What to know about Capitol riot defendants and the Justice for J6 rally – The Washington Post
Of the roughly 600 people charged in the Jan. 6 Capitol attack, 78 remain jailed pending trial, with a majority of those still detained accused of assaulting police officers or some of the worst violence seen that day.
Defendants are being jailed pending trial at lower rates than federal defendants nationwide charged with similar offenses, however.
And nearly half face misdemeanors that typically carry little or no prison time for first offenders. No one charged with a misdemeanor remains jailed.
Hundreds of far-right supporters of Donald Trump are expected to rally in Washington on Saturday to push a counternarrative to the violent Capitol insurrection that authorities say resulted in five deaths, about 1,000 recorded assaults on police and the panicky evacuation of Congress.
Those arrested, supporters of the rally say, are victims of “a two-tiered system of justice,” and subjected to harsher treatment for their political views.
As the largest prosecution in U.S. history continues, however, federal judges appointed by presidents of both parties and the court record rebut depictions of riot defendants as martyrs or persecuted “patriots” denied due process.
“What happened on January 6th was not a peaceful demonstration,” U.S. District Judge Paul L. Friedman said in sentencing the latest misdemeanor defendant Friday to probation, 120 hours of community service and $500 restitution. “Every participant in [the Capitol breach], for no matter how many minutes, contributed to an assault on democracy and democratic norms that continues to resonate in unfortunate ways.”
At an earlier sentencing, U.S. District Judge Thomas F. Hogan, a Ronald Reagan appointee said, “Patriots are not the ones who attack the operations of Congress.”
More than 70 people have already pleaded guilty — the vast majority admitting to improperly parading, demonstrating or picketing inside the Capitol, similar to federal misdemeanors faced by White House fence jumpers.
Of 12 who have pleaded guilty to felonies, the only one who has been sentenced so far received eight months in prison for obstructing Congress after carrying a Trump flag into the Capitol — or as his sentencing judge put it: “Staking a claim on the floor of the U.S. Senate not with an American flag, but declaring his loyalty to a single individual over the nation.” He is now trying to undo his guilty plea.
He was one of the first Jan. 6 defendants to plead guilty to a felony. Now he wants to take it back.
About 13 percent of defendants remain detained pending trial and represent one-quarter of the 317 defendants charged with felonies. Both rates are far lower compared with the nearly 75 percent of federal defendants held nationwide.
Defendants charged with crimes of violence or firearms are held at rates higher than 70 percent, obstruction-related offenses at about 60 percent, and public order and property crimes at about 13 to 21 percent, according to a 2018 federal judiciary study.
Nearly all Jan. 6 arrestees still in jail face the most serious charges, including assaulting police, weapons violations or alleged conspiracies involving preplanning for violence by members of groups such as the Proud Boys or Oath Keepers.
For example, of the 122 defendants charged with assaulting police, 48 remain held, accounting for nearly two-thirds of those still in jail.
Charging documents and public video depict rampaging episodes of violence against 139 officers — attacks involving weapons including batons, metal racks, baseball bats, flagpoles and chemical irritants. Fifty five defendants have been charged with using a dangerous weapon against or seriously injuring officers, including beating one downed man for 16 seconds with a hockey stick, knocking down and dragging others down steps into a crowd of rioters, electro-shocking one with a stun gun and holding a baton against another’s neck.
“The objective here was not just to halt proceedings. The objective here was to scare Congress into halting proceedings,” U.S. prosecutor Jeffrey S. Nestler said last week, likening the action not to a peaceful protest but a mob attack on a courthouse, or in this case, a separate branch of government doing its constitutional duty.
Federal judges in Washington have acknowledged that pandemic restrictions made individuals’ time at the D.C. jail harsher than it would have been otherwise, with some saying they have or will credit that fact at sentencing. But draconian restrictions applied to all 1,500 people detained at the jail — not just Jan. 6 defendants — and were done under court supervision.
Only 37 of more than 70 detained defendants were housed at the jail as of Sept. 2, according to the D.C. Department of Corrections. The other half remain in U.S. Marshals Service custody but at local jails because of pandemic travel limits.
In D.C., riot defendants have been housed at the jail complex’s smaller, more modern Correctional Treatment Facility. The area features cells with toilets and sinks, more single-bed cells, and traditionally has offered detainees more programming, in-person and video social visits than the jail’s Central Detention Facility.
The Jan. 6 defendants were separated “for their own safety and security,” according to a March 15 federal court declaration by Deputy Warden Michelle Jones.
Corrections officials feared that Trump’s views on race and immigration and some white nationalist groups’ embrace of his false election fraud claims could stoke racial tensions and violence between prisoners.
Hundreds of people stormed the Capitol. Most won’t face hefty prison terms, legal experts say.
But other defense attorneys have since complained that Jan. 6 defendants have received special treatment, taking up resources in an area that historically housed cooperating, elderly or seriously ill defendants, while ordinary D.C. defendants held on nonviolent charges remain in the general population.
The organization behind Saturday’s “Justice for J6 rally,” led by former Trump campaign staffer Matt Braynard, argues that the Justice Department has treated Jan. 6 defendants more sternly than people arrested during last year’s racial justice protests nationwide, or in Washington, D.C., after Trump’s inauguration.
It is true that U.S. prosecutors — who handle local as well as federal cases in the nation’s capital — dropped cases against more than 200 people swept up by D.C. police in mass arrests at Trump’s inauguration in 2017. However, prosecutors were forced to retreat in the cases, most of them felonies, after judges and jurors at trial rejected their evidence and found police failed to tie defendants to specific damage caused by rioters.
By contrast, the FBI and police benefited in January’s attack from far more abundant evidence at the Capitol. Investigators have tens of thousands of hours of video footage from one of the nation’s the most visible and closely surveilled public buildings, demonstrators’ own video and social media postings, and hundreds of thousands of public tips.
Separately after the killing of George Floyd in Minneapolis police custody, law enforcement arrested more than 17,000 people in the 50 largest U.S. cities that had organized protests in some of the most widespread demonstrations since the Vietnam War. Many cases were dropped, but nearly all cases were handled by state and local prosecutors, not the Justice Department.
Among 300 federal cases, an Associated Press review found that contrary to claims of leniency, 120 charged were convicted of serious crimes, and more than 70 sentenced as of Aug. 30 have gotten an average of about 27 months behind bars, with at least 10 receiving prison terms of five years or more.
Many conservatives have invoked Portland, Ore. — convulsed by 100 straight days of demonstrations and angry protests outside its federal courthouse — as a symbol of unpunished far-left violence. Of 96 protest-related cases charged in 2020, 63 have been dismissed, eight defendants have pleaded guilty, and the rest remain pending, according to the U.S. attorney’s office in Oregon.
U.S. Attorney General Merrick Garland vowed to Republican senators at his February confirmation hearing that those who attack or damage federal buildings will be prosecuted. But he drew a distinction with the Jan. 6 attack. Violence “to disrupt democratic processes” as occurred in the Capitol is domestic terrorism, he said, but an attack simply on government property at night, while a clear crime, is not.
“Both are criminal,” Garland said, “but one is a core attack on our democratic institutions.”
Some on the right have also complained that hundreds of left-wing activists who unlawfully demonstrated at the Capitol in 2018 to protest the Supreme Court nomination of Brett M. Kavanaugh were arrested, but not federally prosecuted.
But prosecutors and judges dismiss comparisons between civil disobedience and the uncontrolled, threatening mayhem that engulfed the Capitol. If not for the presence of the larger crowd, the riot likely would have failed, they added, saying that all who participated violently or not bear a share of responsibility.
Trump’s election fraud claims propelled them to the Capitol on Jan. 6. His ongoing comments are keeping them in jail.
Longtime watchers of the U.S. criminal justice system see a racial and partisan tilt in the rhetoric of Capitol riot supporters, saying the dismay voiced on behalf of mostly White and conservative defendants appears to result not from their being singled out for harsh treatment, but their being treated harshly like everyone else in a system disproportionately made up of poorer Black and Hispanic defendants.
Georgetown law professor and former public defender Vida B. Johnson said federal prosecutors routinely seek detention in local misdemeanor cases in Washington, including for offenses such as unlawful entry and shoplifting. Most of those accused of crimes in Washington are poor people of color regularly charged with serious felonies to get them to plead guilty to lesser crimes, Johnson said.
“They seem to have been treated better than most people accused of crimes,” Johnson said. “Most of the January 6th defendants … have been charged with misdemeanors when they could have been charged with more serious felonies like rioting or obstruction” of Congress.
At a hearing for Proud Boys defendants last week, U.S. District Judge Timothy J. Kelly, a 2017 Trump appointee, noted the critical importance of granting jailed clients proper access to their lawyers and to evidence amid continuing coronavirus restrictions and a spike of infections at the jail.
But he swiftly rejected a defense lawyer’s argument suggesting partisan bias was overwhelming the facts. It is “no exaggeration to say that the rule of law, the durability of our Constitution’s order and in the end, the very existence of our republic, is threatened by such conduct” as the defendant is accused of, he said.
“The politics of this have nothing to do with this — not a whit,” Kelly said.
Researchers who study domestic extremism said while there may not be a large turnout for Saturday’s rally, the effort to rewrite the history of Jan. 6 by casting a mob assault on the Capitol as freedom fighters is dangerous and undermines confidence in democracy like false claims of a stolen election.
“These were ‘normal people’ who were mobilized by the narrative that the election had been stolen. And they have really continued to congeal and try to practice politics through force, and they’re using intimidation and violence,” said Cassie Miller, a senior research analyst with the Southern Poverty Law Center. “There are a lot of people on the far right who believe that the country is either already in a civil war or on the precipice of one.”
Meghan Hoyer contributed to this report.
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