Capitol prosecutors seek balance in pleas
WASHINGTON — More than 400 people have been charged with federal crimes in the Jan. 6 attack on the Capitol. But prison time may be another story.
With new defendants still flooding into Washington’s federal court, the Justice Department is under pressure to quickly resolve the least serious of cases. While defendants charged with crimes such as conspiracy and assaulting officers during the insurrection could be looking at hefty sentences, some members of the mob who weren’t caught joining in the violence or destruction could see little to no time behind bars.
“The people who were just there for the ride and somewhat clueless, I think for most of them they probably will not get prison time. And for what it’s worth, I think that’s appropriate,” said Rachel Barkow, a professor at the New York University School of Law.
The siege was like nothing the country had ever seen, as the mob of supporters of thenPresident Donald Trump descended on the Capitol to stop the congressional certification of Joe Biden’s election victory. But in the months since, Trump loyalists have worked to minimize the assault, while Democrats and others want justice for what they saw as a crime against democracy and the rule of law.
As plea negotiations ramp up, the Justice Department must work to differentiate between the varying actions of the members of the mob that day without making it seem like some are getting away with mere slaps on the wrist.
Of the more than 400 federal defendants so far, at least 100 are facing only lowerlevel crimes such as disorderly conduct and entering a restricted area that do not typically result in time behind bars for firsttime offenders. Hundreds more were also charged with more serious offenses — including conspiracy, assault or obstruction of an official proceeding — that carry potentially hefty prison time.
It’s also 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 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 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.