Mark Joseph Stern writes:

James Little invaded the U.S. Capitol on Jan. 6, 2021, to prevent Congress from certifying Joe Biden’s victory over Donald Trump. He later pleaded guilty but remains unrepentant, insisting that he engaged in a “patriotic” protest that was hijacked by antifa, Black Lives Matter, and Capitol Police as part of a “setup” to entrap Trump supporters. In light of his criminal conduct and ongoing lack of remorse, U.S. District Judge Royce Lamberth sentenced Little to 60 days in prison and three years of probation. He appealed, asserting that this penalty was illegal. On Friday, the U.S. Court of Appeals for the District of Columbia Circuit agreed by a 2–1 vote, vacating his sentence.

The D.C. Circuit’s decision is, on its face, a win for Little and others like him. It throws a surprise wrench into the Department of Justice’s prosecution strategy for low-level rioters while stripping judges of the ability to impose a stint behind bars followed by long-term supervision. But the decision, if upheld, may prove to be a Pyrrhic victory for some number of Jan. 6 defendants whom it ostensibly benefits. That’s because, by abolishing the flexibility of a split sentence, it may well lead to more prison time rather than less—the opposite of what Little and his fellow rioters seek. Still, the decision could be a disaster for the DOJ, which relied on the split-sentence possibility when making many decisions to offer plea deals to the people who stormed the Capitol on Jan. 6. If those sentences are now overturned, dozens—maybe hundreds—of Jan. 6 rioters will essentially be let off the hook for their crimes. [Continue reading…]