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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.
Yeah, that is a point against you. If you think its acceptable to put rapists and burglars on home confinement, that means you think those are in the same tier of crime as picketing congress. I disagree with that idea fundamentally, and also would posit the idea of covid releases was more related to the desire to decarcerate than it was legitimate covid policy.
With regards to your link, the government memo supports my theory that these were just normal people caught up in a system intended for evil people.
Zero points. My god. I externed for a judge for most of law school, no one had zero points.
Among white collar people or otherwise productive people, you generally have to achieve that level of criminality to be noticed at all by the feds. Almost everyone I saw sentenced to confinement was a white collar criminal who posed zero threat to anyone. I never saw a single political protest case go to sentencing in a large city with lots of them.
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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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