Judging Freedom - Why DOJ is avoiding domestic terrorism sentences for Jan. 6 defendants

Episode Date: January 4, 2022

Judge Napolitano details why the DOJ has not charged the defendants with harsher sentences.See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Hello, my friends, Judge Napolitano here on Judging Freedom. Today is Tuesday, January 4, and I want to talk to you a little bit about a phenomenon that those of us who monitor these things have been discovering, and that is the pattern of sentencing by federal judges of the people who have pleaded guilty to being engaged in the riot, insurrection, whatever you want to call it, on January 6th, 2021 at the Capitol Building in Washington, D.C., almost exactly a year ago. We'll start out with a couple of basics. There have been no jury trials. About 700 people have been arrested or charged, and about 100 have pleaded guilty. The remainder are either out on bail or they are in jail because the government has persuaded the federal judges

hearing the individual's case that the person is dangerous and there's no assurance that the person will show up at the time of trial. I don't know if there's going to be any trials. But here's the interesting aspect. The feds have a tool available to them, which was enacted back in 1993 during the Clinton administration, which is a penalty enhancer for acts of terrorism. So it's one thing to smash a window in the Capitol building and be charged with destruction of government property. It's another thing to smash the same window and be charged allows the judge to double and treble the time in jail for the underlying charge. The underlying charge here is smashing that window. But if the purpose of smashing the window is to engage in an act of terrorism, which I'll define

in a moment, then the judge has a lot more time to which he could sentence the defendant. Now, no sentence enhancers have been used, and that's the peculiar thing here. What is the definition of terrorism? The definition of terrorism is two or more acts of violence intended to affect the policies of the government. Two or more acts of violence committed by the same person intended to affect the policy of the government. So if the same person smashed a window and broke a chair, those are acts of violence. They're not against people.

They're against property. Violence can be against property. That person can be charged with an act of terrorism. Now, why has no one been sentenced for this? That's because the government has been getting guilty pleas. So the government will say, for example, to a criminal defense lawyer, we have your client on tape smashing a government window and breaking a chair. It's a hypothetical that I'm giving you. There are many, many examples of this. And a lot more damage was window and breaking a chair. It's a hypothetical that I'm giving you. There are many, many examples of this. And a lot more damage was done than breaking a chair and smashing a window.

It's up to hundreds of millions of dollars. We have your client on tape smashing a window and breaking a chair. If he pleads guilty to two acts of destroying government property, his maximum time in jail will be five years. He'll probably get two. He'll probably get two. He'll probably serve one and a half. If he doesn't plead guilty, we're going to charge him not only with the two acts of destruction of property, but with an act of terrorism. Then he'll be exposed to 20 years in jail. Almost every criminal defense lawyer who heard that type of a statement out of the mouth of a prosecutor would do everything in her or his power to persuade his client to accept the guilty plea to the lesser charges and avoid the prospect of this sentence enhancer. So that's the reason that no one has been charged or pleaded guilty, charged with or pleaded guilty to an act of terrorism because it has been negotiated away during the

settlement negotiations between the government and the criminal defense lawyer. Now, it's critical that the judge not participate in those settlement negotiations. In a civil case, if they were suing these people for the cost of the window or the cost of the chair, the judge might very well participate in the negotiations. But in criminal cases where the prosecutor has offered a deal to the defendant and the defendant's lawyer wants to negotiate with the prosecutor, judges a deal to the defendant and the defendant's lawyer wants to negotiate with the prosecutor, judges are prohibited from participating. Judge sits in the courtroom, prosecutor walks in, defense counsel walks in and says, your honor, here's the deal we've reached

and the court will accept it or reject it. The court cannot tinker with it. But thus far, no one has exposed themselves to that penalty enhancer because it's been used as a weapon to get the defendants to plead guilty to the underlying charges. Now, why does the government want them to plead guilty to the underlying charges? The government always wants guilty pleas. Saves time, saves money, saves resources. They get the credit for the conviction and then move on to the next case. That's the way it works. Judge Napolitano, judging freedom.