More and more individuals who participated in the attempted insurrection at the Capitol in January have been charged with federal crimes in recent weeks. That was to be expected. What is a shock, however, is that many who allegedly engaged in direct acts of violence have been released on minimal bail conditions, while the Black and brown clients I represent as a federal public defender almost never get such treatment.
The problem isn’t that these alleged Capitol rioters are out on bail as much as that my clients aren’t.
Consider how a typical case begins for me. As a federal defender, I first meet my scared, handcuffed client through the mesh window in lockup, the holding area where those arrested are kept before court begins. I may see the shaded contours of his face but I can’t truly see him (I say “him” because 93 percent of federal inmates are men). If it’s a drug case, I explain that, as ludicrous as it seems, possessing two sugar packets worth of drugs is a five-year mandatory minimum sentence. Possessing a little more is 10 years.
Or, perhaps, it’s an immigration case, and I have to tell my client that he will face years in prison and then deportation for simply trying to rejoin his family in the United States. After stepping out of lockup, I’m met by anxious family members who want to know that there’s something that can be done when court begins.
So I home in on the single, most critical thing I can do for my client during the entirety of the case: seek his release on bail, which would permit him to remain in the community pending conviction and sentencing. While there’s no cash bail in the federal system, judges typically require some type of collateral for release — such as co-signers who are financially responsible if bail conditions are violated. On rare occasions, a judge may release someone on personal recognizance, essentially a promise to appear in court.
Bail is crucial for many reasons. A client who is out of custody before being convicted can retain a job that would be otherwise lost. When he faces a judge for sentencing, he will almost always get a better sentence. If he tends to his family and works a steady job while out on bail (as most of my clients do), a sentencing judge can more easily distinguish him from a long line of inmates who have had little opportunity to earn the court’s favor.
Bail also allows a client to more effectively meet with a lawyer, review the evidence and prepare a defense in a way that simply can’t be done when he’s in custody, given time and access constraints. And it allows both the client and his family some time together to prepare for the likelihood of a conviction and a lengthy prison sentence.
Although release on bail can change the entire course of a case, it is not routinely ordered by the judge. My colleagues and I dig and scrape to find ways to persuade judges to release our clients on bail — sometimes seeking multiple hearings and reconsideration of denials. More often than not, our primarily Black and brown clients are kept in custody.
Hence my utter surprise — my total, wide-eyed disbelief — to read about so many Capitol rioters receiving bail release orders in cases involving violence. Robert Sanford, a white man, is charged with throwing a fire extinguisher into a group of Capitol police officers, striking at least three officers in their heads. He was released on personal recognizance, no collateral needed.
Cody Connell, another white insurrectionist, is out on the same terms despite allegedly bragging that “4 of us breached the cops blockade and us same 4 breached the Capitol.” He also allegedly said that he “stormed” the cops and “pushed the cops against the wall.” When asked on social media if it looks like a civil war yet, Connell allegedly answered, “It’s gonna come to it.” Prosecutors also cite evidence that Connell was in communication with others about purchasing long-rifle firearms, ammunition and body armor.
The list goes on: David Blair allegedly struck an officer with a lacrosse stick attached to a Confederate flag, and a search of his house yielded an AR-15 style rifle. Christopher Alberts was charged with unlawful possession of a firearm at the Capitol, among other offenses, after he was found at the building allegedly wearing a bulletproof vest with a handgun and spare magazine on his person. The handgun had one round in the chamber. Both were released on personal recognizance.
To be clear, courts are fully equipped to supervise individuals on bail so they show up at their court dates and don’t commit further offenses in between appearances. Pretrial services officers conduct home visits and require regular check-ins. Where electronic monitoring is ordered, any violations can be reported in real time. So the problem isn’t that these alleged Capitol rioters are out on bail as much as that my clients aren’t.
In 10 years of practicing criminal federal defense, I have had only one or two clients released on personal recognizance — and that was on charges of petty mail theft, not participating in a violent insurrection meant to undermine our democracy and threaten the lives of the nation’s highest elected officials.
Following the death of George Floyd, there seemed to be a groundswell of recognition about racial disparities in the criminal justice system. But mountains of rhetoric don’t change the facts on the ground. The bail outcomes in the Capitol insurrection cases are just the latest illustration of the privilege not generally afforded to defendants of color. My clients — even those involved in nonviolent drug offenses and immigration cases — experience a criminal justice system that is harsh and, often, heartless.
The Biden administration now has the opportunity to address racial disparities, whether in bail outcomes, the charges defendants face, plea offers or sentencing recommendations. For all of the cold machinery of the criminal justice system, we are seeing that it can take a different approach to how it treats criminal defendants when it wants. All criminal defendants — not just those who are white and privileged — are entitled to that treatment.