The storming of the Capitol on Jan. 6 has been denounced by the White House, the FBI and the Justice Department as an act of domestic terrorism, but one year after the insurrection, prosecutors have yet to ask judges to impose the harsher sentences federal law recommends for defendants motivated by politics.
Instead, even as some judges have publicly 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.”
The so-called sentencing enhancement for terrorism crimes was created as a result of legislation Congress passed following the 1993 bombing in a parking garage at the World Trade Center. The provision initially applied only to crimes linked to international terrorism, but after the bombing of the Oklahoma City federal building in 1995, Congress moved to expand the enhancement to cover terrorism inspired purely by domestic causes.
The terrorism-related language now includes federal criminal offenses “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”
In front of judges and in court filings, the Justice Department is engaged in a delicate rhetorical dance on the domestic terrorism issue. Seeking to satisfy a large swath of the public outraged by the Jan. 6 riot, prosecutors have declared that the event “certainly” qualifies as domestic terrorism. But they’ve kept their powder dry thus far on invoking the terrorism sentencing boost — potentially because its impact can be so severe.
It’s also one of the existing provisions legal experts have pointed to in the ongoing debate over whether Congress should pass a domestic-terrorism statute.
“It takes you from a couple of years [in prison] in the guidelines range all the way up to, like, 20,” said Doug Berman, an Ohio State law professor and one of the nation’s leading authorities on criminal sentencing.
Invoking the terrorism enhancement typically adds about 15 years in prison to a defendant’s recommended sentence, sets the minimum calculation at 17 and a half years, and also flips the person charged into the criminal-history category used for serial offenders.
While prosecutors have yet to actually 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 the domestic terrorism charges. In other cases, prosecutors seem to have dropped the enhancement, in exchange for cooperation from particular defendants.
Critics say giving prosecutors the authority to pursue or not pursue the massive sentence booster in cases stemming from political protests gives too much power to prosecutors in the process of negotiating a plea.
“It’s just lying there as a cudgel if they want it,” said Karen Greenberg, director of Fordham University law school’s Center on National Security. “It can be used so many different ways.”
Indeed, the range of crimes that can trigger the sentencing enhancement is sprawling. Under current law, 57 offenses are on the list, including such crimes as hostage-taking, destroying an aircraft, using fire or explosives to destroy a buildingband computer hacking that creates a public health or safety threat or impacts national security systems. Some of the so-called predicate offenses are quite obscure, including producing smallpox virus or assaulting a Nuclear Regulatory Commission inspector.
But 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.
The property-destruction charge has been leveled against at least seven alleged members of the right-wing Proud Boys group in connection with one of the highest-profile acts of Jan. 6: the smashing of a Capitol window, resulting in scores of protesters streaming into the building. Prosecutors have charged Dominic Pezzola of Rochester, N.Y., with the actual shattering of the window, but contend that many of Pezzola’s associates are criminally responsible for aiding and abetting him in doing it.
The issue became a point of contention at bail hearings earlier this year, where some defense lawyers scoffed at the idea that encouraging someone to break a window could amount to terrorism.
“There appears to be a good deal of distance between that allegation and a terrorism case,” defense attorney Nick Smith wrote on behalf of alleged Proud Boys leader Ethan Nordean. “Piquant photographs of Proud Boys do not bridge the gap.”
Can vandalism be terrorism?
In recent years, prosecutors have used the felony depredation-of-federal-property statute to cover a very broad range of conduct. In California, some have faced the charge for growing marijuana in national forests. In South Dakota, a rancher was charged for overgrazing his cattle on federal lands.
The crime is one of those that then-President Donald Trump cited in 2020 when he issued a series of grave and often misleading warnings to racial-justice protesters that attacks on federal monuments would get them 10-year mandatory prison sentences.
Indeed, the depredation-of-property offense is sometimes charged in connection with protests. In 2018, seven antiwar activists were hit with the charge for cutting through razor and concertina wire at a Georgia naval base used by nuclear submarines.
During the Black Lives Matter demonstrations that followed the murder of George Floyd by Minneapolis police in May 2020, prosecutors turned to the statute again to charge Micah Avery, a resident of Washington, D.C., for spray-painting an outcropping of the Lincoln Memorial with the words “Yall not tired yet?”
Avery, who has pleaded not guilty, is tentatively set to go on trial later this month.
The same charge was also used against five racial-justice protesters in Nevada who were accused of being part of a crowd that tossed paint onto a federal courthouse, threw objects at its windows, kicked its doors and ripped letters off the building’s sign.
All five people who were charged pleaded guilty to the felony offense, but prosecutors did not seek to apply the terrorism enhancement. Three defendants were given probation, although one later had it revoked and was sent to prison for four months. One defendant, who also sought to break into a pawn shop later that night, got 21 months. A fifth defendant awaits sentencing.
A California man, Kevin Weier, who moved a burning board from one spot to another outside the federal courthouse in Portland, Ore., during protests there in 2020, was also charged with depredation of federal property. After he pleaded guilty, prosecutors didn’t invoke the terrorism enhancement and recommended just one year of probation. A judge gave him two.
It’s a very different story in the New York City borough of Brooklyn, where federal prosecutors have signaled plans to press for the terrorism enhancement in a case against two lawyers who have admitted to working together to prepare and throw a Molotov cocktail fashioned from a beer bottle into a vacant New York Police Department cruiser during George Floyd-related protests.
Plea discussions in the case against the lawyers, Colinford Mattis and Urooj Rahman, dragged out for almost a year and a half, in large part because of prosecutors’ insistence on requesting the terrorism enhancement in the case.
Assistant U.S. Attorney Ian Richardson pointed to a string of ominous-sounding text messages Mattis and Rahman exchanged.
“Go burn down 1PP,” Mattis wrote, referring to NYPD headquarters at One Police Plaza.
“Molotovs rollin’,” Rahman added. “I hope they burn everything down. Need to burn all police stations down and probably the courts too.”
At a hearing in October in which the attorneys pleaded guilty to possession of a destructive device, U.S. District Court Judge Brian Cogan said a central question at the sentencing — now set for March — would be whether to apply the major increase in prison time for a terrorist offense.
“Obviously, the terrorism enhancement is going to be a big issue,” said Cogan, an appointee of President George W. Bush. “I have no idea where I’m coming out on that at this point.”
Does the terror enhancement give prosecutors too much power?
Some critics contend the language about what constitutes terrorism is far too vague.
“It’s very arbitrary in how and when the government wants to apply this enhancement,” said Michael German, a former FBI agent and a fellow at the Brennan Center for Justice at New York University.
“Part of the problem with using a politically charged word like terror in our legal statutes is it is politicizing these determinations,” he said. “Law enforcement is always going to view protests against government policy as inherently dangerous. If somebody broke a window, they should be charged with breaking a window. If they had some political purpose for that, that shouldn’t be part of the decision.”
A former federal defender said the Justice Department might be more reluctant to seek the terrorism enhancement — and the harsh sentences it can bring — in the Jan. 6 cases because of a potential political backlash.
“A significant part of the population that has political clout may make noise and say that’s singling people out,” said Wadie Said, a University of South Carolina law professor. “We want to think that it operates in a vacuum, but of course it doesn’t.”
A spokesperson for the U.S. Attorney’s Office in Washington, which is overseeing the Capitol riot cases, declined to comment on prosecutors’ decisions in the Jan. 6 cases. However, an official confirmed that the sentencing enhancement for terrorism had not been pursued in any case thus far.
In court filings, prosecutors have been exceedingly vague about their decisions not to seek terrorism-level punishment in the handful of Jan. 6 felony cases that have gone to sentencing. Sentencing memorandums filed by prosecutors in at least five such cases use the same boilerplate language, stating that the government is not pursuing the enhancement “based on the facts and circumstances of” the case.
Attorney General Merrick Garland has also declined to get into detail about how prosecutors are handling Jan. 6 cases, but said recently that he knows some view the cases as overkill while others contend the Justice Department is being too lenient.
“I am quite aware that there are people who are criticizing us for not prosecuting sufficiently and others who are complaining that we are prosecuting too harshly,” Garland said in an October interview for the annual New Yorker festival. “This is, you know, part of the territory for any prosecutor in any case. I have great confidence in the prosecutors who are doing these cases.”
Of course, the ultimate sentences in the Jan. 6 cases and almost all others are determined by judges, not prosecutors.
While the sentencing guidelines were originally mandatory, as a result of a 2005 Supreme Court decision, they’re now nonbinding. Judges have to calculate them precisely in proceedings that often take up much of a sentencing hearing. While judges are permitted to sentence outside the range, the punishment the guidelines propose carries enormous sway. Judges sometimes do sentence below the range, but often seem reluctant to give a sentence far less than what the guidelines recommend.
“They have a significant gravitational force, even though they’re advisory,” said Berman, the Ohio State professor. “The reality is that’s become our metric.”
In addition, the people sentenced so far are not a representative sample of the more than 700 defendants facing charges in connection with the events of Jan. 6. All the sentences have stemmed from guilty pleas, with the first Capitol riot trial not expected until next month at the earliest.
The vast majority of the roughly 70 riot defendants sentenced thus far pleaded guilty to misdemeanor offenses to which the sentencing guidelines don’t apply at all. A handful have gotten probation, while others received sentences of 30 or 60 days behind bars.
The most serious sentence handed down thus far is the five-year-three-month prison term for Florida resident Robert Palmer, who admitted to battling with police at the Capitol by swinging a pole and throwing both a fire extinguisher and a wooden plank.
Although the plea agreement in Palmer’s case said prosecutors reserved the right to seek the terrorism enhancement, they did not mention the enhancement at his sentencing last month, nor did the judge raise it.
When another Florida man, Paul Hodgkins, was sentenced in July to eight months in prison for storming onto the Senate floor on Jan. 6 carrying a Trump flag, prosecutors minced no words about his actions.
“Jan. 6 was an act of domestic terrorism,” Assistant U.S. Attorney Mona Sedky said. “He was part and parcel of an act of domestic terrorism that was going on around him.”
Hodgkins’ defense attorney at the time, Patrick Leduc, warned against the use of such terms. “If we’re going to label this protest as domestic terrorism, then please consider this: Where do we draw that line?” he asked.
Despite Sedky’s strong words, prosecutors did not seek the sentencing enhancement for Hodgkins, the defense didn’t raise it and neither did the judge.
That’s likely because the assault and obstruction charges the defendants admitted to in those cases aren’t on the list of terrorism crimes Congress has identified.
However, the terrorism enhancement provision is so expansive that it may cover even convictions on charges that are not on that already-long rundown of offenses.
Christopher Hasson, a Coast Guard officer and self-described white nationalist who lived in Silver Spring, Md., was arrested in 2019 after allegedly plotting to kill prominent Democratic politicians and media figures. He pleaded guilty later that year to a series of firearms and drug charges.
None of those charges are on the list of federal terrorism offenses, but U.S. District Court Judge George Hazel sentenced Hasson to more than 13 years in prison after applying the terrorism sentencing enhancement. Prosecutors argued for the enhancement (and a 25-year sentence), contending that the silencers and rifle scopes Hasson possessed were “intended to promote” a plot to kill members of Congress and two Supreme Court justices even though Hasson never pleaded guilty to such a plot.
Hasson is appealing his sentence to the Fourth U.S. Circuit Court of Appeals, noting that a congressional conference report on an antiterrorism law passed in 1996 described the enhancement as limited to “specifically listed” crimes of terrorism. The appeal was argued in March and the Richmond-based court has yet to rule.
Such ambiguities mean defense attorneys considering whether their clients should plead guilty in the Capitol riot have to also factor in the possibility that a judge could conclude that the terrorism guidelines apply even in a case where prosecutors don’t seek it.
Last month, at sentencing for a QAnon follower who admitted to weapons charges and threatening to kill Speaker Nancy Pelosi, prosecutors told U.S. District Court Judge Amy Berman Jackson that they initially believed sentencing guidelines called for an 18- to 24-month prison term for the defendant, Cleveland Meredith Jr.
However, Jackson calculated the range at 37 to 46 months. No one raised the terrorism enhancement, but the judge concluded that the sentencing rules called for a different sentence for cases involving a person targeted because of their official duties.
“The fact that the government didn’t point to this before is odd,” said Jackson, an appointee of President Barack Obama. Meredith’s lawyer complained bitterly about the decision and warned that it would “reverberate.”
The case shook out in the way experts say they often do, with the guidelines appearing to drive up the sentence even when judges conclude they’re a bit too harsh to adhere to.
Ultimately, Jackson gave Meredith a 28-month prison term, below the guidelines, but above what prosecutors and the defense initially asked for.
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