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naraburns  nihil supernum  1yr ago (text post)   34968 thread views

Culture War Roundup for the week of March 6, 2023

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?? I am not the one who raised the issue of "degree of egregiousness." Many laws can be violated in different ways, and although there is not a specific sentencing enhancement re attempting to prevent the peaceful transfer of power, there is no doubt that that is a relevant factor in sentencing. Sentences must individualized to the specific circumstances of the offense and of the offender, and:

Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant. See Payne v. Tennessee, 501 U. S. 808, 820-821 (1991); United States v. Tucker, 404 U. S. 443, 446 (1972); Williams v. New York, 337 U. S. 241, 246 (1949). The defendant's motive for committing the offense is one important factor.

Wisconsin v. Mitchell, 508 US 476, 485 (1993).

Moreover, obviously, "the consideration of the harm caused by the crime has been an important factor in the exercise of that [sentencing] discretion[.]" Payne v. Tennessee, 501 US 808, 820 (1991). And for attempts, that includes the harm that would have occurred, had the defendant been successful.

Sentences must individualized to the specific circumstances of the offense and of the offender

Yes, that is literally the whole complaint: either the exercise of prosecutorial discretion and subsequent punishment both fit the crime in this case, in which case they didn't in others (like the Kavanaugh disruption or the riots after Trump was elected), or they fit in those others and so didn't fit here.

although there is not a specific sentencing enhancement re attempting to prevent the peaceful transfer of power, there is no doubt that that is a relevant factor in sentencing.

Not only are there no enhancements for doing that, "the peaceful transfer of power," so a fortiori attempting to prevent it, is not a legally meaningful notion, because "the peaceful transfer of power" is a notion from political science, and AFAIK that notion and its analogues are found nowhere in American law. There are of course laws against sedition and whatnot, but a) those are not specific to transitions between administrations like "peaceful transfer of power" and b) Chansley wasn't charged with sedition, nor was it argued that he was attempting sedition.

And for attempts, that includes the harm that would have occurred, had the defendant been successful.

The harm of disrupting an official proceeding? So, like, a few extra hours or maybe days of delay? Again, he wasn't being tried for "attempting to prevent the peaceful transfer of power" (which is not a statutorily defined crime), or for sedition, or anything of that sort. And if his sentence can be enhanced because prosecutors argue he merely intended or attempted (incredibly inefficaciously!) to do something which he wasn't even charged with attempting, then the same strictures should apply to the other examples that have been discussed in this thread.

then the same strictures should apply to the other examples that have been discussed in this thread.

The point is that they are: The strictures applied are the same ones that have been applied in thousands of prosecutions every year for many, many years. Those strictures might well be unjust, but the claim that this guy was subjected to special treatment is a claim devoid of evidence.

"the peaceful transfer of power" is a notion from political science, and AFAIK that notion and its analogues are found nowhere in American law

LOL, right. Because nothing in the Constitution nor federal law are meant to ensure that.

The strictures applied are the same ones that have been applied in thousands of prosecutions every year for many, many years.

But we're not just talking about the prosecution itself, we're talking about the decision to prosecute at all and how he was charged.

LOL, right. Because nothing in the Constitution nor federal law are meant to ensure that.

OK, so what was Chansley attempting to do as part of his "disruption of official proceedings" that's defined in American law and was relevant to getting him a harsher sentence? Should be easy for you to find, given your response. If that thing was itself a crime, why wasn't he charged with attempting it too? If it wasn't, then why was it relevant to his sentence?

But we're not just talking about the prosecution itself, we're talking about the decision to prosecute at all and how he was charged.

The guy attempted to disrupt the counting of electoral votes by Congress. 18 U.S.C. § 1512{c)(2) says:

(c)Whoever corruptly—

(2)otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S. Code § 1515(a) says:

(1)the term “official proceeding” means—

(A)a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury;

(B)a proceeding before the Congress;

(C)a proceeding before a Federal Government agency which is authorized by law; or

(D)a proceeding involving the business of insurance whose activities affect interstate commerce before any insurance regulatory official or agency or any agent or examiner appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate commerce;

So, you are complaining because the guy was charged with a clear violation of the law?

OK, so what was Chansley attempting to do as part of his "disruption of official proceedings" that's defined in American law and was relevant to getting him a harsher sentence?

As I said, in the quote from the Supreme Court, a defendant's motive is relevant to his sentencing. Your repeated reference to "defined in law" leads me to believe that you are confusing different issues. Anything, such as a sentencing enhancement, that can increase a defendant's sentence beyond the statutory maximum for the underlying crime, and "[o]ther than the fact of a prior conviction, . . . must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 US 466, 490 (2000). Because they must be submitted to jury, of course they must be specifically defined. But when a statute provides for a range of sentences, the sentencing court can consider any relevant factor, including, as noted, motive, as well as the effect of the crime, as well as many other things.

And, again, this seems to be an odd argument, since in his plea agreement he agreed that his guideline range was 41-51 months, and he ended up being sentenced to 41 months. So, what, exactly, are you complaining about?

So, you are complaining because the guy was charged with a clear violation of the law?

No, I am complaining because lots of people who did comparable things weren't. I already said that. Multiple people in this thread have repeatedly explained this exact point to you, so I don't really see why you're not getting it.

As I said, in the quote from the Supreme Court, a defendant's motive is relevant to his sentencing.

Yeah, I get that. But the question isn't whether his motive is relevant. The question is what the relevant motive is supposed to be and the legal grounds for that specific motive to be relevant. Obviously not every motive is relevant, so then we have the question of which ones legally ought to be considered relevant. You have answered the first question, but not the second.

So, what, exactly, are you complaining about?

I have already explained that.

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