A Judge Questioned Why Jan. 6 Plea Deals Take Court Oversight Of Capitol Rioters Off The Table

Most Jan. 6 defendants are pleading guilty to low-level misdemeanors for which supervised release isn’t an option for judges at sentencing.

WASHINGTON — A judge presiding over Capitol riot prosecutions said Thursday that it was “concerning” that the plea deals federal prosecutors have cut in more than 30 cases don’t give judges the option of imposing longer-term court supervision of the defendants.

US District Judge Amy Berman Jackson raised the issue near the end of a plea hearing for Mark Simon, a California man who briefly entered the Capitol on Jan. 6 and posted video of himself going in on Facebook; according to the government, he at one point turned the camera to his face and exclaimed, “In the Capitol baby, yeah!” Simon pleaded guilty to one count of parading, demonstrating, or picketing in the Capitol, a class B misdemeanor with a maximum sentence of six months in jail.

Shortly before she accepted Simon’s plea, Jackson said she found it “concerning” that the specific charge Simon and others have pleaded guilty to removed the option of what’s known as supervised release. Supervised release comes with a series of conditions that defendants must follow or else risk more charges and prison time; those conditions can include a prohibition on drugs and guns, a curfew, a requirement to report contacts with law enforcement, or anything else the judge considers “appropriate.”

Jackson mused that a period of supervised release might be the “most appropriate way to address a lot of the behavior here.” The judge didn’t elaborate, but several judges have questioned whether letting Capitol rioters plead guilty to a charge that carries minimal or no jail time reflects the severity of the attack on Congress and is enough to deter people who might consider something similar in the future. Notwithstanding her concerns, Jackson accepted Simon’s guilty plea; he’s scheduled for sentencing on Dec. 7.

It was the latest instance of a judge questioning the plea bargaining unfolding behind the scenes in these prosecutions. Forty people have entered guilty pleas as of Thursday; more than 580 people have been charged, and new cases are still being filed every week. The vast majority of those agreements have involved defendants pleading guilty to the same parading charge that Simon pleaded guilty to.

A spokesperson for the US attorney’s office in Washington did not immediately return a request for comment.

Previously, US District Chief Judge Beryl Howell, one of Jackson’s colleagues on the DC federal bench, questioned if misdemeanor plea deals let Capitol rioters off too easily.

“I'm just curious — does the government have any concern given the factual predicate at issue here, of the defendant joining a mob, breaking into the Capitol building through a broken door, wandering through the Capitol building and stopping a constitutionally mandated duty of the Congress and terrorizing members of Congress, the vice president, who had to be evacuated?” Howell asked at the time. “Does the government, in agreeing to the petty offense in this case, have any concern about deterrence?”

The prosecutor appearing before Howell had defended the misdemeanor deal as appropriate since the defendant, Jack Griffith, had come forward early to plead guilty — freeing up the government’s resources to pursue the broader investigation — and was willing to cooperate.

Nearly everyone charged with committing crimes on Jan. 6 has faced the same four baseline misdemeanors: two class A misdemeanors for disruptive conduct in a restricted area and illegally entering a restricted area, and two class B misdemeanors for disorderly conduct and demonstrating in the Capitol. Roughly half of all defendants are facing additional felony counts, including obstructing an official proceeding, assaulting police, conspiracy, and destroying government property.

Class A misdemeanors, which have maximum sentences of up to a year of incarceration, can also come with up to a year of supervised release. For defendants like Simon who are pleading guilty to the single class B parading charge, the government is agreeing to dismiss the rest of the counts.

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