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May 2, 2021

Another effective (but still incomplete) look at possible sentencing outcomes for those prosecuted for Capitol riot

This new AP article, headlined "Charged in Jan. 6 riot? Yes, but prison may be another story," reviews potental sentencing outcomes for their role in the January 6 Capitol riot.  Here are some excerpts, to be followed by a bit of contextual commentary:

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. “Having a misdemeanor on their record, going through all this is probably a pretty big wake-up call for most of the folks,” she said.

The siege was like nothing the country had ever seen, as the mob of supporters of then-President 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....

It’s a formidable task for lawyers and judges alike to determine the appropriate punishment to seek and hand down. Many defendants had steady jobs and no criminal records, factors typically rewarded with leniency in the criminal justice system.  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 lower-level crimes such as disorderly conduct and 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 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, U.S. District 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 7 1/4 years if Barnett is convicted, though he could get credit for accepting responsibility if he pleads guilty.

All high-profile prosecutions, particularly when they involve persons without significant criminal histories, provide interesting settings to explore sentencing purposes and practices. These Capitol riot prosecutions have the added political intrigue of having those who usually advocate for harsher forms of justice likely being much more sympathetic to these defendants, while at least some usually most troubled by harsh sentencing may be more supportive of prison terms this unique setting.  And, as this AP article rightly notes, there overarching surely concerns about racial and social equity in light of historic patterns of prosecution and sentencing practices.

But the equity issue leaves me eager to see more comprehensive and consistent coverage of punishments being handed out to others involved in criminal behavior during other protests through 2020.  For example, consider these sentencing reports from local press in recent weeks:

I am certain that this is NOT anything close to a thorough accounting of the sentences that have been already handed down to persons who have engaged in criminal activity during protests and riots (e.g., here is a press report from Dec 2020 of a few case outcomes in Oregon).  I am even more certain that it could provide incredibly valuable for ultimately examining and assessing Capitol riot outcomes to have some kind of thorough overview of outcomes in these other (similar?) cases.   

Prior related posts:

May 2, 2021 at 01:33 PM | Permalink


Ugh, can we please stop calling it a "riot" or a "protest" already? A riot is what happens after the Iggles finally win the big one. Protests are what BLM does. This was an insurrection. Getting that right is very important.

This nicely illustrates the real problem with the so-called "lamestream" media. It's not that they're deliberately pushing some kind of false narrative to further a nefarious agenda, because they're so obviously not. Rather, the reason they constantly get it wrong, like here, is plain laziness, ignorance, and sloppiness. Another great example is calling the COVID relief a "stimulus". They do it so often though I'm basically desensitized. But, I expect better around here, so I was disappointed to see the OP exhibiting the same habits.

Prof. Barkow's quotes in the article are also cringeworthy. Nothing could be further from just being "there for the ride" than actively participating in an insurrection. And "clueless"? How does she purport to know that, unless she has supernatural mindreading powers? Maybe they were clueless about getting caught or facing actual consequences, but in terms of the actual conduct, they were quite aware of what that entailed. There was abundant planning too. Scheduling travel (including the charter flights, have to love that), booking hotel rooms, taking vacation days, etc. etc. And if anything is truly clueless, it's the mindboggling naiveté—or worse—on display in suggesting that a measly slap on the wrist might serve as a "wake-up call" for the perpetrators.

Anyway, I'm not going to lose much sleep on what happens to the small fries. I was fairly dismayed though at reports that DOJ is pulling its punches in pursuing possible ringleaders because of unfounded concerns about 1A protected activity somehow being endangered.

I will just end by saying that I don't think hardly anyone on the left has ever been historically troubled by harsh sentences when it comes to insurrectionists and traitors. Maybe there was an extreme fringe who genuinely thought the Rosenbergs were framed, but that's probably about it. DP aside, those kinds of folks rightly should have multiple volumes of the book thrown at them. Reactionaries in contrast, turned someone like Jonathan Pollard into a cause célèbre.

Posted by: hardreaders | May 2, 2021 10:30:33 PM

The term "insurrection" is notable as well since there is a constitutional reach to the term here.

See, e.g., this pending bill that I hope passes in some form:


I guess we can move on from being "disappointed" in each other around here. Well, maybe, that's just me.

I'm somewhat less annoyed at the "just there for the ride and somewhat clueless" bit though "clueless" can be used in a general way for that bunch. YMMV there.

I'm thinking of someone in the crowd that entered the Capitol. I had this out with someone else on another blog, but there are a range of punishments here that can be pretty serious.

For instance, let's say someone is put on probation with various limits & if they commit even a trivial offense, they are in big trouble. Mere prosecution without jail time here can lead to various serious loss of certain privileges. This is where "insurrection" might have bite too.

My concern here is (1) getting people involved on the record as such, even if in various cases it doesn't mean jail time (2) dealing with the more serious cases, involving violence, destruction of property etc. This subset very well deserves strong punishment.

I think an invasion of the U.S. Capitol in the process of interfering with the authorization of a U.S. presidential / vice presidential election is of a special character. The comparisons to other uh events only takes one so far. There is some overlap and the number of people involved alone suggests some degree of nuance is warranted.

And, yes, this is an insurrection. Want to talk bipartisan? Both Mitch McConnell and Chuck Schumer agreed to that. It led to an impeachment (rightly so) and Fourteenth Amendment remedies -- which will apply to military and local offices too -- are warranted too.

Posted by: Joe | May 3, 2021 11:03:18 AM

What bothers me the most is the denialism and reluctance or outright refusal to acknowledge the true nature of 1/6—and all the awfulness that led up to it. The Barkow comments are a prime example of that. Likewise how some of the NY/Beltway media "elite" have treated it. Maybe it's too scary and so they want to avoid thinking about it. Maybe it's privilege on display, so they think whatever else happens, they'll be fine; in other words it's either no big deal or someone else's problem. Either way I find that mindset quite troubling, and I hope everyone else does too.

Posted by: hardreaders | May 3, 2021 6:03:46 PM

I don't know how bad her position is as a whole (I respect her in general), but get where you are coming from.

Posted by: Joe | May 3, 2021 8:09:16 PM

I'm somewhat sympathetic to the professor's take with one key difference. The low-level folks need to spend a few weekends in jail after the pandemic, or a week with work release. A very brief incarceration will help them understand that what they did was A Big Deal. Failure to incarcerate *at all* risks signalling that they are somewhat different than the millions of jail admissions in this country every year, like they were a special class of political violator rather than an actual criminal.

Posted by: Jason Scoggins | May 4, 2021 7:46:09 PM

The point isn't that they—the insurrectionists—shouldn't get special treatment unlike "ordinary" offenders. Of course they shouldn't. After all, what they did was vastly worse, not less severe, than a regular crime. I'm not saying the max sentence of the charged crimes should be disregarded, although I do question if prosecutors were intimidated and pulled their punches in charging less than what was possible.

What I'm saying is, if you bring up deterrence or rehabilitation at all, you've completely missed the point. Anyone who hasn't been catatonic for the last 4+ years should easily recognize that even very harsh punishment—while certainly well-deserved—isn't going to impact their thought process (using the word "thought" loosely) one bit. They knew exactly what they were doing, they always dreamed of doing it, they planned it, and even after it happened, they were proud of it and bragged about it. Once whatever punishment they get is over, they'll be right back at it too. In fact, they'll try even harder next time. So, if even a nobody like me can figure that out, then yes, I do question the motivations of presumably much smarter people like Barkow for making these kinds of statements. In a way, even if somehow, a few of them are deterred or rehabilitated, I don't even care. All that really matters is having sufficient measures in place to stop them from causing any more harm to the nation. What's on their mind or in their heart of hearts is basically irrelevant.

Posted by: hardreaders | May 5, 2021 12:21:55 PM

I have an addendum. There's another reason why any focus on deterrence or rehabilitation is utterly misplaced. I'm no crim expert, but I have to think conventionally and traditionally those concepts only make sense for individuals and small groups, or at most large conspiracies. But we're talking about something way way beyond that it. It's a hugely widescale movement. So the idea that any deterrence or rehabilitation at the individual or even large group level is going to have an appreciable impact on the movement itself—which is, after all, the entire point—seems to me totally farfetched and impractical. While the full force of criminal sanctions are definitely warranted here, we're a little past the stage where the criminal system can address the core problem.

Posted by: hardreaders | May 5, 2021 12:57:03 PM

If there is an implication that everyone there is a lost cause or something, I would push against that.

Consider another insurrection. The Civil War. Take someone like "Old Pete" (James Longstreet).

The guy was a top Lee lieutenant. He eventually supported the Republicans and helped lead black militia against whites insurrection forces in Reconstruction battles.

He's not some single example. Those who supported the Confederacy, and there was a range of ways, did include some who eventually accepted the South lost & supported Reconstruction. The 14A provision I referenced factors this in -- Congress has the power to remove the penalty for those guilty of insurrection by a supermajority vote.


If there is a concern about minimizing the harm and wrong, that is fine in my view. It is a widespread movement. This also might arise when addressing certain other crimes, such as hate crimes that aren't mere individual acts, including those arising from hate groups.

The "full force" of the criminal justice system, however, can potentially be very forceful. Long prison terms are at least legally possible for more minor participants here. In various cases, I don't think that is required. But, that would still leave open serious penalties that very well could significantly burden a person's life.

(I thought it absurd, e.g., to let someone pending trial to go on some work trip to Mexico or whatever that was.)

Posted by: Joe | May 5, 2021 2:04:10 PM

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