Before I write another diary about an insurrectionist, their arrest, or sentencing... We need to address who is to blame for the seemingly light sentences being imposed on those who attacked our democracy.
It’s a major (and completely justified) concern of this community and readers of my diaries...
In 2012 the United State Sentencing Commission released the Booker Report analyzing the impact of a 2005 Supreme Court ruling in United States v Booker that affected federal sentencing guidelines. On November 14, 2017 that report was updated and here are it’s key findings on Demographic Differences in Sentencing:
Consistent with its previous reports, the Commission found that sentence length continues to be associated with some demographic factors. In particular, after controlling for a wide variety of sentencing factors, the Commission found:
- Black male offenders continued to receive longer sentences than similarly situated White male offenders. Black male offenders received sentences on average 19.1 percent longer than similarly situated White male offenders during the Post-Report period (fiscal years 2012-2016), as they had for the prior four periods studied. The differences in sentence length remained relatively unchanged compared to the Post-Gall period.
- Non-government sponsored departures and variances appear to contribute significantly to the difference in sentence length between Black male and White male offenders. Black male offenders were 21.2 percent less likely than White male offenders to receive a non-government sponsored downward departure or variance during the Post-Report period. Furthermore, when Black male offenders did receive a non-government sponsored departure or variance, they received sentences 16.8 percent longer than White male offenders who received a non-government sponsored departure or variance. In contrast, there was a 7.9 percent difference in sentence length between Black male and White male offenders who received sentences within the applicable sentencing guidelines range, and there was no statistically significant difference in sentence length between Black male and White male offenders who received a substantial assistance departure.
- Violence in an offender’s criminal history does not appear to account for any of the demographic differences in sentencing. Black male offenders received sentences on average 20.4 percent longer than similarly situated White male offenders, accounting for violence in an offender’s past in fiscal year 2016, the only year for which such data is available. This figure is almost the same as the 20.7 percent difference without accounting for past violence. Thus, violence in an offender’s criminal history does not appear to contribute to the sentence imposed to any extent beyond its contribution to the offender’s criminal history score determined under the sentencing guidelines.
- Female offenders of all races received shorter sentences than White male offenders during the Post-Report period, as they had for the prior four periods. The differences in sentence length decreased slightly during the five-year period after the 2012 Booker Report for most offenders. The differences in sentence length fluctuated across all time periods studied for White females, Black females, Hispanic females, and Other Race female offenders.
The gap between the guidelines and final sentences widened after the Booker decision, and had somewhat stabilized prior to 2020 when the latest study was released. It’s been found that guideline influence has varied depending on the type of crime committed.
In large part, the sentence a defendant receives depends on where in the country they are being sentenced. In urban areas sentence length varied depending on which judge was assigned to a particular case. The commission noticed increasing variation in 25 out of the 30 cities being studied.
In the 2017 study I blockquoted above, the Commission reported that Black men continue to get longer sentences compared to White men with similar backgrounds and situations.
The disparity in sentencing is real and undeniable, and so is it’s cause... SYSTEMIC RACISM!
The Sentencing Project
The United States criminal justice system is the largest in the world. At yearend 2015, over 6.7 million individuals1) were under some form of correctional control in the United States, including 2.2 million incarcerated in federal, state, or local prisons and jails.2) The U.S. is a world leader in its rate of incarceration, dwarfing the rate of nearly every other nation.3)
Such broad statistics mask the racial disparity that pervades the U.S. criminal justice system, and for African Americans in particular. African Americans are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, and they are more likely to experience lengthy prison sentences. African-American adults are 5.9 times as likely to be incarcerated than whites and Hispanics are 3.1 times as likely.4) As of 2001, one of every three black boys born in that year could expect to go to prison in his lifetime, as could one of every six Latinos—compared to one of every seventeen white boys.5) Racial and ethnic disparities among women are less substantial than among men but remain prevalent.6)
The source of such disparities is deeper and more systemic than explicit racial discrimination. The United States in effect operates two distinct criminal justice systems: one for wealthy people and another for poor people and people of color. The wealthy can access a vigorous adversary system replete with constitutional protections for defendants. Yet the experiences of poor and minority defendants within the criminal justice system often differ substantially from that model due to a number of factors, each of which contributes to the overrepresentation of such individuals in the system.
Department of Justice Prosecutors have complex formulas that they must use when determining sentencing recommendations but since United States v Booker those recommendations have been advisory only…
American Bar Association
If the defendant is convicted in a criminal case, the judge will set a date for sentencing. Before that time, a pre-sentence investigation will take place to help the judge determine the appropriate sentence from the range of possible sentences set out in the statutes. The pre-sentence investigation may consider the defendant's prior criminal record, family situation, health, work record, and any other relevant factor.
In most states and in the federal courts, only the judge determines the sentence to be imposed. (The main exception is that in most states juries impose sentence in cases where the death penalty is a possibility.) The federal courts and some states have sentencing guidelines to guide judges in determining appropriate sentences and to encourage uniformity.
The only people with any leeway in the judicial sentencing process are THE JUDGES WHO HAND DOWN THE SENTENCES!
Every one of the plea agreements offered to Capitol Riot defendants contains the following language:
Your client understands that the sentence in this case will be imposed in accordance with 18 U.S. Code § 3553(a), upon consideration of the Sentencing Guidelines. Your client further understands that the sentence to be imposed is a matter solely within the discretion of the Court. Your client acknowledges that the Court is not obligated to follow any recommendation of the Government at the time of sentencing. Your client understands that neither the Government’s recommendation nor the Sentencing Guidelines are binding on the Court.
Your client acknowledges that your client’s entry of a guilty plea to the charged offense authorizes the Court to impose any sentence, up to and including the statutory maximum sentence, which my be greater than the applicable Guidelines range. The Government cannot, and does not, make any promise or representation as to what sentence your client will receive. Moreover, it is understood that your client will have no right to withdraw your client’s plea of guilty should the Court impose a sentence that is outside the Guidelines range or if the Court does not follow the Government’s sentencing recommendation. The Government and your client will be bound by this Agreement regardless of the sentence imposed by the Court. Any effort by your client to withdraw the guilty plea because of the length of the sentence shall constitute a breach of this Agreement.
It would be really helpful if these Judges had one of those sentencing enhancements like the “Three Strikes Law” used against so many people of color, but one specifically for the crime of INSURRECTION so they could really dish out some serious time…
Oh wait... What have we here?
United States Sentencing Commission
§3A1.2. Official Victim
(Apply the greatest):
(a) If (1) the victim was (A) a government officer or employee; (B) a former government officer or employee; or (C) a member of the immediate family of a person described in subdivision (A) or (B); and (2) the offense of conviction was motivated by such status, increase by 3 levels.
(b) If subsection (a)(1) and (2) apply, and the applicable Chapter Two guideline is from Chapter Two, Part A (Offenses Against the Person), increase by 6 levels.
(c) If, in a manner creating a substantial risk of serious bodily injury, the defendant or a person for whose conduct the defendant is otherwise accountable—
(1) knowing or having reasonable cause to believe that a person was a law enforcement officer, assaulted such officer during the course of the offense or immediate flight therefrom; or
(2) knowing or having reasonable cause to believe that a person was a prison official, assaulted such official while the defendant (or a person for whose conduct the defendant is otherwise accountable) was in the custody or control of a prison or other correctional facility,
To get a better understanding of what a 6 level increase might amount to here’s a link to the latest Sentencing Table that I can find. The whole process is rather complex and I’m not about to pretend that I understand it much at all… I really don’t envy the lawyers that have to deal with this shit.
Meanwhile, Republicans whine that January 6 defendants are being persecuted...
Associated Press
An Associated Press review of court documents in more than 300 federal cases stemming from the protests sparked by George Floyd’s death last year shows that dozens of people charged have been convicted of serious crimes and sent to prison.
The AP found that more than 120 defendants across the United States have pleaded guilty or were convicted at trial of federal crimes including rioting, arson and conspiracy. More than 70 defendants who’ve been sentenced so far have gotten an average of about 27 months behind bars. At least 10 received prison terms of five years or more.
(snip)
Conservatives have sought to equate the attack on the Capitol with the Black Lives Matter protests, accusing Democrats of being hypocrites for not denouncing the violence after Floyd’s death as loudly as the Jan. 6 insurrection. And some Republicans have seized on the handling of the protest cases in Portland to suggest that the Jan. 6 defendants are being politically persecuted.
That has not been borne out when comparing the sentences that federal judges have given to Jan. 6 defendants and those who are accused of crimes during the protests against police brutality across the country.
They’re being prosecuted for their crimes against our government… not their delusional political beliefs!
What I think everybody here understands, is that if an impoverished black mother stole Nancy Pelosi’s lectern in an attempt to feed her 5 children she’d end up getting a hell of a lot more than 75 days in jail... Or, if a black teen punched two cops after being pushed around he’d more likely get six years instead of months. I don’t need to tell any of you this, because y’all have been telling me…
We just need to focus our pressure where it belongs, on the judges who have the power to affect these outcomes… There’s nothing stopping them from throwing the book at each and every participant of the Capitol Riot except themselves!
At the risk of coming across like a cheerleader again, can we at least take it a little easy on Merrick Garland and the Department of Justice Prosecutors who have the daunting task of conducting the largest investigation in US history and bringing the perpetrators to justice.
It continues to appear to my eyes as if these are diligent public servants doing their jobs as best they can and following the letter of the law...
I also hope, now that we know where to PROPERLY DIRECT OUR ANGER... I can get back to hounding the mutherfuckers who tried to usurp our democracy!