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I think its an effort thing. Dem mayors instruct their police to not even try to stop rampant arson and not to bother investigating afterwards, and on the off chance they do then the Dem DA doesn't prosecute it. But Biden had the FBI spend a shit ton of man hours combing through every source possible for every minor rioter who could be charged with anything at all.
I would prefer we use at least a minor portion of that effort arresting arsonists and burying them under the jail. As it stands, the effect is "rioters who are pro-dem causes get to have authorities look the other way, right wingers get the Eye of Sauron for 4 years straight", with the added bonus of lefties bringing J6 up every time they want to say their enemies are worse than them, and the dem friendly media reported on every single arrest and trial for a J6er, keeping it in the mind of the public.
Again, I don't care about the J6ers, they are morons let them hang. But selective punishment on this scale, and where what I think is the far worse crime gets the pass while the lesser gets the book thrown at them, is worse. If you guys wanted me to care about J6 so much you had a whole summer to exact some kind of punishment on rioters, you didn't, and now here we are.
But is it? The idea that the 2020 riot crimes were under-prosecuted is an article of faith on the right, but I haven't seen any real evidence that this is the case. The Major Cities Chiefs Association compiled a comprehensive report about the law enforcement response to civil unrest in 68 major cities between May 25 and July 31, 2020. During that time period, they recorded 2,385 looting incidents, 624 arsons, 97 burned police cars, and 2,037 police officers injured. They also recorded 2,735 felony arrests. The report isn't detailed enough to break down the number of individual felonies reported, but the 5,143 incidents named above is as good a guide as any (it goes without saying that looting incidents could have had more than one perpetrator, but this is balanced by the fact that the same people may have been involved in multiple incidents, and that some of the police injuries weren't due to assault by protestors). With that caveat, we get a rough estimate of a 53% clearance rate for riot-related felonies.
To put that in the proper context, nationwide in 2019 arson had a clearance rate of 23.9%, and burglary had a clearance rate of 14.1%. Even if my estimate is inflated, and I admit that it probably is, it's still a long ways away from suggesting that these crimes were significantly under-investigated; if that were the case, I would expect the totals to be substantially lower than the averages. Again, I admit that this data isn't ideal but... do you have any other data? With how much this has been repeated I'd expect something, at some point, coming out to back this up, but there's nothing. No studies, no disgruntled chiefs of police saying they were hamstrung by liberal prosecutors, no pardons from governors, nothing. On the other hand, it doesn't take long to find contemporaneous quotes from mayors affirming the right to peaceful protest while reminding people that lawbreakers will be prosecuted, or imposing curfews that they didn't have to impose, or bulletins from local police asking for the public's help in identifying rioters.
The source of this myth seems to come from media reports showing that 90% of the protestors were arrested had the charges dismissed. But this is accepted as a blanket fact without any context: These dismissals weren't for felonies or serious misdemeanors, but for summary offenses like disorderly conduct, loitering, and failure to disperse. The arrests themselves weren't made in response to any investigation, but as crowd-control techniques for when they felt things were getting a bit too rowdy. But crimes have elements that prosecutors must meet, and when police aren't making arrests with an eye towards prosecution, their cases aren't prosecutable. If you haven't personally witnessed a protest like this, the process generally goes as follows: The police declare a gathering illegal. A dispersal order is given. Whoever doesn't disperse is arrested by officers on the scene and loaded into paddy wagons. The officers who made the arrest stay behind, and the arrestees are booked by yet another officer. They're charged and released.
If you want to actually prosecute a case like this, you run into problems at the preliminary hearing. There's no police report. You can't produce the arresting officer as a witness; hell, you probably can't even identify the arresting officer for a given defendant. People arrested in different locations might be comingled at the precinct, so you can't even say where the guy was arrested. And even if by some grace of God you do have this, while the case gets easier, it doesn't get easier by much. First you have to establish that the protest was illegal, which may be the case if a road is being blocked, but is a tough row to hoe if it was a permitted protest that the police got uneasy about and hadn't yet seen any violence. Then you have to prove that a dispersal order was given in a manner such that the individual defendant would have heard it, which is tougher than it seems in a loud area with people moving around. But the real problem comes when you have to show that the defendant was given a reasonable opportunity to leave. The typical tactic used to facilitate mass arrests was to form police cordons around the perimeter to prevent the crowd from fanning out, then closing in to make arrests. A lawful protestor is thus presented with the dilemma of being told to disperse by police while simultaneously being prevented from leaving the area. And that's if you're lucky enough to have a real crime to charge. Most of these arrests were for charges like disorderly conduct and loitering whose elements are vague and are dependent on detailed police testimony showing that the defendant actually met some reasonable definition of disorderly and wasn't just arrested because the cop didn't like him.
But it rarely ever gets that far, because the cases have almost zero evidence, the prosecutors know this, and they dismiss the cases before they ever get in front of a judge. The one exception was Detroit, where the mayor, a former prosecutor, decided to charge all of the minor offenses that amounted to being in the wrong place. The poor assistant sent to present the cases to the judge had to suffer the humiliation of having dozens of them dismissed immediately after he admitted that he couldn't produce any evidence whatsoever. The DA's office dropped the remaining cases shortly thereafter.
Compare that to the Capitol riot, where everyone who merely entered that building and wasn't on a short list of people was guilty of unauthorized entry of a government facility, a misdemeanor carrying a penalty of up to a year in jail. There were thousands of hours of video posted to the internet within the next few days, enough in total that investigators could more or less track everyone's entire route through the building. People were bragging about their crimes on social media, posting selfies of themselves inside. And there was no shortage of people calling in to provide identification of people they recognized. Prosecutors had more evidence than they could dream of, and there was broad bipartisan consensus that the perpetrators should be prosecuted. Remember, this investigation started immediately after the incident, while Trump was still president, and it wasn't until months later until Republicans gradually came to the conclusion that it wasn't a big deal. Trump had weeks to issue pardons to anyone involved but he didn't. Was Biden supposed to call of his dogs in the middle of the investigation because Republicans suddenly decided it was better politics to let the people off?
One final thing—when people try to compare cases and show that person x got so much time for a felony while person y got so much time for "just entering a building" with the implication that the two sentences are disproportionate, they often don't take an important factor into account: Plea bargains. The people in the Capitol riot who merely entered and did nothing but walk around generally were able to enter pleas that avoided jail, and the ones facing felony obstruction charges got away with minimal jail time. But the Capitol riot had a disproportionate number of defendants who refused to take plea deals when the evidence against them was overwhelming, and went on to put forth horrible defenses that did nothing but piss off the judge. The argument can be made that this is unfair, and there shouldn't be a penalty for making the state prove their case. I can agree to a certain extent, but this misframes what is going on. They aren't getting penalized for going to trial, they're getting a light sentence for not going to trial. The alternative is that no one would be offered a reduced sentence.
Furthermore, the law grants a degree of lenience to people who appear to be remorseful for their crimes and take responsibility for their actions. Is this something we want to encourage or discourage? Should a first-time offender who admits he made a mistake, apologizes to the victim, and appears to have a genuine desire for self-improvement get a similar sentence to a defendant who continues to insist he did nothing wrong even after the jury says otherwise? These are things we can disagree about, or discuss, but wherever you land, that's the system that we have now. It doesn't matter whether you're in a Democratic area or a Republican area, people who take deals and show remorse will get lighter sentences than those who don't.
What irritates me the most about these arguments regarding January 6 is that they're almost without exception put forth by the kind of people who don't think that the criminal justice system is harsh enough. They talk about how police are hamstrung by liberal city governments, about how liberal prosecutors aren't aggressive enough, about how bleeding heart prison reformers don't understand that jail isn't supposed to be fun. But the minute they're on the receiving end of the system as it normally operates, injustice is everywhere. Marjorie Taylor-Greene is suddenly concerned about prison conditions. The minutia of overcharging becomes an issue. They seem to forget that in these liberal cities police make arrests every day and courts hand down sentences every day and that prosecutors don't just let minorities off the hook because they feel sorry for black people. One would have thought that when their own side fucked up it would have maybe given them some perspective. But no, they make excuses for why they shouldn't be punished before going back to whinging about how the cops aren't harsh enough.
This is an excellent explanation for how the law works and why prosecuting attendees of one event was much easier than charging those at others. But it's also exactly why this controversy keeps finding new legs. Most people don't see 'Rioters wore masks, operated under the cover of darkness, and overwhelmed the ability of local police to gather evidence about who committed what crimes' as a reason they should get off. Guys who think the BLM riots were under-prosecuted don't usually have a specific theory of current law under which they should have been punished. They just think that if masked people burn down a local auto-zone, someone needs to be punished, and every failure to do so undermines the legitimacy of the legal system. You cannot legally reason someone out of a morally reasoned position.
Thank you. I read the same thing, and it read like a long litany of reasons why death row inmates get decades of appeal. Sure, there might be reasons for that, but that doesn't matter to me. I want people like Decarlos Brown tried and hanged in an afternoon, not deferred for months before even standing trial. I want people like Anthony Boyd dead and gone, not lingering for decades of appeals. Every roadblock and hurdle is the way is suspect, and I want them gone.
And I want the people who rioted and burned and looted to be jailed, and I'm not particularly interested in excuses about why that doesn't happen. Every explanation is an admission of an ineffective and unreliable justice system that does not deserve my trust or support, especially when protestors staying inside the velvet ropes of the capital get charged with crimes and then get piled on for having the nerve to reject a plea deal.
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I really do appreciate your willingness to get into the weeds regarding the basic articles of faith that make up the basis of the average American Conservative™’s bespoke reality.
Cynically, I think it’s a lost cause, but the effort is admirable.
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