Santa Fe New Mexican

Judges nix proposed sentences in majority of Jan. 6 cases so far

- By Rachel Weiner, Tom Jackman and Spencer S. Hsu

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.”

 ?? MATT MCCLAIN/WASHINGTON POST FILE PHOTO ?? A police officer is visible through a broken window of the U.S. Capitol on Jan. 7, 2021, the day after a pro-Trump mob broke into the building.
MATT MCCLAIN/WASHINGTON POST FILE PHOTO A police officer is visible through a broken window of the U.S. Capitol on Jan. 7, 2021, the day after a pro-Trump mob broke into the building.

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