About 44 percent of those accused in federal court as of Monday — 181 of 411 defendants — are charged solely with low-level crimes, primarily trespassing or disorderly conduct on restricted grounds, which typically don’t result in a jail or prison sentence for first-time offenders. Most of the Jan. 6 defendants have no serious criminal records.
The riot “looked awful. It was awful,” said Jay Town, former U.S. attorney for the Northern District of Alabama, who is not involved in the cases. “But the criminal penalties associated with most of the offenses will not likely result in lengthy prison terms, especially if these individuals plead guilty and cooperate. And that’s how our system is supposed to work.”
Those charged with felonies, such as assaulting police or interfering with the electoral college vote count, face heftier sentences. Even so, the frequently cited maximum sentences of 20 years or 10 years simply don’t apply, according to numerous legal experts. Federal sentencing guidelines set a suggested range of months of incarceration for every crime, based in part on a defendant’s criminal history and the severity of the crime, and that range rarely ventures close to the maximum possible term.
For example, Jon Ryan Schaffer, wearing a tactical vest and carrying bear spray, pushed his way through the mob outside the Capitol on Jan. 6 and was among the first group of rioters to breach the building, court records state. The surge overwhelmed a small group of Capitol Police officers, but a blast of irritant spray drove Schaffer back outside after nine minutes, his bear spray still in hand.
The 53-year-old heavy metal guitarist is the first accused rioter to plead guilty — and to publicly agree to cooperate with prosecutors. Schaffer, of Indiana, last month admitted to obstruction of an official proceeding, which carries a 20-year maximum sentence, and entering a restricted building or grounds with a dangerous weapon, which has a 10-year maximum. But his likely sentence: 41 to 51 months, about 3½ to four years, according to his plea agreement.
Justice Department officials have promised a relentless effort to identify and hold accountable those who stormed the Capitol, but the question of punishment is not a matter left strictly to prosecutors. Instead, complex federal sentencing guidelines, legal precedent and judges’ discretion are decisive.
As prosecutors race to meet speedy trial deadlines in one of the largest criminal investigations in American history, they also face a giant management challenge: figuring out which of the more than 400 defendants committed the most serious crimes in the hours-long attack, and how to make fair and consistent plea offers to avoid drowning in trials, former prosecutors said.
“The only way to handle this is to plead a lot of them out,” said Tom Firestone, a former assistant U.S. attorney in New York who has prosecuted organized-crime cases with dozens, but not hundreds, of defendants.
“There is a worry about public perception,” Firestone said. “If you plead out 200 people to low-penalty crimes, are [prosecutors] going to be accused of letting half the attackers off? That’s something that has to be worried about. But if they try to charge more than that, or try to convict everyone of felonies, the resources are going to be spread thin, and that could lead to acquittals if prosecutors aren’t adequately prepared. So they’ve got a real challenge in terms of managing this volume of cases.”
Once someone is convicted in federal court, pretrial services officials use sentencing guidelines to calculate a suggested range of months for incarceration, as devised by the U.S. Sentencing Commission, considering the facts of the case and the defendant’s background and cooperation. Judges rarely stray from the guidelines range, though they can, and both sides may argue for adjustments higher or lower.
Jacob A. Chansley, the shirtless man who wore a horned headdress and carried a spear with an American flag attached, faces a 20-year maximum sentence if convicted of obstruction of an official proceeding. But unless prosecutors allege that he threatened or caused physical injury or property damage — he was photographed at the Senate dais — his sentencing range for each count could be as low as 24 to 30 months, and 18 to 24 months if he pleads guilty, according to federal sentencing guidelines.
For Richard Barnett, who was photographed with his feet on a desk in the office of House Speaker Nancy Pelosi (D-Calif.), allegedly carried a stun gun into the Capitol and later showed off a piece of stolen mail to reporters, prosecutors have proposed a higher sentencing range in preliminary plea talks of 70 to 87 months, which would drop to 57 to 71 months if he pleads guilty, they told a judge at one hearing.
Some of the longest sentences among the group, experts said, are likely to be in cases of rioters accused of assaulting police. The Post analysis shows 75 defendants are charged with 88 counts of assault on a law enforcement officer, so far.
Town, a career prosecutor and working group chair of the recently concluded President’s Commission on Law Enforcement and the Administration of Justice, said he wasn’t aware of the severity of the injuries, “but every single person responsible for injuring an officer should do federal time.” He said the U.S. attorney’s office in Washington, which is handling all of the cases with help from prosecutors temporarily assigned to D.C. from around the country, “is likely to spend more energy on these offenses, and the serious property offenses, and triage the other offenses into plea agreements likely resulting in limited or no confinement.”
Many of those who were photographed inside the Capitol but were not seen attacking police, stealing property or damaging the historic building are charged only with misdemeanors.
Texas real estate agent Jenna Ryan posted widely seen videos of herself inside and outside the Capitol, saying, “We are going to … go in here. Life or death!” and “When I come to sell your house, this is what I’ll do. I’ll … sell your house.” She faces only misdemeanors.
Pennsylvania women Dawn Bancroft and Diana Santos-Smith allegedly posted videos of themselves inside the Capitol on Facebook, including one where Bancroft is accused of saying, “We were looking for Nancy to shoot her in the friggin’ brain but we didn’t find her,” in an apparent reference to Pelosi. They too are charged with misdemeanors.
For defendants charged in the estimated 139 assaults on police officers, the law sets a 20-year maximum if the offender used a weapon or inflicted bodily injury. George Tanios and Julian Khater, accused of assaulting Capitol Police officer Brian D. Sicknick with Mace or pepper spray, face such a charge. Sicknick suffered two strokes and died the next day of natural causes, officials have said, and the defendants are not alleged to have caused his death.
But even if both a weapon and bodily injury are considered, the sentencing guidelines call for a range of about 6½ to 8 years on that charge for a first offender, which drops to about 5 to 6½ years if the defendant pleads guilty and “accepts responsibility.” Defense lawyers typically seek other reductions in the guidelines to lower the final range even further, while prosecutors sometimes seek enhancements to raise the range.
Defendants who take their cases to trial typically lose their sentence reduction for accepting responsibility. A judge sets the final range and sentence.
Attorneys involved in discussions cautioned that prosecutors have threatened to ask judges to apply enhanced domestic terrorism penalties for defendants whose conduct was calculated or intended to influence the government through intimidation or coercion, though they have yet to take such steps. Such upward departures, if found to apply, could more than double a defendant’s guidelines range or otherwise increase recommended penalties, although again judges would have the final say.
On the other side, defendants who cooperate with investigators can get a letter from prosecutors seeking a downward departure, which can result in a 50 percent reduction in a sentence, Firestone noted. Schaffer’s plea agreement notes that he is cooperating, which could reduce his sentence range to 21 to 27 months, Firestone said. Cooperation and sentence reductions typically are not available to those who plead later rather than earlier.
So far, prosecutors say they have been authorized to begin plea talks with misdemeanor defendants charged only with illegally entering or disorderly conduct on restricted Capitol grounds on Jan. 6, and with some felony defendants. Other than in Schaffer’s case, no written plea offers have been made public, although prosecutors say they are finalizing deals now.
Also off the table, people familiar with discussions say, are deferred plea agreements, a type of pretrial diversion program in which prosecutors agree to drop charges if a defendant commits no offenses over a certain period.
Of the 411 people charged in federal court, nearly all are charged with misdemeanor trespassing, but only 45 — including Schaffer, who prosecutors said is a member of the far-right Oath Keepers extremist group — have been charged with entering the Capitol with a dangerous or deadly weapon, which makes the charge a felony. Another 37 have been charged with destruction of property and 24 have been charged with theft of property. Of the 190 people charged with obstructing an official proceeding, the second felony Schaffer faces, where the maximum sentence is 20 years, the guidelines’ range for those who plead guilty is 41 to 51 months.
Serving any time in federal prison is not a trivial matter, and the challenge is to treat individuals fairly. Firestone said the Justice Department will try to manage plea agreements carefully, particularly at the outset. “Each decision is going to create precedent” within the class of defendants, he said. “The fifth defendant who is sentenced is going to look at their circumstances compared to the other four. That presents very complicated strategic choices for the prosecutors. Who do you sentence first?”
He said defense attorneys are in the same boat. Typically, federal defendants who plead early and cooperate get better sentencing deals. But here, “do you want to hang back and see how the other cases are pleading out and piggyback on that?” Firestone said. “’This other guy got probation, my client should too.’”
With public sentiment still high, “I’d walk in and plead guilty yesterday” if the charges are minor, said Kobie Flowers, a former federal public defender and federal civil rights prosecutor who has since entered an appearance to represent one Capitol defendant. For those who merely entered and then left the Capitol, “It’s a trespass!” Flowers said with emphasis. “Even when you storm the Capitol, a misdemeanor is still a misdemeanor.”
Flowers said prosecutors “know this is all ‘lights, camera, action.’ Two-thirds of these people are not going to jail.”
Former federal prosecutor Peggy Bennett said it’s possible minor cases could become more serious as new evidence emerges. Although the government typically brings complex federal cases after lengthy investigations, she said, this time arrests were made quickly.
“I think the government is walking backwards and they have to sift through so much evidence,” Bennett said. “I think people who are not on their radar, or considered low level now, will be found more culpable, and those higher-level people will get significant sentences.”
But other defendants who might initially face jail time may be able to find a way to a probationary sentence.
“Many of those charged are people who pushed their way through, were taking selfies and were not causing damage,” said sentencing consultant Tess Lopez of California. “Defense attorneys are likely to make compelling arguments that a prison sentence isn’t warranted.”
Meghan Hoyer contributed to this report. It was produced in partnership with journalism students Ana Álvarez, Aaron Schaffer, Tobi Raji, Maya Smith, Sarah Salem and Sarah Welch at the American University School of Communication.
An earlier version of this story incorrectly stated that Richard Barnett was photographed with his feet on the desk of House Speaker Nancy Pelosi (D-Calif.). He was at a staff member's desk in Pelosi's office. This story has been corrected.