Criminal Justice

Don't Punish the QAnon Shaman—or Anyone—for Demanding a Jury Trial

Coercive plea deals trample on defendants' Sixth Amendment rights.


Jacob Chansley, the "QAnon Shaman" whose face became fodder for front-page news spreads when he broke into the U.S. Capitol on January 6 while wearing patriotic face-paint and a horned headdress, was sentenced to 41 months in prison yesterday.

The punishment, handed down by Judge Royce C. Lamberth in the U.S. District Court for the District of Columbia, was widely covered. But almost every news outlet skirted over the most insidious part of the proceedings.

"You were facing 20 years, Mr. Chansley," said the judge, telling him he was "smart" for not going to trial. "You did the right thing."

The "right" thing. At first glance, I'd posit most readers wouldn't think much of that; plea bargains are a core part of the U.S. criminal justice system. Yet in being frank with Chansley, Lamberth laid bare why those "bargains" are raw deals: Had Chansley insisted on his constitutional right to a trial by jury, he would have been staring down more than 16 additional years in prison. That's not because the government believes such a stratospheric sentence would serve public safety. It's because prosecutors routinely inflate hypothetical prison sentences and dangle them over defendants in order to bully them out of going to trial, where outcomes are both costly and uncertain.

In plainer terms, Chansley could have received almost 6 times a higher sentence solely for exercising his constitutional rights—something the judge here not only acknowledged but celebrated.

This is in no way unique to the January 6 defendants.

"The way the modern criminal justice system is structured, we punish people if they try to go to trial, which is sort of an astounding thing to say out loud," says Carissa Byrne Hessick, a professor of law at the University of North Carolina and the author of Punishment Without Trial: Why Plea Bargaining Is a Bad Deal. "And yet it's entirely commonplace….Judges are quite explicit that they impose heavier sentences on people who go to trial."

Lamberth said the quiet part out loud yesterday. But judges are not where the plea-bargaining problem begins or ends. For years, tough-on-crime legislators have passed laws that allow prosecutors to hit defendants with multiple charges for the same offense, giving the government leverage to threaten the accused with grotesquely inflated punishments. The escape hatch: Agree to waive your constitutional right to a trial by a jury of your peers, and accept whatever the authorities will give you.

"State officials, prosecutors, judges are trying to keep cases from going to trial because it's expensive," says Hessick. If it were about public safety, would a plea have been offered in the first place? Take Chansley: Of course the federal government does not believe he needs to stay behind prison walls for two decades. If they thought so, they wouldn't have agreed to the deal.

The trials for the January 6 defendants have been highly politicized, and how you feel about Chansley's sentence may have something to do with your political priors. But the injustice inherent to plea bargaining is not partisan. Indeed, it infiltrates the entire U.S. criminal justice system and disproportionately impacts defendants without means.

Some would argue the practice is unconstitutional. Prosecutors in Maricopa County, Arizona, for instance, make no attempt to conceal the fact that defendants are pressured to take plea deals before seeing the evidence against them or getting a chance to go to a pretrial hearing. The accused receive a warning on those deals: "The offer is withdrawn" if a defendant wants to attend the hearing, and "any subsequent officer will be substantially harsher." The American Civil Liberties Union is suing to stop this practice.

Consider Michael Calhoun, a 61-year-old man who the Maricopa County Attorney's Office offered an excess of nine years in prison for selling about $20 worth of drugs. He has never been arrested for a violent offense, according to police records. Yet should he have the audacity to ask a jury to consider the charges against him, he will receive something "substantially harsher" than that near-decade "deal."

This is one reason why 97 percent of trials in the U.S. are resolved via guilty pleas. If prosecutors threaten someone with a decades-long sentence, and a defendant is worried about his likelihood of acquittal, it's no wonder why he and many others in his position would take such a deal, opting to minimize risk. That obviously includes guilty people. But it includes innocent people too.

And even defendants we think are guilty are entitled to their Sixth Amendment rights. The Founders understood that rigid safeguards were necessary to ensure that the innocent weren't deprived of their liberty. So they made it difficult to convict people—something prosecutors clearly understand and would like to circumvent.