Thursday marks one year since a violent mob stormed the Capitol in an attempt to stop the democratic transfer of power. As they tore through the building, the insurrectionists assaulted 140 police officers and caused $1.5 million in damage. At least five people were left dead in their wake, including at least one officer. Many Americans watched the unrest unfold in real time as the rioters captured their every move. After a year of investigating the largest mass criminal event in U.S. history, many are wondering: Is justice being served swiftly and forcefully?
As Chief Judge for the District of Columbia Beryl Howell put it during an October sentencing hearing for one of the Jan. 6 defendants, the Department of Justice’s approach seemed “muddled” and “almost schizophrenic in some ways.” It is no wonder that many Americans are confused about whether what happened on Jan. 6 “was simply a petty offense of trespassing with some disorderliness or shocking criminal conduct that represented a grave threat to our democratic norms,” Howell added.
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There’s a good reason for the concern and confusion. Slate analyzed 733 total Capitol arrest cases by combining publicly available databases and reviewing hundreds of individual case files. The trend is clear: Jan. 6 defendants have been sent home to await trial at a far greater rate than the rest of the federal jail population in 2019, our analysis shows. And when it comes to sentencing, judges are generally handing out lighter sentences than what the government is requesting when suspects do plead guilty.
More defendants getting to await the resolution of their case at home instead of in jail is generally a good thing that adds fairness to the system, as pretrial release is correlated with better odds of avoiding an unjust conviction. But when that benefit is given to Capitol riot defendants at a far greater rate than the rest of the population, it lays bare some of the most profound and enduring inequalities at the heart of our criminal justice system. What’s more, by looking at individual cases, it is clear that many Jan. 6 defendants seem to still feel a sense of impunity and are now being vindicated by the criminal justice system’s lenient treatment.
What Do We Know About the Defendants?
The defendants are divided into at least 702 cases that have been charged in federal district court and at least 31 cases that have been charged in D.C. Superior Court, which are generally less serious charges. Of those 31 lowest-level defendants, 24 are men and seven are women, including one trans woman initially charged with illegal weapons possession who had the charges dropped by prosecutors.* Of the remainder of the D.C. Superior Court cases—mostly for curfew violations and unlawful entry on Capitol grounds—14 have been released on bond as they await trial. That includes Stanley Williams, a 34-year-old man who was arrested with a “stinger whip,” a weapon that has been described as a “self-defense tool for sadists.” Also released from custody and awaiting trial are mother-and-daughter GOP influencers from Oregon Kristina Malimon and Yevgeniya Malimon, who are being represented by one of Trump’s impeachment attorneys. Kristina Malimon was a national committeewoman for the Young Republicans of Oregon who had previously organized a Trump boat parade on the Willamette River that ended up sinking a family of boaters who were unaffiliated with the parade. Most of the rest of this group—11 defendants—have accepted deals to be placed in pretrial diversion programs. A single defendant in this group, Tara Coleman, pleaded guilty and was given 150 days’ suspended sentence and 18 months’ probation, while one man, Chris Georgia, died by suicide days after the Capitol riot.
Nobody in this group has faced any jail time beyond their initial arrests.
What Do We Know About the District Court Cases?
Of 702 defendants in district court, at least 99 have pleaded guilty and are awaiting sentencing. Roughly 72 defendants pleaded guilty and have already been sentenced. Two died, two are fugitives, and one pleaded no contest. The remaining 526 have pleaded not guilty.
About 160 pretrial releases were granted to people alleged to have committed a violent crime or a more serious felony, like conspiracy. Some of those were placed on high-intensity supervision, essentially home detention, including a member of the Oath Keeper militia that allegedly led the charge on the Capitol named Joseph Hackett. Hackett won his release after promising a judge that his wife would keep him from continuing his extremist ways. (What he didn’t tell the judge was that she hosted a “patriot” podcast and described her husband as a “political prisoner.”)
Some of these defendants had a lengthy criminal history that maybe should have prevented them from earning release altogether. Logan James Barnhart, for instance, is a bodybuilder who previously pleaded guilty to a felony riot charge after helping to tip a car over during a riot at a basketball game in 1998 and was released after being charged with attacking police with a dangerous weapon.
How Many of the Defendants Remain in Jail?
Very few. Roughly 85 percent of the defendants who were charged in district court have won some kind of pretrial release, and only 15 percent have had to await trial in jail. Contrast this number with the ordinary pretrial release rate and it seems clear that Jan. 6 defendants are receiving special treatment. In 2019, only 42 percent of federal defendants were released from jail while waiting for their court date or for their case to resolve. In that same year, 58 percent of federal defendants were made to await trial in jail.
The Jan. 6 defendants are twice as likely to be released from jail pre-detention as ordinary defendants and more than four times less likely to be held on charges.
How Can This Be?
There are a number of plausible explanations for this phenomenon. Only 30 percent of those arrested on Jan. 6 had a previous criminal history, according to a comprehensive analysis by Robert Pape. Judges take past history into consideration at a number of points in the criminal process, including when deciding who gets to go home and who does not. A recent study by the U.S. Sentencing Commission found that nearly 73 percent of people convicted of federal crimes had at least one prior conviction.
Notably, only about half of the Jan. 6 defendants have been charged with felonies—which, compared with misdemeanor cases, generally are less likely to lead to pretrial release—as opposed to 94 percent of defendants in federal criminal cases in 2019. Finally, and perhaps most critically, Jan. 6 defendants appear to have more resources than the average criminal defendant, reportedly hiring private attorneys at four times the rate of a typical defendant. “There are a few factors related to particularities of these cases that could potentially explain why the Jan. 6 defendants were released pending trial at higher rates than average,” said assistant professor of law at the University of Wisconsin Law School Stephanie Didwania. “But I doubt these factors alone can explain why so many of the Jan. 6 defendants were released.”
It’s hard not to look at the numbers and see another trend: Defendants in Jan. 6 cases are much more likely to be white than those in a typical federal criminal case. In 2018, only 52 percent of the people arrested in the U.S. were white, according to a 2018 study by the Bureau of Justice Statistics. Black people made up 19 percent of those arrested, and Hispanic people accounted for 17 percent. According to an early estimate by Pape, 95 percent of the Jan. 6 defendants were white.
Studies have shown that the criminal justice system is rife with implicit and explicit bias that leads to staggering racial disparities. The treatment of the Jan 6. rioters throws those biases into stark relief: When it comes to pretrial release, they are getting sent home at a much higher rate than their Black and Hispanic peers. “As someone who thinks our criminal legal systems massively overdetain people pending trial, I would hope that, to the extent the Jan. 6 defendants were treated more compassionately than average, that the same would be extended to all people affected by the criminal legal system,” Didwania said.
What Do We Know About the People Accused of Assaulting Police Officers?
A relatively limited number of the people accused of assaulting officers have ties to far-right groups or have been in trouble with the law in the past. Still, a good number of the released defendants are alleged to have violently attacked police with weapons such as baseball bats, two-by-fours, fire extinguishers, or flagpoles. Several were let out of jail even after vast weapon caches were found in their homes.
Gregory Nix, allegedly attacked one officer with a flagpole seven times. Paul Rae, a Proud Boy charged with assaulting a police officer, was warned at one point by the judge that he had violated the conditions of his pretrial release, only to be given yet another chance. He then allegedly crashed his speedboat into an island while drunk. Bryan Betancur is an avowed white supremacist who declared he wanted to be a “lone wolf killer” and was already on a GPS ankle monitor when he was arrested on Jan. 6. Luke Coffee, the Friday Night Lights actor, is accused of attacking a police officer with a crutch. Robert Sanford is a retired firefighter alleged to have thrown a fire extinguisher at police during the mob assault. Michael Joseph Foy allegedly attacked police with a hockey stick wrapped in a Trump 2020 flag and then complained that his jail conditions presented a “grave human rights abuse” because there was “no time in front of the television.” All of these men were eventually granted some form of pretrial release.
What Happened to the People Who Pleaded Guilty?
More than 170 defendants have now pleaded guilty to federal charges, which the Department of Justice reports includes at least 145 misdemeanor pleas and at least 20 felony pleas. At least 70 of these defendants have already received sentences. Roughly 44 percent of those sentenced will spend time in jail, ranging from 14 days to five years. Another 25 percent will serve their sentences under home confinement, and the remainder received probation.
Critically, judges have been generally lenient with those who have pleaded guilty. Most notably, for several defendants, judges have offered a lower sentence than the prosecutor recommended. This group includes the so-called QAnon Shaman, Jacob Chansley, who received a 41-month sentence after prosecutors recommended 51 months; a tech CEO named Bradley Rukstales accused of throwing a chair at officers, who received a 30-day sentence after prosecutors recommended 45 days; and John Lolos, who ranted at his sentencing hearing about voter fraud but received a 14-day sentence after prosecutors asked for 30 days. In more than a dozen cases, judges declined to send people to prison despite prosecutorial recommendation.
What Do We Know About the People Charged With Coordinating the Insurrection?
While many of the defendants appear to have gotten caught up in the actions last year, others are accused of coordinating and planning the attacks that ultimately led to the Capitol breach.
Russell Taylor is a member of the Three Percenter militia who warned the Orange County Board of Supervisors a month prior to the Capitol assault that it would happen. Taylor was photographed with Trump confidant Roger Stone prior to the attack, and allegedly carried a knife to the riot. He was released pretrial by Senior U.S. District Judge Royce Lamberth, who wrote, “The government’s burden to justify pretrial detention by clear and convincing evidence is a heavy one, which the government has not met here.”
Others who earned release allegedly sought to cover up crimes that day, including a Capitol Police veteran named Michael Riley accused of coaching a Capitol defendant about how to delete Facebook evidence.
Who Is Still Being Detained?
Most of the people still behind bars are the worst of the worst. Roughly 76 defendants are still being held in jail. Many have previous criminal histories and are charged with violently assaulting police officers during the Jan. 6 attack. A number of the defendants in this cohort are accused of assaulting former Capitol Police Officer Michael Fanone. (Though one man, Thomas Sibick, who confessed to burying Fanone’s stolen badge in his backyard and claimed he “accidentally” had it, was initially detained only to be released in the end.)
Timothy Desjardins allegedly attacked officers with a broken wooden table leg and carried multiple axes to the riot. After the insurrection but prior to his arrest in November on Capitol riot charges, Desjardins was arrested in an armed standoff with police after violating the terms of bail from a prior incident in which he allegedly shot a man in the head. Josiah Kenyon, who was finally arrested last month after being caught camping with his family in Reno, Nevada, with an AR-15 and Glock pistol, allegedly wielded a table leg with a nail as a weapon while dressed as Jack Skellington from the movie The Nightmare Before Christmas.
Andrew Quentin Taake allegedly beat officers with a metal whip. He was turned in after bragging about the incident to a woman on the dating app Bumble. Michael J. Lopatic Sr. is a former Marine whose alleged attack on officers prevented them from administering first aid to someone who had been trampled in the riot and later died.
Timothy Louis Hale-Cusanelli was discharged from the United States Army Reserves after dressing up in a Hitler mustache and allegedly participating in the insurrection. William Rogan Reid reportedly boasted in an Instagram video, “You’re not going to incarcerate me, motherfuckers. The Sixth was a warning,” before attempting to destroy his phone. Robert Gieswein, who reportedly made a Three Percenter symbol outside of Rep. Lauren Boebert’s gun-themed bar prior to bringing a baseball bat to the Capitol riot, said he should be released because being in jail left him “vulnerable to radicalization.” Indeed, a number of the people still detained are members of extremist groups such as the Proud Boys and the Oath Keepers.
Have Any Defendants Violated the Conditions of Their Release?
Yes. Eight people currently being held in jail were originally granted pretrial release only to be returned to jail for various reasons. This subset of defendants appears particularly antagonistic to the law or any notion of accountability.
Included in this cohort is one of only two detained women involved in the Capitol riot, Pauline Bauer, who told her Trump-appointed judge that “Judgment Day is going to come for all of you who are making money off mankind” before being returned to jail. Brandon Fellows, who was filmed allegedly smoking weed in Sen. Jeff Merkley’s office, was initially granted release, but was sent back to jail for allegedly harassing an ex-girlfriend and attempting to contact a probation officer’s mother and the judge’s wife. Thomas Robertson, a former police officer, received a second chance at release despite the fact that law enforcement officials found eight firearms in his home days after he was let out. Weeks later, authorities found a loaded M4 carbine and a partially assembled pipe bomb while searching his house, and he was finally returned to jail. Two other Jan. 6 defendants who were initially released and then re-incarcerated were top Proud Boy leaders who are accused of having organized the initial violence that resulted in the mob overtaking the Capitol.
Have Any Defendants Gotten Into Trouble While Out on Bond?
Yes. Several defendants violated conditions of their release but were allowed to stay out of jail, while others have landed themselves in jail on other charges. Grassroots conservative activist Mark Sahady attended and spoke at an anti-mask protest after his release. Elias Costianes was subsequently charged with conspiracy to distribute drugs. Patrick Montgomery, a Colorado man who was previously banned from owning firearms due to an earlier robbery conviction, shot and killed a 170-pound mountain lion and then posed for photos. Jeremy Vorous refused to let a probation officer inside his home, was repeatedly uncooperative with probation officials, had an illicit machete in his home, and was still allowed to retain his pretrial release. Matthew Eugene Loganbill, the gun store owner banned from using guns as part of his release, was also allowed to remain free after taking part in a shooting contest. Patrick Stedman, the self-described “relationship strategist,” had the conditions of his release tightened only after he harassed on Twitter the man who originally turned him in. (In his day job, Stedman advises men to “think of a girl’s persona in adversarial terms, as it is fundamentally manipulative.”) Most horrifically, one defendant, Kene Brian Lazo, was accused of sexually assaulting a child after his release from jail.
What Happened to Some of the More Notorious Insurrectionists?
The insurrection was unprecedented in many ways. One of which is the fact that the insurrectionists documented their every move, allowing the world to watch in real time as they stormed the Capitol.
Some of those who were granted pretrial release are among the most infamous rioters that day, including Robert Keith Packer, who wore a “Camp Auschwitz” T-shirt to the riot, and Kevin Seefried, who was photographed carrying a Confederate battle flag around the Capitol. And there’s the father, James Rahm Jr., who bragged that he “pissed in” Speaker Nancy Pelosi’s office and “my son’s got video.” Chicago police Officer Karol Chwiesiuk wore a department hoodie while storming the Capitol and later texted the N-word while discussing the day’s attack. Riley June Williams was accused of stealing Pelosi’s computer.
Others released on lesser charges include Cowboys for Trump founder Couy Griffin, a misogynistic “dating coach” profiled in the New York Times named Samuel Fisher, and 27-year-old Stephanie Baez, who posted a video on social media declaring “I love the Proud Boys. I want to find me a Proud Boy.”
Possibly the most high-profile of these alleged rioters are “zip tie guy” Eric Munchel and his mom, Lisa Marie Eisenhart. The pair were originally held without bail, but a panel of the U.S. Court of Appeals for the District of Columbia Circuit, led by Obama appointee Robert L. Wilkins, overruled a district court judge’s ruling to free them. “In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way,” Wilkins explained.
This ruling may have set a new standard for some of the less dangerous lower-level offenders to be granted pretrial release requests, but it also seems to have sparked a wave of pretrial releases for some of the more violent offenders.
Correction, Jan. 8, 2022: This article originally misstated that six women were charged in D.C. Superior Court. The number was seven.
