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SENTENCING THE JANUARY 6 RIOTERS. The legal cases of more than 600 people charged in the Capitol riot are moving slowly, slowly, slowly. But a few early cases are nearing an end.
In recent days, two men, Scott Fairlamb from New Jersey and Devlyn Thompson from Washington state, pleaded guilty to felony assault on a police officer during the riot. (Fairlamb also pleaded to obstruction of an official proceeding, another felony.) The sentencing guidelines for both men range from about three and a half years to four and a half years in prison. Sentencing is set for September 27.
What would an appropriate sentence be? Perhaps it is worth looking at another riot in Washington, this one on January 20, 2017, the day Donald Trump was sworn in as president. On that day, organized groups of black-clad anarchists descended on the nation’s capital, destroying property and attacking police.
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One of them was Dane Powell, a 31 year-old Army veteran from Florida. According to court papers, on the morning of inauguration day, about an hour and a half before Trump took office, Powell, dressed in all black with his face covered by a mask, was part of a group of anti-Trump demonstrators roaming downtown DC. He was armed with a hammer and a “heavy wooden stick with a flag attached to it,” the papers said. The group he was in vandalized a number of stores and restaurants.
Then, Powell and an estimated 200 rioters charged a police line. Powell broke through the line and “continued to engage in violence in the streets,” according to the papers. Police formed another line, and Powell attacked that, too. “On at least three separate occasions, [Powell] threw a brick, large rock, or piece of concrete at uniformed law enforcement,” the papers said. “Multiple officers were transported to the hospital after being hit with bricks, rocks, or pieces of concrete, to include one officer who was knocked unconscious on the scene,” the papers said.
Powell was charged with felony assault on a police officer and also with inciting a riot, another felony. Prosecutors said he was “among the most violent” of the anti-Trump rioters. “He initiated violence,” the prosecutor told the court. “He came to the District of Columbia to engage in violence by hiding his face, throwing rocks, and running.” Sentencing guidelines called for Powell to receive somewhere between one to three years in jail.
Powell pleaded guilty but refused to cooperate with prosecutors. His lawyers argued that he acted from good motives. He took part in the riot because he was “worried about the direction of this country” under Trump, his lawyer told the court. The lawyer also claimed police were responsible for some of the violence. The violence that Powell engaged in, the lawyer argued, came after Powell simply “got carried away” during protests.
The judge sentenced Powell to four months in jail. Powell soon made clear he had no remorse for what he had done. In an interview later in 2017, he said, “I want comrades to know that I went to jail with a smile on my face.” He encouraged others not to cooperate with prosecutors. And he said, “I want my comrades back in Florida to carry on.”
What does that mean for today’s Capitol rioters? It might mean nothing. Judges might stay within sentencing guidelines, or they might choose lesser or greater sentences. But in some political circles, there are calls for heavy sentencing for the rioters. Just look at the writer for The Nation who is a passionate advocate for abolishing prisons. “No one deserves the brutal and dehumanizing treatment that’s endemic in our carceral system,” she wrote in February. “Yet I still want every lawless white-supremacist Capitol insurrectionist to be arrested and prosecuted to the fullest extent of the law.”
In a recent discussion of the Powell case on Twitter, a number of observers argued that today’s Capitol riots should receive heavier sentences because President Trump urged them to go to the Capitol.
The Justice Department has not made a definitive statement on such issues, but in their filings prosecutors have sought to establish the idea that the riot was an insurrection, even though they have not charged anyone with insurrection. To former federal prosecutor Andrew McCarthy, that’s a problem.
“One disturbing aspect of January 6 cases is the Democratic/DOJ erosion of the principle that guilt is personal, in service of the ‘insurrection’/white supremacist threat narrative,” McCarthy said in an email exchange. “Defendants should be sentenced based on what they did, as it stacks up with all defendants convicted of that charge historically — not what Trump did. That’s the point of having federal sentencing guidelines. If you want to punish them for insurrection, then charge and prove insurrection.”
The Capitol riot cases will surely stretch into 2022. The sentences, especially if they are deemed too heavy or too light, will become part of the ongoing political argument as midterm elections approach. But remember what McCarthy said: Guilt is personal, and the individual rioters should face punishment for what they — and not anyone else — did.
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