WASHINGTON—Federal prosecutors have sought to calibrate punishments for some of the more than 650 people charged in the Jan. 6 attack on the Capitol, using a formula that weighs how long they were in the building, what they said on social media, whether they cooperated with law enforcement and whether they showed remorse.
But judges beginning to hand down sentences have voiced their own ideas about what punishments are just. In sentencing five defendants in Washington this week—the most since the riot—judges imposed both stiffer and more lenient punishments than those the government recommended.
The discrepancies point to the challenges the justice system faces in deciding how best to punish those who didn’t engage in violence at the U.S. Capitol, but whose collective actions made possible a violent riot that left more than 100 police officers injured as a pro-Trump mob tried to stop the certification of President Biden’s election.
“You participated in a shameful event, a national embarrassment,” U.S. District Judge Trevor McFadden, who was appointed to the bench by former President
said Tuesday in sentencing Eliel Rosa. The Texas man had turned himself in to the Federal Bureau of Investigation three days after the riot and later told prosecutors he had “learned the lesson of reaping the fruits of my stupidity.”
Beyond a probation period, prosecutors had sought one month of home confinement and 60 hours of community service. “Probation should not be the default,” Assistant U.S. Attorney Amanda Fretto said, adding that could diminish the gravity of what occurred and the deterrent effect of the sentence.
The judge imposed one year of probation and 100 hours of community service, along with the $500 payment to the Capitol architect levied on most of the defendants. “I don’t see what purpose home detention would serve,” Judge McFadden said. “Most of us have been in some form of home detention for the past year and a half.”
Later that day, in a hearing conducted over the phone, another prosecutor said Indiana hairdresser Dona Sue Bissey should get only probation because she had accepted an early plea offer and had been inside the Capitol for around 10 minutes. Instead, U.S. District Judge
imposed a two-week jail sentence.
“Even though she didn’t commit violence or destroy property, Ms. Bissey walked into the Capitol that day, knowing full well she was not supposed to do so. She was fully aware of the chaos and destruction going on around her, and she had to be aware that her presence lent support to the mob,” said Judge Chutkan, who was appointed to the bench by former President
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On Wednesday, Judge Chutkan sentenced two other rioters, cousins Robert Bauer and Edward Hemenway, who spent less than half an hour in the Capitol and didn’t engage in destruction themselves, to 45 days in prison each, more than the 30 days prosecutors had sought. “There has to be consequences for participating, even in a small way,” Judge Chutkan said.
The same day, U.S. District Judge Carl J. Nichols, a Trump appointee, sentenced Thomas Gallagher, a former Defense Department employee from New Hampshire, to two years of probation, rejecting the prosecutors’ request for three years of probation and a month of home confinement. The judge noted that Mr. Gallagher, who was arrested with five other people, had appeared in a video to discourage another rioter from throwing a chair at an officer, made himself available for an FBI interview and apologized in court, among other mitigating factors.
Billy Williams, the former U.S. attorney in Portland, Ore., whose office brought charges against roughly 100 people in connection to violence accompanying 2020 protests over racial injustice, said he reminded prosecutors on his team to weigh each case individually without considering the volume of cases.
“It doesn’t matter how many cases are brought, they all have to be sorted out individually and consistently for similar conduct,” he said. “If you are surprised by how a judge sentences someone, you have to realize that’s the discretion the judge has.”
Twelve of the Jan. 6 defendants were sentenced before this week’s hearings, according to a Justice Department list released last week. Most received either probation or a few months in jail, having generally not engaged in violence and pleaded guilty early to misdemeanors. Many others who have entered guilty pleas are scheduled to be sentenced in the coming months; hundreds more have pleaded not guilty and are continuing to fight the charges.
has told other Justice Department officials he is concerned that jailing rioters who weren’t hard-core extremists for extensive periods could further radicalize them, according to people familiar with the matter, a concern he has expressed more broadly about defendants entering the criminal justice system. But he has left recommending sentences to the prosecutors directly involved, who have been making decisions based on nine factors, court documents indicate.
Prosecutors “are making determinations in every case about what charge fits the offense, what charge fits the law,” Mr. Garland said, speaking at the New Yorker Festival last week. “I am quite aware that there are people who are criticizing us for not prosecuting sufficiently and others who are complaining that we are prosecuting too harshly. This is, you know, part of the territory for any prosecutor in any case.”
Many cases have been delayed as prosecutors struggle to share with defense lawyers thousands of hours of footage from security and officers’ body cameras, along with hundreds of thousands of documents related to the broader investigation. Prosecutors have asked to delay the first trial, scheduled to begin next month, to finish turning over the footage and documents to the defense team.
Some Republicans have played down the events on Jan. 6 and have said the descriptions of the violence of the day were overblown. In a number of filings, prosecutors have included the same sentence: “Make no mistake: no rioter was a mere tourist that day.”
In some cases, judges imposed the punishment the government sought but still questioned its choices. Earlier this month, for example, U.S. District Judge
sentenced another rioter, Andrew Bennett of Maryland, to the prosecutor-recommended three months of home confinement. “I very rarely exceed what the government asks for,” the judge said, adding: “If the government asked for jail in this case, I can’t say I wouldn’t have imposed it.”
Write to Aruna Viswanatha at Aruna.Viswanatha@wsj.com and Sadie Gurman at email@example.com
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