A year after the storming of the Capitol on Jan. 6, prosecutors have yet to ask judges to impose the harsher sentences federal law recommends for defendants motivated by politics. Instead, as some judges have debated whether the charges against Jan. 6 defendants qualify as “crimes of terrorism,” prosecutors have repeatedly pulled back on tougher sentences, citing unspecified “facts and circumstances,” Politico reports. The sentencing enhancement for terrorism crimes was created as a result of legislation Congress passed after the 1993 bombing in a parking garage at the World Trade Center. The terrorism-related language includes federal criminal offenses “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” Invoking the terrorism enhancement adds about 15 years in prison to a defendant’s recommended sentence, sets the minimum calculation at 17 and a half years, and places the person charged into the criminal-history category used for serial offenders.
While prosecutors have yet to call for the enhancement at a sentencing for a Capitol riot defendant, the terrorism-related provision is playing a significant role behind the scenes. At pretrial hearings, defense attorneys have indicated that they were unwilling to consider plea deals for their clients because prosecutors would not agree to refrain from seeking domestic terrorism charges. In other cases, prosecutors seem to have dropped the enhancement, in exchange for cooperation from defendants. Many of the most frequently filed felony charges related to the Capitol riot don’t appear on the terrorism list. Assaulting a police officer with a dangerous weapon, a potential 20-year felony, isn’t on the list. Nor is obstruction of an official proceeding, another 20-year felony, or interfering with police during civil disorder, a five-year felony. About 45 Capitol riot defendants are charged with a crime that is on the terrorism list: destruction or “depredation” of federal property, which carries a maximum 10-year prison term.