WASHINGTON — The chief judge presiding over the federal court in Washington on Thursday unleashed a blistering critique of the Justice Department’s prosecution of Capitol rioters, saying fiery rhetoric about the event’s horror did not match plea offers to minor charges.
“No wonder parts of the public in the U.S. are confused about whether what happened on Jan 6 at the Capitol was simply a petty offense of trespassing with some disorderliness, or shocking criminal conduct that represented a grave threat to our democratic norms,” Judge Beryl Howell said in court Thursday. “Let me make my view clear: the rioters were not mere protesters.”
While she and other judges have expressed similar concerns before, this was Howell’s first time sentencing a rioter and her first chance to fully air her views and demand answers from prosecutors. She took the opportunity, spending over an hour interrogating prosecutors on the decision to let a Tennessee video game developer named Jack Jesse Griffith plead guilty to the misdemeanor of parading inside the Capitol.
Howell, who was appointed to the bench by President Barack Obama in 2010, also oversaw portions of the investigation into Russian interference in the 2016 election. Before taking the bench, she served as a prosecutor and worked on cybersecurity law in the public and private sector.
Why, she asked, when prosecutors called the riot an “attack on democracy … unparalleled in American history,” were Griffith and other participants facing the same charge as nonviolent protesters who routinely disrupt congressional hearings?
“It seems like a bit of a disconnect,” Howell said.
The parading charge carries a sentence of at most six months, with no supervised release.
“Is it the government’s view that the members of the mob that engaged in the Capitol attack on January 6 were simply trespassers?” Howell asked incredulously. “Is general deterrence is going to be served by letting rioters who broke into the Capitol, overran the police … broke into the building through windows and doors … resolve their criminal liability through petty offense pleas?”
After asking for probationary sentences in several cases, the government sought a three-month jail sentence for Griffith. Howell questioned what distinguished those cases from this one. Assistant U.S. Attorney Mitra Jafary-Hariri said prosecutors gave some defendants credit for early acceptance of responsibility. Griffith, she added, displayed a lack of remorse after the attack and continued to spread false election claims.
“Probation should not be the norm,” Howell said, but added that Griffith should not be punished more than others who have engaged in similar conduct. Instead, she put him on probation for 36 months.
Other federal judges in the District of Columbia have ignored probationary recommendations from prosecutors and imposed jail time in riot cases.
On Thursday, Griffith told the judge his behavior was “truly disgraceful.”
“I am ashamed of the way I acted,” he said. At the time of the break-in, he said, he thought it was a “minor inconvenience” for police but now he understand they were “crippled by fear and wildly outnumbered.”
Prosecutors also agreed that Griffith, like other misdemeanor defendants, would pay only $500 in restitution. Howell calculated that if everyone charged paid that fine, it would amount to $300,000, while taxpayers are paying $500 million to improve Capitol security in the wake of the attack.
Assistant U.S. Attorney John Pearce said the government was in “somewhat uncharted territory.” The $500 number, he said, came from dividing the cost of repairs to the Capitol -$1.5 million — by the number of people believed to have entered the building — 2,000 to 2,500. Those charged with felonies are asked to pay more, and those charged with misdemeanors less.
The goal he said is “to make the victims whole.” Howell shot back that “it doesn’t even come close.”
She said it was also unusual that prosecutors were not asking for defendants to be under court supervision until they paid their fines. “This is the first time I’ve ever had the government ask for a restitution payment and not ask for a term of probation,” she said. “Is it because the government thinks these defendants are more trustworthy?”
It is unclear legally whether a judge can impose a sentence of jail time followed by probation for a petty offense such as parading. Prosecutors argued Howell could, while Griffith’s attorney maintained she had to choose one or the other.
The law is clear that a person can serve a mix of probation and intermittent jail time, prosecutors said. But Howell said it did not seem wise to have defendants going in and out of the prison system during an ongoing pandemic.
“My hands are tied,” Howell said in frustration. “In all my years on the bench, I’ve never been in this position before, and it’s all due to the government, despite calling this the crime of the century, resolving it with a … petty offense.”