Pretrial Release's Crystal Ball
The prosecution of the January 6th rioters continues, with about 400 people charged so far in federal court (full list).
Federal criminal prosecutions are relatively rare, and accordingly tend to be reserved for serious crimes (State criminal prosecutions are the firehose of the American criminal justice system in terms of volume and relative banality). The Capitol breach cases therefore are notable for just how many are being pursued, and also for the relative pettiness of the charges. They're also notable for how much attention each pretrial hearing gets. I gather that the window into the system this provides is one that is unfamiliar to many people.
For example, how bail and pretrial release is determined.
One of the first things I'm tasked with when I get appointed to a criminal case is to argue for pretrial release. I hate it. I hate it because that early hearing will literally determine the ultimate outcome of the case. If you are denied release, you have to sit in jail for the pendency of your case, and you are far less likely to agree to continuances to either pursue more mitigation strategies or conduct more investigations. Prosecutors know this, and will often offer deals for credit for time served if you just agree to plead guilty. I've had innocent clients (both factually and legally) agree to plead guilty just to get out of jail, because the length of time it takes to push something to trial is too unrealistically long to be worthwhile.
This is where I mention that 75% of people in jail have not been convicted of any crime. Or 20% of the 2.3 million people currently incarcerated in the US. Recall the case of Kalief Browder, who was imprisoned for three years on suspicion of stealing a backpack.
The guidelines for pretrial release are fairly similar across the country. A judge considers your history and the nature of the current charges, and then based on past and present circumstances, tries to scry a divination into the future to see if you are likely to commit a crime or fail to show up to court. If their prediction is dire, they either deny bail or set it as very high. If this sounds suspiciously like the precogs from Minority Report, you're not wrong!
Thus far, pretrial release has been the primary focus of the Capitol breach cases. For context, 70% have been released pending trial, which is significantly higher than the typical rate of 25% for federal defendants. Some quotes in that article try to argue that this is proof of white privilege, but the release rate is not at all surprising given the defendants generally have a limited or nonexistent criminal history, and the charges are typically of the trespassing or property destruction variety.
One of the defendants, Karl Dresch, was denied release and the reasons were...interesting. Judge Amy Jackson (Obama appointee who presided over the Paul Manafort and Roger Stone trials) issued a thorough opinion describing the basis of the denial. I ultimately strongly disagree with her conclusion, but only as a matter of policy because I believe the default stance of reflexively jailing individuals who haven't even been convicted yet is an atrocious practice that needed to be retired long ago. But from a legal standpoint, I can't really find much fault.
I don't envy Dresch's attorney, because he didn't have an easy job. Dresch is only facing minor charges, of the disorderly conduct and trespass variety. But he has multiple law enforcement obstruction charges, and a number of felonies from when he led cops on a high-speed chase reaching speeds of 145mph. Felony convictions disqualify you from owning firearms, but when his house was searched recently they found multiple firearms with plenty of ammunition. He also sunk himself (not all that different from other defendants I wrote about) by openly boasting about his conduct on January 6th and appeared eager to do it again but potentially promising more violence. He also implicitly threatened "snitches" who identified him to law enforcement.
Just what I described is more than enough to have his bail denied. He not only has a felony criminal history, but of the escape and obstruction variety and he apparently DGAF about being legally prohibited from owning firearms. None of that screams "please release me judge, because I'm a safe bet that can follow court orders".
But by far, the most shocking reason he was denied bail was this, from pg 17:
On January 7, 2021, defendant commented on an someone else’s Facebook post: “Mike Pence gave our country to the communist hordes, traitor scum like the rest of them, we have your back give the word and we will be back even stronger.” Defendant’s promise to take action in the future cannot be dismissed as an unlikely occurrence given that his singular source of information, (“Trump’s the only big shot I trust right now”), continues to propagate the lie that inspired the attack on a near daily basis. And the anger surrounding the false accusation continues to be stoked by multiple media outlets as well as the state and federal party leaders who are intent on censuring those who dare to challenge the former President’s version of events.
Trump today still claims, without evidence, that the election was stolen from him. His claim was perhaps much more plausible right after the election took place, before any investigations or audits or lawsuits took place. Since then, the incoherence of the election fraud theories have become more and more tortured, alleging an increasingly bizarre and convoluted web of subterfuge implicating everyone from lowly Republican election officials to the Supreme Court itself to Hugo Chavez. It's therefore not surprising that the holdouts still insisting the election was stolen have such a significant overlap with QAnon lunacy. Lin Wood being the perennial example, and Sydney Powell appears to have changed her tune somewhat when she realized how scary it is to be on the receiving end of a robust defamation claim. That's the selection effect bias at work.
Back on Jan 8th, I wrote:
Stealing an election is an extremely serious charge. And if your narrative is that Republican governors are bribed by China and in on the conspiracy, and that the Supreme Court is letting this happen because they are being blackmailed by child rape videos, you've also communicated that all traditional avenues of redress are gone. There's nothing left at that point except violent revolution, and if the foregone was true (which many of his supporters believe) then violence would be absolutely moral. The only thing that surprised me about Wednesday was how few people came with their guns.
This remains true, and I'm not totally sure why that comment was deemed controversial. If you truly genuinely believe the election fraud claims that Trump is making, and you see that even the court system (in every state and at every level!) has been captured by the Deep State furthering this fraud, someone devoted to this country and its ideals should advocate for a violent revolution. Is there disagreement with that? Given that reality, and given the rules on pretrial detention, Judge Jackson's conclusion on this specific point makes sense to me.
A few questions for discussion:
What, if anything, has surprised you about how pretrial detention is imposed? What was your impression before?
What would you want to change about the system?
Given what you know about the rules and standards of pretrial detention, what, if anything, do you disagree about with Judge Jackson's analysis?