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June 13, 2022

Fascinating new AP accounting of all sentences given to January 6 rioters so far

Fittingly, with the House's on-going January 6 committee hearings, the Associated Press has this new article reviewing in some detail the nearly 200 sentences so far given to January 6 riot defendants.  I recommend the piece, and its cool interactive graphics, in full.  Here are excerpts:

As the number of people sentenced for crimes in the insurrection nears 200, an Associated Press analysis of sentencing data shows that some judges are divided over how to punish the rioters, particularly for the low-level misdemeanors arising from the attack....

[U.S. District Judge Tanya] Chutkan, a former assistant public defender who was nominated to the bench by President Barack Obama, has consistently taken the hardest line against Jan. 6 defendants of any judge serving on Washington’s federal trial court, which is handling the more than 800 cases brought so far in the largest prosecution in Justice Department history.  Chutkan has handed out tougher sentences than the department was seeking in seven cases, matched its requests in four others and sent all 11 riot defendants who have come before her behind bars. In the four cases in which prosecutors did not seek jail time, Chutkan gave terms ranging from 14 days to 45 days.

Overall, the 20 judges who have sentenced riot defendants have given lighter sentences than prosecutors were seeking in nearly three-fourths of the cases. The judges have exceeded prosecutors’ recommendation for about only 10% of the defendants, according to AP’s analysis.

Most judges — appointed by presidents of both political parties — have gone easier on defendants than prosecutors wanted in most or all of their cases so far.  While some judges have sentenced few Jan. 6 defendants, no other judge besides Chutkan has exceeded prosecutors’ recommended punishment in most of the cases assigned to them.

“Depending on the judge you get, the same facts could get you anything from probation to months in jail,” said [Greg] Hunter, the defense lawyer [representing some Jan. 6 defendants]. “When you can literally look at who the judge is, who has been assigned to a case, and know that every defendant is going to get more time or less time because of the judge they drew ... that doesn’t promote respect for the law,” he added.

In one case, two friends from Indiana, Dona Sue Bissey and Anna Morgan-Lloyd, both pleaded guilty to the same misdemeanor offense for engaging in essentially the same conduct inside the Capitol.  Prosecutors did not seek jail time for either, noting their lack of a criminal record. Chutkan sentenced Bissey to 14 days in jail.  A different judge sentenced Bissey’s friend to probation....

But Judge Randolph Moss sentenced Matthew Ryan Miller to less than three years [when prosecutors sought more than four], noting that the man was just 22 years old on Jan. 6, 2021, was intoxicated when he stormed the Capitol and has shown remorse.  Before handing down the punishment, Moss said he believes judges have done a good job at ensuring the punishments are consistent while also weighing the individual factors of each case.  “When one looks at these sentencing decisions that have been made by this court across many judges, it’s remarkable how consistent sentencing has been,” said Moss, an Obama nominee. “When I see differences, I’m able to go back through the record and look at it and understand the basis for those differences.”...

Of the more than 190 defendants sentenced so far, about 20 admitted to felony charges, including nine who assaulted police officers. The rest pleaded guilty to misdemeanors punishable by no more than one year imprisonment. Prosecutors recommended prison terms in more than 70% of the cases. Judges have agreed to prison in about 45% of them, with terms ranging from nine days to more than five years.

Some of many prior related posts:

June 13, 2022 at 03:18 PM | Permalink

Comments

Im not surprised. My opinion is varied on one end these idiots should be punished but even I'm skeptical that they should all serve 10+ years in prison. Some should receive sentences of 3-5 years but most of them are guilty of misdemeanors.

Posted by: Anon | Jun 13, 2022 3:31:16 PM

"'Depending on the judge you get, the same facts could get you anything from probation to months in jail,' said [Greg] Hunter, the defense lawyer [representing some Jan. 6 defendants]. 'When you can literally look at who the judge is, who has been assigned to a case, and know that every defendant is going to get more time or less time because of the judge they drew ... that doesn’t promote respect for the law,' he added."

I have never more completely agreed with a defense lawyer than I do here. Mr. Hunter beautifully captures the reason we need less "discretion" and more law. "Discretion" is just a euphemism for "ideology" and "temperament," neither of which belongs in sentencing.

Posted by: Bill Otis | Jun 13, 2022 5:23:38 PM

Okay, Bill, how do you suggest we replace sentencing "discretion" with "law" for those involved in the January 6 riot? Should they all get a fixed term of probation? And if so, how many years? Should they all get a fixed term of imprisonment, and should that depend on whether federal prosecutors decided to charge them with one or multiple misdemeanors and/or felonies?

Speaking of prosecutors, what "law" is controlling how federal prosecutors are making discretionary charging and bargaining choices here? Notably, the AP article mentions that judges are troubled by the discretion being exercised by federal prosecutors here:

"Some judges have criticized prosecutors for what they see as disparities in prosecutors’ charging decisions across the cases and their recommendations for punishment. Chief Judge Beryl Howell, an Obama nominee, has sharply questioned whether prosecutors are letting some rioters off too easy with misdemeanor plea deals even as they describe the insurrection as an attack on democracy."

Can you suggest what "law" can and should be shaping the work of prosecutors in this context? Federal judges are have their sentencing decisions shaped by the law Congress set forth in 18 USC 3553(a). Can you point to any laws that Congress has created that shape the charging and bargaining discretion exercised by federal prosecutors?

Also, do you also view the "discretion" exercised by prosecutors -- such as, say, the discretion to demand appeal waivers in plea agreements -- to be "just a euphemism for 'ideology' and 'temperament'"?

Isn't the exercise of prosecutorial discretion is far more "lawless" than the exercise of judicial sentencing discretion in the federal system?

Posted by: Doug B. | Jun 13, 2022 6:08:55 PM

Well gads Doug, I just can't win. If I oppose the defense, I have to sit in the corner. If I agree with the defense, I have to sit in the other corner.

Life is tough.

Still I'll answer a few questions.

"Okay, Bill, how do you suggest we replace sentencing 'discretion' with 'law' for those involved in the January 6 riot?"

By restoring the guidelines to the mandatory character they had when Congress wrote them, as Justice Stevens would have done. And it wouldn't "replace" discretion, but would cabin it more than it is now.

"Should they all get a fixed term of probation?"

Nope. They are not all charged with the same crime committed in the same way. And probation would be too light for some cases in any event.

"Should they all get a fixed term of imprisonment, and should that depend on whether federal prosecutors decided to charge them with one or multiple misdemeanors and/or felonies?"

Nope and nope. And in the Jan 6 cases, like all others, the defendant can avoid these awful prosecutors by sitting at home just as I did on Jan 6. Oh wait, I forgot, the defendant never bears any responsibility for his fate! It's all the big bad system!! Have you been having drinks with Rudy Giuliani?

"Speaking of prosecutors, what 'law' is controlling how federal prosecutors are making discretionary charging and bargaining choices here?"

The Constitution, which vests the decision what if anything to charge solely in the executive branch. The Framers were acutely aware of the breadth of discretion this conferred. But I know, they were a bunch of dummies!

"Notably, the AP article mentions that judges are troubled by the discretion being exercised by federal prosecutors here."

For sure, high officers of the government, including judges, have been chafing that high officers of another branch of government are not under their control. This has been going on for 200+ years, and shows the virtues, not the flaws, of separated powers.

Posted by: Bill Otis | Jun 14, 2022 12:15:10 AM

Bill, I am just trying to more fully understand what you mean, in this context, when you say "we need less 'discretion' and more law." With your latest comments, I now think you just mean you really would like to restore "the guidelines to the mandatory character." Okay, but that would not impact the sentencing outcomes for the Jan. 6 rioters because almost all have gotten within-guideline sentences (with the guideline range calculated to be 0-6 months). As you know, even when mandatory, guidelines "law" afforded sentencing judges some discretion within applicable ranges (and much broader discretion when prosecutors used their discretion to move for a departure).

For the record, I am a big fan of well-crafted sentencing law that is subject to application with all the constitutional rights Justice Stevens long argued for (see, e.g. his dissents in McMillan, Watts as well as Booker). Of course, good sentencing law would be less complicated and severe than the current advisory guidelines, as your pal and past sentencing Commission Chair Bill Pryor argued. Do you join me and Judge Pryor in advocating for the new USSC to devise less complicated and severe guidelines as part of a process for advocating for them to be restored to mandatory status?

Speaking of prosecutors, the main reason we have now had advisory federal guidelines even longer than we ever had them mandatory is because the Bush Justice Department (a) advocated that remedy in Booker, and (b) never urged legislation to change that remedy. Similarly, the Obama Justice Department, the Trump Justice Department and now the Biden Justice Department have never sought a return to mandatory guidelines.

Lastly, are you really claiming that the Constitution prevents Congress or anyone from developing any law to regulate prosecutors' plea bargaining discretion? Where in the text does it do that? Does your view make various aspects of Criminal Procedure Rule 11(c) unconstitutional? Doesn't the Due Process clause apply to federal prosecutors and shouldn't Congress sensibly be understood to have some power to regulate the plea process?

Whatever your curious (extra-textual) theory of prosecutors having a constitutional right to be free from any law, it sounds ultimately that you DO NOT actually believe "we need less 'discretion' and more law" when it comes to the work of prosecutors. Is it fair to say that, as both a matter of policy and (extra-textual) constitutional theory, that you think Congress can and should regulate the sentencing work of Article III judges through law but you do not think Congress can and should regulate the sentencing work of Article II prosecutors through law.

Not trying to put words in your mouth, but just trying to clarify that you are not a fan of law to regulate the discretion of federal prosecutors.

Posted by: Doug B. | Jun 14, 2022 8:37:28 AM

I’m waiting for the AP accounting of the BLM rioters.

Oh, wait…

Posted by: TarlsQtr | Jun 14, 2022 3:25:33 PM

TarlsQtr --

I'm sure you meant to say, "mostly peaceful protesters."

Posted by: Bill Otis | Jun 14, 2022 3:50:06 PM

Here are a few for you, Tarls:

"AP finds most arrested in protests aren’t leftist radicals"
https://apnews.com/article/virus-outbreak-race-and-ethnicity-suburbs-health-racial-injustice-7edf9027af1878283f3818d96c54f748

"Records rebut claims of unequal treatment of Jan. 6 rioters"
https://apnews.com/article/records-rebut-claims-jan-6-rioters-55adf4d46aff57b91af2fdd3345dace8

Posted by: Doug B. | Jun 14, 2022 11:44:12 PM

Doug --

"Do you join me and Judge Pryor in advocating for the new USSC to devise less complicated and severe guidelines as part of a process for advocating for them to be restored to mandatory status?"

Depends. The devil is, as ever, in the details. The package would have to be non-severable, that is, the less severe part could not come in unless the mandatory part came with it. And we'd have to see how much less severe, and for what crimes in particular. But in general, I remain the man who's willing to give up something to get something -- and I think, with Congress and Justice Stevens, that mandatory guidelines are what is needed precisely to avoid the luck of the draw problem the defense lawyer in your entry is talking about.

"Speaking of prosecutors, the main reason we have now had advisory federal guidelines even longer than we ever had them mandatory is because the Bush Justice Department (a) advocated that remedy in Booker, and (b) never urged legislation to change that remedy. Similarly, the Obama Justice Department, the Trump Justice Department and now the Biden Justice Department have never sought a return to mandatory guidelines."

I agree that years of DOJ's lassitude is unfortunate. On the other hand, inertia is the strongest force in the universe, and stronger inside the Beltway than anywhere else (as you often regret when you're talking about pot's still being federally illegal after all these many years). Still, I'm happy to see that you cite DOJ's stance as, if not authoritative, at least worth noting. Should I tuck that away for future reference?

"Lastly, are you really claiming that the Constitution prevents Congress or anyone from developing any law to regulate prosecutors' plea bargaining discretion? Where in the text does it do that? Does your view make various aspects of Criminal Procedure Rule 11(c) unconstitutional? Doesn't the Due Process clause apply to federal prosecutors and shouldn't Congress sensibly be understood to have some power to regulate the plea process?"

Hey, I'll go you one better. If Congress wants to eliminate AUSAs' ability to plea bargain ALTOGETHER, all I can say is -- go for it! Then we can all sit back and watch the defense bar's head collectively explode when they find out they can't get their typical sweetheart deal any more, and, worse still, ACTUALLY HAVE TO DO THE WORK REQUIRED FOR TRIAL. The defense bar's screeching will be audible on Pluto. So like I say, go for it!

Really, it cracks me up. The Left whines ceaselessly about trials, because the government is SOOOOOOOO much more powerful; and then whines just as loudly about pleas, because THE DEFENDANT DESERVES HIS CONSTITUTIONAL RIGHTS!!!

Q: So what's actually going on? A: The defense bar whines because that's what they do. It has nothing to do with any given substantive argument.

"Whatever your curious (extra-textual) theory of prosecutors having a constitutional right to be free from any law, it sounds ultimately that you DO NOT actually believe "we need less 'discretion' and more law" when it comes to the work of prosecutors. Is it fair to say that, as both a matter of policy and (extra-textual) constitutional theory, that you think Congress can and should regulate the sentencing work of Article III judges through law but you do not think Congress can and should regulate the sentencing work of Article II prosecutors through law."

It's fair to say that putative overcharging by prosecutors ALREADY is checked by law, to wit, the law that allows courts to dismiss charges or grant acquittals for insufficient evidence, and that REQUIRES juries to acquit unless the case is proved stem to stern BRD.

P.S. There is no such thing as "the sentencing work of Article II prosecutors." Only courts impose sentences. Sure, prosecutors can make charges, including MM charges, but as noted, unless they prove them beyond a reasonable doubt, there's never going to be a sentence. And if they DO prove them beyond a reasonable doubt, then by definition the case was not overcharged, and there jolly well SHOULD be a sentence.

Posted by: Bill Otis | Jun 15, 2022 8:50:43 AM

Bill, you do not explain here whether you think the Constitution prevents Congress or anyone from developing any law to regulate prosecutors' plea bargaining discretion. I do not think it does -- I see no text even suggesting as much -- and my main point is that "the luck of the draw problem" is MUCH bigger with prosecutors because of MMs and the lack of any law regulating prosecutorial charging/bargaining.

For example, consider the CP cases that were a focal point of recent SCOTUS hearings. In every CP downloading case in the federal system, on the exact same evidence the defendant can be charged/convicted of possession (with no MM) or receipt (with a five-year MM). In all these cases, judges are consistently duty-bound to apply the 3553(a) factors at sentencing. What factors do prosecutors consider for charging/bargaining? We do not know and there is ZERO law and ONLY "the luck of the draw problem" determining when and how similar defendants can get only a few months or must get at least 5 years. And that is a much, much bigger disparity than Jan 6 folks are facing with judges AND it is entirely luck of the prosecutor draw. I think that is a HUGE problem for anyone who cares about the rule of law. Do you?

That is the "sentencing work" of prosecutors -- the cases are all going to produce convictions, but prosecutors decide on their own, with no law or transparency, who must get at least 5 years in prison. US Sentencing Commission reports have documented at length that no logical or consistent principles account for how prosecutors use their discretion in these CP cases. (USSC research has also shown how MMs in drug cases and 5K motions also reflect huge "luck" of the prosecutor draw problem and also suggest race and other pernicious factors may often account for the "bad luck" at sentencing some defendants get from federal prosecutors' mysterious discretion.)

In short, if you really care about "the luck of the draw problem," the research and data from the USSC and elsewhere all point to huge problems flowing from severe MMs and prosecutorial discretion being hidden and unregulated. That is why, if you are genuinely concerned about "the luck of the draw problem," your calls for reform should include a prosecutorial focus. Does it?

Posted by: Doug B. | Jun 15, 2022 10:01:04 AM

Doug,

You know better than that. There are numerous ways to be lenient. There are people from January 6th who were arrested for merely being there after being invited in by capitol police.

Posted by: TarlsQtr | Jun 15, 2022 11:16:12 AM

Doug --

"Bill, you do not explain here whether you think the Constitution prevents Congress or anyone from developing any law to regulate prosecutors' plea bargaining discretion."

Actually, I thought I made it clear that I believe Congress can ban federal prosecutors from plea bargaining altogether -- and I kind of wish it would, just so we'd all have the amusement value of hearing the defense bar yelp at eight zillion decibels when something it's been whining about (but living off of) for years goes bye-bye.

Of course, the more natural source for regulating plea bargaining is DOJ -- and it has done so, more than once. Indeed, there are rumors that I was in on one of the regulations, to wit, to provision for securing appeal waivers in exchange for concessions to the defense. More recently, the AG has taken steps against using the waiver with respect to (what is laughingly called) compassionate release requests.

So in fact there have been instances of regulating what can go on in plea bargaining. Is it wise for CONGRESS to regulate in this area? Let me ask that another way: Is it wise for Congress to declare that for infantrymen's target practice, soldiers should be limited to 18 bullets rather than 20? Upshot: While Congress has the constitutional power to regulate plea conditions, it's smarter to allow that to be done by the Department with expertise, be that the Justice Department or the Defense Department.

"...my main point is that 'the luck of the draw problem' is MUCH bigger with prosecutors because of MMs and the lack of any law regulating prosecutorial charging/bargaining."

You had your chance and, truth be told, made pretty good use of it, when under Trump, you got the FSA. And you cut back on some MMs but did not repeal a single one. Nor did you so much as attempt to regulate plea bargaining.

Now your side has both the legislative and executive branches. So why are you trying to get me to do your work for you when you've shown you can do it for yourself?? I'm not the one to talk to. Talk to your pal Chuck Schumer if/when he takes a break from encouraging assassinating Supreme Court justices. And Nancy Pelosi to see if she can corral some of the 27 Democrats who voted against improving security for the justices (the vote was 396-27).

"That is the "sentencing work" of prosecutors -- the cases are all going to produce convictions, but prosecutors decide on their own, with no law or transparency, who must get at least 5 years in prison."

I can understand complaining about unjustified harshness -- like, for example, charging under a MM statute that the defendant forced the five year old to have sex with a horse when he actually didn't. But there's already a check on that. It's called an ACQUITTAL.

But I do not understand complaining about unjustified leniency (which is what actually goes on) -- like, for example charging a guilty defendant with a lesser offense than could be proven because the AUSA believes he was mentally off (although not insane).

Unjustified leniency goes on ALL THE TIME, in charging and sentencing. If you want to end it, please say so loud and clear. For my part, I just accept it (not so happily but I go along) because some "give" in the system has its uses. It's the same idea, at a lower and more informal level, of executive clemency.

It seems that what you're complaining about is that they guy who forced the five year-old to have sex with a horse did NOT get unjustified leniency because the AUSA prosecuting the case couldn't be hoodwinked or bullied and instead charged the actual crime, which carries a MM.

Well isn't that too bad. You see the problem as too little and too disparate unjustified leniency. I see the problem as too many defendants who force five year old's to have sex with horses.

I will be more than happy to have the electorate speak for itself on whether you're right or I am.

Posted by: Bill Otis | Jun 15, 2022 12:26:49 PM

I know better than what, Tarls? I agree 100% there "are numerous ways to be lenient." After all, only a relatively small who rioted at BLM protests or on Jan 6 were even arrested. At issue here is whether leniency is regulated by the rule of law or is subject to, as Bill puts it, "the luck of the draw." Judicial leniency is regulated at sentencing by 3553(a) and judges must put the reasons for sentencing decisions on the open record and are generally subject to appeal; prosecutorial leniency is not regulated by any law and is not explained openly nor can it be challenged in court.

As Bill notes, any Jan 6 rioters who are not actually guilty of trespass or other crimes can and should assert their defenses at trial and should be acquitted. I believe at least one already has. Lots of not guilty people get prosecuted, and many even end up pleading guilty because severe trial penalties make them fear the "tax" they would pay if then go to trial and get wrongfully convicted (as hundreds, perhaps thousands, do every year). Do you think any innocent Jan 6 rioters have pled guilty -- ie, do you think there have been wrongful convictions?

As I have said repeatedly, the Jan 6 prosecutions serve as an important window into many aspects of our broader criminal justice system. However only about 800 folks are being prosecuted in that case. There are hundred of thousand subject to lower-level drug charges every year and millions of other property/public order cases where all sorts of (often unclear) forms of severity and leniency shape outcomes.

Posted by: Doug B. | Jun 15, 2022 12:28:37 PM

Bill, this is not about "sides" but about what makes good policy and advances justice. It is quite telling of your mindset that you analogize prosecutors with charging discretion authority to soldiers with bullets. For you, it seems, DOJ should approach these matters as if it is waging war against a foreign enemy, not seeking justice for the American people. (And, though not my specialty, I sense even agents of war may be subject to regulation by more legal rules than federal prosecutors.)

Meanwhile, I am rarely meaning to express concerns with justified leniency, I would just always like it to be transparent, explained and regulated by law. In your first comment, you said "we need less 'discretion' and more law." I was eager to clarify that you really only want that for judges (who have law already all around), but not for prosecutors (who have little law). And I think that is a very important clarification.

Posted by: Doug B. | Jun 15, 2022 12:41:35 PM

Doug --

Actually (not that I doubt for a minute that you're confused about this), the analogy is between one Cabinet department's micromanaging in-the-field decisions and another's doing the same thing. Choosing bullets and DOD was incidental. It could have been the Agriculture Department's decision about whether 100 acres or 105 acres need to be held out of planting this year. Not that clarification is needed.

And I guess I'm just not getting through that there's already a great big check on prosecutorial overcharging, that being an acquittal, ordered by either the court or the jury. I'm shocked -- shocked I tell you -- that a libertarian like you would want yet more stifling control from Big Brother in Washington.

Posted by: Bill Otis | Jun 15, 2022 2:45:05 PM

Bill, my understanding was that conservatives of late are quite skeptical of the administrative state’s power/discretion. In any event, my point still holds that it is telling that what first came to mind for you when thinking of how to make the case for deference to prosecutorial power/discretion was to analogize to war powers.

I get 100% that acquittals can check prosecutorial powers for those who are innocent -- a point I highlighted when Tarls seemed to bemoan "people from January 6th [being] arrested for merely being there after being invited in by capitol police." (I trust you and Tarls both know how common it is to hear from those accused of wrongdoing that they were really "entrapped"). But sentencing issues/discretion is about how we treat those who are guilty. You said in this context "we need less 'discretion' and more law." I generally agree, though it is painfully clear that it is the sentencing work of prosecutors, not those of judges, that suffers from so much discretion and so little law.

And you are smart enough to know that sensible libertarians favor many checks and balances and the rule of law to control the exercise of government power (especially criminal powers). Congress has checked some (but not all) judicial sentencing power through law and transparency and appellate review, I think they should seek to do the same for prosecutorial sentencing power at least to some degree. (Also, you and Tarls need to get on the same page: he seems to think I am a "liberal," whereas you call me a "libertarian.")

Posted by: Doug B. | Jun 15, 2022 5:26:59 PM

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