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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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