When federal judges began hearing guilty pleas from some of the hundreds who attacked the Capitol on Jan. 6 last year, some were critical of prosecutors for pursuing only misdemeanor charges, and not seeking jail time, for many defendants. "Is it the government’s view that the members of the mob that engaged in the Capitol attack on January 6 were simply trespassers?” asked Chief U.S. District Judge Beryl Howell in Washington, D.C. Still, Howell has mostly imposed less jail time than prosecutors sought, saying that plea deals in most misdemeanor cases are forcing judges to choose whether short jail terms or years of probation pose a stronger deterrent. Federal judges in D.C. have gone below the government recommendation in 49 out of 74 sentencings, reports the Washington Post. In eight cases where prosecutors asked for jail time, the judges instead opted for probation. Of the 74 people sentenced so far, 35 have been given jail or prison time, 14 home detention and 25 probation alone. Of the 367 people charged with at least one felony as of Thursday — including 156 charged with assaulting law enforcement — only seven cases have reached sentencing, and just three of those involved attacks on the police. No trials have been held, with the first set to begin in February. None of the 39 people charged with conspiring to stop the vote count, including members and associates of the Oath Keepers and Proud Boys, has been sentenced. Although the Justice Department has argued that higher sentences would deter domestic terrorism, prosecutors have not asked judges to apply terrorism-related enhancements that could more than double the sentencing guidelines. Instead, they have used the threat of that enhancement to encourage guilty pleas. Judges have lamented that they are limited by prosecutors’ decisions to let many rioters plead to a “petty offense” of illegally parading inside the Capitol or other misdemeanors, including at least 14 allowed to plead down from felonies.
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