Prosecutors: Jan. 6 defendants should expect jail time

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Federal prosecutors indicated Friday that those who breached the Capitol — even those charged only with misdemeanor offenses like parading — should expect to face jail time, not probation, for their role in the assault.

"Misdemeanor breaches of the Capitol on January 6, 2021 were not minor crimes," Assistant U.S. Attorney Kevin Birney wrote in a sentencing memo for Valerie Ehrke, one of more than 600 defendants charged for participating in the Capitol mob. "A probationary sentence … should not necessarily become the default."

Birney, however, did recommend probation for Ehrke, describing her as "the rare case where a probationary sentence is appropriate." Ehrke entered the Capitol for just one minute, exiting quickly after police began repelling the crowd. She committed no violence or property destruction, according to surveillance videos, and she voluntarily spoke to law enforcement, expressing remorse and ultimately becoming one of the first to plead guilty.

All of those factors, Birney wrote in the filing, should result in a probation-only sentence.

Few of the Jan. 6 defendants have reached sentencing so far, with Paul Hodgkins — the first felony case to get to the sentencing stage — facing an eight-month jail term, the longest doled out by judges to date. Anna Morgan Lloyd, the first Jan. 6 defendant sentenced, received 36 months of probation for a misdemeanor guilty plea from Judge Royce Lamberth. Judge Thomas Hogan sentenced Jessica and Joshua Bustle, a couple charged with misdemeanor offenses for entering the Capitol, to home confinement and probation, in part because they are expecting the birth of a child soon.

Like prosecutors, though, Lamberth emphasized that other defendants shouldn't necessarily expect probation for participating in the breach of the Capitol.

“I don’t want to create the impression that probation is the automatic outcome here because it’s not going to be," Lamberth said during Morgan-Lloyd's sentencing, a comment that Birney pointed to in his sentence recommendation for Ehrke.

Hogan, too, echoed that sentiment, telling the Bustles, "I think the presumption should be that these offenses were an attack on our democracy and that jail time is usually — should be expected."

None of the Jan. 6 defendants facing the most serious charges, including dozens accused of assaulting police officers and a growing contingent charged with conspiring to block the certification of President Joe Biden's victory in the 2020 election, have been sentenced yet.

Prosecutors say misdemeanor defendants bear responsibility for some of the more egregious crimes committed that day, in part because the sheer size of the mob helped provide cover for the most dangerous participants in the attack.

"The defendant stands before this Court to be sentenced on a misdemeanor conviction, but her conduct on January 6, like the conduct of scores of other defendants, took place in the context of a large and violent riot that relied on numbers to overwhelm law enforcement, breach the Capitol, and disrupt the proceedings," Birney noted. "But for her actions alongside so many others, the riot likely would have failed."

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