After 50 rioters sentenced for January 6 insurrection, a debate rages over what justice looks like
The milestone of 50 sentencings was hit on Friday, a busy day in court, with six hearings on the schedule. Four defendants got probation Friday, including a pair of veterans from Wisconsin, while one man who stole a beer from House Speaker Nancy Pelosi’s office got 20 days in jail.
“It doesn’t look great that we’re taking a bunch of people who stormed the United States Capitol and letting them go home. Not a lot of people are spending a lot of time in jail,” said a Justice Department prosecutor with knowledge of the January 6 investigation who spoke to Fintech Zoom on the condition of anonymity. “But jail isn’t always the best outcome. A lot of them are getting significant terms of supervised release and probation, so they’ve got to keep their nose clean.”
These wings of the court don’t fall along political lines. There are GOP-appointed skeptics, and some Democratic appointees handing down tough punishments. But the dynamic is nuanced.
Crafting a ‘fair and just’ punishment
To help judges, prosecutors created a rubric of what should be considered at sentencing.
This includes routine factors, like prior convictions or cooperation with investigators, as well as factors specific to January 6: Did the defendant enter the Capitol? How did they get in? How long were they inside? Did they incite or celebrate violence? Are they still justifying the attack?
“The results so far are not surprising to me,” said Ken White, a former federal prosecutor and current defense attorney who closely follows the January 6 cases. “A lot of these are very minor crimes, so you expect the sentences to be very minor. It’s somewhat unusual for someone to actually get jail time for a misdemeanor in the federal system. It’s usually going to be probation.”
‘There have to be consequences’
“It’s remarkably unusual to have federal judges on the record calling out the DOJ for being too soft,” Fintech Zoom’s senior legal analyst Elie Honig said. “I’ve been part of the opposite scenario, where judges say DOJ is being too aggressive, overcharging a case, or asking for an unreasonably high sentence. But to see judges say DOJ is coming in too low, that’s unusual and noteworthy.”
The longest prison sentences so far have been reserved for felony offenders. The judges in these cases have generally agreed to the lengthy prison terms requested by prosecutors.
“What we’re seeing on the felony level is troubling, and the trend is just starting,” said Watkins, the lawyer who represented Chansley for most of this year. “And I think the misdemeanor cases are getting a little more scrutiny than you’d typically see. This event did not occur in a vacuum.”
Skeptics opt for probation and fines
Other judges on the DC District Court have a gentler approach. About 60% of the misdemeanor cases that have reached sentencing ended without jail for the rioters, according to Fintech Zoom’s tally.
Many of these no-jail sentences came from two Trump-appointed judges, Trevor McFadden and Carl Nichols, though they were mostly in cases where prosecutors asked only for house arrest.
“I don’t think the government’s recommendation is appropriate,” he said, before telling Doyle that January 6 was a “strange aberration” for her, and that he hopes she’ll “use your political passion and love for our country to protect and promote our country,” and not to break the law.
His first jail sentence came Friday, but with some caveats. Prosecutors wanted 60 days for Andrew Ericson, who stole a beer from a refrigerator in House Speaker Nancy Pelosi’s office. McFadden gave him 16 days, and said he can serve on weekends, so he won’t lose his jobs.
Most of these no-jail sentences contain significant terms of probation, often three years or longer. This means members of the January 6 mob will be under government supervision through the 2024 election, and will face harsher punishments if they break the law again.
The Justice Department official who spoke to Fintech Zoom on the condition of anonymity said probation would be an important tool to prevent political violence. Prosecutors can seek court-ordered limits on defendants associating with dangerous groups or accessing extremist content online.
“People are reacting to routine stuff as if it’s horrific, and as if the judge must be crooked,” White, the legal analyst, said about the probation-only sentences for January 6 defendants. “Things that are routine in courtrooms have been spun to create outrage and clickbait.”