Summary: A perfect storm of deep state actors hits Jan 6 protestors
- Local police hold open Capitol doors for many protestors
- Local police fail to publicly acknowledge allowing protestors into Capitol
- FBI agents hunt protestors down even when evidence indicated they didn’t know Capitol was closed to public
- Federal prosecutors add redundant charges and unprovable charges
- Prosecutors use extra charges to coerce protestors to “confess” to knowing Capitol was closed to public
- Judges gave every Trump inauguration protestor but one no jail time, even when violent
- Prosecutors require Jan 6 protestors to waive right to appeal disparate sentencing
- Judges send peaceful Jan 6 protestors, who thought Capitol was open to public, to prison
The DC Appellate Court has, for more than 50 years, banned the practice of overcharging defendants to coerce a guilty plea on a lesser charge.
. . . the prosecutor clearly cannot have carte blanche to apply whatever tactics he wishes to induce a guilty plea. A policy of deliberately overcharging defendants with no intention of prosecuting on all counts simply in order to have chips at the bargaining table would, for example, constitute improper harassment of the defendant. [Emphases added].
Yet, overcharging is widely practiced against Jan 6 protestors in the very jurisdiction controlled by that appellate court - the DC District Court. Even defendants who spent just a few minutes in the Capitol, and even when the evidence indicated that the Capitol appeared to them to have been open to the public, were charged with “knowingly” violating multiple crimes.
Professor Albert Alschuler, in a Law Review article for the University of Chicago Law School, categorized prosecutorial overcharging as either horizontal or vertical. He defined horizontal overcharging as
multiplying "unreasonably" the number of accusations against a single defendant … prosecutors may fragment a single criminal transaction into numerous component offenses. In Cleveland, "bad check artists" are usually charged, not only with one, but with three separate offenses for each check: forgery, uttering, and obtaining property by false pretenses. In Boston, the pattern is the same, except that a fourth offense is occasionally added; the defendant may also be charged as a "common and notorious thief.” [Emphases added].
Horizontal overcharge of Jan 6 protestors
It’s almost as if the US Attorney’s Office for the DC District was determined to prove that horizontal overcharging is its standard operating procedure, listing on a webpage dedicated to January 6 cases, how they “fragmented” the single potential criminal transaction of entering the Capitol into “numerous component offenses,” including:
- Entering and Remaining in a Restricted Building or Grounds
- Disorderly and Disruptive Conduct in a Restricted Building or Grounds
- Disorderly Conduct in a Capitol building
- Parading, Demonstrating or Picketing in a Capitol building
Of course, an offer to agree to a plea on just the first of these redundant charges comes off as generous after a shackled defendant is read an indictment listing all four charges. While the protestors may initially believe it not possible to be charged with four variations of one trespass violation, the reality eventually sinks in that they will not be treated like protestors from a different political perspective.
Professor Alschuler defined vertical overcharging as
charging a single offense at a higher level than the circumstances of the case seem to warrant . . . .
prosecutors charge robbery when they should charge larceny from the person, that they charge grand theft when they should charge petty theft, that they charge assault with intent to commit murder when they should charge some form of battery, and that they charge the larceny of an automobile when they should charge "joy-riding," a less serious offense that does not involve an intention to deprive the car owner permanently of his property. [Emphases added].
Vertical overcharge of Jan 6 protestors
The US Attorney’s Office in the DC district likewise appears bent on proving that vertical overcharging is indeed their regular practice, publicizing the following additional charge it applied to alleged trespassers:
- Obstruction of an Official Proceeding
Interestingly, this 20-year felony is found in the federal government’s witness tampering statute. Even conceding that that is the correct statute to address the activities of the minority of protestors who used force, what of the peaceful protestors? One would need to force protestors to be judged by a jury not of their peers to imagine a scenario in which jurors accept prosecutors’ arguments that peaceful protestors careful to stay within the Capitol’s velvet ropes were attempting to obstruct a proceeding elsewhere in the Capitol.
Nonetheless, the threat of a 20-year sentence, and the promise to drop that vertical overcharge, as well as the horizontal overcharges, has been enough to induce many peaceful protestors to confess, in writing, to what they know to be inaccurate:
The defendant knew at the time he entered the U.S. Capitol Building that he did not have permission to enter the building. [Emphasis added].
Disproportionate and insincere obstruction charges lacking evidence
Law school professor Kyle Graham presents an updated categorization of overcharging, but again, federal prosecutors violate each category:
- Charging Without Adequate Proof
- Filing Charges Disproportionate to the Crime
- Prosecutorial Insincerity
Charging peaceful protestors who spent a short time taking selfies in the Capitol with the 20-year Obstruction felony has been done without proof of obstruction, without any proportion to what the protestor did and cannot be said to be a sincere effort of prosecutors to later prove obstruction to a jury.
SCOTUS bans overcharging
Lest one think that only the DC Circuit has banned overcharging, the nation’s highest court specifically excluded overcharging defendants from its description of acceptable plea bargain strategy by prosecutors:
We here make no reference to the situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty. In [this] case there is no claim that the prosecutor threatened prosecution on a charge not justified by the evidence or that the trial judge threatened [the defendant] with a harsher sentence if convicted after trial in order to induce him to plead guilty. [Emphases added].
In another Supreme Court decision, a dissenting justice noted matter of factly, on a point not disputed by the court’s majority, that,
. . . plea bargaining . . . presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense … [Emphases added].
ABA bans overcharging
The American Bar Association also sets, as a national standard, the categorization of overcharging as unethical:
The prosecutor should not file or maintain charges greater in number or degree than can reasonably be supported with evidence at trial and are necessary to fairly reflect the gravity of the offense or deter similar conduct.
US Attorney’s Office against overcharging?
Federal prosecutors themselves have even warned about overcharging, alerting defense attorneys to the problem as part of their Office of Justice Program. Prosecutors appear to believe that the alert was for defense attorney eyes only.
The practice continues, and has not just been used by federal prosecutors to pressure Jan 6 defendants to falsely confess to ‘knowingly’ trespassing where no evidence exists that the defendants knew they weren’t allowed to be in the Capitol. The additional charges have been used as bargaining chips to obtain another huge concession from defendants.
Coerced to waive right to appeal sentence
As if overcharging were not enough of an abuse of federal power, prosecutors are agreeing to drop the charges, particularly the felony obstruction charge, only on condition that, in addition to confessing to “knowing” that it was illegal to be where they were, the defendants waive the right to appeal their sentences as part of the written plea bargain:
Your client also agrees to waive the right to appeal the sentence in this case, including but not limited to any term of imprisonment, fine, forfeiture, award of restitution, term or condition of supervised release, authority of the Court to set conditions of release, and the manner in which the sentence was determined, except to the extent the Court sentences your client above the statutory maximum or guidelines range determined by the Court.
No prison time is norm for peaceful misdemeanor trespassers
The misdemeanor trespassing statute being used to prosecute hundreds of peaceful Jan 6 protestors carries a punishment of 0 to 12 months in prison, with a congressionally mandated “Estimated Guidelines Range” of 0 to 6 months for defendants with no criminal history.
While these guidelines technically leave the door open for a prison sentence of up to six months, it has been the widespread practice of judges to go straight to the “0 months” end of the guideline range in sentencing peaceful first offenders. Even violent offenders have been given zero months.
Zero prison for 209 of 210 inauguration rioters
In fact, of the 210 protestors charged with felony rioting during the 2017 inauguration, injuring six police officers and causing more than $100,000 in damage, only one inauguration rioter was sentenced to any jail time, despite their violence; 20 were placed on probation and the rest saw their charges dropped, with the government actually paying the the remaining defendants $1.6 million for having detained them!
Disparate sentences doled out with impunity
In light of the no-jail sentences handed out by the same DC District Court judges to violent inauguration protestors, one might expect Jan 6 protestors to have a good argument to overturn sentences which have landed many peaceful protestors behind bars. Bolstering their argument is a law passed by Congress delineating the Factors To Be Considered in Imposing a Sentence:
The court, in determining the particular sentence to be imposed, shall consider … the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct … [Emphases added].
Congress was clear: no disparate sentences for the same crimes. Why do the judges not fear being overturned by the appellate court?
The Jan 6 defendants have just one obstacle blocking them from asserting their right to overturn disparate sentences: they were coerced into waiving that very right! The plea bargain in which they waived that right is part of the record that the sentencing judge reads before sentencing, leaving the judge well aware of the inability of the protestors to have their sentences reviewed by a higher court.
Please see the official AFLDS press release on founder Dr. Simone Gold’s Jan 6 sentencing as well as previous articles in our series on the politicization of prosecution: