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.