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December 12, 2021

Accounting for the first 50 sentences imposed on January 6 rioters

This new CNN piece, headlined "After 50 rioters sentenced for January 6 insurrection, a debate rages over what justice looks like," reports on a new analysis of sentences for the high-profile crimes that kicked off 2021.  I recommend the lengthy piece in full, and here are parts of how it gets started:

Of the 50-plus defendants who have been sentenced for their role in the January 6 attack on the US Capitol, fewer than half were sent to jail for their crimes. Most received an assortment of lesser penalties, including brief terms of house arrest, a couple years of probation, four-figure fines or court-ordered community service, according to a CNN analysis.

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.

As federal prosecutors have brought cases against nearly 700 rioters, a heated debate has emerged over what justice should look like for such an unprecedented assault on democracy. This debate has raged on social media and in the halls of Congress. It has also played out among the two dozen judges handling the cases at the federal courthouse in Washington, DC.

After 50 sentencings, a split has developed on the bench: One group of judges has handed down stiffer punishments to rioters, including time behind bars. While a more skeptical group of judges have rebuffed the Justice Department and instead imposed fines and probation, which means the rioters will avoid jail but stay under government supervision for years to come.

This dynamic won't last forever -- this initial wave of guilty pleas and sentencings will eventually be followed up by dozens of more serious felony cases with longer prison terms. But for now, the dizzying array of outcomes has caused some headaches. Judges are questioning the department's approach to January 6, and politicians from both sides have fanned the flames....

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. This has also forced partisan players on both sides to contort their ideological views to fit the moment.

Democratic lawmakers and activists are calling for more incarceration and want judges to throw the book at rioters, while many Republican officials and right-wing influencers have become newfound supporters of improving jail conditions for what they call "political prisoners."

Some of many prior related posts:

UPDATE: I just notice this recent AP article discussing some of the sentencings for some of the January 6 crimes under the headline "Capitol rioters’ social media posts influencing sentencings." Here is how the extended piece gets started:

For many rioters who stormed the U.S. Capitol on Jan. 6, self-incriminating messages, photos and videos that they broadcast on social media before, during and after the insurrection are influencing even their criminal sentences.

Earlier this month, U.S. District Judge Amy Jackson read aloud some of Russell Peterson’s posts about the riot before she sentenced the Pennsylvania man to 30 days imprisonment. “Overall I had fun lol,” Peterson posted on Facebook.  The judge told Peterson that his posts made it “extraordinarily difficult” for her to show him leniency.

“The ’lol’ particularly stuck in my craw because, as I hope you’ve come to understand, nothing about January 6th was funny,” Jackson added.  “No one locked in a room, cowering under a table for hours, was laughing.”

Among the biggest takeaways so far from the Justice Department’s prosecution of the insurrection is how large a role social media has played, with much of the most damning evidence coming from rioters’ own words and videos.

December 12, 2021 at 10:41 AM | Permalink


Calling them all “rioters” isn’t rally accurate, particularly given the verbal legerdemain that accompanied the descriptions of the BLM protests/riots of the Trump inauguration riots. Most of the people in the Capitol building did far less than Code Pink activists.

There’s some serious selective prosecution going on here.

The 2020 election was conducted without adequate ballot security. That’s worthy of protest.

Posted by: Federalist | Dec 12, 2021 11:20:53 AM

Of should be or

Posted by: Federalist | Dec 12, 2021 11:21:26 AM

I have my doubts that it makes a lot of difference what they are called. There was no realistic chance of an "insurrection" (you can't bring down the government with a bunch of rag-tags dressed for Halloween) -- that's just scare tactics -- but what they were doing was against the law, which they knew or ought to have known.

When you break the law, you assume the risk of some disparate sentencing, depending on the temperament and politics of the judge (I think this is not a good thing, which is why I favor relatively rigid sentencing guidelines that focus on behavior, not identity or politics).

These folks may be more juvenile than malignant, but they are by no stretch "political prisoners," and next time they want to protest, fine, do it in a legitimate and lawful way. Or they can do what many of us are going to do, to wit, wait for the next election. Current expert analysis is that President Biden will not be thrilled with the results.

Posted by: Bill Otis | Dec 12, 2021 2:39:58 PM

Bill, in general , I agree with you—but compare and contrast the treatment of violent real rioters and the treatment of non-violent January 6th people. That’s a problem. And also, the current crew in the WH spoke favorably of the BLM protests over the summer. So when Trump supporters act arguably similarly, although in reality much less violently, this is the worst crime evah? You can’t expect people to just say, Yean, I’m good with that.” Couple that with horrendous prosecutions such as Bogdan Vechirko and Kyle Rittenhouse and Biden’s involvement with the Russia hoax, which was interference with the peaceful transfer of power AND the people’s right to choose their government (sorry everyone, the criminal justice system and the intelligence assets of the US shouldn’t make common cause with a political party).

Then there’s the case of Kevin Clinesmith. That a federal judge bought his bs about “correcting” a document as somehow mitigating is just crap. Lawyers don’t alter documents that will be filed in federal court, particularly in an ex parte matter.

Posted by: Federalist | Dec 13, 2021 10:28:28 AM

Of course the crime is not measured by the "realistic chance" of success. Even "rag-tags dressed for Halloween" can commit treason, insurrection, or engage in a seditious conspiracy.

"[I]f a body of people conspire and meditate an insurrection to resist or oppose the execution of a statute of the United States by force, they are only guilty of a high misdemeanor, but if they proceed to carry such intention into execution by force, ... they are guilty of the treason of levying war; and the quantum of the force employed neither increases nor diminishes the crime; whether by one hundred or one thousand persons is wholly immaterial.... [S]ome actual force or violence must be used in pursuance of such design to levy war; but ... it is altogether immaterial whether the force used be sufficient to effectuate the object." U.S. v. Burr, 25 Fed. Cas. 55, 165 (C.C. Va. 1807) (Marshall, C.J., as trial judge) (quoting an opinion by Judge Chase on treason).

Military weapons and formations, "swords, drums, colors, etc. ..., the pomp and pageantry of war," are not required. "The number of the insurgents supplied the want of military weapons; and they were provided with axes, crows, and other tools of the like nature, proper for the mischief they intended to effect." Id. at 164 (quoting Judge Foster's treatise on treason).

Posted by: Def. Atty. | Dec 13, 2021 11:03:24 AM

Def. Atty. --

Interesting to see a defense attorney (if that's who you really are) turn tough guy when someone ELSE'S client is a guy you thoroughly dislike.

But I digress. I never said the "crime is measured" by the realistic chance of success. I said the NAME popularly applied (an "insurrection") strikes me as a scare tactic exaggeration when there was zero chance that the government was going to be overthrown or even significantly disrupted for more than two or three hours, which is what actually happened. As I also said, however, when you break the law by whatever name it may be called, you pay the price rather than make excuses. I'm sure the defense bar heartily agrees with that (OK, just joking).

P.S. Not that it makes much difference, but I don't think many (or perhaps any) of these people was charged with treason, so I doubt quoting treason cases from 200 years ago does much to move the ball.

Posted by: Bill Otis | Dec 13, 2021 11:36:48 AM

Indeed. The difference in attitude (and treatment) between right wing folks (Rittenhouse, Flynn, and the Jan 6 defendants) and the lefties (Antifa, BLM, and most recently the race-huckstering fabulist Mr. Smollett) is something to behold. And the Clinesmith sentencing was a scandal. If I had been back at DOJ, I would have appealed it.

Posted by: Bill Otis | Dec 13, 2021 12:53:03 PM


I mean to address my last post to you. Sorry for the oversight.

Posted by: Bill Otis | Dec 13, 2021 12:54:26 PM

Thanks bill for clarification.

Doug’s update shows just how messed up this whole thing is. The vast majority of the people just walked around the Capitol and did nothing violent. They weren’t rioters any more than those who blocked the interstate in Minnesota were rioters. For a judge to get all maudlin about that is just nuts. Sorry judge, in our justice system we don’t impute the acts of unrelated trespassers. Would it have been fair to do that with the Trump inauguration protests? BLM protests? Doesn’t work that way.

Clinesmith was politicized justice in the extreme, and in my opinion, it renders illegitimate the entire system. Merrick Garland’s memo adds to the rot, as does the obvious solicitude towards certain violent actors. Finally, there is the disgusting lenience given doj employees as exposed by Senator Grassley.

Finally, what was done to Flynn by Biden and crew is appalling.

Posted by: Federalist | Dec 13, 2021 4:35:05 PM


I am indeed a defense attorney, if that matters. "Turning tough guy" matters not a whit, and is hardly the goal.

I was simply responding to the suggestions that it doesn't matter what you call the crime, and that an act can't be an "insurrection" if it has no chance of overthrowing the government. If one is simply using the term "rioter" in a casual blog conversation or a press article, that may well be mere "popular" expression, and as Federalist observes, it may not accurately describe everyone. But "insurrection" is not merely a "popularly applied" name, it is an offense. (18 U.S.C. 2383.) As every prosecutor and former prosecutor knows, it matters a great deal what name one applies to a crime, when one charges it. More importantly, as every former prosecutor surely knows, the crime need not succeed to be criminal. One need not successfully overthrow the government to be guilty of insurrection, any more than one needs to get away with the money to be guilty of robbery.

Does that mean every trespasser in the Capitol on January 6 engaged in insurrection? Of course not. But some surely did. Forcibly taking control of both chambers of Congress by violence to prevent execution of the law (here, to stop the electoral count) is enough. Chief Justice Marshall said it was enough for treason. It's enough for the lesser offense of rebellion or insurrection against the authority of the United States or the laws thereof (2383), and certainly enough for seditious conspiracy, i.e., conspiracy "by force to prevent, hinder, or delay the execution of any law of the United States." 18 U.S.C. 2384.

Is using terms like "insurrection" a scare tactic if applied to looky-loos who wandered into the Rotunda, Starbucks in hand, to have a look at the art? Perhaps, if anyone's seriously making that contention. But is it a "scare tactic" against someone who actually engaged in violence to prevent certification of the election? Hardly. On the contrary--the failure to use it is under-charging. As you said: "when you break the law, ... you pay the price rather than make excuses." In determining that price, of course it makes a great deal of difference what you call the offense.

The idea that a crime has "zero chance" of succeeding hardly makes it not a crime. Here, taking over both chambers by violence, forcibly stopping Congress from performing its lawful function, was hardly a "zero chance" event. As you point out, it's "what actually happened."

I'm happy to hear your shot at the defense bar was in jest. The idea that defense attorneys do not support the rule of law would be baseless and offensive.

Posted by: Def. Atty. | Dec 14, 2021 9:41:38 PM

I have to note one more specific agreement with Federalist. (They're rare enough; I should shout them out.) "[I]n our justice system we don't impute the acts of unrelated trespassers." Hear, hear. Each defendant must answer for his or her own conduct. In every one of these cases so far, that conduct has been determined by guilty plea, i.e., the defendant's own admission.

"Would it have been fair to do that [impute the acts of unrelated trespassers] with the Trump inauguration protests?" Of course not. Yet that is exactly what happened. The MPD rounded up hundreds of protesters, and the USAO charged them all with conspiracy to riot, and with acts of property damage committed by unrelated individuals. The charges were dropped only after the bellwether group of trial defendants had their charges dismissed for discovery and Brady violations.

Posted by: Def. Atty. | Dec 14, 2021 10:00:24 PM

For a description of January 6 conduct that was hardly "juvenile" or nonviolent tourist behavior, Judge Friedrich's opinion in U.S. v. Sandlin, No. 21-cr-88 (DLF), is good reading. https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2021cr0088-63.

That opinion describes conduct ignored in some of the rosy descriptions above, and why, if proven, it obstructed an official proceeding of Congress in violation of 18 U.S.C. 1512(c). But although it carries 20 years, that violation of Sarbanes-Oxley is surely an undercharge. The same conduct, under the same reasoning, is seditious conspiracy (also 20 years), and rebellion or insurrection against the authority or laws of the United States (10 years, plus ineligibility for federal office). The weight of the offense is not determined solely by the maximum sentence.

Not to beat a 200-year-old horse, but according to Chief Justice Marshall, the same conduct--obstructing Congress's execution of the law by armed force--is also treason. It's true that in these divisive times, when one party's leadership seems to be OK with that, federal prosecutors are likely to charge the more easily proven, recently enacted obstruction offense. But it's funny that some folks who like to invoke the Founders in other contexts might be quick in this instance to dismiss what the author of Marbury ruled in the nation's first treason trial, because it happened centuries ago in circuit court in Virginia (and relied on crusty old English theorists like Coke, Blackstone, and Hale). I'm not saying you, of course, Bill. I don't know where you stand on originalism. I'm just musing.

Posted by: Def. Atty. | Dec 14, 2021 10:45:39 PM

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