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March 29, 2022

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:

March 29, 2022 at 09:01 PM | Permalink


There are lots of things that could be said about this piece, but I'll settle for just one:

It's Exhibit A for the idea that we should have more nearly binding sentencing guidelines, and ones with relatively narrow ranges. The alternative is what we see here, to wit, wildly varying sentences for similarly situated defendants depending solely on the politics and ideology of a randomly-assigned judge -- or, in other words, on the luck of the draw. Whatever else that might be, it's not "Equal Justice Under Law."

Posted by: Bill Otis | Mar 29, 2022 9:47:30 PM

McFadden gives RW hacks a bad name; he’s not fit to judge a spelling bee.


Posted by: kotodama | Mar 29, 2022 11:45:19 PM

Bill, my understanding is that nearly all the Jan 6 misdemeanor cases produce guideline ranges of 0 to 6 months, and that nearly every case has been sentenced within that range. A guideline range of 0 to 6 months seems like a "relatively narrow range," and I surmise that 90 days in jail is the longest term any of these misdemeanor defendants has received and that the terms of probation are varying (from a few months to 3 years) more than the imposed jail time (details here: https://www.justice.gov/usao-dc/capitol-breach-cases).

Especially given the possible impact of "politics and ideology" in these remarkable cases, I think these tightly banded (and within-guideline) outcomes are actually tales of relatively impressive sentencing consistency -- as well as tales of judges of all stripes recognizing that lengthy (or any) jail terms would be "greater than necessary" for most of these folks given the range of punishments and formal/informal collateral consequences they are experiencing from the very process of being prosecuted.

Would you mandate a particular jail term (and/or a particular probation term) in all of these cases in order to try to achieve greater consistency? I am not aware of any federal misdemeanors that carry a mandatory minimum, but is that what you are advocating here?

Posted by: Doug B. | Mar 30, 2022 8:34:33 AM

I think it should depend on what Cudd actually did. Trespassing per se is not particularly serious. But did she continue with it at a point where she ought to have known that people were breaking things, for example? If that were the case, I'd want a short jail term. If not, I agree with no time.

Posted by: William C Jockusch | Mar 30, 2022 9:33:03 AM

Doug --

-- The WaPo article you put up has a very different and more roiled slant on the Jan. 6 sentencings from the one you take in your comment. If as your comment says, the sentencing outcomes are pretty much uniform for misdemeanors, good for the judges for being disciplined (although there's only so much discipline you're going to need when the statutory range is only a year).

-- "Would you mandate a particular jail term (and/or a particular probation term) in all of these cases in order to try to achieve greater consistency?"

I have never in 40 years or so supported a statutory mandatory minimum for misdemeanors and wouldn't start now. As noted above, there's only so much variation you're going to get in misdemeanor sentencing in any event. Sentences for the same or similar conduct should be pretty much equivalent, but they don't need to be (and shouldn't be) 100% identical. That's why mandatory guidelines had ranges of months rather than one specific number of months. The idea is to significantly cabin judicial discretion, not wipe it out.

Posted by: Bill Otis | Mar 30, 2022 3:13:25 PM


I am less impressed by the "relatively impressive sentencing consistency" here, which seems more a function of the compressed plausible sentences in the misdemeanor cases. While one can disagree with the DOJ recommendations, they do serve as a benchmark that seems fairly consistent, so if Judge A is usually at/above and Judge McFadden is often well below, then that would be good evidence that some non-case-specific perspective of the sentencing judge is playing a large role here, and that isn't a 3553 factor.

Posted by: Jason | Mar 30, 2022 8:05:35 PM

I agree, Jason, that the particulars of the judge is playing a role here --- as judges do in every case --- but my main point is the delta between the more tough and less tough judges is pretty small. As you and Bill suggest, this is partially a function of these cases being misdemeanors. But, it is still notably we are not seeing sentence of 9 or 12 months at all (or even top-of-the-guideline range of 6 months), and even the probation terms seem reasonably consistent. If folks want to worry a lot about disparity, I see lots of other federal arenas in which different prosecutors and different judges lead to sentencing variations of many years (even decades) not just some number of days.

Posted by: Doug B. | Mar 31, 2022 8:51:31 AM

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