Another review of varying concerns about sentencing equity for January 6 rioters and others

This new Washington Post article reviews anew the enduring question of whether and how January 6 rioters are getting equitable treatment at sentencing.  The article is fully headlined "Judge: Nonviolent Jan. 6 defendants shouldn’t get ‘serious jail time’: A Trump appointee disputes that Capitol breach cases are unique, stirring a debate over how to hold individuals accountable in mass crime." I recommend the full piece, and here are excerpts:

A federal judge criticized U.S. prosecutors for seeking jail time for some nonviolent Donald Trump supporters in the Jan. 6 Capitol breach but not for left-wing activists who protested the 2018 Senate confirmation of Trump Supreme Court nominee Brett M. Kavanaugh. “I know that the government believes that the January 6 cases are sui generis” — or one of a kind — “and therefore can’t be compared to other cases. But I don’t agree,” said U.S. District Judge Trevor N. McFadden, a 2017 Trump appointee. He called the riots the latest in Washington’s history of high-profile and politically divisive mass demonstrations....

McFadden spoke out Wednesday in sentencing Capitol riot defendant Jenny Cudd, a 37-year-old florist and onetime Republican mayoral candidate from Midland, Tex., who pleaded guilty to misdemeanor trespassing.  Prosecutors with the U.S. attorney’s office for Washington asked the judge to sentence Cudd to 75 days in jail and one year probation. Instead, he imposed two months’ probation and a $5,000 fine, contrasting her case with that of Tighe Barry, an activist with the liberal advocacy group Code Pink....

McFadden’s outspoken criticism of the Justice Department put him out of step with 18 other federal judges who have sentenced Jan. 6 defendants in the U.S. District Court in Washington. Fifteen of those judges have imposed jail time in misdemeanor cases, and many of them, like McFadden, previously served as federal prosecutors in the District....

While one or two other judges like McFadden have balked at sentencing Jan. 6 misdemeanor offenders to jail, most have pushed the other way, criticizing prosecutors for charging many participants similar to nonviolent protesters who routinely disrupt congressional hearings or simple trespassers....

In responding to similar arguments by Cudd attorney Marina Medvin in court, Assistant U.S. Attorney Laura E. Hill rejected the comparison. “January 6 was unlike anything in American history,” Hill argued. “There was a vast amount of violence and destruction on January 6 that was not present on the days of the Kavanaugh protests.  The Kavanaugh protesters were escorted out of the Capitol and the hearing continued. Congressmen and congresswomen were not required to evacuate the building. … They didn’t have to pause proceedings and continue into the early morning hours of the next day, after the building was secure.”

Judges appointed by presidents of both parties have condemned the siege of the Capitol as a unique destabilizing event and weighed jail terms as a way to deter defendants and others from a repeat.  “When a mob is prepared to attack the Capitol to prevent our elected officials from both parties from performing their constitutional and statutory duty, democracy is in trouble,” U.S. District Judge Randolph D. Moss, an Obama appointee, said last summer.  “The damage that [the defendant] and others caused that day goes way beyond the several-hour delay in the certification. It is a damage that will persist in this country for decades.”

“Many politicians are writing a false narrative about what happened. I think they are misleading people,” U.S. District Judge Thomas F. Hogan, a Reagan appointee, said in another case this month.  Warning that attempting to whitewash or play down events could lead to future violence, Hogan called Jan. 6 an “unforgivable” day that will “affect this country for many years.”

Prosecutors say they are trying to treat people fairly based on their individual conduct.  But they also want to hold all accountable for participating in a mass crime in which the crowd made mob violence possible, emboldening and facilitating those who engaged in violence, overwhelmed police and escaped arrest by finding safety in numbers.

Some of many prior related posts:

• "Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions
• Noting the importance of charging policies and practices (and consistency?) as federal rioting charges get resolved from coast-to-coast
• Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants
• Notable accounting of federal prosecutions and sentences responding to riots both before and during January 6
• Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives
• Coverage and commentary as 100th guilty plea entered for federal charges in January 6 riots 
• Accounting for the first 50 sentences imposed on January 6 rioters 
• Lots of new January 6 riot sentencings producing lots of notable new headlines and sentencing stories 
• Reviewing federal criminal prosecutions of January 6 rioters one year later
• January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing