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  • Devin Iorio

Split-sentencing for seditious supporters

Updated: Oct 18, 2023

On Jan. 6, 2021, Verden Nalley and James Little arrived at the National Mall in Washington, D.C., along with thousands of others to gather and watch former President Donald Trump speak at the Ellipse. Spurred by the former President’s incendiary words and their belief that Democrats had stolen the 2020 Presidential election, these two men joined a mob of far-right Trump supporters and organized militias that would go on to overwhelm police and breach the United States Capitol building. In the wake of this insurrection, after both men were identified, arrested and charged, they pled guilty to the petty offense of parading and picketing on Capitol grounds.

When sentencing convicted parties, judges must consider, among other factors, the nature and circumstances of the offense, the public interest and the need to avoid unwarranted sentence disparities. Typically, federal judges hold the authority to evaluate these factors and sentence individuals convicted of offenses to terms of imprisonment, fines, probation or some combination thereof per applicable statutory limitations. This discretion allows judges to tailor their sentencing to the unique circumstances of individual cases and, ideally, more appropriately address the underlying issues at hand.

In light of this discretion, it is notable that even though both Nalley and Little committed substantially the same acts, at the same time, at the same place and with the same motivations, Nalley was ultimately sentenced to a two-year term of probation while Little received two months of incarceration followed by three years of probation.

These differences are not the product of mere judicial discretion, but rather are indicative of the ongoing confusion and disagreement among federal judges concerning their ability to impose combined imprisonment and probation sentences on those convicted of petty offenses. Judges are split in their interpretations of an ambiguous federal sentencing statute, with some finding the language to indicate a hard prohibition on split sentencing and others believing that a statutory carve-out for such action can be found in a federal probation statute.

While this ambiguity would typically not pose a significant challenge to the judicial system, the massive influx of cases in the U.S. District Court for the District of Columbia against Jan. 6 defendants has resulted in numerous convictions of the petty offense of parading and picketing on Capitol grounds. These circumstances force judges into a position where, if they may not impose split sentences, they must decide between imprisoning someone for a shorter sentence to address the severity of the crime or placing that person on probation for a longer sentence to ensure that they remain supervised through the next election. The absence of Circuit guidance has left District judges to address this issue under their own interpretations as it has risen before them. This dynamic opens the door for unwarranted sentencing disparities and an eventual backlog of cases that will likely require resentencing once a Circuit decision on the issue finally does come down.

The problems created by this ambiguity are vast and compounding, and the longer the Circuit takes to address them, the worse those problems will likely become. However, even once the Circuit does provide the needed guidance and the necessary resources are expended to correct the mistaken applications of the law, the nation will still be left with the underlying existential question which turned this relatively unimportant ambiguity into a high-priority concern: How do we, as a nation, prevent something like Jan. 6 from ever happening again?

January 6 and the events that occurred in its wake revealed a great deal about our country and the capacity of our judicial system to handle such unforeseen circumstances. There is no one simple answer to this problem, yet it is nonetheless an existential question facing our nation and incumbent upon the legal community and society to solve. For the preservation of judicial efficiency and perhaps even national stability, our nation must emerge from this confusing and daunting time with a clear path toward unity moving forward. Addressing this split-sentencing issue and its societal factors is undoubtedly a long and challenging path, but perhaps one that must begin with clear precedent and decisive, unified action.


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