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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. MUST CREDIT: Washington Post photo by Matt McClain
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. MUST CREDIT: Washington Post photo by Matt McClain (Matt McClain/Washington Post)

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 last year, 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 that 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 Washington Post 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 two-thirds 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 in what the government has called the largest investigation in U.S. history 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 generally 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. Instead, they have used the threat of that enhancement to encourage guilty pleas, lawyers have said.

In addition to those charged, the government estimates more than 1,000 other people took part in the riot, including more than 350 who committed acts of violence in the insurrection that resulted in attacks on scores of police officers and left at least five dead.

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.

Nevertheless, U.S. district judges in Washington have lamented that they are limited by prosecutors’ decisions to let many rioters plead to a “petty offense” of illegally parading inside the Capitol or other misdemeanors, including at least 14 allowed to plead down from felonies. And even among seven felony cases sentenced so far, alongside 67 misdemeanor cases, judges have reduced the government’s proposed sentence in five of them.

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.”

Some felony defendants have gotten a break for pleading early. Prosecutors sought an 18-month sentence for Paul A. Hodgkins, who pleaded guilty to the felony of obstructing a joint session of Congress while carrying a “Trump 2020” flag into the well of the evacuated Senate on Jan. 6. Hodgkins was the first riot participant to face sentencing for that felony charge, which other defendants have argued is unconstitutional. U.S. District Judge Randolph Moss, an appointee of President Barack Obama, sentenced him to eight months.

Judge Amy Berman Jackson, another Obama appointee, gave the largest departure from a government recommendation to Cleveland Meredith, who headed to D.C. armed and threatening to kill House Speaker Nancy Pelosi, D-Calif., but failed to make it in time for the riot. Prosecutors sought a roughly 41-month sentence; Jackson gave him 28, citing his mental health problems and “need of a comprehensive assessment and an intensive, multilayered treatment plan.”

By law, judges are required to consider several criteria in devising sentences, starting with the seriousness of the offense and “to provide just punishment.” The judges must also consider whether the sentence affords “adequate deterrence,” protects the public from further crimes of the defendant, the need to provide the defendant with treatment or training, and the defendant’s legal history and personal background. The judges must also avoid “unwarranted sentence disparities” among defendants with similar records convicted of similar crimes. Very few of the Jan. 6 defendants have prior criminal records.

Besides the 49 cases in which the judges have imposed lesser sentences than requested by prosecutors, the judges have increased the proposed sentence in 11 cases, and given the exact sentence requested by the government in 14 cases. Through a spokeswoman, the judges of the federal court in D.C. declined to comment.

The refusal to routinely impose heavy sentences shows “the prosecutors and judges are doing exactly as their oaths require,” said Jay Town, a former U.S. attorney in Alabama who served on a Trump-era law enforcement commission. “Judges are thoughtfully curating sentences for defendants under the totality of the circumstances, not just heedlessly following the government’s recommendations.”

The sample size of 74 sentencings is small, but a split has emerged among some judges appointed by presidents of different parties. Of the 11 sentences above the government’s recommendation, nine were exceeded by Democratically appointed judges, with Obama appointee Tanya S. Chutkan going higher than requested in seven. There are 10 judges appointed by Democratic presidents and eight appointed by Republicans who are handling Jan. 6 sentencings at the district court in Washington.

Of the 49 sentences that have been below the government recommendation, 30 were by Republican-appointed judges, though they are a slender minority on the court. As of Jan. 6 this year, Judge Carl Nichols went lower than requested in eight of his 10 sentencings. Judge Trevor McFadden went below the government’s request in five of the seven cases he has heard, while going higher in one. Both judges were appointed by President Donald Trump.

The results appear to have flipped some judges’ sentencing tendencies, given their backgrounds. Chutkan is a former public defender, and McFadden is a former Justice Department official, prosecutor and police officer.

When prosecutors asked for a two-month home confinement sentence for a defendant from Oklahoma who climbed into the Capitol through a broken window and pleaded guilty to parading, McFadden instead gave her two months of probation.

“I think the U.S. attorney would have more credibility,” McFadden said, “if it was evenhanded in its concern about riots and mobs in this city.”

Hundreds of people were arrested in D.C. during racial justice protests in 2020; not all were charged, and police were accused of sweeping up nonviolent protesters and observers. McFadden has rejected prosecution requests for home detention in four Jan. 6 cases, saying he thought it was ineffectual.

Chutkan stands out in exceeding government requests in seven of her eight cases so far, sentencing defendants who pleaded guilty to unlawful parading to prison terms of 14 to 45 days - above prosecutors’ requests for no time or 30 days.

“There have to be consequences for participating in an attempted violent overthrow of the government, beyond sitting at home,” Chutkan said in an October sentencing.

“People gathered all over the country last year to protest the violent murder by the police of an unarmed man - some of those protests became violent,” Chutkan said, apparently referring to McFadden’s comments. “But to compare the actions of people protesting mostly peacefully for civil rights to those of a violent mob seeking to overthrow the lawfully elected government is a false equivalency and ignores the very real danger that the Jan. 6 riot posed to the foundation of our democracy.”

Chutkan also gave the longest sentence thus far - to Robert Palmer, who got the 63 months in prison prosecutors sought for repeatedly attacking police officers at the Capitol with a fire extinguisher and a pole. In two other police assault cases, judges went slightly below government requests, issuing sentences of 46 instead of 48 months, and 41 instead of 44 months.

McFadden is not alone in regularly rejecting prosecutors’ suggestions, though his reasoning may be different from others. Historically tough sentencing judges Royce C. Lamberth and Reggie Walton, both Republican appointees, have repeatedly sentenced below government recommendations in misdemeanor cases.

“Even for people who were just there for a short period and walked through, the seriousness of what happened that day . . . the effect on the country is such that the courts have to treat it like a serious offense,” Lamberth told a defendant who was briefly in the building. But the judge also believed the 81-year-old veteran had “lived a life that is to be emulated,” and Lamberth “encouraged others” to plead guilty rather than go to trial.

“I hope others will follow your lead,” he said, in giving the man three months of home detention - a month shy of the government request.

Walton told a Florida man who recorded officers being assaulted and tried to open doors inside the Capitol that he had “disgraced this country in the eyes of the world.” But Walton gave him three years of probation for illegal parading, rather than the four months in jail prosecutors wanted.

Prosecutors have allowed 58 of the 74 sentenced defendants to plead guilty to “illegal parading or picketing,” a misdemeanor punishable by no more than six months in jail. Probationary terms could be longer, but legal precedent indicates judges cannot combine both supervision and incarceration for the parading charge.

The Department of Justice has begun arguing that combined prison and probation sentences are allowed, and on Friday U.S. District Judge Colleen Kollar-Kotelly agreed, giving three months incarceration and three years of supervision to a North Carolina woman who brought her 14-year-old son into the Capitol.

In a recent sentencing memorandum, the Justice Department explained that those who “did not carry a weapon into the building, engage in violence or property destruction, or conspire or coordinate with groups intent on breaching the building” have been “permitted to plead guilty to a misdemeanor of their choosing.” Most have chosen parading; other misdemeanors can carry more jail time and a mix of probation and incarceration.

By allowing some defendants initially charged with felony obstruction to plead to misdemeanors punishable by up to a year in prison, and defendants facing such misdemeanor charges to plead down to parading, prosecutors have created a three-tier system that incentivizes defendants to plead guilty, defense lawyer have said. The U.S. attorney’s office for the District, which is leading the prosecution, declined to comment.

But some judges criticized the either-jail-or-probation sentencing aspect of the parading charge. They said it ties their hands, when a combination of jail time and years of supervision could better deter individual defendants and others from committing similar crimes, and probationary services could help defendants with drug, work or mental health problems.

Howell said that was why she rejected government requests for two to 12 weeks of jail time for four defendants in lieu of two to three years of probation. For one, she added two weeks of detention in a halfway house to get around the restriction.

While chiding the government for not “being more creative” in its recommendations, Jackson has gone below prosecutors’ recommendations in five out of eight sentencings. In the case of an Indiana man who went into the Capitol with a pocket knife, the Obama appointee said she was “hamstrung” by the government’s decision to let him plead guilty to parading.

As Howell has, Jackson chose to give him home detention and probation instead of the two months in jail sought by prosecutors, in part because he had started going to therapy, stopped using drugs and started a new job.

“It’s most beneficial to yourself and the public if I insist that you continue to get the help that you need,” she concluded.

- - -

Capitol riot prosecutions one year later

701 people charged federally

367 with at least one felony

156 charged with assault on police

39 charged with conspiracy

334 misdemeanors only

174 have pleaded guilty

24 felonies

150 misdemeanors

74 have been sentenced

7 felonies

67 misdemeanors

35 sentenced to jail or prison; 14 to home detention; 25 to probation

527 cases remain, 344 involving felonies

Source: Washington Post analysis, which may be calculated differently than other public data

Meghan Hoyer and Sahana Jayaraman contributed to this report. Journalism students at the American University School of Communication, including Carley Welch, Aneeta Mathur-Ashton, McKenzie Beard, Megan Ruggles and Sammy Sussman, also contributed to this report.

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