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In the thread below about the WNBA player who was sentenced for weed possession in Russia, the discussion dovetailed into how January 6th defendants are treated and a couple of people made what to me were eyebrow-raising claims. @anti_dan worried about the fact that J6 defendants could "be held without bail for wandering in", and @The_Nybbler was concerned about how "many of the "rioters" who committed no crime worse than trespassing (in some cases not even entering the building, just supposedly-forbidden parts of the grounds) are getting harsh punishments for political reasons".
As the token defense attorney who cares about criminal justice reform, both concerns piqued my attention. But as far as I can tell, the concerns are fictitious [EDIT: see notes below]. I've previously written about the difficulties inherent with collecting representative data about state crime statistics (tldr: lots of scattered jurisdictions + lack of court record transparencies), and while I've previously whinged about people here being sloppy with their claims about state crime trends, I fully appreciate the reluctance in committing to what can amount to a thesis-level research endeavor.
But it's different with the J6 prosecutions because they're all happening in a single jurisdiction with a lot of people paying attention. Information is surprisingly easy to find. Just googling "january 6th defendants database" will lead to dozens of hits.
Regarding the people held without bail just for wandering in, I did a quick google search but couldn't come up with an updated number of how many defendants are still held in jail (either with no bail or with unrealistic bail). There was a DC Appeals Court decision a while back that instructed magistrates to release people unless the government can demonstrate a specific threat. This means that anyone who is "held without bail for wandering in" would be contrary to that court's order. It's possible I missed something, but I couldn't find any evidence of this happening [EDIT: see notes below].
For the claim that "many" of the J6 defendants were facing "harsh punishments" (in fairness, this is ambiguous) for doing no worse than just trespassing, this too was easy to quickly google. This database from Politico is out of date but was at least searchable. Most of what I was familiar with for misdemeanor J6 pleas was just probation with no jail time. I plugged in "entering a restricted building" in the full table and sorted by incarceration and saw only three people got jail time (reminder that the database is incomplete) with the highest being 50 days for William Tryon. I quickly googled and easily found the guilty statement that was filed in his case. I would guess that the aggravating factors that made his case stand out was that he asked police to enter the building, was denied, tried to enter anyway, was pepper-sprayed, created an opening at another location by removing broken glass, encouraged other people to enter the building, and then confronted another line of police. He couldn't have claimed a plausible defense of "I didn't know I couldn't enter" based on those facts. Given what I know about misdemeanor sentencing, 50 days of jail for this fact pattern did not strike me as out of the norm. Maybe The_Nybbler knows about "many" other cases that I somehow missed, or perhaps they have a specific definition of "harsh punishments" which would encompass probation.
I responded to both with my concerns but neither replied. Maybe either/both have some evidence to showcase, in which case they now have another opportunity to do so (yay!). I think this is an illuminating exercise because it can shed light on our biases and how we can process information. In my last whinge on this topic, I had an enlightening exchange with adamsb6, where they initially suspected that J6 defendants were treated especially harshly. I asked some basic Bayesian questions (how many J6 defendants? what % of those were released? what % of all federal defendants are released?) and they were surprised at how off-base some of their assumptions were. This does not mean that J6 defendants are not treated especially harshly, but the exchange was instructive because it plainly demonstrated how even a conclusion arrived at in earnest can be muddied up if you are led by inaccurate premises.
I hope we can have a similarly enlightening exchange with the above examples. It's possible that both @anti_dan and @The_Nybbler 's claims are true, in which case I remain eager to see their evidence. If neither claim is true, then I would be very curious to know how they arrived at these conclusions. I anticipate that the likely issue is feeding inaccurate premises into the system, which can befall anyone and is not a personal failing. You don't always know what you don't know after all. In either case, I hope I've shed light on just how easy quickly googling shit can be (I swear I am not sponsored by the search engine company).
Edit1: @DradisPing helpfully pointed me to the case of Timothy Louis Hale-Cusanelli. As further explained in my post below, I think this is someone @anti_dan can plausibly argue was "held without bail for wandering in", but not "without them even proving that you knew it was illegal to be there".
Edit2: @JarJarJedi had a solid response and pointed out Karl Dresch and Michael Curzio to which I responded to below. Both were indeed "held without bail for wandering", although arguably they knew it was illegal to be there.
I don't think the harsh penalties are the ones whose cases have been decided, rather it's the ones who are awaiting trial without bond. Zachary Alam is charged with using a helmet to break a window inside the capital building (in the entrance to the speaker's office or lobby) valued at $1,000 and related charges. He's been held without the option to post bail for nearly 2 years. Megan Fuller, Alma Raven-Guido, and Elijah A. Roach are 3 examples of people charged with serious crimes like arson, felony burglary and others in Portland who were released without posting any bail.
That's an enormous difference in harshness, even if that's the nicest jail in the world.
I appreciate that you included specific names! The window you're referring to Zachary Alam breaking with a helmet was at the Speaker's Lobby doorway, the exact same window Ashli Babbitt immediately tried to jump through before getting shot. So when I asked about defendants who are held without bail for "wandering in", obviously Alam's case does not qualify and you knew that.
You can also skim through the government's brief for some of the reasons he was denied release. They were concerned he was a flight risk, because immediately after J6 he changed his phone number, cleared out his storage unit, and fled to another state. When he was finally arrested, he was driving a vehicle he never registered and had multiple stolen license plates. He also has a history of using multiple fake names and was caught with multiple ID cards. His to-do list that included buying crypto and stashing a burner phone probably didn't help. Then of course, when he's in jail and talking on a recorded phone line, he's asking people if they talked to the FBI. The brief goes on and on.
Regardless, I think pretrial release should be the presumptive default, even for extreme flight risks like Alam.
I actually didn't know what wandering in meant. Those are the people who I believe are being punished far in excess of their actual crimes so perhaps I agree with you.
I am less offended at his bail condition than the volume of people in Portland and prior riots released without posting any bond. I'd have no issue with dumbasses (and Zach's antics qualify, imho) being held, but a dumbass who intentionally torches a building should also be held or at least be posting a large bond.
Earnest question but what do you think the purpose of pretrial detention should be?
My preference would be that almost everyone posts some sort of bond, scaling with mostly seriousness of the charges.
Pretrial detention should be for those who don't post a bond, or those whose charges are so serious or frequent they represent a danger to the public (is if there's a greater than 10% chance someone commits another crime while on bond, I'd prefer they be held until their trial).
How does posting bond make someone less dangerous? I know the putative argument is that people are encouraged to be on good behavior on pain of forfeiting their bond, but I haven't seen good evidence this actually works. Bail companies exist and they can front the full amount in exchange for paying 10%, and if you have Fuck You levels of money you can just post bond and jet set to the Philippines or whatever. For those who can't afford it, do you have any concerns about making liberty conditional on wealth?
Those who are likely to reoffend should be held in pretrial detention without the ability to post a bond, for the protection of the citizens. The first goal of pretrial detention should be to prevent as many cases like Darrel Brooks, who was arrested and charged and released actively awaiting two trials and then went on to commit 76 more crimes including 6 murders, as posssible.
I'm all for surrending passports being part of the bond, and scailing bond requirements with wealth as a secondary factor that can increase bonds. But I think the primary factor should be the seriousness of the charges. No one charged with any felony should be released without posting a bond of some sort, certainly not federal arson (it carrying a 5 year minimum sentence and I believe it should bring a fairly substantial bond).
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