosecutions of January 6 rioters.  Here are the headlines, links and an excerpt:

From Zoe Tillman at BuzzFeed News, "Alleged Capitol Rioters Are Getting In Trouble For Guns And Other Violations After Going Home: A common theme popping up in violations among those on pretrial release has come from defendants who are reluctant to give up access to firearms."

[Joshua] Pruitt is one of 11 people charged in connection with the attack on the US Capitol who were ordered into custody after initially being released; eight of those cases involved defendants who violated conditions of their pretrial release.  Prosecutors have a pending request to put another defendant behind bars, and BuzzFeed News identified at least 16 cases where judges tightened restrictions or issued warnings after finding defendants failed to be in full compliance with the letter, or spirit, of their release conditions.

The vast majority of people charged in the Jan. 6 investigation have been allowed to go home while their cases are pending; there are more than 550 defendants with active cases on pretrial release. Most have stayed out of trouble. The small but steady trickle of problems that have cropped up speak to some of the broader challenges judges have faced in deciding when it’s appropriate to send someone back into the community who is accused of being part of the insurrection but isn’t charged with a specific act of violence or a more serious crime.

From Roger Parloff, "Are Judges Showing Their Political Colors in the Jan. 6 Criminal Cases?"

Earlier this month, a Washington Post analysis suggested that the sentences of Jan. 6 Capitol riot defendants may reflect political bias on the part of the judges handling these cases.

Is the Post right and, more broadly, are judges showing their political colors in other ways involving these defendants? The evidence is mixed.  On the one hand, as we’ll see, judges have shown commendable bipartisanship in how they’ve handled certain key issues.  At the same time, the Post is clearly onto something. At least an undercurrent of low-grade tribalism has often surfaced in the judges’ handling of these cases....

Here’s what the Post did.  It reviewed the 74 sentences that had been handed down by the U.S. District Court for the District of Columbia (where all the Jan. 6 Capitol riot cases are being filed) as of the first anniversary of the event.  Then it compared those sentences to the terms the prosecutors had sought.

As an initial matter, the Post found that 49 defendants — two-thirds — received lighter sentences than prosecutors had recommended....

Still, when the paper drilled down, it uncovered some unmistakable trends. Of the 49 sentences that were lighter than prosecutors sought, 30 (61 percent) had been handed down by Republican appointees. This tilt could not be explained by the distribution of Republican appointees on the bench. Of all the judges who have sentenced a Capitol riot defendant, 10 were appointed by Democrats, while eight were appointed by Republicans.

Upon swiveling the tables — homing in on which judges imposed sentences that were harsher than the prosecutors requested — a mirror-image pattern emerged.  Of the 11 sentences that were tougher than the government sought, nine (82 percent) were imposed by Democratic appointees.

Some of many prior related posts:

January 20, 2022 at 11:55 AM | Permalink


The reason Congress made the Guidelines binding rather than advisory was precisely to give them a degree of strictness that would go farther to eliminate the idiosyncratic, political slant in sentencing than we see now, and that this article explicates. This is also the reason we should return to binding guidelines. To permit politics-slanted sentencing is inconsistent with the rule of law as properly conceived, and smacks more of banana republic stuff.

Posted by: Bill Otis | Jan 20, 2022 1:03:28 PM

To be more blunt than Bill, does anyone think that Obama judge Tanya whatever her last name is really cares all that much about violence towards police officers?
Also, check out the downward departure recommendation for the arson conviction in Minneapolis—because he was protesting about Floyd, the fact that he killed someone was somehow mitigated?

Posted by: Federalist | Jan 20, 2022 3:01:13 PM

To add to what Federalist has helpfully said, let me give a blogpost filling in some quite interesting details of the Minneapolis case. https://www.powerlineblog.com/archives/2022/01/felony-murder-in-a-good-cause.php

Posted by: Bill Otis | Jan 20, 2022 8:06:38 PM

If treating the guidelines as advisory is "politics-slanted sentencing," then it seems to me that Bill and Federalist should be complaining about the Republican appointees, not Judge Chutkan. Presuming that prosecutors are asking for guidelines sentences (which is typical), then it's the Republican judges who are, disproportionately, the ones departing from the guidelines.

Posted by: Curious | Jan 20, 2022 10:17:54 PM

Curious --

Two points: First, treating the guidelines as advisory is not per se politics-slanted sentencing, but it more easily allows for politics-slanted sentencing, and other idiosyncratic influences. Second, do you agree that the study referred to in the post suggests that guidelines with relatively more teeth are to be preferred, as coming closer to the rule of law, to guidelines with relatively less?

P.S. I spent years complaining about Republican appointees at a higher level than mere district judges, e.g., Warren, Brennan, Blackmun, Stevens, Souter. Some of those were better than others, but I criticized all of them.

Posted by: Bill Otis | Jan 20, 2022 11:27:11 PM

Bill, like you, I prefer guidelines with more teeth in order to avoid disparities and improve predictability. I think progressives who blame long sentences on the guidelines per se, rather than the content of the guidelines, are misguided.

Posted by: Curious | Jan 21, 2022 8:23:13 AM

Uniformity, from the Guidelines, whether binding or no, is a pipe dream. Crack pipe, as it were. And it's a questionable goal, to begin with. Because the federalism principle embodied in the Erie doctrine tells us that uniformity yields to local interest depending on where the district court sits.

If federal crimes were more federal in nature, rather than overlapping state crimes, and produced by a safety-pandering Congress, the case for federal uniformity in sentencing might be a bit stronger.

Posted by: Fat Bastard | Jan 21, 2022 9:37:58 AM

Curious --

Just so. The concept of determinate sentencing embodied in a guidelines regime is a different thing entirely from the length of the sentences. One can have a determinate sentencing regime with very short sentences. The one Congress adopted in the SRA of 1984 did not have short sentences, because, in addition to implementing a determinate sentencing system, Congress also wanted to increase sentencing for (a) drug crimes and (b) white collar crimes. That's why the SRA had the highly unusual duo of co-sponsors, Strom Thurmond (who was more interested in a) and Ted Kennedy (who was more interested in b). The confusion resulting from the fact the the SRA accomplished these two goals at the same time and in the same legislation has befouled discussion of the guidelines for decades, and has brought them and the concept of determinate sentencing more opposition than they would otherwise have, or that they deserve.

Posted by: Bill Otis | Jan 21, 2022 4:10:10 PM

Re the discussion in the comments about the Guidelines, haven't the bulk of the sentenced defendants been convicted of misdemeanors for which the guidelines don't provide a clear answer, but would imply a 0-to-6 month range?

Posted by: Jason | Jan 23, 2022 3:16:25 PM

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