It's a common refrain from some of those charged in the Jan. 6 riot at the U.S. Capitol and their Republican allies: The Justice Department is treating them harshly because of their political views while those arrested during last year's protests over racial injustice were given leniency.
Court records tell a different story.
An Associated Press review of court documents in more than 300 federal cases stemming from the protests sparked by George Floyd’s death last year shows that dozens of people charged have been convicted of serious crimes and sent to prison.
The AP found that more than 120 defendants across the United States have pleaded guilty or were convicted at trial of federal crimes including rioting, arson and conspiracy. More than 70 defendants who've been sentenced so far have gotten an average of about 27 months behind bars. At least 10 received prison terms of five years or more.
The dissonance between the rhetoric of Capitol rioters and their supporters and the record established by courts highlights both the racial tension inherent in their arguments — the pro-Donald Trump rioters were largely white and last summer’s protesters were more diverse — and the flawed assessment at the heart of their claims.
“The property damage or accusations of arson and looting from last year, those were serious and they were dealt with seriously, but they weren't an attack on the very core constitutional processes that we rely on in a democracy, nor were they an attack on the United States Congress,” said Kent Greenfield, a professor at Boston College Law School.
To be sure, some defendants have received lenient deals.
At least 19 who have been sentenced across the country got no prison time or time served, according to the AP’s review. Many pleaded guilty to lower-level offenses, such as misdemeanor assault, but some were convicted of more serious charges, including civil disorder.
In Portland, Oregon — where demonstrations, many turning violent, occurred nightly for months after a white Minneapolis police officer killed Floyd — about 60 of the roughly 100 cases that were brought have been dismissed, court records show.
Most of those defendants received deferred resolution agreements, under which prosecutors promise to drop charges after a certain amount of time if the defendant stays out of trouble and completes things like community service. Some Jan. 6 defendants have complained it's unfair they aren't getting the same deals.
But President Joe Biden’s Justice Department has continued the vast majority of the racial injustice protest cases brought across the U.S. under Trump and has often pushed for lengthy prison time for people convicted of serious crimes. Since Biden took office in January, federal prosecutors have brought some new cases stemming from last year's protests.
Conservatives have sought to equate the attack on the Capitol with the Black Lives Matter protests, accusing Democrats of being hypocrites for not denouncing the violence after Floyd’s death as loudly as the Jan. 6 insurrection. And some Republicans have seized on the handling of the protest cases in Portland to suggest that the Jan. 6 defendants are being politically persecuted.
That has not been borne out when comparing the sentences that federal judges have given to Jan. 6 defendants and those who are accused of crimes during the protests against police brutality across the country.
Only a handful of the nearly 600 people who've been charged in the insurrection have received their punishments so far, and just three people have been sentenced to time behind bars. The vast majority of the most serious cases — involving those accused of assaulting police officers or conspiring to block the certification of Biden's victory — remain unresolved.
The catalysts for the riot and the demonstrations for racial justice were also fundamentally different.
The mob of Trump supporters whipped up by the former president's lies about the election descended on the Capitol and pushed past police barriers, assaulted officers, smashed windows and sent lawmakers running in a stunning attempt to overturn the presidential election.
The demonstrations after Floyd’s death were largely peaceful calls to address racial inequality and police brutality that occasionally turned violent. In some cities, protests descended into chaos after dark, with people smashing windows, looting stores, setting fires and assaulting officers.
William Barr, who as attorney general led the Justice Department last year under Trump, pushed federal prosecutors to aggressively go after protesters who caused violence. Defense lawyers complained that many of the cases belonged in state court — punishments are typically lighter there — and accused Justice Department officials of carrying out a politically motivated effort to stymie the demonstrations.
Just this month, a man was sentenced to four years behind bars and ordered to pay what his attorney said is likely to exceed $1.5 million in restitution after pleading guilty to inciting a riot last spring in Champaign, Illinois.
Shamar Betts, who was 19 at the time, posted a flyer on Facebook on May 31, 2020, that said “RIOT @ MarketPlace Mall" at 3 p.m. and instructed people to bring “friends & family, posters, bricks, bookbags etc.” He participated in the looting, went live on Facebook during the riot and bragged about starting it, authorities said. More than 70 stores were looted, and the riot caused $1.8 million in damage, prosecutors said.
Betts' lawyer, Elisabeth Pollock, said Betts was frustrated about police brutality across the U.S., had lost his job because of the coronavirus outbreak and never intended to hurt anyone. Prosecutors pushed for the maximum punishment of five years in prison and the maximum restitution amount for Betts, who had no criminal history, she said.
“They took into account not a single mitigating factor: nothing about how he grew up, nothing about about how the George Floyd protests had affected the community, nothing about how the pandemic had affected Shamar personally and the community. There was absolutely no quarter given to him at all,” his attorney said in an interview.
In another case this month, an Illinois man was sentenced to nearly nine years behind bars for lighting a Minneapolis cellphone store on fire in June 2020. A Charleston, South Carolina, man who livestreamed himself looting a store downtown was sentenced to two years in prison.
In the Capitol riot, dozens of defendants have been charged only with misdemeanors, and a standard plea deal has allowed many to plead guilty to a single count of demonstrating in the Capitol.
An Indiana woman who admitted illegally entering the Capitol but didn’t participate in any violence or destruction avoided jail time, and two other misdemeanor defendants got one and two months of home confinement. Two other people who were locked up pretrial were released after pleading guilty to misdemeanors and serving the maximum six-month jail sentence.
Only one defendant convicted of a felony has received his punishment so far. Paul Hodgkins, who breached the U.S. Senate chamber carrying a Trump campaign flag, was ordered to serve eight months behind bars.
The political fighting over the cases comes as some Republicans in Washington have tried to downplay the attack on the Capitol, with many of them portraying the siege as a mostly peaceful protest despite the shocking violence that unfolded on live TV.
In a letter to Attorney General Merrick Garland in June, Sen. Ted Cruz, R-Texas, and four other Republican senators expressed concern about “potential unequal administration of justice” in how prosecutors have responded to the Jan. 6 riot and the Black Lives Matter protests.
Despite “numerous examples of violence” during last year’s protests, they said “it appears that individuals charged with committing crimes at these events may benefit from infrequent prosecutions and minimal, if any, penalties" and claimed the Justice Department's “apparent unwillingness” to punish them stands in "stark contrast to the harsher treatment" of the Capitol defendants.
One Jan. 6 defendant has similarly accused the Justice Department of selective prosecution based on different political viewpoints, comparing his case with how the department has handled charges stemming from the Portland protests.
Garrett Miller, of Texas, was wearing a T-shirt that said, “I Was There, Washington D.C., January 6, 2021,” when he was arrested. Prosecutors say Miller posted threatening messages on Twitter directed at Rep. Alexandria Ocasio-Cortez, a New York Democrat, after the riot. His lawyer said Miller isn’t trying to excuse his actions.
“Nevertheless, Mr. Miller should not be treated differently based upon the political views he espoused viz-a-viz the political views espoused by the Portland rioters,” his attorney, F. Clinton Broden, wrote in recent court papers.
Federal prosecutors say Miller hasn’t presented any evidence that his case was politically motivated.
They also rejected comparisons between Miller’s actions and those of the Portland defendants, “who — despite committing serious offenses — never entered the federal courthouse structure, impeded a congressional proceeding, or targeted a specific federal official or officer for assassination.”
One Portland defendant who recently received a deferred resolution agreement was accused of using a wooden shield and hoses to hit an officer in the head. Another was accused of punching an officer in the side of her face. Other cases were dismissed after defendants agreed to plead guilty to similar charges in state court, records show.
“Our approach depends on the circumstances of the charged offense and unique characteristics of each defendant, rather than on any across-the-board standard being applied to all cases,” said Kevin Sonoff, spokesman for the Oregon U.S. attorney’s office.
Meanwhile, in Utah this month, a federal judge sentenced 25-year-old Lateesha Richards to nearly two years in prison for tossing a pair of basketball shorts onto an overturned, burning patrol car and hurling a baseball bat toward police officers during a May 2020 protest in Salt Lake City. There’s no evidence that the bat struck anybody.
Richards initially was charged with an arson count that carries a mandatory minimum sentence of five years in prison, but she avoided that possibility with a deal under which she pleaded to a charge of civil disorder.
The judge said Richards’ actions were dangerous and put hundreds of peaceful protesters in harm’s way. Richards didn’t start the fire that engulfed the police vehicle, but she did “add fuel to the flames,” he added.
Defense attorney Alexander Ramos, who had pushed for the judge to sentence Richards to the one year in jail she has already served, said the Floyd protesters appear to be getting even more scrutiny than comparable “run-of-the mill” cases.
“If it didn’t have this political background, I think more people would have been let out,” Ramos told the AP.
On the same day in May, Kelsey Donnel Jackson traveled to downtown Charleston, South Carolina, with a cousin to join a protest over Floyd’s killing. Hours later, as other protesters began flipping tables and taunting police officers, Jackson lighted a shirt on fire and tossed it onto the trunk of a vandalized police car.
Jackson also vandalized businesses and public property, assaulted two people and streamed a video of himself on Facebook Live in which he held a handgun and made threatening statements about police, according to prosecutors.
He was sentenced this summer to two years in prison after pleading guilty to maliciously damaging a police vehicle with fire.
Jackson's lawyer wrote in court documents before his sentencing that many people who stormed the Capitol “with the clear intent to disrupt a session of Congress and overturn a lawful election” were charged only with misdemeanor offenses.
“We do not make reference to unrelated conduct in other jurisdictions in order to minimize (Jackson’s) conduct and culpability, but rather to point out that similar (and more egregious) conduct that was very obviously intended to intimidate law enforcement and interfere with government operations has been treated in a less heavy-handed manner elsewhere,” his attorney wrote.
Richer reported from Boston, Kunzelman from College Park, Maryland, and Billeaud from Phoenix.