First Prison Sentence From Capitol Riot

far below the sentencing guidelines. Paul Hodgkins had pleaded guilty to the felony of obstructing an official proceeding joining me as former federal prosecutor Robert Mintz a partner McCarter in English. The sentencing guidelines were for fifteen to twenty one months, but the judge sentenced to him below the guidelines and to less than half the time the prosecutors had asked for.

Does it seem like a lenien sentence? Well, what the judge did in this case was to more or less split the difference between what the defense was asking for and what prosecutors were asking for. Prosecutors were seeking eighteen months, which was the middle of the guideline range, and the defense lawyer was asking for a probation or house arrest.

So this is an eight month sentence. There will be eight months that are served in this case because you don't get out early under the federal guidelines, and so it's a hard sentence in the sense that there will be some real jail time that's imposed here. But on the other hand, if you look at the overall conduct that was involved, some people might look at this as a lenion sentence. That's the real puzzle with these sentences.

Does the judge look at simply the individual acts or does the judge look at the broader picture of the writing on the violence carried out by the larger group. Isn't it considered lenient if it's below the sentence and guidelines. Well, the sentencing guidelines are just guidelines at this point, and they are followed by judges in the majority of cases. But in the District of Columbia, for example, where this defendant was sentenced, judges sentenced below the guideline range and

thirty percent of the cases. So it's not common to do it, but it's certainly not entirely unusual. Hodgkins was wearing protective eye goggles, he had rope with him and white latex gloves. Yet he said he got swept up in the march along Pennsylvania avenue. But when you come with that kind of gear, you're not just planning on going to a rally, are you. Well, that's the issue

facing judges in these cases. The sentencing guidelines were set out to inject some degree of uniformy and fairness so that similarly situated defendants would be sentenced two similar terms in jail. But in this case, these are unprecedented events and the judges have to look at the acts of the individuals and way at against the larger mob mentality. And what we're seeing a lot on the defense side from a legal strategy, is to blame the moment, not

the man. So they're arguing that their clients were swept up in almost a mob mentality, that this was an aberration and something that should be considered in the context of the full life of the defendant. In this case, there were some mitigating factors that the judge Wade. He looked at the seriousness of the charge and the damages that were done that day, but he also looked at the fact that this particular individual had no criminal background.

This individual did not engage in violence or destroy property, and he was among the first to offer a plea of guilty so sometimes what judges are doing are trying to set the bar and send a message to the many other defendants who are out there who have not yet decided to plead guilty, that if they do plead guilty, they will get a particular kind of sentence. And so to some extent, what the judge is doing is trying

to encourage other defendants out there to consider edering guilty. Please, what about the prosecutors wanting to send a message that this is unacceptable behavior. She also cited the need to deter domestic terrorism. Yes, and that was sort of an

interesting paction between the prosecutors and the defense. Prosecutors were describing the actions of January six as an act of domestic terrorism, and some of the defense lawyers in this case and in other cases have pushed back on that characterization and things was simply a riot that had gone too far. The judge in this case sort of struck the middle ground. He clearly shot down any suggestion that

this was an exercise of First Amendment rights. He said that this was an instance in which the chambers of Congress were empty during the most solemn act of the democracy certifying who the next president is. This was clearly not an act of First Amendment speech and would not be viewed that way by this judge or I think

any other judge. So on the whole, would you say that haul Hodgkinson sentence, Well, the judge did specifically single out the symbolism of the actions that day, So, in other words, he did not simply look at the fact that this individual had entered the Senate floor and marched

around with a Trump flag. The judge went on to say that this was an act of symbolism that was unmistakable that the defendant in this case, by entering the Senate floor carrying a flag for Trump rather than the American flag, was declaring his loyalty to a single individual over the nation, and he went so far as to characterize it as a threat to democracy. He then did give the defendant a sentence that was, as you say, below the guideline range, and some would consider it to

be perhaps too lenient under the circumstances. What's going to be interesting going forward is to look at how this sentence has set the bar for future defendants who may be sentenced. There's essentially three classes of individuals here. There are non violent fell ones such as this individual. There are others who have put guilty to misdemeanors, and then there are those who committed violent felony acts, who have injured police officers and who have destroyed property in the

course of the actions of January six. We have yet to see one of those violent felons sentenced, and it would be interesting to see how harsh those sentences will be. As you said, this will set a bar. But do other judges sentencing defendants in this case have to follow this? Do they have to say, Oh, Judge Moss only sentenced a man who wasn't violent to eight months, I can sentence this person two more than that. No, not at all.

Each judge has the right to make the individual decision as to what the sentence should be for the individual defendant. No two cases are the same. No two defendants are the same. Their backgrounds are different, their conduct is different, what they were charged with is different, The time in which they decided to plead guilty might be different, the extent to which they cooperated with prosecutors might be different.

So every single defendant will have a set effects and circumstances that is different for them, unique to them, and each judge will decide for him or herself what the appropriate sentence will be. I expect that we will see some disparity in sentencing among the various sederal judges who handle these cases because they are so unique. There really

is no precedent for this type of conduct. That capital has not been stormed in this country for more than two hundred years, and so it's something that is not within the history of any of the judges who were sitting on the bench. And they're gonna look at these facts and circumstances, and they're gonna have to weigh the individual conduct against the symbolic impact of what the sentence

will be. They're gonna have to look at what the individual did, and they're also gonna have to look at the impact that that conduct may have had on the larger group of individuals and on the country as a whole.

That's gonna be a very difficult balancing test, and I think we're going to see different judges come out with different sentences under those circumstances this I expect that we will see some disparity in sentencing among the various sederal judges who handle these cases because they are so unique. There really is no precedent for this type of conduct.

That capital has not been stormed in this country for more than two hundred years, and so it's something that is not within the history of any of the judges who were sitting on the bench. And they're going to look at these facts and circumstances, and they're gonna have to weigh the individual conduct against the symbolic impact of

what the sentence will be. They're gonna have to look at what the individual did, and they're also gonna have to look at the impact that that conduct may have had on the larger group of individuals and on the country as a whole. That's going to be a very difficult balancing test, and I think we're going to see different judges come out with different sentences under those circumstances. Hodgkins, though he was among the first two offered to plead guilty,

he didn't enter a cooperation deal with prosecutors. What does that mean? Do you get less time with you enter cooperation? Do you what does it mean? Yeah? So, if the defendant decides to cooperate with prosecutors, that means that they

provide some substantial assistance in the prosecution of other individuals. So, for example, in these cases where they are talking about the riots that occurred on January six, the defendant might assist prosecutors in identifying other defendants who may have breached the capital grounds, who may have engaged in acts of violence, who may have destroyed property, and that leads to the prosecution of other individuals, and in that case, prosecutors will

recommend a sentence below the guideline range to reward them for assisting them in prosecuting other individuals who are involved in criminal conduct. Now, prosecutors did not seek enhanced domestic terrorism penalties against Hodgkins. If they did that in the future, that would enhance his sentence, right. You know, there are certainly opportunities for prosecutors to large these cases in ways

that will result in longer sentences. So some of what we saw in this particular sentencing was a decision by prosecutors not to charge a more serious crime than they could have under these circumstances. But that's not to say with other defendants they might not take a much harder line, particularly those who were engaged in violence with police officers

and those who destroyed property on federal grounds. I think we'll see prosecutors throw the book at those individuals, and we will certainly see longer prison sentences handed down by judges in those cases. So, talking about some of the defenses that have been raised so far, a lot of the defendants to they were caught up in the chaos. Then other defendants say that they've been going through a lot the pandemic, or hardships, bad childhoods have been mentioned,

They were subject to misinformation. One man's attorneys said the reason he was there is because he was a dumb blank and believed what he heard on Fox News. But then as opposed to what they there are the selfies they took bragging about their participation in the riot, and there was paramilitary equipment they carried with them. How did the judge weigh those factors? Well, you've identified what are

the real tensions here? So you see defense lawyers following the well worn path of trying to make their clients humanized in front of the judge. Show them as real people struggling with typical day to day experiences. And in this case, you did have a circumstance because of the pandemic where people were suffering, There was unemployment, people were affected health wise, lots of stress that was put on individuals, and defense lawyers are trying to point to those circumstances

to show that this was an aberrant act. If their clients have no criminal history, they're looking to say that these people are not a threat to commit a similar crime in the future, and the judge should be lenient in terms of their sentencing. On the other hand, prosecutors can look to exactly where you're talking about the fact that individuals showed up with combat attire, they brought walkie talkies. Uh,

there was acts of premeditation. This was not a spur of the moment kind of decision where they showed up to peacefully protest. Necessarily, there's examples and some evidence that there was some planning and some uh thought given to possibly getting involved in violence based upon the attire of many of the people who showed up. So in that case, I think a judge could look at that and say, this was not an act of somebody who acted impulsively.

This is something that was planned, There was thought given to this, this is something that was premeditated and therefore deserves a harsher sentence. But how much reliance would a judge place on what the defendant does between the time arrested and the time of sentencing. For example, Hodgkins volunteered at an animal shelter. There was a woman who wrote book and movie reports on Schindler's List, and the legal memoir Just Mercy. So these obvious ploys I'm a good person.

How much do they weigh with a judge, Well, it really varies from judge to judge. Judges will look to see whether they believe a defendant is truly remorseful, whether they are truly contrite, and whether they really do understand the significance of their conduct. This is something that was a true aberration or something that is likely to be

repeated in the future. And defense lawyers will often have their clients take certain actions, maybe do some community service or other things to show the judge, even prior to sentencing, that they have learned their lesson, that they are remorseful, and that they're looking for a lighter sentence here. So sometimes that will affect the judge. Sometimes they will be swayed by that and be convinced that this really is a good person who simply did one bad thing, as

opposed to a bad person. Who mayly repeat this conduct sometime in the future. Thanks Bob. That's Robert Mints of McCarter and English. More than six hundred thousand Dreamers got a joke last Friday when a Texas judge declared the DOCTA program illegal. On Thursday, Vice President Kamala Harris met with Dreamers who came into this country as undocumented children to reassure them. I want to make clear to the Dreamers who are here and those who are watching from home,

this is your home. This is your home, and we see you, and you are not alone. The judge put his order on hold as the appeals process plays out. Joining me is Leon Fresco, a partner at Holland and Night and the former head of the Justice Department's Office of Immigration Litigation. Leon why did the judge declare DOCCA illegal?

He ruled that it violated the Administrative Procedure Act because the change of the immigration law or procedure for permitting people who didn't have status to a not just evade removal, but be actually obtain employment authorization and have legal status and even get in some cases what's called evans parole that allows you to travel and re enter the country.

That process that's all known as data needed to be done through a procedure called notice and comment, where a proposed rule was promulgated and a comment period would be given and then only after that would a final rule be issued. And the failure to do that in twelve or since between one continues to be fatal to the DOCCER program such that it's not valid. This has been in the court several times, it's been up to the Supreme Court, but this was never brought up that it

should go through the administrative c direct. Well, here's what's happened. This case has had a very tortured procedural history. So when DOCCA first came out in the Ice Union was the only group that actually sued it wasn't the State

of Texas about the case related to DACA. And there in that case, that case didn't end up going anywhere because there was a belief by the courts that the Ice Union did not have standing to sue because they weren't harmed by the lack of enforcement of immigration law. And so that case when nowhere the Ice Union case.

Then what happened was in when the Obama administration issued a different program called DOPA, not DOCA, which was for the parents of people who were US citizen children and lawful permanent residents children, but the parents who were here were undocumented, that they would be able to get a similar deferred action and a work permit as the data children.

When that program was issued. That's when the State of Texas sued in the Southern District of Texas in front of this judge, Judge Haynan, And that process was about a year long process that ended up going to the Fifth Circuit in the Supreme Court, where the Supreme Court didn't actually hear the case, they just split four four. But that meant that the Fifth Circuit decision saying that top PA was illegal for lack of notice and comment,

that that program went away. Then what happened was Trump got elected and so people said, well, let's do this for dot Com, let's get rid of DOTA, and they actually filed that case in front of Judge Haynan. But what the Trump administration said is no need to worry about that, because we are going to end the doctor

program ourselves. They ended the DOCTA program that went up to the Supreme Court, and the Supreme Court said that the way that the DOCTA program was ended was improper, and then the suit went all the way back to Judge Haynan during now the Biden administration, where now finally this issue has been reckoned with, which is whether the original dot CO program suffered the same flaws as the pop program that was stricken. Is she saying that it's not legal to do it as an executive order? The

enter to your question is yes. But there are two schools of thought. There's a school of thought that's held pretty much by fifty percent of the legal community that says, this is simply about prosecutorial discretion, and so any administration can decide who to prosecute and who not to, and can even set guidance for who to prosecute and not prosecute. And so that's what the Biden and the Obama administration

previously had thought. And then there's the group of thought that's held by about the other fifty percent of the legal community that says, no, you can do on a case by case individual basis, all the prosecutorial discretion you want, but once you write a memo that says these people get prosecutorial discretion and these other people who are not part of this memo are not guaranteed prosecutorial discretion. That is a regulation basically, and that that regulation needs to

go through the formal rulemaking process. It can't just be a memo. So why did the judge stay his decision? What he's really saying is, look, I'm staying my decision with regard to people already in this program, and I'm going to punt it to the Fifth Circuit and or

the Supreme Court to decide whether my stay should be lifted. So, I, Judge Haynan, don't want to be the person that ended the DOCCA program for all of the people who are already on DACA, because I understand how much reliance there is and how many hundreds of thousands of people are in that program. So if I'm wrong, I don't want to be the person who did this. So I'm going to give you a decision on what I think the legal outcome is, and I think the legal outcome is

that DOCCA is illegal. But I'm not going to implement that decision. I'm going to stay that decision and allow another court to opine on the legality and let them decide whether that's it. Now, it's time to issue the data recision, or whether we wait till the Supreme Court then issues a Docta decision, or maybe the Supreme Court says data is legal and there was no need to have created this turmoil in the program. So Haynan is

a George W. Bush appointee. Vox said, he's been described as possibly the most anti immigrant judge in the country. Does he have a record on immigration? I think what where those where those statements come from, is there was a decision prior to the Dappa decision, So there's not

the Dappa case and there's this Docta case. But I think where these statements come from like that in the articles, is there was a case prior to those two that was related to people who are unaccompanied miners coming into the United States. And the judge described the process under the t v p r A, the Trafficking Victims Protection Act, which is the law that was passed unanimously by Congress.

Mind you, he described that process which requires the government to take in an unaccompanied minor and to find a guardian for that minor and allow the minor to stay with that guardian while their immigration case is pending, not in detention, He described that as the US government doing, you know, the final piece of the work for the smuggler.

So the smuggler takes the child to the US government, and the US government finishes the smugglers work by providing the child exactly to who the smuggler wanted the child to be provided to. And so by making that statement in that decision, that to where I think sort of all of the comments about Judge Hanen were generated from because they said, well, that's just the law, so you know, the cast it in that manner, uh seemed to show

that the disagreed with that law. And so then adding that to the Doctor decision, the not By decision, and now the Docka decision, this is why people levy that criticism. So the Supreme Court last year issued a ruling that upheld DOCCA, but it doesn't address this issue that would

be before the court this time. Right, So the Supreme Court decision was about whether the manner in which the Trump administration revoked DOCTA, whether that manner was procedurally correct, because the Trump administration had only said that the reason it was revoking DOCCA was because it was illegal. That

was it. That was the only reason that they gave and Justice Roberts had written a decision which said, well, you can't say that because you have to take a bunch of different interests into account in how you revoked the programs, such as the reliance interests of the people in the program, and so you have to go back

and try to do it again. And the Trump administration was in the process of trying to do that again when obviously the election happened, and so you know, there was lower court cases working on that getting its way back to Supreme Court. So they never grappled with the actual underlying issue. Is the DOCTA program legal? And so now that's what's going to be inevitably before the Supreme Court is whether the DOCCA program is legal or not.

Did three conservative justices say DOCCA was illegal? Well? Right, so you had the Justice Thomas and Justice Alito and Justice Gore said group that said yes that DACA was illegal, and they wanted to call it illegal right there. And so what you're gonna see in this case is we're gonna have to see now what the Roberts and Coney Barrett's and having a group decides to do about this.

And Kavanaugh wanted to do an interesting sort of compromise situation, which now we're going to just have to see where those three Cavanaugh, Coney, Barrett, and Roberts come into play with the decision as to whether DOCCA ends up being legal or illegal. Now, everybody's gonna have to grapple with that, and that's what we're going to have to wait and see. It was a five to four decision that was the Chief Justice with the late Justice Ruth Bader Ginsburg and

the three liberals who are now on the court. So it's a way different court now, right, it's a different court, And so Kavanaugh, who didn't want to actually grapple with the legality of DOCCA, is going to have to do it, as is Coney Barrett, who was not on the court, and Roberts, who had ruled that DACCA should stay in place but hadn't ruled on the legality of DACA. So Biden says, the Department of Justice is going to appeal the decision that goes to the Fifth Circuit, the most

conservative circuit in the country. Have they ruled in immigration matters before, So the Fifth Circuit has ruled in this exact same case for top the program that does the exact same things, but for the parents of people who have US cities in children. They said the exact same thing, that this notice and comment non issuance threatens the whole law and makes it fatally flawed such that the program

is illegal. So they've already done that, And there's no reason to expect, because that's binding Fifth Circuit precedent, that the Fifth Circuit will change its mind here. And so the question is really what happens at the Supreme Court? And so there and there's actually a different question too. There's two different questions happening at the same time. What

happened that the Supreme Court? And then secondly, will either Congress act in the mean time visa the reconciliation or something else, And will the administration actually do a notice and comment rule in the meantime that will change the

matters in this case? President Biden as soon as he was in office, he signed an executive order that called on the Secretary of Homeland Security and the a G to take all actions he deems appropriate consistent with applicable law to preserve and fortified DOCCA and DHS reiterated on Friday that it remains focused on safeguarding doc and we will engage the public in a rulemaking process to preserve

and fortify DOCCA. Are they talking about a whole new rule that will go through rulemaking process and they're talking about they're talking about issuing a rule that does exactly what Judge Haynan said needed to be done. And so I think that rule they've been working on it, So it would just be a matter of strategically do they want to do it or do they want to wait till the litigation is much further along and then do it.

And I think that's going to be a strategic question, but at some point they're gonna want to do it. And when they do that, then that will actually make the case go all the way back for the real issue that hasn't been adjudicated yet, which is does it violate to take Care Clause of the Constitution. Jayna didn't want to even go down that route because he said

that it violates the Administrative Procedure Act. So if the new rule doesn't violate the Administrative Procedure Act, then they'll have to relitigate this issue yet again about to take Care clause. How would it violate to take care clause.

So what the argument of the people who say this is that because there are laws that specifically say that when the government encounters someone without status, it shall place them in removal proceedings, the decision not to do that on a categorical basis, not not in the prosecutorial discretion one off basis, but in any kind of a grammatic basis, would be the president openly flouting the instruction that a person shall be placed into removal proceedings when they're encountered

by the government and they don't have status. Why wouldn't they just issue the rule as soon as possible. I think the reason is there may be some value so long as there's this stay present and even though new people can't join the program, at least the people who have been relying on the program can stay in it. There may be some value in dragging that out as long as possible, and then maybe mooting the case out later with the rule and making it start all over again.

If that makes sense that if you do the rule, you lose some of that time you might otherwise be able to sort of extend by not issuing the rules so quickly. The reconciliation process just explain what that is. Sure, So what happens is this Congress normally requires a majority vote in the House and then sixty votes in the Senate in order to pass a law because of what's

been known in the tradition as the filibuster. And so what reconciliation is it's a actual rule that was placed in the seventies in the Senate that said, if you're going to actually do something for budgetary purposes, this is so important that we don't want to have that be subject to the filibuster. So that only requires a majority vote in the Senate to pass something that will allow the budget to be affected in one way or the other.

And that's called budget reconciliation. And so there's an open question as to whether immigration provisions can survive this budget reconciliation process, because what can happen is if you oppose the provision, you can make what's called the parliamentarian objection, and the parliamentarian can decide is this something that has a budget impact or not. And so it will really depend on how these things are drafted, how narrowly, how broadly,

and the or broadly there draft him. The harder it is to say, this is a budgetary thing and not an immigration thing. But if you can really drive some very narrow language around generating a fee and exchange for people being able to have legal status, it's possible that that can survive the reconciliation process and actually be included in a fifty vote bill, which will make it much easier to save DOTA. Thanks Leon, that's Leon Fresco of

Hollanden Night. Remember you can always at the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify and at www dot Bloomberg dot com slash podcast Slash Law. I'm June Grasso. Thanks so much for listening, and please turn into The Bloomberg Law Show every week night at ten p m. Eastern right here on Bloomberg Radio.