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Notes -
An update, largely for the sake of visibility, about my post below on January 6th defendants.
I received a number of very helpful responses pointing out some things I missed. I was wrong when I said @anti_dan 's claim about J6 defendants "held without bail for wandering in" was fictitious. At least three different people reasonably fit this qualification: Timothy Louis Hale-Cusanelli, Karl Dresch, Michael Curzio, and possibly others. All three had their bail denied, meaning they were going to remain behind bars no matter what, and no amount of money would get them released ahead of trial. Dresch and Curzio ended up getting released about 6 months later after pleading guilty to misdemeanors. Hale was convicted at trial and was sentenced to 48 months of prison.
The reasons why their pretrial release was unconditionally denied are not that surprising, especially in light of how unforgiving US legal standards are in this area. Hale was frantically trying to destroy evidence by deleting his accounts and disposing of clothing & javelin flag pole. His coworkers at the naval weapons base he had a security clearance for thought he was crazy because he'd regularly show up to work with a Hitler mustache and make holocaust jokes. Curzio spent 8 years in prison for attempted 1st degree murder conviction, and within two years of his release he perhaps demonstrated some poor judgment by traveling from Florida to be on the frontlines of the J6 riot. Dresch is someone whose case I wrote about before within the discussion of pretrial detention. He had bad criminal history (multiple law enforcement obstruction charges, and a number of felonies from when he led cops on a high-speed chase reaching speeds of 145mph) and despite his felony convictions, he was caught with multiple guns after J6.
So going back to @anti_dan 's original claim:
In case you don't know, Debs was a prominent and unusually eloquent socialist (Freddie DeBoer is a big big fan) who was sentenced to ten years for sedition for protesting America's participation in WW1. If you've ever heard the phrase "can't yell fire in a crowded theater", it's because that was used by Oliver Wendell Holmes to justify the imprisonment of another socialist WW1 protestor in Schenck v. United States, and so Debs' SCOTUS appeal was rejected for the same reasons. First Amendment jurisprudence was pathetic back then.
I don't know if anti_dan still holds their belief on comparing some J6 defendants to Debs, but now that we have some identifiable cases of people who were held without bail for wandering in, perhaps this can prompt a more fruitful discussion on the legitimacy of this comparison. Some questions for everyone: Are you surprised by the reasons why these people were denied pretrial release? Is denial of their release indicative of politically-motivated retribution?
I think the norm breaking and hand waving of precedents is very similar in its problematic nature. The issue here isn't that any individual case cannot be justified on some grounds. The issue is that it is being justified for no other reason than the DOJ wanting to justify them. I tried and could not find an equivalent database for the 2018 Capitol riot. As best I could see all but 5 were handled with "‘Post & Forfeit" procedures, with the other 5 being released the next Monday on bail.
I read this multiple times and I don't understand what it means. What norm is being broken? What precedent is being hand waved? When you say that treatment in individual cases are being "justified for no other reason than the DOJ wanting to justify them", what does that mean? Are you saying that DOJ is making up reasons in their sentencing memorandum? Like what?
I'm going to assume that J6 was more-or-less comparable to the 2018 Kavanaugh protest. Almost everyone arrested in 2018 was accused of trespassing/crowding. We already know that 70% of all J6 defendants were also released pretrial, so do you have any evidence to show that those accused of just trespassing/crowding were treated harshly? I highlighted three names that I think plausibly fit your original claim of "held without bail for wandering in", but they seem to be outliers.
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I completely agree that it would violate a fundamental element of fairness if otherwise identical situations were treated different for inappropriate reasons. I agree that in this context, the appropriate analysis requires a comparison, and I've tried to engage in exactly that in the post you're replying to. The part I take issue with is when this concern metastasizes into a self-fulfilling reality, where people adopt premises that are untethered from reality but do so because it confirms this unfair persecution narrative. If persecution does indeed exist, you can point it out without resorting to fantasy. I would personally disagree with you on pushing the lever towards throwing the book at people in general, but I at least can recognize you are holding an intellectually coherent position for J6/BLM, and one which appears to be reasonably based in fact. That significantly shrinks the field of objections I am able to levy.
I recognize at any given moment there's the possibility I will be engaging with a conflict theorist, but it seems like good practice to continue assuming otherwise.
FWIW, I vaguely remember seeing or reading articles claiming severe treatment of the J6 prisoners (held in solitary, etc), and vague claims of wildly disproportionate punishments for extremely minor offenses. After seeing your posts on the topic the last few days, I am moved to concluding those were probably disingenuous partisan bullshit.
And I still almost made a fool of myself with an instinctive "Well, what if...", but luckily I double checked the date and realized my mistake. The corollary to this is that it's hard to believe that J6 was less than two years ago. It's been talked about so much that it feels much longer.
Well these things are true, at least for some defendants. The three names I highlighted above kind of fit the mold, especially Hale's sentence. The issue is how much of a trend you can draw from these individual cases. If someone is primed not to care or think about the criminal justice system and their first exposure is seeing people they feel a kinship with get hammered with several years in prison, it's reasonable to be aghast by what appears to be politically motivated. For basically everyone who had a passing familiarity with the system, the response was basically "lol welcome to america".
Yes, the criminal justice system sucks for anyone who gets sucked into the system. This is because the system has been hardened by decades of dealing with career criminals who intimidate witnesses and rules-lawyer the shit out of things using Warren court precedents.
In your average regular criminal defense case, the defendant isn't only guilty as all hell of the crime he is accused of, it is "common knowledge" that he's guilty of a half dozen other crimes, typically more severe than what is being charged, along with another dozen + shoplifting, petty theft sort of crimes that will never even be contemplated of being brought. Meanwhile, while there are plenty of repeat miscreants in the J6 crowd, there are also people like Jessica and Joshua Bustle who got home confinement then supervision. The various filings unfortunately don't include a sentencing guidelines rundown because they plea deal went around that, but all available evidence indicates they were an otherwise law abiding couple who are the type that gets nervous about going to traffic court after getting caught in a speed trap going 45 in a 30.
In other words, an entirely different class of people than the system is designed to deal with. Typically a person in position to get home confinement either has scammed people out of millions of dollars, or has a case officer report that details a laundry list of uncharged conduct. Home confinement is historically defined as a 1:2 ratio compared to prison. See. Chapter IV. Such long probationary and supervision sentences could also be seen as unreasonable considering they are first time offenders, depending on the terms of probation. While true of all probation terms, most probies don't care for much other than you reporting when you are supposed to report, pissing when you are supposed to piss, and keeping current your residence and employment. The Bustles, like many other J6 defendants, are not from a criminally inclined and aligned community. Their probation officers are disproportionately likely to receive tips from "concerned community members" when they share drinks at a bar, or wine in a house.
TLDR: As I've stated before in other contexts, we actually NEED a 2-tiered justice system because the current system is incapable of treating fairly people who are genuinely caught up in it, while also incapable to properly policing and punishing career criminals.
Here's the government's sentencing memo (I found it by googling "joshua bustle courtlistener"). The sentencing guidelines don't apply to misdemeanors.
I appreciate that you included a link, but that's a report from 1987. Home confinement happens all the time nowadays, for both pretrial detention and sentencing, and is usually enforced by an ankle bracelet. It's the absolute norm for my misdemeanor cases (and sometimes felonies if I secure a good deal), and the ranking typically goes from community service > home detention > jail. Prosecutors are dismissive of home detention because they think it's akin to a vacation, which I kind of understand. I wouldn't expect you to know all this, but I'm confused as to where you got the impression that this is reserved to only multi-million scammers. For a recent reference, BOP released a bunch of federal prison inmates into home confinement because of the pandemic. It's a widely used sanction.
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I think it's reasonable to be concerned about political violence. Have you ever heard about the book Days of Rage? This review from Status 451 was quite illuminating in highlighting just how crazy things were in the 1970s. I find it useful perspective:
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Arrest people who are in a political area illegally, release immediately on a tiny bond, don't bother tracking down anyone who "got away", quietly drop charges against everyone who isn't a ringleader down the line (or on video injuring a cop or causing greater than $5-10k in property damage), and sentence the ringleaders to light probation. That is how we mostly treat political protests that get uppity. This is despite the fact that there are plenty of laws that can be used at the discretion of prosecutors to ruin the lives of even entirely peaceful protestors. Basically every BLM protest was unpermitted. EVERYONE who attended could have been arrested, held overnight until whenever a judge "was available". Then you could comb their social media for their most egregious political positions, and you end up with 1/20 or whatever denied bail for being an extremist, if you so desire. But we didn't do that because that is un-American.
I am saying not dropping 90% of the charges is a huge departure from norms.
Given the Kavanaugh protest precedent 70% is a tiny percentage. 100% of those were released pretrial, and only ~2% were in jail for a single night.
So to recap, your original claim posited that we reached Debs level of political persecution, and that original assertion was based on what you believed were instances of people held without bail just for wandering in. It appears that you are now shifting away from that original position and instead arguing that precedent is broken in part because the ringleaders of January 6th are not offered light probation and because 90% of charges are not being dropped.
Am I incorrect to say that your position has changed? If not, could you explain the thought-process that led you to this change?
Your problem is I was using one egregious case to illustrate the entire pattern of un-American behavior. Both things happened in J6, and both are very bad. There is both the non-central, but egregious case, and the central pattern of over-prosecution.
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Here's the DoJ press release on Hale-Cusanelli's conviction:
Four years prison, plus three years supervised release, which could convert to more prison if release conditions are violated.
I'm kind of ambivalent on the prison term. It seems like a lot given none of the charges were for violence. I also can't find exactly what constituted his obstruction of justice enhancement, everything I can find just said it was for statements made under oath. I don't know how much of the sentence can be attributed to the obstruction of justice.
However, I also think rioting, occupying, etc. are corrosive to government. We can't let mobs effectively veto things that they disagree with. That will lead to mob vetoes on every controversial issue. Punishment needs to be high enough to effectively deter that behavior.
But I still see that we're not evenly applying this principle. Left-wing mobs invade Congress and hound legislators and the worst that seems to happen is they get removed. Months on end of assaults on the federal courthouse in Portland weren't taken this seriously.
I suspect a primary reason why Hale got punished so hard is that he was completely unsympathetic. If this was primarily politically driven, then I'd assume we'd see similar blood-thirsty retribution imposed upon the folks who were charged with just misdemeanor trespassing, but almost all of those just got probation and no jail. Hale embarrassed the establishment because he managed to get a security clearance and work at a naval weapons base while being a genuine and almost comical Nazi, so he had to be made an example of. I'm not saying this to claim the justice system had a good reason, but just describing the unfortunate reality of a heavy-handed system operated by heavy-handed humans. Here's the docket entry for his case if you're interested, and here's the sentencing memorandum filed by the government where they asked for 78 months.
Hale talked at length about wishing there was a civil war after J6 so that he could have a chance to arrest "the Jews" if they didn't immediately leave the country. Hale also testified in his own trial and tried to credulously claim he had no idea Congress was even in the Capitol that day. He was caught on video interfering with a police officer trying to arrest a rioter, but at trial he claimed he had no idea that was a cop. Both those factors and more slammed him head-first into the brickwall that is the United States Sentencing Guidelines and the government tried to argue various enhancements to put his offense score was 27, which put him within 70-87 months of prison. His aunt appears to have used Hale's notoriety and received at least $1M of donations under the name "Patriot Freedom Project" but seems to be hoarding the money since records are incomplete. Pg 42 of the brief also helpfully compares their requested sentence with what other J6 defendants got.
So he lied on the stand (badly), had grander motivations about violent revolution beyond just entering the building, and put a cop at risk by physically interfering in an arrest. I personally find his sentence to be egregiously high, but unfortunately it's well within the norm in a country known for eye-wateringly high prison sentences. If I was a criminal justice reform advocate that wanted to highlight an example from the J6 pool, Hale would be one of the last people I'd pick.
What would be the falsification to this belief?
The protestors who who attempted to disrupt the Kavanaugh hearings being arrested en masse and and spending months if not years in prison. A few Anti-fa types trying to break down the door of the Portland courthouse getting the Ashli Babbitt treatment. Someone, anyone involved in the whole CHAZ/CHOP debacle getting arrested and charged with insurrection
Thing is that, as others have pointed out, the double standard is plain to see. Furthermore the visibility of that double standard is precisely why appeals to due process, legal norms, respect for authority, etc... are being met with derision. You can't appeal to trust where there is none, you can't appeal to shared values that are not shared.
Well the 2018 protestors were accused of trespassing/crowding and were arrested en masse. But I don't get the second part, are you claiming that people accused of trespassing/crowding on January 6th were sentenced to months/years in prison?
I'm not saying that they've been sentenced to anything, I'm saying that they have spent months in prison
You asked @anti-dan what norm was being broken and this is your answer. The norm is that political protests get a light touch, that you don't hold someone in pre-trial confinement for 6 - 9 months when their only charge is parading without a permit. That is the norm that is being broken here.
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I suppose it would have been even application if fence-hoppers at the Portland courthouse got years-long sentences, or the same for the people arrested for disrupting the Kavanaugh confirmation hearings.
On a state level, but much more akin to the Jan 6th in scope of obstructing an official proceeding, the Wisconsin legislature was occupied by thousands of protesters, and as far as I can tell no one received years-long sentences. Had they received such sentences, that would be good evidence that these actions are punished the same regardless of the cause being fought for.
Not everyone on J6 punched a cop or broke stuff, the vast majority did no worse than just trespassing. So shouldn't that group be used as the baseline comparison to Portland fence-hoppers or Wisconsin protestors?
Yes, I'm comparing them to Hale-Cusanelli.
In a comment lower down I note that even the people accused of assaulting police in Portland often got deferred resolution. Did anyone alleged to assault the Capitol Police on Jan 6 get that treatment?
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Hm, the AP reported in May of 2021 that "More than 70 defendants who’ve been sentenced so far have gotten an average of about 27 months behind bars. At least 10 received prison terms of five years or more." So it sounds like at least some were taken seriously. The extent to which that is "even[] application of this principle" is unknowable at this point, given the data presented thus far.
I doubt any of those ten were non-destructive. The two examples given were a guy who orchestrated and participated in a looting riot, and an arsonist. If they had more sympathetic examples I think they would've printed them.
The article also states:
Did any Jan 6 defendant alleged to have attacked officers get a deferred resolution agreement?
Remember also that when Federal agents were arresting rioters in Portland the media was comparing them to secret police for using unmarked vans, and the Oregon Attorney General filed a lawsuit to stop federal agents from operating this way (she withdrew the case a few months later).
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