WASHINGTON — As prosecutors close in on charging 500 people with joining the Jan. 6 insurrection at the US Capitol, just how much prison time — or how little — alleged rioters are facing is starting to become clear.
Defendants who plead guilty to some of the most serious crimes, like assaulting police or carrying a weapon into the Capitol, are facing an average baseline sentence between three to four years behind bars; that could go up depending on the level of violence or down if the person cooperates, among other factors. Defendants hit with a nonviolent felony, such as obstructing Congress, are looking at an average baseline of around a year and a half. And federal law caps sentences for misdemeanors such as disorderly conduct and protesting in the Capitol between six months and a year, which means first-time offenders who cut a deal could argue for no prison time at all.
These ranges are detailed in plea deals and other court filings in a handful of cases. The vast majority of Jan. 6 defendants are charged individually, but the judges handling the more than 465 (and counting) cases brought in the federal district court in Washington, DC, will look at how defendants convicted of similar crimes fare at sentencing to try to avoid gaping inconsistencies. The first guilty pleas typically set a benchmark. That makes any early glimpse into the sentences defendants are facing in exchange for taking a deal noteworthy.
On Monday, a lawyer for Douglas Jensen — charged with leading a mob that chased US Capitol Police Officer Eugene Goodman and carrying a knife — filed a brief estimating that his client’s worst-case scenario if he ended up pleading guilty was a sentencing range of 41 to 51 months in prison. Those same numbers came up in a plea deal announced in April for Jon Schaffer, who was also charged with carrying a weapon — a can of bear spray — inside the Capitol.
Last week, in the second plea deal reached in these cases so far, prosecutors said that Paul Hodgkins faced an estimated 15 to 21 months in prison after pleading guilty to obstructing Congress. That range had come up before too — in a brief seeking pretrial release for Christopher Grider, his lawyer argued that he wasn’t facing “extremely serious” charges because of the relatively low amount of prison time he likely faced if he pleaded guilty to obstruction; Grider hasn’t taken a deal so far.
The most serious felony crimes charged in connection with the Capitol riots have stiff maximum penalties. Obstruction of an official proceeding — a crime that more than 200 people have been charged with — carries up to 20 years in prison. Illegally entering the Capitol is a misdemeanor, but doing so while carrying a deadly or dangerous weapon — something more than 40 defendants are charged with, according to the Justice Department — carries up to 10 years in prison. Assaulting police officers can carry up to 8 years in prison, or up to 20 years if a weapon is involved.
But many defendants in criminal cases end up sentenced to far less time behind bars than the most severe penalty available under the law. That’s especially true if a person pleads guilty or if they have a minimal criminal record, which is what the initial sentencing-related court filings in the Capitol insurrection cases are bearing out. If a defendant goes to trial and loses, the sentencing ranges in plea deal cases serve as a jumping-off point for understanding how much prison time is on the table, since they won’t get the credit that’s built into the justice system for pleas.
Though it’s too early to know how the Jan. 6 prosecutions will shake out, very few federal criminal cases go to trial. A Pew Research Center study released in 2019 found that 90% of federal defendants pleaded guilty, while 8% had their cases dismissed and only 2% went to trial. Just two people have pleaded guilty in the Capitol riot cases and a small but growing number of defendants are contesting the lawfulness of their charges; rulings in their favor could have ripple effects for defendants facing similar counts. Prosecutors continue to file new cases, but they’ve also already dropped one case altogether.
Shan Wu, a former federal prosecutor in Washington, said he expected people with the least exposure — the “let’s just get this over with” defendants with no criminal history facing low-level charges — to take deals early, plus defendants facing more serious charges who have information to offer prosecutors in exchange for leniency. But he said most defendants were likely waiting to get a better sense of the packages prosecutors are offering and what sentences judges hand down.
There’s also the fact that several defendants are already fighting some of the charges prosecutors have brought in connection with the events of Jan. 6, including obstruction. Wu compared the Capitol riot cases to the mass arrests in DC during former president Donald Trump’s inauguration on Jan. 20, 2017. Of more than 200 people arrested, 21 pleaded guilty, but prosecutors were unable to secure convictions at trial and dismissed the bulk of the cases.
“Everybody else with a good defense lawyer is going to hang back a little to see whether DOJ has bitten off more than they can chew,” Wu said.
It’s ultimately up to judges to decide sentences; the ranges cited in court filings are meant to give judges guidance, but they aren’t binding. These guidelines are based on a preset formula that assigns numerical values to factors such as the type of offense, a person’s criminal history, and whether they accepted responsibility and pleaded guilty. Judges are wary of straying from these ranges since they’re intended to create uniformity across the federal criminal justice system, but they have the power to do it.
A defendant’s heartfelt plea at sentencing can convince a judge to go with the low end of a guidelines range, or below it altogether; a show of disrespect or lack of remorse can convince the judge to go higher. At a hearing last week in the case of alleged Capitol rioter Brandon Fellows, US District Judge Trevor McFadden warned Fellows that his lack of compliance with pretrial release conditions could come back to haunt him at sentencing if he pleaded guilty or lost at trial.
Of the roughly 465 defendants arrested in connection with the Jan. 6 riots so far, more than 200 are charged solely with misdemeanor offenses, such as illegally entering the Capitol, disorderly conduct, and protesting inside the building. Those crimes carry maximum sentences of between six months and one year in prison. Defendants whose presence at the Capitol was short-lived and nonviolent may make a case for no prison time if they plead guilty and have little to no prior criminal history; other penalties can include a fine or a period of supervised release.
The most common felony charge facing the rest of the group is obstruction of an official proceeding. Hodgkins’ sentencing range suggests other defendants who plead guilty to obstruction but no other serious crimes are looking at far less time than the maximum. He has no previous convictions, and he’ll get credit for accepting responsibility and pleading guilty early. His agreement allows him to argue for a sentence below 15 months. He’s also agreed to pay $2,000 in restitution, his contribution toward what the government has estimated was $1.5 million in damage; the Washington Post reported prosecutors are extending plea offers that seek $2,000 in felony cases and $500 in misdemeanor cases.
Schaffer’s plea deal provided a baseline for what defendants charged with more serious crimes might expect. Like Hodgkins, Schaffer pleaded guilty to one count of obstruction of an official proceeding, plus a second count for illegally entering the Capitol with what’s known as a weapons enhancement for carrying the bear spray. The weapons charge boosted the maximum sentence possible on that count from one year to 10 years, but his sentencing range was calculated at 41 to 51 months. More than 40 defendants are facing a similar weapons enhancement, according to the Justice Department.
Like Hodgkins, Schaffer will get credit for accepting responsibility and pleading early, but his deal also includes a cooperation agreement, which could help lower his sentence too; if prosecutors are satisfied with the level of cooperation, they can submit a special letter to the judge advocating to give the defendant credit for that. Schaffer’s agreement doesn’t include a specific restitution sum that he’s agreed to pay.
A big unknown is what kind of plea deals could emerge in cases where a defendant is charged with assaulting police, which judges have overwhelmingly signaled that they consider one of the most serious crimes committed on Jan. 6. More than 130 people have been charged with at least one count of “assaulting, resisting, or impeding” officers; most of these cases involve allegations of assault, although some defendants are charged under the “impeding” prong.
Jensen’s lawyer noted his client’s potential sentencing range in arguing Jensen should be allowed to go home while his case is pending; Jensen hadn’t opposed detention before and has been in jail since his arrest. Jensen is not only charged with obstructing Congress, but also with “assaulting, resisting, or impeding” police and illegally going into the Capitol with a knife. His lawyer argued Jensen’s case was less serious than others, however, because he wasn’t accused of touching Goodman or anyone else “in an aggressive manner.” At a hearing Tuesday, Jensen’s lawyer told the judge they were still open to plea talks, but there was no resolution yet.