By MICHAEL KUNZELMAN and ALANNA DURKIN RICHER
An Ohio couple climbed through a broken window of the U.S. Capitol and livestreamed a video of themselves inside. A Texas mortgage broker posed for a selfie in front of rioters breaching the building. An Indiana hair salon owner celebrated on Facebook a day after she joined the pro-Donald Trump mob.
Federal prosecutors did not seek prison time for any of them after they pleaded guilty to petty offenses 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 riot that halted the certification of President Joe Biden’s victory, sent lawmakers running for their lives and left dozens of police officers beaten and bloodied.
As the number of people sentenced for crimes in the insurrection nears 200, an Associated Press analysis of sentencing data shows that some judges are divided over how to punish the rioters, particularly for the low-level misdemeanors arising 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 defending several Jan. 6 defendants.
A House committee that held it first public hearing on Thursday cast a wide net in its investigation of the insurrection, examining how President Trump and his allies tried 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, shattered windows, attacked officers and stormed into the Capitol.
Chutkan, a former assistant public defender who was nominated to the bench by President Barack Obama, has consistently taken the hardest line against Jan. 6 defendants of any judge serving on Washington’s federal trial court, which is handling the more than 800 cases brought so far in the largest prosecution in Justice Department history.
Chutkan has handed out tougher sentences than the department was seeking in seven cases, matched its requests in four others and sent all 11 riot defendants who have come before her behind bars. In the four cases in which prosecutors did not seek jail time, Chutkan gave terms ranging from 14 days to 45 days.
Overall, the 20 judges who have sentenced riot defendants have given lighter sentences than prosecutors were seeking in nearly three-fourths of the cases. The judges have exceeded prosecutors’ recommendation for about only 10% of the defendants, according to AP’s analysis.
Most judges — appointed by presidents of both political parties — have gone easier on defendants than prosecutors wanted in most or all of their cases so far. While some judges have sentenced few Jan. 6 defendants, no other judge besides Chutkan has exceeded prosecutors’ recommended punishment in most of the cases assigned to them.
“Depending on the judge you get, the same facts could get you anything from probation to months in jail,” said Hunter, the defense lawyer. “When you can literally look at who the judge is, who has been assigned to a case, and know that every defendant is going to get more time or less time because of the judge they drew … that doesn’t promote respect for the law,” he added.
In one case, two friends from Indiana, Dona Sue Bissey and Anna Morgan-Lloyd, both pleaded guilty to the same misdemeanor offense for engaging in essentially the same conduct inside the Capitol. Prosecutors did not seek jail time for either, noting their lack of a criminal record.
Chutkan sentenced Bissey to 14 days in jail. A different judge sentenced Bissey’s friend to probation.
While Judge Royce Lamberth did not send Morgan-Lloyd to jail, he has also been among the toughest judges on defendants. In one case, Lamberth, who was nominated by President Ronald Reagan, gave a Pennsylvania man two months behind bars for a misdemeanor when prosecutors were seeking only two weeks.
More than 300 people have pleaded guilty in connection with the insurrection to crimes ranging from misdemeanors to felony seditious conspiracy. Five others have been convicted at trial. A judge decided two other cases without a jury, acquitting one defendant and partially acquitting the other.
The Jan. 6 cases pose a unique challenge for judges in that even though the riot was unlike anything the country has seen before, hundreds of people were charged only with misdemeanors such as illegal entry that typically do not land first-time offenders behind bars.
Some judges have criticized prosecutors for what they see as disparities in prosecutors’ charging decisions across the cases and their recommendations for punishment. Chief Judge Beryl Howell, an Obama nominee, has sharply questioned whether prosecutors are letting some rioters off too easy with misdemeanor plea deals even as they describe the insurrection as an attack on democracy.
To be sure, every case and defendant is different. Also, judges must weigh a slew of factors, including the seriousness of the crime, the person’s criminal history, whether the defendant admitted guilt and showed remorse and what sentences similarly situated defendants have received in order to avoid unwarranted disparities.
In the case of a Maryland man who sprayed a fire extinguisher at officers defending the Capitol, prosecutors sought more than four years in prison.
But Judge Randolph Moss sentenced Matthew Ryan Miller to less than three years, noting that the man was just 22 years old on Jan. 6, 2021, was intoxicated when he stormed the Capitol and has shown remorse.
Before handing down the punishment, Moss said he believes judges have done a good job at ensuring the punishments are consistent while also weighing the individual factors of each case.
“When one looks at these sentencing decisions that have been made by this court across many judges, it’s remarkable how consistent 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.”
In case after case, Chutkan has expressed her belief that prison can be a powerful deterrent against the threat of another insurrection.
“Every day we’re hearing about reports of anti-democratic factions of people plotting violence, the potential threat of violence, in 2024,” she said before sentencing a Florida man who attacked police officers to more than five years behind bars — the longest sentence so far in the attack.
“It has to be made clear that trying to violently overthrow the government, trying to stop the peaceful transition of power and assaulting law enforcement officers in that effort is going to be met with absolutely certain punishment,” she said.
Of the more than 190 defendants sentenced so far, about 20 admitted to felony charges, including nine who assaulted police officers. The rest pleaded guilty to misdemeanors punishable by no more than one year imprisonment. Prosecutors recommended prison terms in more than 70% of the cases. Judges have agreed to prison in about 45% of them, with terms ranging from nine days to more than five years.
In one case, prosecutors sought a month in prison for California bartender Kevin Cordon, who pleaded guilty to a misdemeanor. Judge Trevor McFadden, who was 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 get jail time for a nonviolent misdemeanor,” McFadden said. “I think it’s important that I’m consistent in sentencing, not only compared with other judges in Jan. 6 cases but also with an eye to how misdemeanors are handled more generally outside of this politically fraught event.”
McFadden has condemned the Jan. 6 riot as a “national embarrassment,” while also suggesting that the Justice Department was being too hard on those who broke into the Capitol compared with the people arrested during racial injustice protests following George Floyd’s 2020 murder.
Without naming her colleague, Chutkan slammed McFadden’s suggestion days later.
“People gathered all over the country last year to protest the violent murder by the police of an unarmed man. Some of those protesters became violent,” Chutkan said during an October hearing.
“But to compare the actions of people protesting, mostly peacefully, for civil rights, to those of a violent mob seeking to overthrow the lawfully elected government is a false equivalency and ignores a very real danger that the Jan. 6 riot posed to the foundation of our democracy.”
Kunzelman reported from College Park, Maryland, and Richer from Boston.
For full coverage of the Jan. 6 hearings, go to https://www.apnews.com/capitol-siege