Most Involved in Capitol Breach Unlikely to Serve Jail Time, Experts Say

Most of the people charged with invading the Capitol building in January will likely not serve any time in jail despite President Joe Biden's statement that the attack "borders on sedition," Politico reports.

Of the more than 230 defendants who have been formally charged over their involvement in the incident, about a quarter face misdemeanor charges, and many of those awaiting charges are unlikely to see strict sentences as "the actions of many of the individual rioters often boiled down to trespassing," according to Politico.

"My bet is a lot of these cases will get resolved and probably without prison time or jail time," said Erica Hashimoto, a former federal public defender and a professor of law at Georgetown University. "One of the core values of this country is that we can protest if we disagree with our government. Of course, some protests involve criminal acts, but as long as the people who are trying to express their view do not engage in violence, misdemeanors may be more appropriate than felonies."

Biden said previously that the chaos at the Capitol was an attempt to overturn the presidential election and therefore "borders on sedition," while Attorney General Merrick Garland described the Capitol breach as "a heinous attack that sought to disrupt a cornerstone of our democracy, the peaceful transfer of power to a newly elected government."

However, Politico notes that "prosecutors have tempered" these kinds of descriptions "as new details emerged" about the incident, and that "the resolution of the more mundane cases also presents acute questions about equity, since most of the Capitol riot defendants are white, while misdemeanor charges are often a vexing problem for minority defendants in other cases."

Judges will have to decide how the Capitol assault compares to the acts of civil disobedience seen on the floor of the House and Senate, such as non-violent demonstrations like sit-ins, and how to separate the actions of individuals "from the collective threat of the mob," according to Politico. This has led prosecutors to signal that they’re willing to make deals with defendants who face minor charges that would be less complicated to resolve than the more serious cases that could take more than a year to go to trial.

"The punishment has to be proportional to the harm, but I think for many of us, we’ll never forget watching TV Jan. 6 and seeing people wilding out in the Capitol," said Paul Butler, a former federal prosecutor who is now a Georgetown law professor. "Everybody who was there was complicit, but they’re not all complicit to the same degree for the same harm."

He added, "Nobody goes to jail for a first or second misdemeanor."

An unnamed defense attorney representing some defendants in Capitol cases added that many people in the court system think that "MAGA tourists" will almost certainly avoid any time in jail.

"What about somebody who has no criminal record who got jazzed up by the president, walked in, spends 15 minutes in Statuary Hall and leaves? What happens to that person? They're not going to get a jail sentence for that," the attorney said.

"There is a natural cycle to an event like this," he added. "People will say it was the end of the world, then things will calm down, and they’ll begin looking at cases back on what people actually did."

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