Richard Barnett, the Arkansas man photographed with his foot on Nancy Pelosi’s desk, was released in late April, nearly two months after screaming during a court hearing that “it’s not fair” that he was still in custody when “everybody else who did things much worse are already home”.
Multiple alleged members of the Proud Boys and the Oath Keepers, two groups facing the most serious conspiracy charges related to their alleged plans for violence, have been released before trial, though some prominent leaders in these groups remain in custody.
The disparity in pretrial detention rates highlights what legal experts said was a broader development in the 6 January cases: the likelihood that a substantial swathe of the alleged rioters may not serve any prison time at all, even if they are convicted or plead guilty.
Many Capitol defendants are being released ahead of trial because they are facing relatively low-level charges, experts said, though other factors, including racial bias, may also play a role.
“I’m both surprised and not surprised. Most of these people are white,” said Erica Zunkel, associate director of the Federal Criminal Justice Clinic at the University of Chicago Law School. “The majority of people in the federal system are people of color.”
The US attorney’s office for the District of Columbia, which is prosecuting the cases, said in a statement that the alleged Capitol rioters were facing very different kinds of charges than most people in the federal system.
“Comparing the per cent of January 6 defendants detained with the overall federal average is comparing apples and oranges,” a spokesperson for the office said. “The majority of federal defendants are charged with immigration or drug crimes, both of which are typically accompanied by detention. The January 6 defendants are charged with a variety of obstruction, assault, and trespassing charges. The comparison makes no sense.”
Zunkel, a former federal defense attorney, argued that it was absolutely fair to ask why prosecutors and judges were making different detention decisions for drug and immigration cases than for the people charged with participating in the 6 January attack, who are more than 90% white.
More than 96% of the people charged with federal immigration crimes are Hispanic, and more than 70% of those charged with federal drug crimes are Hispanic and Black, Zunkel said, citing federal sentencing data.
“We have a problem with our system, something has gone wildly wrong, if we have a 75% detention rate nationwide, and we have a subset where we have a more than 70% release rate,” she said.
Zunkel and a colleague, Judith P Miller, both former federal defense attorneys, said that the level of skepticism and care federal judges were bringing to the decision of whether Capitol defendants were truly dangerous enough to keep incarcerated was not at all the norm.
“For my Black and brown clients, it feels like they have to meet such an impossibly high threshold to be released,” Miller, a University of Chicago law professor, said. “The kind of sensitivity the courts have shown to the capitol defendants’ claims for relief – I wish some of that sensitivity would be shown more broadly.”
The US attorney’s office for the District of Columbia declined to confirm how many Capitol defendants were currently in pretrial detention, noting that the number “has the potential to fluctuate frequently based on ongoing detention decisions”.
By mid-May, at least 440 people had been arrested on charges related to the 6 January Capitol breach, according to the justice department, including at least 125 charged with assaulting or impeding law enforcement.
Of 398 defendants listed on the justice department’s Capitol breach case site as of 10 May, at least 330 were listed on the site, or in federal court records, as released from custody. At least 56 of those defendants remained in detention.
But the broader trend in the cases is clear: the overwhelming majority of Capitol defendants are not being detained ahead of trial.
Based on their likelihood of flight risk or danger to their communities, some of the Capitol defendants have been required to meet more intensive release conditions, including GPS monitoring, curfews or home detention, and limitations on their access to the Internet or social media,according to court records.
Many of the Capitol defendants are facing only relatively low-level federal charges, such as entering a restricted building or disorderly conduct within a restricted building. A Washington Post analysis of court documents in mid-May concluded that 44% of the Capitol defendants faced only misdemeanor charges.
Some of the federal judges hearing the Capitol cases have expressed concern that certain defendants may have already spent more time in custody than they are likely to face as a punishment for their crimes.
“For those who end up only charged with misdemeanors, it’s likely that they won’t serve any substantial time, or potentially no time at all,” said Mary McCord, an expert on extremism who served for nearly 20 years as a prosecutor in the US attorney’s office in Washington DC. “It’s quite possible if they were to plead guilty, they would be sentenced to whatever time was served, or 30 days.”
There is a tension between the dramatic collective effect of the 6 January mob, which halted the official certification of Biden’s election as president and threatened the legitimacy of American democracy, legal experts said, and what federal prosecutors can prove that individual people did.
“The irony is that we have so many laws – so many things are illegal – it’s somewhat surprising that they’re not able to find charges that are more serious,” Zunkel said.
Some more serious potential charges, like conspiracy or seditious conspiracy, would require evidence of prior agreement to commit a crime that appears to be lacking for many participants in the chaotic Capitol mob, said Daniel Richman, a Columbia University law professor and former federal prosecutor.
“When you look at each individual, what they did might amount to destruction of property or illegal entry, and that’s in all likelihood what they’ll be charged with, but the larger dimension of their participation in a massive attack falls by the wayside,” Richman said.
Part of the current dynamic of the Capitol cases, Richman cautioned, was seeing the very normal limitations of the criminal justice system come up against the heightened expectations of a public who watched the shocking violence of 6 January unfold in real time.
“Criminal prosecutions never end in these glorious accountability moments where everyone is satisfied that right was done,” Richman said.
For many Capitol defendants facing these lower-level charges, justice department prosecutors did not even attempt to keep them detained ahead of trial, and they were quickly released on standard conditions.
Federal prosecutors did fight for months to keep other defendants in custody, with federal judges eventually overruling them, particularly after the pivotal appeals court ruling questioning the detention of Munchel, the alleged “Zip Tie Guy”, and his mother, who both gave interviews talking about their willingness to engage in violence to further their beliefs but were not accused of any specific acts of violence or vandalism as they roamed the Capitol, wrist restraints in hand.
“My guess is the judges who decided to release some of these folks on bond were thinking: on January 6, there were an ideal storm of conditions for these people to commit a crime, and now there aren’t those ideal conditions any more, so they’re not likely to do it again,” said Wanda Bertram, a communications strategist at the Prison Policy Initiative, a non-profit that focuses on the harms of mass incarceration.
But the same logic could be applied to low-level crimes: “investing in people’s communities” to “create different conditions” that would make it unlikely for them to repeat the same behavior, Bertram said.
“The treatment of the people who are involved in the Capitol riot should show us what is possible and what is logical in terms of how to treat people in the future.”
Former prosecutors defended the justice department’s work in the Capitol cases, and said that the continuing effort to identify and arrest a large proportion of the hundreds of people who stormed the Capitol was a massive, demanding endeavor, and showed how much the government wanted to ensure that there were real consequences for participating in the attack.
“They’ve been aggressive, and continue to be, in trying to find everybody who was at that riot,” said Laurie Levenson, a professor at Loyola Law School. “For the attorney general, numbers matter. It really matters that hundreds of people are held responsible. That’s the message to people: you don’t want to game the system.”
“I think they pretty much want on everyone’s records that they were responsible for these actions,” Levenson added. “It means something that these people are going to walk away with even a federal misdemeanor record. That has an impact on their employment, on their life, on their situation in their community. Even if they just get probation, they’re going to have to watch their step.”
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