62 Pennsylvanians have been charged in the Capitol riot. A year later, judges are starting to weigh their punishments.
The massive Justice Department investigation into the attack on Jan. 6 has now largely shifted from finding people involved to questions of how they should be prosecuted and punished.
Hours after thousands of supporters of President Donald Trump overran the U.S. Capitol, injuring scores of officers and imperiling the peaceful transition of power, Terry Brown — a 69-year-old retired public safety officer from Lebanon County — became the first Pennsylvanian charged in the attack.
One of the few arrested inside the building that day, he later told his hometown newspaper: “I don’t regret doing what I did, because we got a message across, and the world knows it.”
As he was sentenced last month to 30 days’ house arrest and three years’ probation for his crimes, Brown’s tone was far less defiant.
“Everything I told then was exactly the truth,” he said, appearing via video before U.S. District Judge Carl Nichols in Washington, “except for I do regret doing what I did.”
A year after the attack that launched the largest Justice Department investigation in history, its focus has largely transitioned from who played a role in the riot to how to prosecute and punish the more than 700 people — including more than 60 Pennsylvanians — who have been charged so far.
Some of the biggest questions remain to be answered. Investigators have issued more than 5,000 subpoenas, continue to review some 20,000 hours of video, and are still making arrests. And trials presenting thorny legal questions involving those accused of coordinating or organizing the attack, like Philadelphia Proud Boys president Zach Rehl, are slated to play out later this year.
But already more than 150 defendants, like Brown, have pleaded guilty — mostly to misdemeanor charges — leaving courts to wrestle with how to sentence participants whose conduct may not sound particularly egregious in isolation but, when viewed collectively, contributed to an unprecedented attack on the nation’s halls of power.
So far, little consensus has emerged among the 22 federal district judges in Washington presiding over the cases.
Some have balked at government recommendations for probation instead of prison, while others have suggested serious time is inappropriate for low-level offenders.
Another still accused the Justice Department of inconsistently applying sentencing standards to those swept up in the Capitol dragnet compared with defendants who were charged after the racial justice protests that followed the police killing of George Floyd.
With such disagreement from the bench, it’s “no wonder,” Beryl Howell, the chief district judge for the D.C. federal courts, mused, that Americans “are confused about whether what happened on Jan. 6 was a petty offense of trespassing or shocking criminal conduct that represented a grave threat to our democratic norms.”
And as those debates intensify, with trials and sentencings looming for accused insurrectionists facing more serious charges like conspiracy or assaulting officers, defendants from Pennsylvania — which has seen more Capitol riot arrests per capita than any state except Montana — will continue to be at the fore.
“It’s very tricky, because the DOJ is understandably concerned in this case about being accused of political meddling,” said Lauren Ouziel, a former federal prosecutor and Temple University law professor. “Under the Biden administration, I think the DOJ is going to be bending over backwards to make sure that their prosecutions arising from the Capitol riot … appear [as] apolitical as possible.”
The Pennsylvania defendants
As a group, the 62 Pennsylvanians charged to date reflect the array of cases filed nationwide.
They include military veterans, a policeman, firefighters, and leaders of right-wing extremist movements as well as a substitute teacher, a stay-at-home mother of eight, and an employee of a Philadelphia strip club.
Most are men; 17 are women.
The majority are Republicans, though their ranks include a Churchville man who registered as a Democrat until recent elections. Many hail from rural, reliably red counties, but nearly half came from counties like Philadelphia, Bucks, and Allegheny that voted for President Joe Biden in 2020.
And all were caught by some combination of FBI legwork, their own social media bravado, tips from classmates, coworkers or exes, and a massive online manhunt conducted by amateur sleuths poring over publicly available images of that day.
It was Riley Williams’ boasts on the social media site Discord that she’d stolen House Speaker Nancy Pelosi’s laptop that led agents to the 22-year-old Harrisburg home health-care aide. She has since pleaded not guilty.
Online “sedition hunters” identified Samuel Lazar, of Ephrata, as the camo-covered man with a bullhorn — they’d dubbed him “Face Paint Blowhard” — seen in photos assaulting officers.
Jennifer Heinl’s husband — an FBI task force officer from Allegheny County — turned her in after spotting her with another man in photos of the riot. He’s since filed for divorce.
New Jersey has seen its share of arrests, too, including a sex and relationship podcaster from Haddonfield and a Monmouth County Army reservist and white supremacist once rebuked by his commanding officers for sporting a distinctive “Hitler mustache.”
Julian Khater and George Tanios, raised together in New Brunswick, face charges of attacking Capitol Police Officer Brian Sicknick, a fellow Trump supporter who grew up only blocks away from them and who died hours after fending off blows from the Capitol mob.
And despite assertions from conservative lawmakers like U.S. Rep. Scott Perry (R., Pa.), who declared inaccurately last fall that accused rioters were all wasting away in prison on politically motivated charges, the majority charged from Pennsylvania and New Jersey face only misdemeanors like illegally demonstrating on Capitol grounds.
Only 10 of the 86 charged remain jailed while they await trial. Nearly all have been accused of assaulting police.
Headed to trial
Some of the most prominent defendants — like Rehl, the 36-year-old head of the Philadelphia Proud Boys, who is accused along with other leaders of the far-right extremist organization of planning and coordinating the attack — have signaled their intent to take their cases to trial.
They’ve derided their prosecutions as political and challenged the specific statutes used to charge them — including “obstructing an official proceeding,” one of the most frequent felony counts filed in the Capitol cases, which carries a 20-year maximum sentence.
Defense lawyers in several other cases have echoed the argument that the law, enacted amid the Enron scandal of the 1990s, was designed to charge those who impeded congressional investigations and now shouldn’t apply to conduct that they say amounts to a First Amendment-protected protest.
But so far, D.C.’s federal judges have unanimously sided with the government and allowed cases involving the obstruction charge to proceed. U.S. District Judge Timothy Kelly bristled at that argument in Rehl’s case last week.
“Quite obviously,” he wrote in an opinion, “there were many avenues for defendants to express their opinions about the 2020 presidential election, or their views about how Congress should perform its constitutional duties on January 6 without resorting to the conduct with which they have been charged.”
Disputes over punishment
While courts have so far agreed that the Capitol cases can move forward, there’s been far less consensus among judges when it comes to sentencing those who pleaded guilty, including 20 defendants from Pennsylvania and two from New Jersey.
Of the 11 sentenced from both states, only six have received prison terms — ranging from two weeks to the more than three-year sentence imposed on Scott Fairlamb, a mixed martial artist and gym owner from Sussex County who was caught on camera punching a Capitol officer in the face.
The rest have faced some combination of home confinement, probation, and fines.
“It’s understandable, I think, for judges and the public as well to look at this and think: ‘Oh my God, this was such a horrific, serious event. How can it be that people aren’t getting sentenced to jail or they’re pleading guilty to Class B misdemeanors?’” said Ouziel, the Temple law professor. “But… there’s different facts for each of them. The prosecutors are bound by those facts” and have to tailor their charges and sentencing recommendations accordingly.
In recent sentencings, judges have parsed the actions of individual defendants in minute detail to justify the punishments they imposed. Did the person breach the House or Senate chambers? Did they post about it on social media? If so, in what tone? Have they publicly expressed remorse?
At a sentencing last month, U.S. District Judge Thomas F. Hogan balked at prosecutors’ recommendation of probation for two Capitol rioters.
“I don’t think anyone should start off in these cases with any presumption of probation,” he said. “I think the presumption should be that these offenses were an attack on our democracy and that jail time should be expected.”
U.S. District Judges Amy Berman Jackson, an appointee of President Barack Obama, and Royce Lamberth, appointed by President Ronald Reagan, have both exceeded prosecutors’ recommendations in sentencing Pennsylvania defendants.
Lamberth’s two-month sentence for Frank Scavo — a former school board director from Old Forge, in Lackawanna County — was four times longer than the two-week term of incarceration the Justice Department sought.
Berman Jackson acknowledged defendant Russell James Peterson’s remorse. Still, she sent the 34-year-old Beaver County man who livestreamed his tour through the overrun Capitol to prison for a month; prosecutors recommended only two weeks.
Berman Jackson specifically cited the fact that Peterson turned back to join the mob after his wife and mother fled the chaos and later posted: “Overall, I had fun. LOL.”
“The ‘LOL’ particularly stuck in my craw,” the judge said. “As I hope you’ve come to understand, nothing about Jan. 6 was funny.”
One judge — Trump appointee Trevor McFadden — chided the Justice Department in October, saying prosecutors hadn’t been consistent with their sentencing recommendations for Capitol offenders compared with those convicted of crimes during 2020′s racial injustice protests.
“The U.S. Attorney’s Office would have more credibility if it was evenhanded in its concern about riots and mobs in the city,” he said.
An Associated Press review last summer of federal cases stemming from the Floyd protests showed that of the more than 120 defendants who have been convicted and sentenced on federal charges so far, the average punishment was roughly 27 months behind bars.
Ouziel said that while comparing the treatment of participants in the two events can serve as a “useful exercise,” it’s “premature” to do so. She noted that federal prosecutors must handle all crimes that occurred in the Capitol building because it is government property — perhaps giving the appearance of more misdemeanors being doled out in Capitol cases — while cases arising from the 2020 unrest were processed by both local and federal authorities.
Most of the more serious Capitol cases are still in their infancy, with additional charges expected, she added, while the 2020 protest cases are further along.
“The biggest thing people should know is to be patient,” Ouziel said. “It’s such a hyper-partisan atmosphere right now, and I think everyone [should] take a deep breath and let these things play out before deciding whether the DOJ has been aggressive enough or not aggressive. Let it play out, and then let’s see.”