In Praise of the Federal Judiciary

On Thursday, federal judge Amy Berman Jackson, a district (trial) judge in the District of Columbia sentenced the defendant who was responsible for initiating the attack on D.C. Metropolitan Police Department Officer Michael Fanone on January 6.

Fanone was beaten by the mob and suffered a traumatic brain injury and heart attack as rioters overran the Capitol. His injuries ended his career in law enforcement. The defendant, Albuquerque Head, a 43-year-old Tennessean, was sentenced to 90 months in federal prison. That’s slightly less than the 96 months prosecutors asked for in their sentencing memo but still one of the longest sentences to date in the Capitol riot cases.

This case presents an unusual situation. When Congress enacts a crime into law, it sets a statutory maximum penalty for the crime—a sentence a judge cannot exceed. But in actuality, those sentences, which can be quite long, are not the sentence a defendant usually receives. That’s because in 1984, Congress created the United States Sentencing Commission, and gave them the job of creating guidelines which, the hope was, would create greater uniformity in federal sentencing. In other words, no matter where someone lived in the country or which judge sentenced them, all people who committed like crimes would be sentenced alike. Those sentencing guidelines called for sentences which, in virtually all cases, were significantly lower than the statutory maximums.

Something unusual about Mr. Head’s case is that the 96-month sentence the government requested was the statutory maximum for his offense, but it was also below the sentencing guidelines range, which called for a sentence of between 100 and 125 months.

There is a lot of legal complexity here. As originally conceived, the guidelines were mandatory and judges weren’t permitted to deviate from them except in narrowly defined circumstances. But in 2008, in United States v. Booker, the Supreme Court held the mandatory guidelines were unconstitutional. Since then, the guidelines have been advisory, and judges typically use them as a starting point for evaluating the sentence a defendant should receive, although they are not obligated to follow them.

The government’s argument for sentencing Mr. Head to 96 months was that because his crimes were serious enough to produce a guideline range that called for a longer than the statutory maximum, and because he had significant criminal history, it was appropriate for the judge to reflect that seriousness by sentencing him to the longest sentence the court could legally impose, the 96 months authorized by the statute. You can read the government’s full (and unusually lengthy) memo here.

The 90-month sentence the judge imposed might seem like a loss for the government if that’s all you consider. But it was not a loss. A 7.5 year sentence is significant. That’s more than seven years that the person convicted serves in federal prison, vindicating the criminal justice system’s goals of punishment, incapacitation of dangerous people, deterrence of future crimes and hopefully, some level of rehabilitation. No one wants to go to prison for that amount of time. It’s significant.

The judge acted in a measured way, which made her precise condemnation of the defendant’s conduct all the more powerful. Head claimed he had been trying to protect Fanone from the crowd, a claim that videotape from the day contradicted.

Judge Berman Jackson unflinchingly defined who the good guys are and who the bad guys are. That’s a line that has become blurred in public discourse as the former president and his supporters make claims about the people who overran the Capitol and engaged in violence that range from calling them tourists to insisting they were patriots exercising their rights. But today Mr. Head heard the truth from the bench about Officer Fanone, and it’s important for all of us to hear it too: "[Fanone] was protecting the very essence of democracy, the peaceful transfer of power after a democratic election. He was protecting America. That’s who Officer Fanone was. That’s what Officer Fanone was doing. You made choices over and over again to go after him and not disengage."

As important as it is to talk about this one defendant and his crimes, the Judge also emphasized something we must never normalize or lose sight of: the fact that the insurrection didn’t end when the mob left the Capitol on January 6. It’s still ongoing. That’s what makes the midterm elections so critically important. Judge Berman Jackson said: "The dark shadow of tyranny unfortunately has not gone away. Some people are directing their vitriol at Officer Fanone and not at the people who summoned the mob in the first place."

The dark shadow of tyranny is a perfect, if painful, characterization of what we are living under in 2022. They are not words I expected to ever see used to characterize America when I was growing up, nor in law school, or practicing as a young lawyer in Washington, D.C., and later for the Justice Department in Alabama. They are bone-chilling words. But they are accurate. And it’s important that a federal judge used them. The dark shadow of tyranny is still with us, and we should focus, if not vitriol, then an unrelenting demand for accountability, on “the people who summoned the mob.”

Sometimes it feels like people don’t want to talk about the violence, the fear, the uncertainty at the Capitol on January 6 any more. Some think we need to move on. Others are simply numb from constant exposure. You hear people say things like, “I have to unplug from the news for my own sanity.” I get that, but the reality is, as we head to the polls this November, we must keep the raw emotion we all felt on January 6 in mind, along with the knowledge the insurrection never ended. Otherwise, this most important of elections may not be enough to keep the Republic on the fragile track back to normalcy we’ve begun upon.

Of course, by “we” I don’t really mean you. You know how important this is. I wanted to bring Judge Berman Jackson’s words to you tonight because of the challenge we all face: making sure the people around us have fresh recollections about what’s at stake. In an earlier January 6 sentencing, Judge Berman Jackson accused congressional Republicans of being “afraid” to challenge Trump’s lies about the 2020 election, even as the threat to democracy was ongoing and threats increased. Today, she reiterated that, calling out people who would try to replace the will of the voters with their own.

It’s essential to help people see how important it is to vote for democracy in this election and to vote against people who believe in the ongoing insurrection or are willing to turn a blind eye to it. We can all be Amy Berman Jacksons in our own right, finding ways to make sure people understand what’s at stake. The Judge’s words today are a good place to start in your conversations. This is no time to look away from the truth.

We’re in this together,

Joyce