Most January 6 Rioters Won’t Go to Jail

Judges are pressuring prosecutors to strike deals, most of which will be for misdemeanors.

POLITICO (“Many Capitol rioters unlikely to serve jail time“):

Americans outraged by the storming of Capitol Hill are in for a jarring reality check: Many of those who invaded the halls of Congress on Jan. 6 are likely to get little or no jail time.

While public and media attention in recent weeks has been focused on high-profile conspiracy cases against right-wing, paramilitary groups like the Oath Keepers and the Proud Boys, the most urgent decisions for prosecutors involve resolving scores of lower-level cases that have clogged D.C.’s federal district court.

A POLITICO analysis of the Capitol riot-related cases shows that almost a quarter of the more than 230 defendants formally and publicly charged so far face only misdemeanors. Dozens of those arrested are awaiting formal charges, even as new cases are being unsealed nearly every day.

In recent days, judges, prosecutors and defense attorneys have all indicated that they expect few of these “MAGA tourists” to face harsh sentences.

There are two main reasons: Although prosecutors have loaded up their charging documents with language about the existential threat of the insurrection to the republic, the actions of many of the individual rioters often boiled down to trespassing. And judges have wrestled with how aggressively to lump those cases in with those of the more sinister suspects.

“My bet is a lot of these cases will get resolved and probably without prison time or jail time,” said Erica Hashimoto, a former federal public defender who is now a law professor at Georgetown. “One of the core values of this country is that we can protest if we disagree with our government. Of course, some protests involve criminal acts, but as long as the people who are trying to express their view do not engage in violence, misdemeanors may be more appropriate than felonies.”

I think “many” understates the case here and have gone with “most.” Indeed, I strongly suspect the overwhelming number won’t even face misdemeanor charges. I’m basing that on the assumption that, nearly three months in, we have arrested pretty much everyone we’re going to arrest (the whole event took place on multiple high-definition videos and a goodly number posted selfies on social media platforms) and that authorities already know who will face the most serious charges.

As I’ve noted more than once, our initial sense of what happened that day was simply wrong. Rather than a single riot sparked by then-President Trump egging on supporters he had spent weeks convincing the election was stolen, it was actually multiple overlapping events. There were Proud Boys and other “Patriot militia” types who came to commit crimes, some Trumpers who thought they were somehow going to “protest” away the election result by storming the Capitol, and some “MAGA tourists” having a good time. They’re naturally going to be treated differently.

At least one non-rioter died as a direct result of the riots. While there was a lot of talk about “felony murder” charges being levied against every single person who participated—apparently, DC law allows that for crimes as low as burglary, for which most could theoretically be charged—it would be a gross miscarriage of justice for some idiot who simply got caught up in the moment to face that level of punishment. Hell, it’s quite probably that in the classic case of the getaway driver for an armed robbery that goes south; but at least they’re actual co-conspirators in a felony.

The political analysis tacked on to the article strikes me as overwrought:

The prospect of dozens of Jan. 6 rioters cutting deals for minor sentences could be hard to explain for the Biden administration, which has characterized the Capitol Hill mob as a uniquely dangerous threat. Before assuming office, Biden said the rioters’ attempt to overturn the election results by force “borders on sedition”; Attorney General Merrick Garland has called the prosecutions his top early priority, describing the storming of Congress as “a heinous attack that sought to disrupt a cornerstone of our democracy, the peaceful transfer of power to a newly elected government.”

Justice Department prosecutors sent expectations sky-high in early statements and court filings, describing elaborate plots to murder lawmakers — descriptions prosecutors have tempered as new details emerged.

Overcharging is the go-to move for prosecutors, who seek to scare defendants into pleading guilty to the lesser-included crimes they actually committed instead of the over-the-top charges stacked on. But, beyond that, neither President Biden nor Attorney General Garland nor any US Attorney worth his salt should have any trouble explaining that, while the attack on our Capitol was outrageous—and could have been far, far worse had Capitol Police and other security officials been just a hair less speedy—not everyone who participated was equally dangerous.

The resolution of the more mundane cases also presents acute questions about equity, since most of the Capitol riot defendants are white, while misdemeanor charges are often a vexing problem for minority defendants in other cases.

I don’t understand what this means and this is a standalone paragraph. Is the argument that Black defendants would have been charged more harshly? Or simply that these people are more likely to be able to pay their fines, court costs, and attorney fees than the average DC defendant?

There are also sensitive issues about precedent for the future, given the frequency of politically inspired demonstrations on Capitol Hill that run afoul of the law.

While violent assaults in the Capitol are rare, protests and acts of civil disobedience — such as disrupting congressional hearings or even House and Senate floor sessions, are more common. That means prosecutors and judges will have to weigh how much more punishment a Trump supporter who invaded the Capitol during the Electoral College count deserves than, say, an anti-war protester chanting at a CIA confirmation hearing or a gun-control advocate shouting in the middle of the State of the Union address.

That’s certainly right. But that’s literally what prosecutors and, especially, judges do for a living. But, again, “Trump supporter who invaded the Capitol during the Electoral College count” is a varied category. Those who stormed the doors are more culpable than those who arrived later, when the doors were wide open. Those who brandished weapons are more culpable than those who merely danced around taking selfies. And, obviously, those who actually committed violence are guilty of much more serious crimes.

Judges are also attempting to reckon with separating the individual actions of rioters from the collective threat of the mob, which they have noted helped inspire and provide cover for violent assaults, property destruction and increased the overall terror and danger of the assorted crimes committed.

Yes. And, one suspects, this will create inequities as well. Not every judge will see this the same way and some “MAGA tourists” will get treated more harshly than others. That’s an inherent feature of our criminal justice system. We have tried to mitigate that with standardized sentencing but that, too, has rather serious downfalls.

That reckoning is coming sooner rather than later, lawyers say, putting prosecutors in the position of wrist-slapping many participants in the riot despite framing the crimes as part of an insurrection that presented a grave threat to American democracy.

The typical way to handle this conundrum is to go after leadership. If Trump can be charged, he by all means should be. But I’m skeptical he’s guilty of according-to-Hoyle incitement. But, certainly, those who can be shown to have planned ahead for the riot, the Proud Boys and the like, should be charged more harshly than the mere yahoos.

Prosecutors have signaled that plea offers for some defendants will be coming within days and have readily acknowledged that some of the cases are less complicated to resolve than others.

Which, again, goes with the job.

And prosecutors are facing pressure from judges to either back up their tough talk about sedition or put a lid on it. Michael Sherwin, the former lead Jan. 6 prosecutor, found himself rebuked by other senior prosecutors and Judge Amit Mehta last week for publicly flirting with the possibility of sedition charges when none had actually been leveled.

Good. Prosecutors have a nasty habit of grandstanding, thereby poisoning the well. The more incentive judges can apply to rein that in, the better.

Former federal prosecutor Paul Butler said he hopes that those most troubled by the Capitol riot won’t recoil at the looming deals for many participants.

“The punishment has to be proportional to the harm, but I think for many of us, we’ll never forget watching TV Jan. 6 and seeing people wilding out in the Capitol,” said Butler, now a law professor at Georgetown. “Everybody who was there was complicit, but they’re not all complicit to the same degree for the same harm.”

Exactly. Making these sorts of distinctions is fundamental to a system of justice.

A standard set of four misdemeanor charges prosecutors have been filed in dozens of the Capitol cases carries a maximum possible punishment of three years in prison. But that sentence or anything close to it is virtually unheard of in misdemeanor cases, lawyers said.

“Nobody goes to jail for a first or second misdemeanor,” Butler said flatly.

One defense lawyer working on Capitol cases also said what many in the court system are referring to as “MAGA tourists” are almost certain to escape prison time.

“What about somebody who has no criminal record who got jazzed up by the president, walked in, spends 15 minutes in Statuary Hall and leaves? What happens to that person? They’re not going to get a jail sentence for that,” said the defense attorney, who asked not to be named.

“There is a natural cycle to an event like this,” the lawyer added. “People will say it was the end of the world, then things will calm down, and they’ll begin looking at cases back on what people actually did.”

I think that’s largely right. Instinctively, I think these folks should spend at least night or two in jail. But months of legal wrangling and the ensuing bills have likely created all the time for reflection that was needed.

Nearly every day, federal judges are also prodding prosecutors to offer plea deals to defendants facing lower-level charges.

During a hearing Friday for Leo Brent “Zeeker” Bozell IV, son of prominent conservative activist Brent Bozell, U.S. District Court Judge John Bates told a prosecutor to “move expeditiously” to get the case resolved or headed to trial.

The younger Bozell faces a mixture of felony and misdemeanor charges for allegedly forcing his way into the Capitol and, eventually, onto the Senate floor. He pleaded not guilty to all charges Friday.

“These cases are going to move forward,” said Bates, an appointee of President George W. Bush. “The government needs to produce discovery. It needs to come up with a plea policy and implement that policy in particular cases.”

Again, this seems right. Granting that they’re likely not staffed for this sheer volume of offenses at a single instance, keeping people dangling for months on misdemeanor charges seems unreasonable.

Lower-level Capitol riot defendants scored a significant victory Friday when a federal appeals court said judges need to sort out the most serious, violent offenders from those who simply walked in amidst the chaos.

“Two individuals who did not engage in any violence and who were not involved in planning or coordinating the activities — seemingly would have posed little threat,” D.C. Circuit Judge Robert Wilkins wrote.

Within hours of the ruling, judges and defense lawyers were repeatedly citing it as clarifying who should and should not be detained, while prosecutors were trying to argue that some defendants were more dangerous than the mother-and-son team who won the favorable decision Friday.

The appeals court ruling came amid increasing signs of judges’ impatience: at least five Jan. 6 defendants were released in recent days over prosecutors’ objections.

“The judges are going to start to have had enough of this. At a certain point, they’re going to start making them do deals in these cases,” the defense attorney said.

Presumably, bucketing will have to happen if it hasn’t already. That is, prosecutors will need to create three or four categories into which to sort defendants and treat them all the same way.

UPDATE: See also my follow-on post “Equal Injustice for All,” written in response to a recurring theme in the comments section.

FILED UNDER: Capitol Riot, Crime, Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Mikey says:

    Is the argument that Black defendants would have been charged more harshly? Or simply that these people are more likely to be able to pay their fines, court costs, and attorney fees than the average DC defendant?

    Yes.

    7
  2. beth says:

    Think about how silly you would feel writing a column that included the words “BLM sightseerers”. I don’t know how you vacation but no one has ever cowered in their office in fear of their life because of my tourism. We need to stop using right wing framing to downplay their bad acts. Even just trespassing isn’t innocent enough to be called tourism.

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  3. OzarkHillbilly says:

    White makes right.

    As Beth alluded, how many arrested BLM protestors got similar treatment?

    7
  4. Daryl and his brother Darryl says:

    Amazing to me that attempting to overthrow the US Government is but a misdemeanor.
    We will defend our Democracy by charging those who threaten it with misdemeanors.
    JFC…what has happened to this country, when treason is treated like a traffic violation?

    13
  5. Kathy says:

    Too white to jail, right?

    8
  6. gVOR08 says:

    My understanding is that something like 2% of criminal cases go to trial. The Constitution says you have a right to a trial by a jury of your peers. Reality is that prosecutors have a lot of leverage to force defendants to plead out. I don’t expect this to be handled differently. Except that a lot of innocent poor people are strong-armed into guilty pleas while I expect these middle class white people aren’t represented by overloaded public defenders.

    Much as I’d like to see all of those Bozos taught a lesson in personal responsibility that their privileged lives have so far denied them, ain’t gonna happen.

    5
  7. Not the IT Dept. says:

    And of course the rioters will see this as vindication and the next attempt will be even more threatening and dangerous.

    “A republic – if you can keep it.”

    3
  8. CSK says:

    @Kathy:
    I think that might be “too pale to jail.”

    5
  9. James Joyner says:

    @beth:

    I don’t know how you vacation but no one has ever cowered in their office in fear of their life because of my tourism. We need to stop using right wing framing to downplay their bad acts. Even just trespassing isn’t innocent enough to be called tourism.

    I’m using the POLITICO framing, which is apparently how prosecutors are framing it. But, as the piece notes, there were large swaths of people on 6 January who came in to look around and take selfies after the initial surge. They’re simply in a different category than those who were trying to break in.

    @OzarkHillbilly:

    how many arrested BLM protestors got similar treatment?

    I honestly don’t have the data on that and few of them were handled by US Attorneys and federal judges, so it’s really apples and oranges. But, even acknowledging institutional racism, I suspect the overwhelming majority were charged with misdemeanors or not at all.

    @Daryl and his brother Darryl:

    Amazing to me that attempting to overthrow the US Government is but a misdemeanor.

    The problem is that we have to actually prove that a given individual was attempting to overthrow the government to charge them with sedition. Prosecutors apparently lack the evidence t do so.

    @gVOR08:

    Reality is that prosecutors have a lot of leverage to force defendants to plead out. I don’t expect this to be handled differently.

    I think that’s right. As alluded to in the OP, we have a systemic problem.

    Except that a lot of innocent poor people are strong-armed into guilty pleas while I expect these middle class white people aren’t represented by overloaded public defenders. Much as I’d like to see all of those Bozos taught a lesson in personal responsibility that their privileged lives have so far denied them, ain’t gonna happen.

    While the mere fact that they were able to get to DC probably indicates some level of affluence, I don’t think Brent Bozell V is representative. Most of these yahoos are likely not well-educated or well-off.

    2
  10. senyordave says:

    “MAGA tourists”. Should be embarrassed to even write the phrase.
    So a 16 year old POC who shoplifts should go through the system so they can learn a lesson, but a those 50 year old “MAGA tourists” who so innocently participated in an insurrection because they were caught up in the moment won’t even face a misdemeanor charge.
    keeping people dangling for months on misdemeanor charges seems unreasonable.
    Kind of like what poor people face when they get arrested.
    This is a case where, yes, justice might be best served if someone like Leo Brent “Zeeker” Bozell IV (please God, I pray that he is known to friends as “The Zeeker”) learned what justice is like for those members of society that he figuratively (and maybe literally) spits on.

    2
  11. dazedandconfused says:

    RE:

    Lower-level Capitol riot defendants scored a significant victory Friday when a federal appeals court said judges need to sort out the most serious, violent offenders from those who simply walked in amidst the chaos.

    Worth mentioning the two knuckleheads the quoted part above are referring to have been in custody since mid Jan, and the judge is only letting them out pending trial. Two and a half months in jail has a way of installing in most people “a clue”. These days even Sidney Powell is saying no reasonable person would take the allegations of voter fraud that have been spewed as factual.

  12. MarkedMan says:

    Those who stormed the doors are more culpable than those who arrived later, when the doors were wide open. Those who brandished weapons are more culpable than those who merely danced around taking selfies. And, obviously, those who actually committed violence are guilty of much more serious crimes.

    I think most people will accept this. What would cause controversy is letting people who were in the crowds storming the doors off with a misdemeanor.

    2
  13. Gustopher says:

    If they tour the capitol, they should also get to tour the jail. Package deal.

    It doesn’t have to be long, for those who did nothing other than enter. Just a week or two, long enough to send a message.

    And many of them walked past the injured. And anyone on the capitol floor walked past a dead body and pool of blood. I would give harsher sentences to all of those, as they clearly knew they were part of a violent mob. A stiffer slap on the wrist, unless we have evidence of premeditation, or specific acts of destruction or violence.

    4
  14. inhumans99 says:

    Without disagreeing that it is outrageous how many of the Capitol rioters expected to get off with nothing more than a slap of the wrist (if even that) at least I assume that the genuine threats to folks like Pelosi such as the yahoo who put his feet up on her desk, rifled through her computer/mail/personal belongings, actually stole a piece of her mail and bragged about this act on I believe CNN, bozos like this guy are not being treated with total kid gloves.

    The feet on desk guy, the Proud Boys/Oath Keepers, those yahoos seem to still be in serious trouble with the law so I guess that offers me some small comfort that they are not being told they can break the law and get away with it due to the color of their skin.

  15. CSK says:

    What about the people who constructed the gallows from which they planned to hang Mike Pence and any one else they could lay hands on? This wasn’t a bunch of jolly japesters out for a day’s lark.

    3
  16. Just nutha ignint cracker says:

    “Is the argument that Black defendants would have been are routinely charged more harshly?”

    FTFY. And echoing Mikey above, ayup that’s the argument, all right.

    3
  17. Just nutha ignint cracker says:

    @gVOR08: I won’t be too disappointed at the outcome–except in the case of Brent Bozell’s son getting a suspended sentence. But I also have to admit that’s just spitefulness on my part. Overall, chalk this up as another brick–or hod full, whatever–in the wall of disputes leading up to Civil War–The Sequel.

  18. Just nutha ignint cracker says:

    “Most of these yahoos are likely not well-educated or well-off.” But they’re still mostly white and middle class. [White] Privilege still applies here in the VAST majority of cases.

    ETA: “… so I guess that offers me some small comfort that they are not being told they can break the law and get away with it due to the color of their skin.”

    I think I’ma wait til I see the verdict and sentencing to feel comforted. Sorry. 🙁

    1
  19. a country lawyer says:

    The problem is that felonies are more difficult to prove and take considerably longer to prosecute. Judges fight to keep their dockets clear and the last thing they want are dozens of misdemeanors clogging their case loads..
    A crisis caused by the COVID pandemic which has largely gone unnoticed is that the criminal justice system has essentially come to a stand still. There have, for all practical purposes, been no criminal jury trials for the last year. But crime marches on.
    The district in which I practice most often, is typical of other metropolitan districts. In this district, ignoring the State cases which have an even greater problem, each of the four Federal Judges had, at the beginning of the pandemic, more than a thousand cases on the docket. This district gets more that four thousand new cases each year so the problem is evident not only are cases not being tried, when the moratorium on trials is finally lifted there will be tsunami which will overload the system. There are simply not enough prosecutors or judges to handle the system.
    And this doesn’t consider the problem of the Grand Jury. The Constitution requires that before a felony proceeds to trial there must first be a Grand Jury indictment. Not only are there no petit juries the courts are also unable to convene Grand Juries. There are many thousands of criminal cases awaiting a Grand Jury. Since the Constitution also grants the accused a speedy trial this will compound the problem. Two things will happen and in fact are happening, cases will be and are being settled much cheaper than before the pandemic. I have already had many clients benefit from this problem. And second civil trials will likely become non-existent for the foreseeable future.

    3
  20. JohnMcC says:

    If one imagines that the event of 1/6 was some sort of paroxysm by the MAGA crowd as they exited the political stage it would be just dandy if most of the idiots got off with minimal dislocations of their lives. Let them go home and sulk.

    If one thinks that there was an actual attempt to overturn the election. Well, it is not just dandy. As the historian Timothy Snyder says, ‘an unsuccessful coup is what happens before the successful one.’

    I personally think that putting a light hand on the majority of the insurrectionists is a big mistake. Will make a wish that I am wrong.

    2
  21. Michael Reynolds says:

    We cannot over-charge X because we over-charged Y in order to maintain some abstract notion of balance or fairness. We have laws. When you violate them you can be charged. If the prosecutor has the evidence, you can be convicted. The law then prescribes a range of penalties.

    @James is right that we cannot and should not put all these people in prison. Most of them don’t deserve prison, they deserve a misdemeanor record and a stern warning. Most of them were just clueless fuckwits who stupidly listened to the piece of shit in the White House, and we don’t punish people for being idiots, only for the laws they broke.

    The solution to over-charging Black defendants is not to overcharge white defendants, but to stop overcharging Black defendants. Not revenge, not equity, just simple justice under the law.

    11
  22. James Joyner says:

    @Michael Reynolds: I just published a longish post making exactly this point but your succinctness is better.

    1
  23. Daryl and his brother Darryl says:

    @James Joyner:
    @Michael Reynolds:

    The problem is that we have to actually prove that a given individual was attempting to overthrow the government to charge them with sedition.

    If they were in the Capitol Building, then they were part of the attempt to overthrow the Government.
    There was NO OTHER reason for them to be there.
    They weren’t fuqing sightseeing.
    They were “stopping the steal”.
    I seriously cannot comprehend that there was an attack on our Democracy, and the response is
    ¯\_(ツ)_/¯

    6
  24. James Joyner says:

    @Daryl and his brother Darryl:

    If they were in the Capitol Building, then they were part of the attempt to overthrow the Government. There was NO OTHER reason for them to be there.

    The government is required to persuade a jury of 12 persons, unanimously, beyond reasonable doubt that each individual charged with being in the Capitol was part of a conspiracy to overthrow the government. That is really, really difficult to do. Were I on said jury, I would be highly skeptical for anyone who wasn’t a leader of one of the militia groups.

    3
  25. Michael Reynolds says:

    @Daryl and his brother Darryl:
    I don’t think I’m shrugging it off. But if you charge a person with sedition you have to then prove it. Which I will guarantee you is not a case that can be made against most of these people. If you level a sedition charge without sufficient evidence what you get is a dismissal or a verdict of not guilty, which sends a worse message than charging what you can prove.

    2
  26. dazedandconfused says:

    @Daryl and his brother Darryl:

    It’s a big lift to prove that those people sought to overthrow the government when at the time the sitting POTUS, among others, like the US’s top rated news channel, were telling people the election had been a fraud and they must fight for democracy.

    1
  27. Daryl and his brother Darryl says:

    @James Joyner:
    @Michael Reynolds:
    @dazedandconfused:
    “Why were you in the Capitol Building?”
    “I was fighting for Democracy.”
    “By over-turning Democracy?”
    “The election was stolen.”
    “Do you have any proof of that?”
    If you guys are right (and I acknowledge that you are) then charges damn well should go to those responsible. And they won’t. And thus the map of how to overthrow the US Government, without risk, will have been drawn.

    5
  28. mattbernius says:

    @gVOR08:

    My understanding is that something like 2% of criminal cases go to trial.

    This is correct for federal cases where its easy to calculate. See: https://www.pewresearch.org/fact-tank/2019/06/11/only-2-of-federal-criminal-defendants-go-to-trial-and-most-who-do-are-found-guilty/

    It’s hard to tell at the State/county level because how crappy our criminal legal system data is. I’ve seen estimates ranging from 3 to 10%.

    the point stands that in most cases people will take a plea and the State’s evidence is never tested. This is a HUGE issue. Especially given how coercive the system is.

  29. Andy says:

    I don’t remember all the details, but when the Minneapolis police station was ransacked and burned during the riots there last summer, only the four people who set the fires were actually charged with crimes.

    I think that’s usually what happens and we shouldn’t expect it to be any different for the Capital riot.

    Or said another way, if one thinks the Capital riot is a special case deserving of more aggressive prosecutions, then the law needs to be changed to reflect that preference so that there is a different legal standard in that case.