A viral video from March featuring Arizona Republican gubernatorial candidate Kari Lake on Australia’s 60 Minutes has been making the rounds again this week. In it, Lake dodges questions about Donald Trump possibly pardoning the Jan. 6 rioters, responding with this: “What I don’t like is that people are being held in prison without being charged. That’s un-American.”
Lake, according to the Associated Press, got one big thing wrong: the Jan. 6 defendants have been charged. Still, Lake raises a valid point about criminal justice that, under normal conditions, a Republican might not typically raise—which is that an absurd number of people are locked up in this country for inhumane lengths of time before they’re afforded a “speedy trial.”
For example, according to a new report from the American Civil Liberties Union and the ACLU of Georgia, almost half of the people held at Atlanta’s Fulton County Jail haven’t even been formally charged with a crime.
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Is Lake concerned about due process when it comes to incarcerated people who didn’t storm the Capitol and didn’t try to prevent the peaceful transfer of power? No word on that, yet (in fairness, I suspect that on both sides of the aisle, the outrage is selective). But in the case of Jan. 6 rioters who are languishing in the D.C. jail pre-trial, Lake’s message deserves a hearing.
Months have passed since she first raised the issue, and it’s worth asking: Whatever happened to that stuff about a defendant’s right to a speedy trial? I mean, I’m pretty sure I read about that somewhere.
Recently, 34 of the Jan. 6 defendants signed a letter describing the D.C. jail as having “medieval standards of living” and “hellacious conditions.” They said they were “trapped within the wretched confines of cruel and unusual punishment,” and I believe them.
To be sure, the MAGA right has proven adept at playing the victim, turning themselves into martyrs, and otherwise trolling America (in the letter, they are asking to be transferred to the military prison at Guantanamo Bay). But I’m more than willing to believe the D.C. jail is absolutely a hellhole.
I’m not suggesting we go soft on the alleged Jan. 6 perps. We should probably throw the book at most of them. Indeed, I would probably be in favor of harsher sentences than many will receive. But right now, at least, it looks like they are being punished pretty brutally—without having been found guilty. And it has been going on for a long time now.
This, of course, deserves caveats: First, it’s not like every rioter was promptly arrested on January 7, 2021 (in fact, the FBI is still trying to identify people). Second, a true criminal justice hawk could probably make the case these rioters were “insurrectionists” involved in an act of “rebellion”—a condition that could warrant suspending habeas corpus.
Third, it’s not like nothing is happening. At least 417 people have already pleaded guilty to crimes in connection with Jan. 6, and according to NBC News, “the vast majority of whom were not detained before trial.”
Obviously, some alleged criminals have to be detained before a trial. As liberals like Wisconsin Lt. Gov (and Democratic nominee for U.S. Senate) Mandela Barnes are learning, suspects who have allegedly displayed violent behavior should not be let out on bail if there is reason to believe they might skip town and/or pose a public safety threat.
I’m willing to believe that the Jan. 6 rioters who are still being held are, for the most part, truly bad hombres. And, let’s be honest, it takes time to investigate and build a case. On top of all of that, the COVID-19 created a pandemic backlog.
We have to have patience. There’s a reason I haven’t written this column for twenty-one months. The wheels of justice turn slowly. Regardless, at some point, they must turn.
That time has come.
Aside from the fact that holding people this long without the benefit of a trial seems patently un-American, there is another practical reason this is a really bad idea. As Daniel Medwed, author of Barred: Why the Innocent Can't Get Out of Prison told me, holding someone in jail for an extended period of time “might lead them to plead guilty to something they didn’t do simply because they want to get out as soon as possible and might get credit for ‘time served.’”
An even bigger reason is that it makes us look like a banana republic.
The people who attacked the U.S. Capitol on Jan. 6 were trying to undermine our American values and prevent our institutions from properly functioning.
In some cases, they did this because they truly believe that the game is rigged and that liberal democracy is a joke.
Let’s not prove them right. Give them their day(s) in court already. That’s how you show everyone that America’s institutions have survived.
Editor’s Note: This story has been updated to reflect that Kari Lake is the GOP nominee for governor of Arizona.
