Much has been made of President Biden’s efforts to diversify the federal bench, whether from the race and gender perspective or based on prior position as prosecutor. The reason why nominees for federal judgeships tended to come from a certain group was fairly obvious and banal. It wasn’t that the government wanted to topload prosecutors or white shoe lawyers, but that was who had access to senators, and senators recommended judges to presidents. You didn’t think presidents knew these people personally, did you?
To the simplistic, this was going to change everything. All we need are more women judges, more judges “of color” whatever that means, but most of all, more judges who came from the ranks of public defenders. Not criminal defense lawyers, mind you, but public defenders, because they are pure and don’t do it for filthy lucre (even though they get a paycheck, but I digress). Surely a public defender will make the sort of judge that will be merciful.
Chutkan, a former public defender appointed to the federal judiciary by former President Barack Obama, last week sentenced another defendant who admitted to the misdemeanor charge, Matthew Mazzocco, to 45 days in prison.
That court hearing marked the first time that one of the judges overseeing the hundreds of Jan. 6 prosecutions imposed a sentence that was harsher than what the government asked for.
District Judge Tanya Chutkan is a quadruple threat. Female. Black. Immigrant. A District of Columbia public defender. And when the Justice Department, the one under President Biden, run by Attorney General Merrick Garland, sought a sentence of 30 days, it wasn’t harsh enough for her tastes, so she imposed 45 days.
In the past week, U.S. District Judge Tanya Chutkan has imposed sentences ranging from 14 to 45 days on four people who pleaded guilty to unlawful parading and picketing inside the Capitol building on Jan. 6 — a misdemeanor offense.
“There have to be consequences for participating in an attempted violent overthrow of the government, beyond sitting at home,” Chutkan said at one of the hearings.
And most of us would agree with the sentiment that there have to be consequences, but that doesn’t do much to explain what those consequences should be.
On Wednesday, Chutkan sentenced two cousins who breached the Capitol and took selfies while doing so to 45 days in jail.
Prosecutors had asked Chutkan to sentence each of the defendants — Robert Bauer of Kentucky, and Edward Hemenway of Virginia — to 30 days in prison.
When the prosecution seeks 30 days in jail (not prison, Jan), they anticipate the the judge will impose a lesser sentence. Always ask for more than you want so when the judge splits the baby, you get the number you really wanted all along. But by imposing a sentence of 45 days, Judge Chutkan added a 50% premium to the sentence. That almost never happens, even when being sentenced by the harshest of white male ex-prosecutor turned judge.
There are some peculiarities here, of course. It might be a 50% increase over the requested sentence, but it’s only 15 days in real numbers, which isn’t exactly life plus cancer. But mostly, these weren’t the defendants the progressives concern themselves with, the ones for whom they seek empathy even though they clocked a few old black women over the head for their purse to buy
crack a big screen TV Nike Air Jordans bread for their kids. No, these are defendants of the evil sort. They were white. They were deplorable. They were Trump-lovers. They were insurrectionists.
Of course there should be consequences for what they did, which was the most atrocious effort to undermine democracy in the modern era. And there would be. They would have the conviction of a federal crime, albeit a misdemeanor, to overcome, with all the same ramifications as any other convict, or as they’re not to be called, “persons with convictions” as that, too, will change everything.
They will suffer the loss of income, possibly their job, maybe lose their home, apartment, marriage, children, just as anyone else who gets tossed in a cell. If these collateral consequences matter, they matter. And it’s argued, with some justification, that the conviction and even a short sentence of incarceration carries myriad collateral consequences that are overlooked when only looking at the jail time rather than the big picture.
But what will 45 days accomplish that 30 would not? What happened to parsimony, the requirement of 18 U.S.C. 3553(a)(2), limiting district judges to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes” provided in the statute? Is the incantation of “consequences” when the crime strikes a judge as more offensive than it does the government a basis to depart upward?
One of the very real and serious concerns about the push to “reimagine” the federal bench is that it will just change the heads on the corpse. It’s not that they will be less carceral, less harsh, more empathetic. Rather, they will change the crimes and the defendants for whom they have empathy, showing mercy to preferred defendants based on race or gender and being as punitive as they can to those who they despise or who commit crimes they deem repugnant. It’s weird to put it this way, but murder, even murdering a cop, might be less heinous to certain judges than consensual sex where the woman subsequently decides that her consent was induced by consensually having a few drinks, although she wasn’t incapacitated.
For many who applaud Judge Chutkan’s tacking on a 50% premium because these defendants are horrible, this outcome might not be of much concern. After all, should people they hate be treated more harshly than people for whom they can recite with their eyes closed a litany of excuses?
But then, there’s the other possibility, the one that the activists deny could ever happen even though it has most assuredly happened. Coming from the ranks of the public defender’s office might make a person more attuned to the defense arguments, but it can also make them painfully aware of how full of shit the banal excuses, repeated over and over, are. And now that they wear a robe, and have a different responsibility than the zealous defense of the accused, they can be a very hard sell on the appeals to emotion that work so well among reform activists and less so among anyone who has heard the same excuses too many times before and knows that there are bad dudes out there who do serious harm to other people.