& PUNISHMENT

Prison time is appropriate for Jan. 6 Capitol invaders

entering a restricted area that do not typically result in time behind bars for first-time offenders. Hundreds more were also charged with more serious offenses — like conspiracy, assault or obstruction of an official proceeding — that carry hefty prison time of years behind bars, but theses defendants could take pleas that would wipe those charges from their cases.

Prosecutors have said they expect to charge at least 100 more people.

It’s going to be a test of racial fairness. The majority of the defendants are white.

Black and Latino defendants tend to face harsher sentences for the same crimes, and from the moment the mob marched on the Capitol, there were questions about whether the law enforcement response would have been different had the rioters been people of color.

‘”If we can’t treat white criminality as white criminality and crime that deserves a response, a punishment, a reckoning ... if we don’t see it as punishing that kind of criminality as legitimate, then that’s how we paint ourselves into a corner,” said Herbert, now a professor at Howard University School of Law.

Only one defendant — a heavy metal band guitarist and member of the Oath Keepers extremist group — has pleaded guilty so far. Prosecutors have said more plea offers are coming. Jon Schaffer, who authorities have described as a “founding lifetime member” of the militia group, has agreed to cooperate with investigators, and in return the the Justice Department has promised to consider putting him in the federal witness security program.

He may prove useful to prosecutors in perhaps their most serious case against 12 members and associates of the Oath Keepers accused of conspiring with one another to block the certification of Biden’s victory.

Schaffer, the front man of the band Iced Earth, pleaded guilty to obstruction of an official proceeding and entering and remaining in a restricted building with a dangerous or deadly weapon.

The first carries up to 20 years in prison, but federal sentencing guidelines call for about three years to 4¼ years, the judge said. Prosecutors may ask for an even lighter sentence in exchange for his cooperation against other defendants.

This past week, a Queens man who wasn’t part of the insurrection but admitted posting videos and other materials expressing support for the violent mob, was convicted of federal charges of threatening to kill members of Congress. Prosecutors have said Brendan Hunt, 37, faces up to 10 years in prison.

If prosecutors seek stiff sentences for the lowest-level Capitol riot defendants, they could lose their credibility with judges, said Laurie Levenson, a former federal prosecutor who now teaches at Loyola Law School.

And if they set the standard too high, they’ll be juggling hundreds of cases going to trial instead of focusing on the major offenders. Those most serious cases are where prosecutors can and should send a strong message, Levenson said.

“If there’s any pressure on the Justice Department, it’s to deal with these cases in a way so that you never have to see them again,” she said. “And if people think that the price isn’t too high, who knows?”

At least one judge has expressed frustration at the pace of the prosecutions, which have overwhelmed the federal court already backlogged because of pandemic-related delays. On Tuesday, District of Columbia Federal Judge Christopher Cooper ordered the pretrial release of a man who was photographed sitting with his feet on a desk in House Speaker Nancy Pelosi’s office. The judge expressed concern that the case is moving too slowly.

Cooper noted that Richard Barnett has been jailed for nearly four months and questioned whether his time behind bars while the case is ongoing could exceed a possible sentence should Barnett plead guilty.

The prosecutor estimated that the government would recommend a prison term ranging from nearly six years to 7¼ years if Barnett is convicted, though he could get credit for accepting responsibility if he pleads guilty.