Judges nix proposed sentences in majority of Jan. 6 cases so far
WASHINGTON — When federal judges in Washington began hearing guilty pleas from some of the hundreds of riot participants who attacked the Capitol on Jan. 6, 2021, some were highly critical of prosecutors for pursuing only misdemeanor charges, and not seeking jail time, for many defendants.
“Is it the government’s view that the members of the mob that engaged in the Capitol attack on January 6 were simply trespassers?” Chief U.S. District Judge Beryl Howell asked incredulously in October. “Is general deterrence going to be served by letting rioters who broke into the Capitol, overran the police ... broke into the building through windows and doors ... resolve their criminal liability through petty offense pleas?”
But for all four defendants Howell has sentenced, she has imposed less jail time than prosecutors sought, saying government plea deals in most misdemeanor cases are forcing judges to choose whether short jail terms or years of probation pose a stronger deterrent. And her decisions are not unusual, a
analysis found. Federal judges in the District of Columbia have gone below the government recommendation in 49 out of 74 sentencings held for Capitol riot defendants one year after the attack, about twothirds of the cases. In eight cases where prosecutors asked for jail time, the judges instead opted for probation. Of the 74 people sentenced so far, 35 have been given jail or prison time, 14 home detention and 25 probation alone.
About a quarter of cases have resulted in guilty pleas as of Jan. 6 this year; out of 701 people charged in federal court,
174 have pleaded guilty. (One case was dropped against a man who never went inside the building; two defendants have died.) While half the defendants face felony charges, nearly 90 percent of pleas involve misdemeanors, as prosecutors so far have focused on closing less serious cases to marshal resources for more complex trials ahead.
Before the pandemic, about half of federal felony cases in Washington were resolved within a year. But the system has moved slowly for those accused of the most serious crimes due to the pandemic and the vast amount of electronic evidence, whether videos or social media, which had to be reviewed and shared. Prosecutors are also using the felony charge of “obstruction of Congress” in a novel way against 275 defendants, prompting legal challenges that have delayed plea talks. Those challenges are easing, however, likely speeding up guilty pleas, cooperation deals and the overall investigation, as well as increasing average sentences as more felony cases are decided.
Of the 367 people charged with at least one felony as of Thursday — including 156 charged with assaulting law enforcement — only seven cases have reached sentencing, and just three of those involved attacks on the police. No trials have been held, with the first set to begin in February. None of the 39 people charged with conspiring to stop the vote count, including members and associates of the Oath Keepers and Proud Boys, have been sentenced.
Although the Justice Department has argued that higher sentences would deter domestic terrorism, prosecutors so far have not formally asked judges to apply terrorism-related enhancements that could more than double the sentencing guidelines.
It’s not unusual for federal defendants who plead early and cooperate to get better sentencing deals. And judges regularly sentence below government recommendations and the advisory guidelines calculated by probation officers, which factor in criminal and personal history, remorse and the seriousness of the offenses. Defendants also get to make recommendations at sentencing, with courts often splitting the difference. And Jan. 6 prosecutors began asking for jail time more often after judges’ initial complaints.
Ed Ungvarsky, a longtime defense attorney who represented one Jan. 6 defendant charged with a misdemeanor, said strong comments by judges about a low-level case are common. Judges, he said, are “signaling the seriousness of the overall situation” and want to send a message to “actors charged and uncharged” — including “those who exhorted the activity at the Capitol that day” — that they have gotten a break, but “shouldn’t expect it again.”