In the wake of the historic demonstrations against police brutality after George Floyd’s murder at the hands of Minneapolis police officer Derek Chauvin, advocates are sounding the alarm that an escalation in federal law enforcement means some protesters are facing the possibility of life imprisonment solely for property damage. That’s what happened to Colinford Mattis and Urooj Rahman, who participated in a protest in New York City in May 2020, where NYPD surveillance cameras captured footage of Rahman tossing a Molotov cocktail into an already damaged and empty NYPD car before entering a car driven by Mattis. Although no one was harmed, they were arrested and charged with seven federal counts including arson, use of an explosive device to commit a felony, and civil disorder; being found guilty on all charges would have resulted in sentences of anywhere from 45 years to life. In their story, alarmed researchers and activists see a disturbing trend in how the federal government responds to political dissent.
The case gained widespread attention due to Mattis and Rahman’s backgrounds as lawyers who focused on pro-bono work and representing low-income tenants, as well as the shocking severity of the charges leveled against them and the penalties they may face. A cohort of former federal prosecutors argued that Mattis and Rahman should be released to house arrest, and alumni of their schools and academic networks have written similar letters of support.
Eventually in October, Mattis and Rahman appeared before Judge Brian Cogan at the U.S. District Court for the Eastern District of New York to plead guilty to a single count of possessing or making a destructive device. Mattis and Rahman now face potential sentences of up to 10 years. The fact that the charges initially leveled against them, as well as the maximum sentence they face for their accepted plea, all stemmed from the damage done to a single empty police car, reflects a long and troubling history of how protesters have been historically persecuted and the unique way the federal government targeted political dissent during last summer’s uprisings.
“There’s a historic precedent for this government overreach,” said Dr. Amara Enyia, policy and research coordinator for the Movement for Black Lives in an interview with Prism.
Enyia pointed to the Black Power movement in the ’60s and how the government targeted “Black radical extremists” whether they were part of the Black Panther Party, the Nation of Islam, or even the Student Nonviolent Coordinating Committee. Going back further to the 1920s, cases where the government could have played a larger role but chose not to also demonstrate a federal tendency to pick and choose based on political convenience. For example, when it came to the lynchings of Black people throughout the South in the early 1900s, the government deliberately stepped back, claiming the lynchings weren’t within their purview because they should be left for state and local governments to handle.
“So you can also see that hypocrisy there when we go back and look at the history,” Enyia said.
While the federal government’s intervention in Mattis and Rahman’s case isn’t unexpected, the top-down directives it issued and the protests it targeted without the request of state and local leaders is a notable and unsettling deviation from previous historical trends.
The federal government’s “struggle for power”
The government’s use of rhetoric portraying protesters as “violent radicals” and state and local leaders as failures at controlling mass demonstrations and the reach of federal law was explored in “Struggle for Power,” a report released this August by the Movement For Black Lives and CLEAR, the clinical arm of the CUNY School of Law. The report analyzes over 300 protest-related federal prosecutions where the government justified both its deployment of federal law enforcement and its expanded use of the federal criminal code to establish its own jurisdiction over cases that would otherwise only be charged on the state or local level. In analyzing federally prosecuted cases related to protests from May 31, 2020, to Jan. 24, 2021, “Struggle for Power” found that there were equivalent state-level charges that could have been brought against defendants in over 92% of those cases.
The rapid creation of federal criminal laws over the past 50 years is one reason crime has become increasingly federalized. In 1997 the American Bar Association found that over 40% of federal criminal laws had been passed within just the prior 30 years. In particular, laws that grant federal jurisdiction to certain offenses that influence interstate commerce are one way that the federal government has argued its way into prosecuting state-based crimes. This trend was evident in charges levied against protesters defending the movement for Black lives in 2020 and early 2021—researchers analyzed 206 federal charges from protest-related cases that cited disruption of interstate commerce as the reason for claiming federal jurisdiction, ranging from crimes that targeted businesses or buildings that engage in interstate commerce to cases where the target of the offense received federal funding—such as vehicles owned by local police departments.
In Mattis and Rahman’s case, federal prosecutors essentially argued that because the police vehicle Rahman had thrown the Molotov cocktail at was “in whole and in part owned and possessed by and leased to, an institution and organization receiving Federal financial assistance, to wit: the New York City Police Department and New York City government,” and is used to engage in or affect interstate commerce, the case should be out of the state’s hands.
Federalization of these crimes is not just troubling because of what it suggests about how easily the federal government can use its power to quell political dissent but also because of the severity of federal sentences. According to “Struggle for Power,” 88% of the federal criminal charges carried more severe potential sentences than their equivalent state charges. Further, defendants in these cases are also vulnerable to “double jeopardy,” or the possibility that they can be prosecuted for the same offense twice—in both federal and state or local court—and that overcharging is “uniquely prevalent” in cases charged on the federal level. Mattis and Rahman’s case illustrates horizontal overcharging or “stacked charges,” where a case carries redundant charges that are based on the same set of facts.
All seven counts initially brought against Rahman and Mattis stemmed from the single act of allegedly burning the NYPD car.
Arson charges against police property have also profoundly changed the life of Lore-Elisabeth Blumenthal, a 34-year-old Philadelphia massage therapist, photographer, and community advocate. Blumenthal took to the streets in the days following George Floyd’s murder and was arrested a few days afterward. Federal prosecutors charged Blumenthal with arson after they used an intensive social media search to identify her in video footage showing a woman setting two police cars ablaze outside of Philadelphia’s City Hall. Blumenthal has since been detained at Federal Detention Center (FDC) in Philadelphia and faces charges carrying a mandatory minimum of seven years in prison and a maximum of 80 years along with three years of supervised release, with a fine of up to $500,000. Despite Blumenthal spending over a year in pre-trial detention, prosecutors have still yet to set a trial date.
“If you torch police cars, the feds will find you and put you in jail – and you will stay there,” tweeted William McSwain, former U.S. Attorney for the Eastern District of Pennsylvania in August 2020 when he announced that Blumenthal’s appeal for emergency pretrial release was denied.
Over the past year, Blumenthal’s family and group of supporters shared updates with the public via We Love Lore, a website they maintain on her behalf, including information about the denial of her appeal for release, her contraction of COVID-19 in late October of last year, the relationships and bonds she’s developed with other women detained in her unit, and even her first birthday spent inside prison. Supporters have sent letters to the judge overseeing her case mentioning Blumenthal’s work offering care to those experiencing houselessness, substance abuse, sexual violence, and health complications. A July 2020 Philadelphia Inquirer article on Blumenthal’s case included an excerpt of one of these letters from Lauren Marie Miller, a Navy veteran who worked alongside Blumenthal at a community garden project in North Philadelphia.
“This young woman is an asset to her community,” wrote Miller. “She is not a martyr. She is not an example to be made.… She is a lover and defender of those in need with less power, those who have been wronged and hurt.”
In a Dec. 30, 2020, website update, Blumenthal’s family described her prosecution and ongoing detention as an example of how the government continues to use 2020 protesters as “political effigies.” Her incarceration and impending trial, they later wrote, is “unfinished business” of the Trump administration.
A lasting chilling effect
These longer, harsher sentences—many of which carry mandatory minimums—often result in federal criminal cases with a far higher rate of both convictions and plea deals than those held at the state level. The impact of those charges also reverberates long after a trial takes place and a defendant’s sentence begins. Federal prisons are often located much farther away from family, friends, and loved ones than state facilities. Additionally, since the elimination of federal parole in 1984, those convicted of federal crimes must serve at least 85% of their sentence before the possibility of release is even made available.
For Rahman and Mattis, the excessive punitiveness of federal prosecutors persisted even after they were charged. After prosecutors successfully appealed a judge’s decision to allow the two to return home on bail, Mattis and Rahman were returned to jail and held at Brooklyn’s Metropolitan Detention Center for four weeks before a group of former federal prosecutors signed a successful amicus brief petitioning the court for their return home pre-trial.
In addition to punishing individual protesters, government crackdown on protests also aims to quell future political dissent. While it’s too early to assess any empirical data about whether this widespread federal persecution has had a chilling effect on movement building, researchers have heard organizers expressing new fears about government retaliation and the consequences to taking to the streets in protests and getting arrested.
“We know that there is a chilling effect to it, at least anecdotally,” said Enyia.
Once ensnared in the criminal legal system, people facing criminal charges often risk losing their jobs, struggling to find new employment, and losing the ability to vote. Enyia says that these attendant outcomes pose a serious threat to people’s First Amendment right to assemble—a threat she says was crafted intentionally.
“According to the study and what we’ve been hearing from organizations who have been at the frontlines of this work, we believe that there’s a desire to prevent people from coming out en masse, as they did last year, because that is what makes the status quo uncomfortable and it forces the status quo and the establishment to actually pay attention,” Enyia said.
This trend of federal prosecutors wielding power over offenses typically out of their jurisdiction to discourage dissent also needs to be understood within the political context it emerged from. The day after Mattis and Rahman’s May arrest, former Attorney General William Barr released a statement announcing that all 56 regional offices of the FBI’s Joint Terrorism Task Force (JTTF)—a network of partnerships between the FBI and local, state, and federal law enforcement agencies—would be deployed to quell what he described as “domestic terrorism.” The Trump administration attempted to justify JTTF deployment by arguing that state and local officials were failing to crackdown on protests, particularly those in what the former president labeled “anarchist” jurisdictions, even going so far as to threaten deploying the U.S. military “[i]f a city or state refuses to take the actions that are necessary to defend the life and property of their residents.” In September 2020, President Trump issued a memorandum recommending the withholding of federal funding to cities such as New York, Portland, and Seattle for permitting “rioters and anarchists to engage in violence and destruction” and “allow[ing] themselves to deteriorate into lawless zones.”
The use of federal law enforcement to disrupt protests in defense of Black lives and severely punish protesters carried special weight in the 2020 election, especially for those who were directly impacted by federal charges. An in-depth Buzzfeed profile from September 2020 about Rahman and Mattis noted the defendants understood how their case had been politicized and how “the stakes of the coming election were vastly higher because what happens to their case almost entirely depends on who is president.”
However, the Biden administration has continued to lean on Trump’s rhetoric in the case of these two defendants. At the Oct. 20 hearing, Judge Cogan outlined the factors influencing his sentencing decision and requested a sentencing estimate from federal prosecutors. The prosecutors estimated that each defendant would receive a sentence of 10 years—the maximum that their charge would carry—for the damage done to a single police vehicle. The extraordinary estimate is due in large part to the prosecutors’ inclusion of a terrorism enhancement to sentencing—which was added to the Federal Sentencing Guidelines in 1995 and can dramatically drive up a defendant’s sentence. In an op-ed for the New York Daily News, NYU law professor and former U.S. Sentencing Commission member Rachel Barkow described the terrorism enhancement as an “extreme punishment” that can increase a defendant’s prison sentence up to ten-fold and was designed and historically sought after “in cases that did, or could have easily, resulted in mass death and destruction.” This is far cry from the case at hand.
Despite accepting the defendants’ plea, federal prosecutors also shared a lengthy chain of text messages sent between Rahman and Mattis on the evening of their arrest wherein they expressed enthusiastic support of the mass demonstrations occurring around Brooklyn as well as shared when they purchased the items that would later be used to craft the Molotov cocktails. The introduction of any evidence—particularly damning information—is rare during a plea acceptance and the decision to do so was condemned by both Judge Cogan and Paul Shechtman, Rahman’s attorney.
While the terrorism enchancement could almost guarantee that Rahman and Mattis would be sentenced to the maximum of 10 years, Judge Cogan noted in court that he has yet to decide where he lands on the issue. However, if Mattis and Rahman are sentenced to 60 months—five years—or fewer, neither defendant will be allowed to appeal their sentence. Among the final statements made at the hearing was a reminder from Shechtman that regardless of the sentencing outcome, both Mattis and Rahman will almost certainly be disbarred and that the loss of their pro bono legal work and legal assistance of low income tenants, is a notable consequence that Cogan should consider taking into account.
Mattis, Rahman, and the hundreds others who have pending protest-related cases remain at the mercy of federal whims that extend jurisdiction to protect its best interests, rather than those of the people. Supporters and advocates have taken collective action on multiple levels, from packing courtrooms to organizing for the abolition of the JTTF. Yet it’s clear that those at the center of these federal persecutions have already lost much, from dedicated careers to time separated from family and loved ones to their civil rights, as well as their abilities to contribute to the welfare of their communities. There will ubdoubtedly be a long road to rebuild the lives that were forever changed when people took to the streets in demand of an end to the killing, censure, and government impunity that has defined the nation, molded the previous administration, and, clearly, has not been left behind.