By Marshall Cohen and Hannah Rabinowitz, CNN
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.
“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 CNN 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.
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.”
“You have this wild schism that is occurring in the public eye, with half the country saying these people were all violent and deserve to die in prison, and the other half saying they were simply exercising their rights to protest and to free speech,” said Al Watkins, a defense attorney who represented the so-called “QAnon shaman” and a few other defendants charged in the riot.
Crafting a ‘fair and just’ punishment
The nearly 700 cases are divided into two basic groups. The nonviolent rioters, who are only charged with misdemeanors. And then the felony cases, involving rioters who assaulted police, breached the Senate floor, destroyed property or conspired with far-right extremist groups.
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?
Federal prosecutors have allowed dozens of nonviolent rioters to plead guilty to a misdemeanor offense, which caps their potential jailtime at six months. Only 19 of the 50 misdemeanor cases ended with incarceration, according to CNN’s latest tally. An additional four defendants were convicted of felonies, and they received sentences ranging from 8 months to 3.5 years in prison.
Judges have collectively ordered these rioters to pay at least $70,000 in fines and restitution to the US government. That’s a sliver of the $1.4 million in estimated damages to the Capitol, but for many of the blue-collar defendants, a fine of a few thousand dollars is a hefty financial hit.
“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’
District Judge Tanya Chutkan has come to epitomize the court’s more muscular wing. Four of her misdemeanor cases reached sentencing so far, and in all four cases, she went farther than the Justice Department’s recommendation and sent rioters to jail, ranging from 14 to 45 days.
An Obama appointee, Chutkan said at one sentencing that “the country is watching” to see what happens to the Capitol rioters. Prosecutors requested three months of house arrest for Matthew Mazzocco, but Chutkan gave him 45 days in jail, saying, “there have to be consequences for participating in an attempted violent overthrow of the government, beyond sitting at home.”
“It’s remarkably unusual to have federal judges on the record calling out the DOJ for being too soft,” CNN’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.
“The offense that you committed is so in the heart of our democracy that I cannot justify a sentence below the guidelines,” District Judge Royce Lamberth told Scott Fairlamb, who pleaded guilty to assaulting a police officer and obstructing the Electoral College proceedings.
Lamberth, a Reagan appointee, sentenced Fairlamb to 41 months in prison, or about 3.5 years. That’s the same punishment he gave to Jacob Chansley, the “QAnon shaman” who went viral for wearing a horned bearskin outfit while rummaging around the Senate floor. (Judges are randomly assigned to cases, and Lamberth happened to get these two prominent defendants.)
In a misdemeanor case, Lambeth gave Frank Scavo two months in jail and a $5,000 fine, the legal maximum. Prosecutors sought only two weeks behind bars for Scavo, who organized busses to take 200 Trump supporters from eastern Pennsylvania to DC for the January 6 rally.
“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 CNN’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.
For nonviolent rioter Danielle Doyle, prosecutors requested two months of house arrest and three years of probation. McFadden settled on a $3,000 fine and just two months of probation.
“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.
McFadden also slammed the Justice Department for not being “even-handed” with the January 6 defendants, compared to the rioters involved in last year’s racial unrest. He has imposed fines for three Capitol rioters, ignoring requests from prosecutors for short jail stints or house arrest.
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.
The most influential skeptic on the court is Chief Judge Beryl Howell, who was appointed by former President Barack Obama and has forcefully condemned the Capitol rioters and what they stood for — but has repeatedly rebuffed prosecutors when they asked for incarceration.
At a sentencing, Howell said the Justice Department was “almost schizophrenic” for stressing the dire consequences of the insurrection while letting rioters plead to a petty offense. She has also balked when prosecutors tried to use rioters’ military service to seek tougher punishments.
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 CNN 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.”
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CNN’s Holmes Lybrand contributed to this story