After Describing DOJ’s January 6 Language as “Schizophrenic,” Judge Beryl Howell Imposes a Sound Baseline Sentence

In the sentencing hearing for Jack Griffith yesterday, Beryl Howell spent several hours berating the government for the way they’ve charged the January 6 cases. Here’s Zoe Tillman’s coverage of the hearing.

Howell repeatedly expressed puzzlement at how the Justice Department was managing the Jan. 6 cases, especially for defendants charged solely with misdemeanor crimes. She questioned prosecutors using “scorching” rhetoric to describe the severity of the attack on the Capitol while also using words like “trespass” to describe what some defendants, including Griffith, did that day. She described the government’s brief as “almost schizophrenic.”

She also pressed prosecutors to explain why the government was offering plea deals for low-level charges that limited judges’ options at sentencing, especially when prosecutors had articulated that one goal of these cases was to prevent a similar postelection attack on the peaceful transfer of power in the future.

“This is a muddled approach by the government,” she said. It is “no wonder,” she said, that some people “are confused about whether what happened on Jan. 6 was a petty offense of trespassing or shocking criminal conduct that represented a grave threat to our democratic norms.”

Howell’s complaint about the seeming inconsistency between DOJ’s rhetoric on the attack itself and the charges being filed may stem, in part, from the fact that Howell has a greater proportion of misdemeanor defendants than other judges, and so doesn’t see how there’s a continuum among defendants. Of the 30-some defendants whose cases she has, Grady Owens and James McGrew are two of her only more serious cases, plus Nick Ochs and Nick DeCarlo from the Proud Boys.

But her complaint about the way DOJ has tied judges’ hands on sentencing raises an important point. She worried about whether DOJ will really be able to collect restitution payments, given that that normally happens as part of supervised release and these class B misdemeanors don’t permit that (something discussed at length yesterday). And ultimately, she decided that because that’s all Griffith was asked to plead to, she wouldn’t sentence him to jail time, as DOJ had requested.

That said, several minutes after she issued her ruling for a 3 month probationary period, she added a term of supervised release that confused me and others covering it. I think the sentence she did impose — three months in home confinement with a GPS, as part of three years of probation — is not a bad one for those DOJ charges with misdemeanors.

Defendant sentenced on Count 5 to serve a term of thirty-six (36) months Probation which includes a special condition of 90 days of home confinement; Defendant ordered to pay a $10.00 special assessment and restitution in the amount of $500.00; imposition of a fine waived. Government’s oral motion for the dismissal of Counts 2, 3, and 4, granted as to Defendant JACK JESSE GRIFFITH. Bond Status of Defendant: Defendant placed on Probation.

Howell focused closely on deterrence — and argued that sentences without jail time will not adequately deter further events. But Griffith will still face a three month period where his conditions of release are more harsh than they currently have been, outfitted by a GPS. And by sentencing him to an extended probationary period, Howell has limited the degree to which Griffith can engage in armed insurrection.

As it is, the courts are overwhelmed with the number of January 6 defendants. Even without the legitimate challenges to the way DOJ has used obstruction in this case, it’s unlikely they would have been able to charge more felonies. This sentence is a way to limit the possibility Griffith will rejoin an insurrection without submitting him to radicalization in prison.

And as of right now, between Tanya Chutkan’s jail terms and Trevor McFadden’s brief probation terms, the misdemeanor sentences are disconcertingly all over the map. I’m hopeful that this sentence will serve as a better guideline going forward.

There’s one more detail of yesterday’s hearing worth noting. James Pearse, the AUSA in charge of most of the legal issues in this investigation, gave Judge Howell a detailed explanation of how DOJ had come up with the $500 restitution amount (with $2,000 for felony defendants). He described that the Architect of the Capitol came up with a damages amount in May, and DOJ spread that over the estimated number of people who had entered the Capitol. He described their estimate at that point was 2,000 to 2,500.

This means DOJ has come up with the same estimated number as the Sedition Hunters did (as described in this Ryan Reilly piece; click through for links), working off an estimate of flow rate of people coming into the Capitol.

In the weeks after the attack, law enforcement officials estimated that 800 people had entered the Capitol. That number stuck around in media coverage for months, becoming a benchmark against which the FBI’s progress has been measured. The 800 figure has been mentioned in stories as recently as this week.

In reality, as online sleuths have discovered over the past several months, that’s only a fraction of the scope of criminal activity that day. A HuffPost analysis of public-facing data on the Capitol attack, combined with the findings of online investigators working under the #SeditionHunters moniker, shows that the total number of Jan. 6 participants who could face charges if identified tops 2,500.

Federal investigators have quietly ticked up their own estimate. In a budget request earlier this year, the FBI told Congress that “approximately 2000 individuals are believed to have been involved with the siege.” Law enforcement officials did not dispute HuffPost’s 2,500 figure.

That means federal authorities have charged about 25% of the suspects who could face criminal charges for their conduct on Jan. 6. At the current pace, it would take federal authorities until early 2024 to bring cases against 2,500 defendants. And some of the easiest cases to bring, the “low-hanging fruit,” have already been charged.

Online investigators, who have been responsible for identifying countless Jan. 6 defendants and will play a role in dozens of forthcoming FBI cases, have counted more than 2,000 individuals they say breached the Capitol building. These sleuths refer to the people they say they spotted inside the Capitol as “Sedition Insiders,” and have collected the highest-quality image they’ve found of each rioter (even if that photo was snapped while the suspect was outside the Capitol).

When Pearse offered this number, he explained that DOJ didn’t want to explain how it came up with this number — which led me to quip that maybe they had used the Sedition Hunter number. That’s not possible, though, as the calculation predates it. It’s likely, then, that this number relies (at least partly) on the number of trespassers identified using cell tower dumps, which reflect all the phones and Google access, less those who had a legal reason to be in the Capitol.

Ultimately, of course, this means that restitution won’t pay for all the damage to the Capitol, as prosecutors seem to be limiting further misdemeanor arrests to those who serve an investigative purpose (such as to obtain their cell phone for evidence against others).

Unless, of course, prosecutors ultimately move towards holding organizers accountable for the damage their mob incited.

Whatever the case, DOJ continues to fall short of providing compelling explanations of how all the parts of the riot fit together in either public statements or court filings. And on that level, Judge Howell’s complaint deserve closer attention from DOJ.

23 replies
  1. Peterr says:

    DOJ continues to fall short of providing compelling explanations of how all the parts of the riot fit together in either public statements or court filings.

    To what extent is this due to the ongoing efforts to flip people and work up the ladder from the minions to the organizers to the people at the top?

    I could see the DOJ holding off on revealing (or emphasizing) the coordination of the riot publicly because they are using it as leverage to get the on-scene organizers to flip on the folks who sent them. “We know that you did X, Y, and Z to set up an attack *here* to distract from the efforts to infiltrate *there*, and then a feint in *this* place to hide the push in *that* place. That’s pretty damning stuff, coordinating a military-style attack like that. You’re facing some very serious time. Unless, of course, you’d like to share everything you know — and I mean *EVERYTHING* — about the folks who sent you.”

    That’s even more the case if they are close to having enough to go after some of the organizers behind the scenes, and don’t want to alert them to how close they are.

    • rich says:

      $500/$2000 per person fine will allegedly pay for the ‘damage’ to The Capitol, per AUSA Pearce.

      That calculation appears counter-productive, to put it mildly.

      Such a paltry lack of deterrence (both in jail time, and more to this particular point—-fine), should lead future Insurrectionists to simply do the math:

      “Let’s bring 100,000 miscreants next time; we’ll each be fined $3.25 to take care of the damage.”

      So no, I would submit deterrence, i.e., sentencing, should chiefly have in mind attempting to preserve our Republic, not some bean-counters idea as to how the USA ‘is made whole financially’ following an Insurrection.

      Thoroughly absurd.

      • earlofhuntingdon says:

        The amounts do seem as relatively paltry as the fines imposed on many corporate crimes. But fuller compensation and prevention will only occur when the higher ups are prosecuted. Tick, tock.

      • timbo says:

        That’s an excellent point. Why would they want to encourage more people to cause problems with less consequences? Very odd logic being used by DOJ there…

      • Leoghann says:

        The $500/$2,000 figures are restitution, which is supposed to go to the damaged party. Judge Howell has been levying fines in the thousands as well, which go to the government. Although the government in general was the damaged party as well, the restitution will go into the Capitol budget.

    • earlofhuntingdon says:

      I’m pretty sure this is a one-off mass prosecution, so, no, it’s unlikely there’s a standard approach. It’s already progressing rapidly. But as you can tell from Biden only having obtained Senate confirmation for his Solicitor General this week, GOP Senators have been working hard to prevent Biden from properly staffing his government. That means delaying his ability to undo the destruction wrought by Donald Trump. It also means deferring or avoiding accountability. As outrageous and chaotic as is their behavior, there’s method in their madness.

      That said, Garland and his DAG should be looking at the precedents this process is setting and the internal mechanisms they’re using, because the GOP and its MAGA cohort are ginning up to repeat these crimes – at scale and with more violence. “When do we get to use the guns,” might be a clue.

      • Mojo Risin' says:

        Call it what it is, Cruz holding up State Dept appointments is asymmetric war from an existential enemy of the USG, asymmetric war with the help of overseas elements.

      • GKJames says:

        All true and, yes, each case brings facts that may affect sentencing. That said, though, one wonders whether — and speaking strictly to the non-violent misdemeanor cases — there has (or not) been coordination, led by someone at DOJ HQ, of at least the ask in each judicial district. We know that MAGA World will glom on to any inconsistency to de-legitimize the process. At least have a plan for the eventuality of getting pressed by judges on the rationales for pushing hard in one case but not another.

    • Bobster33 says:

      I survey buildings for the federal government. My survey team uses the same template and our results are all over the place. If someone finds 50 fire doors with their door closers disabled, how many deficiencies is that? 50 deficiencies or one? As time has gone by, cross training, experience and inter-department reviews have narrowed our results format. So I am not the least bit surprised that charges are all over the place.

      • Wendigo says:

        What an interesting peek. Ive long heard complaints about california being too regulation heavy compared to other states. I always considered that because of the concentrations of people in California that the regulations and court challenges around them iterate far more rapidly and thus regulations evolve more rapidly as well. With the same going for the federal gov since they deal with, well, everybody. But it seems that it can go the other way too. Where 50 violations can get reduced down to a single check box on a form.

    • Leoghann says:

      There is a central coordinator now. As of this past Friday, 29 October, Mathew Graves was finally confirmed by the Senate as the US Attorney for DC. I’m sure that this will be one of his priorities.

  2. Silly but True says:

    Downstream and deterrent issues aside, at the very least, those identified to have caused damage should be on hook for cost to repair damage they caused, but I’m not even certain DoJ is even pursuing that.

    For deterrence, I’m of mind that ring- and mob leaders need to bear their full share: if they were first one to break window that 200 more people poured through, hammer that first guy and maybe 197 of those 200 wouldn’t have taken the opportunity.

    However they get to it, they have a collection now of about 700+ who may have caused damage. They need to bear cost to fix, not the other 150m individual and corporate tax filers who didn’t.

    • timbo says:

      “It’s complicated”. Someone mentioned California… and it certainly wouldn’t be unheard of logic surrounding restitution to damage to property get into counter-claims about due diligence in protecting said property, the actual condition of the property in question, etc, etc.

  3. Savage Librarian says:

    I wonder when/if we’ll learn who this client of Shaner’s is:

    “Jan. 6 committee set to interview rioter who breached the Capitol”- Kyle Cheney, 20/29/21
    “Heather Shaner, an attorney who represents multiple defendants in Jan. 6 cases, confirmed that one of her clients will be remotely interviewed Friday afternoon.”
    “Shaner, during a Thursday sentencing hearing for another Jan. 6 defendant, Jack Griffith, indicated that he, too, would be willing to cooperate with the committee.”

    • bmaz says:

      You mean the judges that have accepted EVERY SINGLE ONE of these pleas and sentenced accordingly? Those judges?? Yes, they understand and are going along perfectly (there was defendant who had to readjust slightly because his lawyer was a dope, but other than that, nope). When one of these oh so concerned judges actually rejects a plea, get back to me. Until then, it is just overwrought.

  4. JHand says:

    When I read Judge Howell’s complaints this morning, I thought back to all Bush/Trump noise we heard about how, if we released the prisoners at Guantanamo, they would simply go back to their Al Queda cells and resume their attacks on the United States. One might think that the same principle would or should apply to our January 6 attackers. I haven’t read where many of them are remorseful, so it’s likely they will, after serving their puny sentences, return to their seditious ways. With all the right-wing judges having been appointed, it’s sort of ironic that an Obama appointee would be the one to suggest the dangers of leniency.

    • bmaz says:

      Holy crap, you read that standard nonsense and immediately thought lock em up at Gitmo response??? If you have not read any remorse, you simply have not been reading. “Puny sentences”? Seriously? Have you ever stepped one foot into federal facility? Ever been under the thumb of the APS? My gawd.

  5. Leoghann says:

    On Friday, Judge Howell also sentenced Eric Torrens to 3 years probation and a $3,000 fine. No home confinement for him, but he appears to have considerably more remorse.

  6. willis warren says:

    To what extent are the charges muddled with idiots just being tourists (bear guy) and proud boys coordinating a legitimate attack? it seems there are multiple levels of involvement here that the DOJ could explicitly state

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