At Least 100 J6 Attendees Were Very Wrongly Over-Sentenced

People swept up in the Department of Justice’s January 6 dragnet have been getting extraordinarily harsh sentences. While daily headlines are filled with stories of repeat offenders walking away with slaps on the wrist following brutal crimes, the January 6 defendants, almost every one of whom had no previous criminal record (that I’m aware of), were being sent away for years simply for having stepped onto Capitol grounds. These were insane sentences compared to what happened to violent and destructive Antifa and BLM protestors. Now, though, a D.C. Circuit Court of Appeals, in a unanimous decision, held that the prosecutors and the judges improperly used a “multiplier” to reach these sentences.

The decision arises in the case of only one defendant—Larry Brock—a retired Air Force officer who entered the capitol wearing a helmet and tactical vest and who was carrying zip ties that he testified he found on the floor and picked up. There’s no indication that he did anything other than wander through the Capitol.

Nevertheless, for these sins, Brock was sentenced to two years in prison. He filed an appeal alleging that the prosecutors wrongly demanded and the judge gave a sentencing multiplier based upon his having violated U.S.S.G. sec. 2J1.2(b)(2). That provision says that, for Base Offense Level 14, “If the offense resulted in substantial interference with the administration of justice, increase [the Base Offense Level] by 3 levels.”

Image: The DOJ’s and DC judges’ dream sentence for January 6 defendants. (Actually, it’s the execution of Louis XVI, another moment of leftism run amok.)

That’s a big leap. According to Brock’s attorney, Brock received a sentence almost twice as long as he would have received had it not been for the misapplication of the guidelines.

Brock’s attorney argued that a legislative procedure is not within the purview of “the administration of justice.” However, the activists in the Department of “Justice” and those sitting as judges at the trial court level insisted that interfering with “the administration of justice” included “the unnecessary expenditure of substantial government resources.” That’s an amazing viewpoint that argues that everything the government does is just. Think about that for a moment.

On appeal, the D.C. Circuit appellate court got it right, explaining that “we hold that the ‘administration of justice’ enhancement does not apply to interference with the legislative process of certifying electoral votes.” While acknowledging politely that the trial judges were desperately trying to enhance the sentence of the January 6 defendants, the appellate court essentially said that Brock’s argument was a no-brainer:

Section 2J1.2’s text, context, and commentary show that “administration of justice” refers to judicial, quasi-judicial, and adjunct investigative proceedings, but does not extend to the unique congressional function of certifying electoral college votes.

The plain, natural, and ordinary meaning of the phrase “administration of justice” is the governmental process of investigating, determining, and enforcing the legal rights of persons.

[snip]

Black’s Law Dictionary similarly defines “obstructing the administration of justice” and “interfering with the administration of justice” as “[t]he skewing of the disposition of legal proceedings, as by fabricating or destroying evidence, witness-tampering, or threatening or intimidating a judge[.]” Perverting the Course of Justice, BLACK’S LAW DICTIONARY 1383 (11th ed. 2019) (emphasis added)…

In addition, right in the commentary to Section 2J1.2 of the sentencing guidelines, the sentencing commission echoed Black’s Law Dictionary, making it quite clear that the goal was to punish matters associated with judicial proceedings.

What’s important to note here is that neither the language of the sentencing guideline nor the legal history behind the concept of the “administration of justice” nor the commentary on the guidelines is ambiguous. Each makes remarkably clear that it refers to people who try to pervert a judicial proceeding.

What happened when it came to the January 6 defendants was not a good faith error on the part of the prosecutors or the judges. Instead, it amounted to a deliberate and “substantial interference with the administration of justice.” The prosecutors involved should be fired and the judges impeached.

According to the New York Post, the DOJ is deciding whether to appeal the ruling, while over 100 other January 6 defendants are undoubtedly planning to appeal their own improperly extreme sentences.