Tuesday Talk*: Was Reffitt’s “Trial Tax” Too High?

He went to trial. He was sentenced. And his sentence, 87 months, was on the low end of the guidelines, and far below the sentenced sought by the government, which asked for a terrorism enhancement that would have brought the sentence up to about 15 years. Judge Dabney Friedrich rejected the enhancement, and yet imposed a signiricantly longer sentence on Wesley Reffitt than others had received.

Was this wrong?

After a six-hour hearing, Judge Dabney L. Friedrich handed down a sentence at the low end of the guideline range. She noted that was still significantly longer than any given so far to any of the more than 800 people arrested in connection with the riot, many of whom have struck plea bargains.

Prosecutors had asked that Mr. Reffitt be given 15 years after adding a sentencing enhancement used in cases of domestic terrorism. But Judge Friedrich rejected those terms, sentencing him to seven years and three months in prison with three years of probation, and ordering him to pay $2,000 in restitution and receive mental health treatment.

But what about all the other defendants sentenced, most to terms of days or months rather than years. Indeed, the previous “high” sentence had been five years after a plea for a defendant who attacked an officer with a fire extinguisher.

Before Monday, the longest sentence in a case related to the attack on the Capitol was just over five years, given last year to a man who had pleaded guilty to assaulting an officer with a fire extinguisher. But because Mr. Reffitt did not plead guilty like hundreds of others arrested in connection with the attack and went to trial, Judge Friedrich said, the sentencing guidelines for his case were two years more than if he had reached a plea deal.

Was Reffitt’s conduct similar?

A jury found Mr. Reffitt guilty on five felony charges in March, including obstructing Congress’s certification of the 2020 presidential election, carrying a .40-caliber pistol during the riot and two counts of civil disorder. Unlike others who breached the building, Mr. Reffitt did not go inside.

Clearly, the most significant difference here is that Reffitt chose to go to trial rather than plead guilty. Did he pay for exercising his constitutional rights or did he not get the discount off the congressional suggested list price under the Sentencing Guidelines? It didn’t help, of course, that his son informed the judge that he was threatened not to snitch on dad.

But Judge Friedrich described Mr. Reffitt’s case as unusual on account of threats of violence he made against his children when he discovered he might be swept up in the federal investigation following the riot. In March, Mr. Reffitt’s son, Jackson Reffitt, took the stand to testify that his father had become radicalized in the months leading up to the attack, and had threatened both him and his sister in an attempt to dissuade them from speaking to authorities, telling them that “traitors get shot.”

Was this sufficient to justify the sentence? Is this sufficient to overcome the appearance of having penalized Reffitt for the exercise of his right to trial? If the sentence imposed by Judge Friedrich was at the low end of the sentencing guidelines, is the problem really the trial tax or the sentencing guidelines? Or is it not a problem at all and you roll the dice and find out what happens, knowing full well that whatever discount you might get off the guidelines for copping a plea are gone and you’re playing for the big win or big loss?

*Tuesday Talk rules apply.

12 thoughts on “Tuesday Talk*: Was Reffitt’s “Trial Tax” Too High?

  1. orthodoc

    I guess as a guest here I have to accept the framing of a “Trial Tax” and not a “Plea Bargain Discount”, but even within that, I don’t think it is correct to say “Clearly, the most significant difference here is that Reffitt chose to go to trial rather than plead guilty.” Rather, it may be the most significant of the known factors (as the problem of the unknown unknowns, common to any correlation assessment, is at play too).
    Steve Bibas, cited with approval here just the other day, noted in an important article that there are many factors that can explain the variance seen in plea deals vs sentences: attorney competence, compensation, and workloads; resources; sentencing and bail rules and information deficits. In addition, psychological biases such as overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring can also skew judgment and thus outcomes as well. (He also mentions “agency costs” –one form of which is defense attorneys not acting purely in best interest of the defendant–but as a guest here I will leave that aside for now.)
    Of course, I am using biased reasoning to even make this argument, because to answer the title question, the sentence seemed just about right to me…and if it didn’t, I am sure I would find some way to argue against it.

  2. Grant

    This could also be partially due to the firearm he carried changing his 18 USC 1752 charge from a 1 year to a 10 year penalty.

    (I can’t find how much time the plea offer was, but it looks like this was not just a trial tax because guns.)

    1. SHG Post author

      It was a within guidelines sentence. Since we don’t have the PSR, nothing to be gained by speculating.

  3. B. McLeod

    Hard to get too concerned about the penalties meted out to any of these folks, who are generally too stupid for their own good. It is too bad we can’t put Trump in charge of some small island somewhere, and send them all to live with him.

  4. Elpey P.

    Law and order conservatives may not appreciate it but they are winning bigly with all this. Or they may not realize that’s what they are.

  5. Mark Dwyer

    If the insurrectionists really wanted to strike a blow against The Deep State, all 800+ defendants should have demanded jury trials. But of course the Prisoner’s Dilemna came into play. Most of those charged wanted their “discount.” As a result, the court’s work could continue.

    Otherwise, and FWIW, I personally see no problem with this sentence (near the lower edge of the guidelines) for someone who endeavored to overthrow the government; led rioters in an attack on the Capitol police; was armed with a pistol; was wearing a bulletproof vest and a helmet; and was carrying zip ties after asserting that our representatives, especially Ms. Pelosi, should be dragged from the building. Ah — and who then declined whatever discount he was offered. What more should it take to get a 7 year sentence?

    1. PK

      Yes, the state will be quivering as the defendants all receive harsher punishments in line with Reffitt for exercising their rights en masse. More time in prison will really show them down and dirty, election-stealing elites what’s what.

      How about we don’t sentence people to longer stays in prison for wanting their day in court? Or was he stupid and are you so much smarter that your conclusion can only be that he deserved what he got? Why do you love the guidelines so much? Is it because you agree with them in this case?

      Oops. The sarcasm got out this time. Sorry about that. I’m annoyed at the reluctance to grapple with the trial tax. Not just by you.

      1. SHG Post author

        So people who take a plea need to get longer sentences to align with those who go to trial? Do you think they’ll be cool with that, PK?

        The post trial sentence is what the sentence, per the guidelines, is supposed to be. The others are getting a break. Why do you hate giving people a break?

        1. Mark Dwyer

          It is quite natural for people to disagree with me. It’s happened all my life. But: if you can’t get less time with a plea, who will plead? And if no one pleads: who will pay for the increase in trial expenses to something like 30 times what they are now? Court houses, judges, defense attorneys, etc etc. Of course, we could just stop prosecuting people for criminal activity. People like the gentleman who endeavored violently to overthrow the government.

          It’s not all dollars and cents, though. I do think the plea reduction is very much a “discount,” and that relatively few defendants “deserve” it. To take a random example: why should someone who is indicted for pointing a loaded and operable gun at a bodega clerk during a robbery (and thus in NY commits a class B violent felony) get the benefit of a sentence to a class D felony? He’s making out like a, um, bandit. And why not let the defendant decide whether he thinks he is innocent and is really more interested in a trial than the discount?

          It is of course more complicated than we can deal with in Scott’s blog. I suspect that here we won’t persuade each other.

          1. SHG Post author

            This is an issue I’ve written about many times, as I am very concerned that simplistic reformers will wreak havoc with plea bargaining, which is the presumptive safety valve that allows pols to ratchet up sentences to look tough without actually requiring defts to serve them.

            One of the fundamental errors that people who aren’t in crim law make is that they believe there is some huge swathe of innocent defendants coerced into guilty pleas by the threat of the trial tax when, as we are painfully aware, it’s quite the opposite, a lot of guilty defts who have no defense at trial getting a break.

            And in those rare triable cases, we rolled the dice and tried them. Or at least we used to, when lawyers still have the chops to try cases.

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