By MICHAEL KUNZELMAN and ALANNA DURKIN RICHER
An Ohio couple climbed through a broken Capitol window and sent in a live video of themselves. A Texas mortgage broker posed for a selfie in front of rioters breaking through the building. An Indiana hair salon owner celebrated on Facebook a day after joining the pro-Donald Trump crowd.
Federal prosecutors have not sought jail time for any of them after pleading guilty to minor wrongdoing for their actions on Jan. 6, 2021.
The judge had other ideas.
U.S. District Judge Tanya Chutkan put them all behind bars, describing it as the appropriate punishment for their participation in the riots that halted the certification of President Joe Biden’s victory, left lawmakers running for their lives and beaten and bloodied dozens of police officers. left behind.
As the number of people convicted of crimes in the insurgency approaches 200, an analysis of the Associated Press convictions shows that some judges are divided on how the rioters should be punished, particularly for the petty crimes stemming from the attack.
“We’re asking judges to do what they think is right, and they don’t agree on what’s right,” said Greg Hunter, a lawyer who will defend several defendants on Jan. 6.
A House committee, which held its first public hearing Thursday, cast a wide net in its investigation into the insurgency, examining how President Trump and his allies were trying to undermine the election results. So far, the Justice Department’s criminal investigation has focused primarily on the hundreds of Trump supporters who broke through police barricades, smashed windows, assaulted officers and stormed the Capitol.
Chutkan, a former assistant attorney nominated to the bench by President Barack Obama, has consistently taken the hardest line against the Jan. 6 defendants of any judge serving on Washington’s federal court, representing the more than 800 deals with cases brought to date in the largest prosecution in the history of the Department of Justice.
Chutkan has handed out harsher sentences in seven cases than the department had demanded, honored his requests in four and sent all 11 riot suspects who came before her behind bars. In the four cases where prosecutors did not demand jail time, Chutkan gave terms ranging from 14 days to 45 days.
In all, the 20 judges who sentenced riot defendants have imposed lighter sentences than the prosecutors demanded in nearly three quarters of the cases. According to AP’s analysis, the judges exceeded the prosecutors’ recommendation for about 10% of the defendants.
Most judges — appointed by the presidents of both political parties — have thus far been easier with defendants in most or all of their cases than the prosecutors would have liked. While some judges sentenced some of the defendants on Jan. 6, no other judge except Chutkan has exceeded the prosecutors’ recommended sentence in most of their assigned cases.
“Depending on the judge you get, the same facts could get you anything from probation to months in prison,” said Hunter, the defense attorney. “If you can literally look at who the judge is, who has been assigned to a case, and know that each defendant will be given more or less time because of the judge he has drawn…that doesn’t promote respect for the law,” he added. to.
In one case, two Indiana friends, Dona Sue Bissey and Anna Morgan-Lloyd, both pleaded guilty to the same felony for committing essentially the same behavior in the Capitol. Prosecutors also sought no jail time, as they had no criminal record.
Chutkan sentenced Bissey to 14 days in prison. Another judge sentenced Bissey’s friend to probation.
While Judge Royce Lamberth didn’t send Morgan-Lloyd to jail, he was also one of the most rigorous of defendants’ judges. In one case, Lamberth, who had been nominated by President Ronald Reagan, gave a Pennsylvania man two months behind bars for a felony while prosecutors wanted just two weeks.
More than 300 people have pleaded guilty to crimes ranging from misdemeanor to seditious conspiracy in connection with the uprising. Five others were convicted during the trial. A judge ruled on two other cases without a jury, in which one defendant was acquitted and the other partially acquitted.
The January 6 cases pose a unique challenge to judges because, while the riots were unlike anything the country has seen before, hundreds of people were charged only with crimes such as illegal entry, with the first offenders typically not ending up behind bars.
Some judges have criticized prosecutors for what they see as differences in indictment decisions on the cases and their recommendations for punishment. Chief Judge Beryl Howell, an Obama nominee, has wondered whether prosecutors are letting some rioters go too easily with felony plea deals, even as they describe the uprising as an attack on democracy.
Of course, every case and every defendant is different. Also, judges must consider a variety of factors, including the seriousness of the crime, the person’s criminal history, whether the defendant has admitted guilt and shown remorse, and what sentences similar defendants have received to avoid unwarranted inequalities.
In the case of a Maryland man who sprayed a fire extinguisher on officers defending the Capitol, prosecutors demanded more than four years in prison.
But Judge Randolph Moss sentenced Matthew Ryan Miller to less than three years, noting that on January 6, 2021, the man was only 22 years old, was drunk when he stormed the Capitol and has shown remorse.
Before imposing the sentence, Moss said he believes judges have done a good job of ensuring sentences are consistent, while also weighing the individual factors of each case.
“When you look at these sentencing decisions that have been made by many judges in this court, it’s remarkable how consistent the sentencing has been,” said Moss, an Obama nominee. “When I see differences, I’m able to go back through the record and look at it and understand the basis for those differences.”
Case after case, Chutkan has expressed her belief that prison can be a powerful deterrent to the threat of another insurgency.
“Every day we hear reports of anti-democratic factions of people planning for violence, the potential threat of violence, in 2024,” she said before sentenced a Florida man who assaulted police officers to more than five years behind bars — the longest. punishment so far in attack.
“It must be made clear that any attempt to overthrow the government by force, stop the peaceful transfer of power and attack law enforcement officers in the process will be punished with absolute punishment,” she said.
Of the more than 190 convicts convicted so far, about 20 have admitted to committing a crime, including nine assaulting police officers. The rest pleaded guilty to offenses carrying no more than a year in prison. In more than 70% of cases, prosecutors recommended prison sentences. Judges have agreed to jail time in about 45% of them, with sentences ranging from nine days to more than five years.
In one case, prosecutors demanded a month in prison for California bartender Kevin Cordon, who pleaded guilty to a felony. Judge Trevor McFadden, who had been nominated by Trump, said jail time was not appropriate given his lack of criminal record.
“In my experience as a judge and former prosecutor, it’s almost unheard of for someone who is essentially a first-time offender to be jailed for a nonviolent crime,” McFadden said. “I think it’s important that I be consistent in sentencing, not only compared to other judges in January 6 cases, but also in view of how crimes are handled more broadly outside of this politically charged event.”
McFadden has denounced the Jan. 6 riots as a “national disgrace,” while also suggesting that the Justice Department was being too tough on those who broke into the Capitol compared to those arrested in protests against racial injustice after the murder. on George Floyd in 2020.
Days later, without mentioning her colleague, Chutkan ignored McFadden’s suggestion.
“Last year people gathered across the country to protest the violent murder by the police of an unarmed man. Some of those protesters turned violent,” Chutkan said at a hearing in October.
“But to compare the actions of people protesting, mostly peacefully, for civil rights to those of a violent mob seeking to overthrow the legally elected government is a false equivalence and ignores a very real danger that posed the January 6 riots. for the foundation of our democracy.”
Kunzelman reported from College Park, Maryland, and Richer from Boston.
For full coverage of the January 6 hearings, visit https://www.apnews.com/capitol-siege