99Rise protesters charged with Class A misdemeanor in federal court

|The Volokh Conspiracy |

I recently blogged a reader poll about what charges should be sought for the third round of 99Rise protests at the Supreme Court. Charges have since been filed. You can read the 2-page information here. In this post, I'll take a look at the charges; consider what legal issues they raise; and ponder the sentences the defendants might receive if they are convicted.

First, the charges. Over at The Blog of Legal Times, Zoe Tillman covers the story:

The U.S. attorney's office in Washington is escalating its response to disruptions inside the U.S. Supreme Court. A group arrested last week for demonstrating inside the high court chamber face stiffer penalties than a group charged with a similar disruption in January.

The five protesters arrested on April 1 face two charges: picketing or parading with the intent of interfering with or obstructing the administration of justice, and making a "harangue or oration" or other loud or threatening language inside the Supreme Court.

Federal prosecutors brought the harangue charge against the protesters arrested in January, but the obstruction charge is new– and it's more serious. The harangue charge carries a maximum penalty of 60 days in jail. A defendant found guilty of obstruction faces a maximum sentence of one year behind bars. . . .

Unlike the protesters arrested in January, who were charged in D.C. Superior Court, the protesters arrested last week are being prosecuted in the U.S. District Court for the District of Columbia.

The more serious of the two charges is 18 U.S.C. 1507, which states:

Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty, pickets or parades in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge, juror, witness, or court officer, or with such intent uses any sound-truck or similar device or resorts to any other demonstration in or near any such building or residence, shall be fined under this title or imprisoned not more than one year, or both.

I wasn't familiar with 18 U.S.C. 1507 until I read the information filed in this case. I took a quick look to get a sense of what the legal issues the charge might raise and what the sentence might be if the defendants are convicted. With the caveat that a quick skim is never as useful as scorching the earth, here's what I found. (Corrections and amendments very welcome, as always.)

First, I assume the protesters will argue that they that lacked the intent to interfere with the administration of justice. A quick skim of the caselaw suggests they'll probably have a pretty good argument. The caselaw interpreting the "administration of justice" standard generally requires some intent to alter the timetable or result in a case. See, e.g., United States v. Oberhellmann, 946 F.2d 50, 53 (7th Cir. 1991). The existing caselaw mostly interprets the criminal contempt statute, which has some different elements, but I would think that the same meaning of "the administration of justice" term applies here. Applying that standard, I don't see how there was an intent to obstruct, interfere with, or impede the administration of justice. I gather the protests were designed to just make a stink for a few seconds—just enough to get the protest on video for later release—rather than to alter the outcome or timing of a pending case or matter.

On the other hand, I suspect the protesters will have a harder time arguing that they lacked the intent to influence judges in the discharge of their duties. Watching the video, the protesters were urging the Justices to overturn their precedents. For example, one protester stood and yelled:

Justices, is it not your duty to protect our right to self government? Reverse McCutcheon!!! Overturn Citizens United!!!

The defense presumably will claim that the protesters were not trying to influence the Justices because they knew their protest wasn't going to persuade them. The protesters were trying to gather support for a constitutional amendment to overturn these precedents, they will argue, rather than trying to get the Justices to overturn their precedents. Maybe, although on the whole that strikes me as a tough argument on the facts. When you stand up before the Justices and yell out, "Justices . . . overturn Citizens United!!!," it's a little hard to say that you have no conscious object to influence the Justices in how they decide cases. (Perhaps some defendants will argue that they didn't have that intent based on the specifics of what they said, but that's an uphill battle given that this was clearly a joint operation.)

What kind of prison term might the defendants face under this count if they are convicted? Violations of 18 U.S.C. 1507 are Class A misdemeanors, for which the U.S. Sentencing Guidelines apply. The Guidelines direct that Section 1507 cases should be sentenced under the Obstruction of Justice guideline, 2J1.2, which specifies a base level 14. At first, this suggests a severe recommended sentence: 15-21 months assuming no priors. A judge couldn't actually sentence a defendant to that, as the statutory maximum is a year—and the sentence can't exceed the statutory max. Pleading guilty to get acceptance of responsibility would at least lower the recommended sentence to 10-16 months. But still, ten months is a long time.

Sounds severe at first, but I suspect a judge would sentence the defendants to much less time—and perhaps even none at all. The Guidelines are advisory, not mandatory. Perusing the Bureau of Justice Statistics numbers, I could only find two cases brought primarily under 18 U.S.C. 1507 since the Guidelines became advisory in 2005. One defendant was not sentenced, and the other was sentenced to probation and no jail time. Even absent a plea agreement, in which the government agrees to recommend a much lighter sentence than the Guidelines contemplate, this is probably the kind of case in which a sentencing judge would impose a sentence much more modest than that suggested by the Guidelines. There was no actual obstruction of justice in this case, so the obstruction of justice guideline is assuming harms that are absent. And assuming that the defendants acted with intent to influence the Court, I think everyone recognizes that such influence was extremely unlikely. So this seems like a factual context in which the sentence would be significantly lower than that contemplated by the Guidelines. Cf. United States v. Holloway, 789 F.Supp. 957 (N.D. Ind. 1992) (sentencing a grand juror who disclosed confidential information and was sentenced under 2J1.2 to just one week of home confinement plus probation).

The rub is likely to be how much lower is low enough, a matter that is likely to be a the subject of significant negotiation between the prosecutors and defense counsel in the crafting of sentencing recommendations in a likely plea. Or at least that's how I look at it at first blush. If I'm missing something, I hope you'll let me know.

As always, stay tuned.