SENTENCING INSURRECTION

Abstract

On January 6, 2021, an estimated two thousand people broke police lines and breached the U.S. Capitol building in an effort to prevent the certification of the 2020 presidential election results. Over one thousand people have been charged with various crimes for their actions that day, from misdemeanor trespassing charges to felony assault with a weapon and seditious conspiracy. Relying on publicly available sources, this Article presents results from an analysis of the first 514 people to have been sentenced in federal court for crimes committed on January 6. The result is a snapshot of the insurrectionists, the charges they faced, and the punishments federal judges imposed on them. On demographics, the data suggest that the lawbreaking and political violence of January 6 was not just the work of the usual criminal suspects, right-wing extremists, or residents of former President Trump strongholds. Rather, it was committed by a cohort that more closely resembles mainstream White America. On punishment, the aggregate results are notable for their leniency. The cases were much more likely to result in a conviction for only a misdemeanor than typical federal criminal cases. Prison sentences were imposed much less frequently than usual for federal criminal defendants, and were much shorter in length. This Article also explores the relationships between defendant age and sex, the sentences that judges imposed, and the sex and political party of the President who nominated the sentencing judge. Several intriguing findings raise questions about scholarship on the politics of sentencing. It also examines where individual judges varied in the imposition of incarceration, sometimes in surprising ways, even accounting for the severity of the offense of conviction. Finally, this Article posits three alternative narratives supported by the data. One is a story of preserving political stability and the rule of law through prosecution, threatened by lenient sentencing. Another is judicial corrective to prosecutorial overreach. A third centers the role of politics, demographics, and bias in the administration of criminal justice.

Headnote

On January 6, 2021, an estimated two thousand people broke police lines and breached the U.S. Capitol building in an effort to prevent the certification of the 2020 presidential election results. Over one thousand people have been charged with various crimes for their actions that day, from misdemeanor trespassing charges to felony assault with a weapon and seditious conspiracy. Relying on publicly available sources, this Article presents results from an analysis of the first 514 people to have been sentenced in federal court for crimes committed on January 6. The result is a snapshot of the insurrectionists, the charges they faced, and the punishments federal judges imposed on them.

On demographics, the data suggest that the lawbreaking and political violence of January 6 was not just the work of the usual criminal suspects, right-wing extremists, or residents of former President Trump strongholds. Rather, it was committed by a cohort that more closely resembles mainstream White America. On punishment, the aggregate results are notable for their leniency. The cases were much more likely to result in a conviction for only a misdemeanor than typical federal criminal cases. Prison sentences were imposed much less frequently than usual for federal criminal defendants, and were much shorter in length.

This Article also explores the relationships between defendant age and sex, the sentences that judges imposed, and the sex and political party of the President who nominated the sentencing judge. Several intriguing findings raise questions about scholarship on the politics of sentencing. It also examines where individual judges varied in the imposition of incarceration, sometimes in surprising ways, even accounting for the severity of the offense of conviction.

Finally, this Article posits three alternative narratives supported by the data. One is a story of preserving political stability and the rule of law through prosecution, threatened by lenient sentencing. Another is judicial corrective to prosecutorial overreach. A third centers the role of politics, demographics, and bias in the administration of criminal justice.

INTRODUCTION

The newspaper headlines the day after January 6, 2021, minced no words. The Wall Street Journal reported, "MOB STORMS CAPITOL."1 The Memphis Commercial-Appeal announced, "RIOT AT CAPITOL."2 The Atlanta Journal-Constitution expanded the context, leading with, "INTOLERABLE ATTACK ON DEMOCRACY."3 The Milwaukee Journal-Sentinel summarized the day in a single word: "INSURRECTION."4

However they are described, most agree that the events of January 6 were some of the most notorious in the history of the United States. On that day, an estimated two thousand people broke police lines and security barriers and breached the U.S. Capitol building.5 Their actions caused the House and Senate to go into recess, interrupting the certification of the 2020 presidential election results. The devastating tally from that day included four deaths,6 at least 138 injured police officers, and at least $2.88 million dollars in damage.7

Immediately afterwards, the Department of Justice and other law enforcement agencies began a criminal investigation to identify individuals who perpetrated the lawbreaking and violence at the Capitol on January 6. This investigation resulted in over 1,500 federal criminal prosecutions.8 All but a handful were prosecuted in the same federal court: the District Court for the District of Columbia. All told, by January 2025, when newly-elected President Trump pardoned or commuted the sentences of everyone convicted for crimes related to events at or near the Capitol on January 6,9 1,270 people had been convicted of crimes for their actions on January 6, and approximately 1,100 had been sentenced.10

This episode, unparalleled in United States history, has provoked a great deal of commentary. One fundamental issue is the demographics of the insurrection. Who were the people who traveled to Washington D.C. and stormed the Capitol that day? Were they fringe, right-wing extremists, or do they more closely reflect the American mainstream? The answer speaks to how widespread the belief in the need for and legitimacy of political violence became at the end of Trump's first presidency.11

Examining these cases also helps us better understand a second fundamental issue: the federal criminal justice system's response to this episode of political violence. What charges were filed against the rioters? What crimes did they plead guilty to, or get convicted of at trial? And how did the punishments meted out by federal judges in these cases compare to criminal cases not involving insurrection?

The answers to these punishment questions are particularly important to a decades-old debate that carries heightened importance today: the politics of sentencing. If judges are neutral arbiters akin to baseball umpires in Supreme Court Chief Justice John Roberts' famous characterization,12 then political affiliation-or other social characteristics of judges-should have no impact on judicial decision-making. A large body of scholarship suggests otherwise.13 Does the sentencing of the January 6 rioters in the D.C. District Court support this scholarship? If not, what new insights or questions does it bring to the study of the politics of punishment?

This Article engages these questions-and provides a deeper understanding of the January 6 attack on the Capitol, as well as the criminal justice system's response to it-by performing an analysis of the first 514 Capitol Breach14 defendants to have been sentenced.15 This Article, which is part of a larger project examining American punishment through the lens of the January 6 Capitol Breach prosecutions,16 paints a statistical portrait of the Capitol Breach defendants, their crimes of conviction, and the punishments they have received. It explores what relationships, if any, factors like age, sex, and political affiliation have with the resulting punishments imposed.

The descriptive analysis reveals that the Capitol Breach defendants differ from typical federal criminal defendants in notable ways. First and foremost, they are comparatively-and exceptionally-White, with far fewer African-American and non-citizen defendants than the typical federal criminal docket.17 Indeed, at approximately 93% White, the Capitol Breach defendants are even Whiter than the predominantly White Trump 2020 electorate (85%).18 The Capitol Breach defendants are also older, and less likely to have a prior criminal record, than typical federal criminal defendants.19

This demographic portrait suggests that the lawbreaking and political violence of January 6 was not just the work of the usual criminal suspects- young males with prior criminal records.20 Yet neither was it committed only by right-wing extremists.21 Rather, it was committed by a cohort that, in many ways, more closely resembled mainstream White America.

The prosecution and punishment of these individuals also diverged in key ways from usual federal criminal cases. The January 6 defendants have been dealt with more leniently than typical federal criminal defendants. They were much more likely to have their cases resolved by a conviction for a misdemeanor (71.2%) than typical federal criminal cases (4.3%).22 Once convicted, they were less likely to be sentenced to prison (60.9%) than usual for federal criminal defendants (92.3%).23 Moreover, their sentences were comparatively shorter (a median of 3 months) than those typically imposed on federal criminal defendants (a median of 33 months).24 Indeed, the sentenced Capitol Breach defendants as a set (which includes Oath Keeper25 founder Stewart Rhodes and three other defendants sentenced to more than 10 years in prison each) have a median sentence shorter than the median sentence imposed on federal criminal defendants convicted of only a misdemeanor.26

These macro-level findings, based on the aggregate data, can be contrasted with what is revealed by analyzing the behavior of individual federal judges who presided over the Capitol Breach cases. Looking separately at both sex and political affiliation, important and consistent variances emerge. For example, judges appointed by Democratic presidents were slightly more likely to impose incarceration on Capitol Breach defendants than their counterparts appointed by a Republican president.27 With respect to sex, female judges more were likely to impose prison time, and longer sentences, than male judges.28

While this analysis suggests general trends tied to political affiliation and sex, it also uncovered striking variances between judges. Incarceration rates by judges ranged from 11% to 100% (the judge at each extreme was nominated by a Democratic President).29 Judges nominated by Republican Presidents H.W. Bush and Reagan had the highest incarceration rates.30 Some of this individual variation may be due to the severity of the cases the judges adjudicated. But even accounting for that, judges varied in the severity of their punishments.

All told, the descriptive findings here present a complicated picture about the criminal justice system's response to a violent attack on the democratic process. Hundreds of somewhat unusual suspects (in terms of their race, age, and lack of a criminal record) were criminally prosecuted in federal court. They faced serious charges and potential sentences that, if imposed, would not just incarcerate them for years but also strongly deter any similar efforts to undermine American democracy in the future. Yet, amidst ample media coverage of the worst January 6 offenders and severest punishments, an unprecedented percentage of the cases resulted in only a misdemeanor conviction and little to no prison time imposed by the judges.31

Whatever the reasons for this (the Article explores several), this apparent leniency threatens to diminish the likelihood of deterring future political violence. Moreover, President Trump's pardons and commutations significantly reduce the deterrent effect of these prosecutions and may even encourage future political violence.

This Article proceeds as follows. Part I briefly recounts the insurrection. Part II introduces the data set and method. Part III addresses the demographics of insurrection. Part IV addresses the federal criminal system's treatment of the insurrectionists, focusing on charging, convictions, and sentences.

I. JANUARY 6, 2021

When the news networks called the 2020 Presidential election for Democratic nominee Joseph Biden on November 7,32 a plan to prevent the certification of the election results and the peaceful transfer of power was already underway.33 Indeed, in the weeks before the November 3, 2020 election, sitting President and Republican nominee Donald Trump had regularly claimed at rallies and on social media that the upcoming election was rigged against him.34

With Trump declared the loser, the plan went into full swing. A key part of that plan was to incite public anger and protest by repeating the "Big Lie" that the election was fraudulently stolen from Trump.35 On December 2, 2020, for example, in a 45-minute video statement, Trump alleged "tremendous voter fraud and irregularities which took place during the ridiculously long November 3rd elections," asserting that the election system was "now under coordinated assault and siege."36 A couple of weeks later, with Congressional certification of the election results slated for January 6, 2021, Trump sent out a tweet to his some 88 million followers promising a "Big Protest in D.C. on January 6th" because, he asserted, it was "[s]tatistically impossible to have lost the 2020 [Presidential] election."37 "Be there," he urged, promising that it "will be wild!"38 Dozens more invitations from Trump via Twitter and in public remarks followed, encouraging his supporters to rally for him in Washington, D.C. on January 6.39

Thousands heeded Trump's call and came to Washington, D.C.40 Many came having planned for combat, wearing military or tactical gear and armed with weapons.41 Some were eager for mayhem and violence.42 One online discussion was particularly chilling: "Be ready to fight. Congress needs to hear glass breaking, doors being kicked in, and blood . . . being spilled. Get violent . . . stop calling this a march, or rally, or a protest. Go there ready for war. We get our President or we die."43

The events that unfolded on January 6 began at the Ellipse, a park south of the White House and just over a mile from the U.S. Capitol. Tens of thousands had gathered in the area.44 On account of security concerns, magnetometers had been set up at the entrance to the Ellipse. The Secret Service confiscated 242 canisters of pepper spray, 269 knives or blades, 18 brass knuckles, 18 tasers, 6 pieces of body armor, and 3 gas masks from attendees who passed through them.45 Thousands chose to not go through the magnetometers or stashed their packs outside before doing so.46

Former U.S. Associate Attorney General and New York City Mayor Rudy Giuliani took the stage at the Ellipse and called for "trial by combat."47 During a noon-time speech that lasted almost an hour, Trump said "We will never give up. We will never concede . . . . you have to get your people to fight . . . . we're going to have to fight much harder . . . . we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore."48 As Trump concluded his remarks, he told the audience and anyone watching on television or following along on social media to go to the Capitol.49 The goal was to the stop the electoral vote count and certification that would officially make Biden the winner.

Before the crowd from the Ellipse arrived at the Capitol building, people were already at the Capitol confronting law enforcement and Capitol security.50 They did so verbally at first, hurling insults, and then physically. As the crowd grew, some pushed and pulled at crowd control barriers, tossing them aside and moving toward the Capitol building as law enforcement and Capitol security retreated.51 With the crowd increasingly belligerent, the D.C. Metropolitan Police declared a riot at the Capitol at 1:49pm.52

At around 2:00pm, rioters were scaling the scaffolding set up in preparation for the presidential inauguration, breaching police lines, and assembling at entry points to the Capitol building.53 There, fights with law enforcement broke out, some of them violent. Rioters were pushing, kicking, using pepper spray, and throwing items at the law enforcement officers guarding the building.54 More than once, rioters grabbed law enforcement officers and pulled them into the teeming crowd and violently assaulted them.55

At 2:13pm, a rioter smashed a window on the Senate Wing with a riot shield he had stolen from a police officer, and the U.S. Capitol building was breached.56 Someone climbed in and opened the doors, allowing rioters to stream inside. Over the next hour, breaches happened at five additional points, with rioters using their fists, boots, flagpoles, and other items to break Capitol building windows and force open doors.57

Inside the Capitol building, with alarms blaring, rioters stalked law enforcement and security, and hunted the building for Vice President Mike Pence and Speaker of the House Nancy Pelosi.58 Lawmakers hid in offices, balconies, and supply closets.59 The Vice President and members of the Senate were evacuated, narrowly avoiding the rioters.60 Some rioters made their way into the Senate Chamber, where they went through senators' desks and stole documents.61 A few stole items and defaced or damaged property, including furniture, statues, paintings, and office supplies.62 Some simply wandered the halls and took selfies.

The attack lasted for hours. Estimates put the number of people who entered the Capitol building at between 2,000 and 2,500.63 The mob did not begin to disperse until Trump shared a video address at 4:17pm on the social media app Twitter telling his supporters to "go home now."64 The insurrectionists were removed from the Capitol building by approximately 6:00pm.65 Congress reconvened just after 8:00pm and eventually completed the certification of the election results, declaring Joseph Biden the winner at 3:30am on January 7.66

As a result of the Department of Justice's investigation of those who planned the insurrection and breached the Capitol, more than 1,500 defendants were charged with crimes for their actions that day.67 As of January 20, 2025, 1,270 people had been convicted of crimes for their actions on January 6, and approximately 1,100 had been sentenced.68

On January 20, 2025, with hundreds of cases still pending and investigations still in process, on his first day in office during his second term as President, Donald Trump pardoned or commuted the sentences of everyone convicted for crimes related to events at or near the Capitol on January 6.69 In the same breath, Trump directed the Attorney General to pursue dismissal with prejudice of all pending indictments related to the Capitol Breach.70

Opinions about those who breached the Capitol on January 6 have been mixed and have changed over time. Initially, polling showed widespread condemnation, with much of the general public appalled and disgusted by those who breached the Capitol.71 Over time, however, views have softened, especially amongst Republican voters.72 Federal prosecutors consider it a singular event in American history. Almost all Government sentencing memos filed in Capitol Breach cases begin by describing the events of January 6 as an "attack on the United States Capitol-a violent attack that forced an interruption of the certification of the 2020 Electoral College vote count, threatened the peaceful transfer of power after the 2020 presidential election, injured more than one hundred police officers, and resulted in more than 2.8 million dollars in losses."73 Elsewhere in those memos, the Government describes the events as "a criminal offense unparalleled in American history," "a grave threat to our democratic norms," and "an attack on the rule of law."74

The House of Representative resolution instructing the Select Committee to investigate January 6 referred to it as a "domestic terrorist attack."75 The Select Committee agreed with that characterization in its final report.76 Most elected officials agree.77

But some have hailed the January 6 rioters as "patriots."78 Indeed, before issuing the blanket pardons and commutations on the first day of his second presidential term, President Trump referred to those serving sentences for their actions on January 6 as "hostages" and "unbelievable patriots,"79 while characterizing the prosecutions as "a grave national injustice."80

II. THE DATA SET AND METHOD

This section of the Article describes the data set for this study and the methods deployed to analyze the data.

A. THE DATA SET

The data set for this analysis is the first 514 defendants who were sentenced in January 6 Capitol Breach cases brought in federal district court for the District of Columbia.81 The first defendant sentenced in a January 6 Capitol Breach prosecution-Anna Morgan Lloyd, 49, of Indiana-was sentenced on June 23, 2021, after pleading guilty to a misdemeanor.82 The last defendants sentenced in the data set-two members of the anti-government group known as the Oath Keepers-were sentenced in June 2023 after being convicted at trial of seditious conspiracy.83

The data set was cut-offin June 2023 to enable the analysis of the data and drafting of this Article. Investigations and prosecutions continued until January 2025, when Trump either pardoned or commuted the sentences of all Capitol rioters, and instructed the Attorney General to pursue dismissal with prejudice of all pending indictments related to the Capitol Breach.84

The cut-offmay cause these preliminary results to differ from the final figures. For example, many of the earliest cases to reach sentencing involved defendants who had pled guilty to a single misdemeanor charge of parading, and who did not commit any violence or destroy or steal property. Some of the cases of those facing the most serious charges started later and proceeded more slowly, and those cases may have not reached sentencing until after the data set for this analysis was closed. That said, the data set for this analysis includes many serious offenders. Among them are six of the Oath Keeper defendants who were convicted of seditious conspiracy, twenty-five defendants convicted of assault with a deadly weapon, and another fifty-seven convicted of obstruction in violation of 18 U.S.C § 1512, subjecting each to a twenty-year maximum punishment.85

As a result, I believe the data set to be robust enough in size to provide a meaningful picture of the sentenced Capitol Breach defendants as a group and the criminal justice response to January 6. Up-to-date Department of Justice data supports that conclusion. As of January 2025, the Department of Justice reported that 667 of 1,100 sentenced defendants (60.6%) had been sentenced to incarceration, a rate which is nearly identical to the 60.9% finding from the data set for this paper.86

Nevertheless, this statistical analysis is not a complete accounting of the Capitol Breach prosecutions or the punishments imposed.

The following information was compiled for each sentenced January 6 Defendant in the data set:

* Defendant Name

* Defendant's State of Residence at Time of Arrest

* Defendant Sex

* Defendant Age at Sentencing

* Top Charge (according to maximum statutory punishment)

* Category of Charge

o Sedition

o Assault/Violence

o Property

o Obstruction/Disorderly conduct

o Parading/Entering & Remaining

o Possession of a Weapon/Firearm

* Charge(s) of Conviction

* Top Charge of Conviction (according to maximum statutory punishment)

* Category of Conviction

o Sedition

o Assault/Violence

o Property

o Obstruction/Disorderly conduct

o Parading/Entering & Remaining

o Possession of a Weapon/Firearm

* Guilty Plea or Trial

* Defendant's association with a right-wing extremist group, if any

* Defendant's military service and law enforcement employment, if any

* Defendant's prior criminal record, if any

* Sentence Imposed

o Incarceration

o Home Detention

o Probation or Supervised Release

o Fine and Restitution

o Community Service

* Date of Sentencing

* Sentencing Judge

* President Who Nominated Sentencing Judge to Federal Bench

* Sentencing Judge's Sex

B. THE METHOD

The above case details were gleaned from a number of sources. Primarily, they were found by reviewing official case documents.87 Various sources were used to access those documents and compile data on the Capitol Breach cases, including the following publicly accessible websites:

* Until January 25, 2025, the Department of Justice maintained a website that included information about Capitol Breach cases,88 including a chart identifying the sentences imposed in Capitol Breach cases,89

* The George Washington University Center on Extremism's webpage for Capitol Hill Siege cases, which includes case information and links to case documents,90

* The Free Law Project's Court Listener website, which includes a searchable database of court documents,91

* The Public Access to Court Electronic Records (PACER) website,92 and

* A website from an organization called American Gulag that claims to be "documenting government overreach following the January 6th protest."93 This webpage included links to many case documents, including sentencing hearing transcripts.94

The case data for each defendant was entered into an Excel spreadsheet. All the information collected was factual. That is, a defendant's age, state of residence, prior criminal record, the charge(s) of conviction, the date of sentencing and the sentence imposed, the political party of the judge's nominating President-these are all things that required no interpretation on my part.95

I categorized the offenses of conviction into seven categories, driven by the statutory scheme.

1. Seditious Conspiracy-Seditious conspiracy described a singular felony charge: 18 U.S.C. § 2384 Seditious Conspiracy.

2. Felony Assault/Violence-Those categorized as felony assault/violence convictions included:

a. 18 U.S.C. § 111(a) Assault, Resist, or Impede (Certain Officers or Employees)

b. 18 U.S.C. § 111(a) and (b) Assault, Resist, or Impede (Certain Officers or Employees) with a Deadly Weapon

c. 18 U.S.C. § 1752(a)(4) Physical Violence, and

d. 18 U.S.C. § 2111 Robbery and Burglary (Special Maritime and Territorial Jurisdiction)

3. Felony firearms/weapons-Those categorized as felony firearms/weapons convictions included:

a. 18 U.S.C. § 231(a)(2) Firearm in Furtherance of Civil Disorder,

b. 18 U.S.C. § 111(a) and (b), Assault, Resist, or Impede (Certain Officers or Employees) with a Deadly Weapon,

c. 26 U.S.C. § 5861(d) Possession of an Unregistered Firearm, and

d. 18 U.S.C. § 1752(a)(1) and (b) Entering and Remaining in a Restricted Building with a Deadly Weapon.

4. Felony Property-Those categorized as felony property convictions included:

a. 18 U.S.C. § 641 Theftof Government Property,

b. 18 U.S.C. § 1361 Destruction of Government Property, and

c. 18 U.S.C. § 1363 Destruction of Government Property.

5. Felony Obstruction-Those categorized as felony Obstruction convictions included:

a. 18 U.S.C. § 231(a)(3) Obstructing Officer During Civil Disorder,

b. 18 U.S.C. § 371 Conspiracy to Obstruct Official Proceeding,

c. 18 U.S.C. § 372 Conspiracy to Prevent Discharge of Duties,

d. 18 U.S.C. § 875 Threats in Interstate Communication,

e. 18 U.S.C. § 1512(k) Conspiracy to Obstruct Official Proceeding,

f. 18 U.S.C. § 1512(c)(1) Corruptly Alter, Destroy, or Conceal a Record, and

g. 18 U.S.C. § 1512(c)(2) Obstruct Official Proceeding.

6. Misdemeanor 1752-Those categorized as misdemeanor 1752 convictions included:

a. 18 U.S.C. § 1752(a)(1) Entering and Remaining in a Restricted Building,96 and

b. 18 U.S.C. § 1752(a)(2) Disorderly or Disruptive Conduct.

7. Misdemeanor 5104-Those categorized as 5104 convictions, misdemeanors all, included:

a. 40 U.S.C. § 5104(d) Climbing on Wall of U.S. Capitol Grounds,

b. 40 U.S.C. § 5104(e)(2)(A) Entering and Remaining on House Floor,

c. 40 U.S.C. § 5104(e)(2)(D) Disorderly Conduct on U.S. Capitol Grounds,

d. 40 U.S.C. § 5104(e)(2)(F) Physical Violence on Capitol Grounds, and

e. 40 U.S.C. § 5104(e)(2)(G) Parading on U.S. Capitol Grounds.

I used two different pieces of software to analyze the data: Excel and Nvivo. Excel is a popular spreadsheet software. Within Excel, I did descriptive statistical analysis of the data. No regression analyses were conducted on the data.

Nvivo is software designed to facilitate qualitative analysis of non-numerical data, that includes tools for conducting quantitative analysis. After importing the data in the Excel spreadsheet into Nvivo, I was able to use the software to do additional descriptive statistical analyses of the data. For example, in Nvivo, you can select multiple attributes (such as defendant sex, judge sex, and incarceration) and explore correlations and relationships amongst them.

III. THE DEMOGRAPHICS OF INSURRECTION

Understanding who chose to break police lines and breach the U.S. Capitol to interrupt the peaceful transfer of power is an important task. It provides insight into whether the events of January 6 represent chaos perpetuated by fringe groups and rogue individuals, or reflect values more widely accepted by the American population.97 In addition, given the individualized approach to American sentencing, where courts do not merely punish an act but also punish the particular offender who committed the act, demographic insights into the insurrectionists also provide important context for the sentencing data discussed in Part IV.98

Robert Pape published the first study of the demographics of those who breached the U.S. Capitol.99 Looking at arrest records, he found that the insurrectionists "closely reflect the U.S. electorate on most socio-economic variables and, hence, come from the mainstream, not just the fringe of society."100 On the factors of age, unemployment, education, military service, and prior criminal record, Pape found that the arrested insurrectionists more closely resembled the U.S. electorate than they did right-wing extremists.101 According to Pape, only on sex (overwhelmingly male) and race (overwhelmingly White) did the arrested insurrectionists more closely mirror right-wing extremists rather than the electorate.102

The data on sentenced Capitol Breach defendants described here confirms Pape's findings that the political violence perpetrated on January 6 was not confined to self-identified militia groups or right-wing extremists such as the Proud Boys, Oath Keepers, or the Three Percenters. Individuals from these groups were certainly part of the mob and often led and encouraged people to breach the Capitol and fight with law enforcement. However, the political violence of January 6 was perpetrated by Americans who came from all over the country (red states and counties, and blue) and ranged in age from 19 to 81.103

Yet, it's not so simple as saying that the lawbreaking and political violence was done by a cross-section of the American electorate as whole, or even the Trump electorate. The sentenced defendants were, on average, more male, more White, and more likely to have a criminal record than Trump 2020 voters.104 Their sex and age distribution looked more like typical criminal defendants than the aged Republican electorate.105

Altogether, the data demonstrate that those who breached the U.S. Capitol on January 6 included both young males with criminal records (the type that would predominate a group of criminal offenders) and older and Whiter participants such as one would find at a Republican campaign rally.

A. SEX

The U.S. population as a whole has more women than men, but criminal defendants are, and have long been, predominantly male.106 In both state and federal criminal justice systems, for crimes ranging from property crimes to violence to controlled substances, men offend more often than women.107 Of the 62,170 defendants charged criminally in U.S. district courts in FY 2020, 87% were male and 13% were female.108

The sex distribution of Capitol Breach defendants reflects the prevailing larger pattern. Men were much more likely to break the law on January 6 than women. Of the 514 sentenced Defendants in the data set, 432 (84%) were male.109

Perhaps this male skew simply reflects the prevailing pattern of men committing more crimes than women.110 But, the January 6 Capitol Breach was a singular event with a political context making it different from more typical criminal offending. As such, a simple explanation may not be warranted. Research on political violence has traditionally held that men are more likely to commit political violence.111 As one study put it, "while only a small percentage of men become involved in violent extremism, the majority of violent extremists are men."112

An alternative, or additional, explanation for the male skew of the Capitol rioters may lie in the gendered tenor of the Pro-Trump political movement, which is infused with a particular conception of masculinity.113 Trump's speeches, and the online argle-bargle of many of his supporters, are littered with the language of fighting, honor, and toughness.114 As noted above, during Trump's speech at the Ellipse on January 6, which immediately preceded the Capitol riot, he made repeated references to showing strength, courage, and fighting.115 This belligerent rhetoric, when layered atop the prevailing politics of resentment and White male grievance amongst the American right,116 could have disproportionately provoked men to come to Washington, D.C., or encouraged those men present to defy authority, break the law, and commit violence.

That said, the lawbreaking and political violence on January 6 was not exclusively committed by White males. Women and people of color joined the fracas. So, while the masculine rhetoric that dominates MAGA may explain much about who committed political violence of January 6, that day was about more than just White male grievance and resentment.

B. AGE

Criminal offending rises in adolescence, peaks in the late teen years, and declines throughout the twenties.117 This is commonly called the Age-Crime Curve, and it is reproduced in countries across the globe in aggregate populations.118 Most offenders, including violent ones, age out of crime by middle age.119

Even with this pattern of early offending and middle age desistance, the median age of all federal criminal defendants in 2020 was 35.120 Both males and females have the same 35-year-old median.121 Nearly two-thirds of federal criminal defendants (65.7%) are between the ages of 25 and 39.122 Just 13.1% of federal criminal defendants are over the age of 50.123

The sentenced Capitol Breach defendants are, as a group, an older set. Nearly 30% of them (28.7% of male defendants and 35.5% of female defendants) are 50 or older.124 As a result, the median age of the group as a whole is 40, five years older than the median age of typical federal criminal defendants. The male defendants have a median age of 39. The female defendants are an older set, still, with a median age of 42.125

For males, the higher median age results from greater representation than typical in each age group for those 45 and up, and smaller representation than typical amongst each group 44 and under. The higher median age of the female sentenced Capitol Breach defendants is driven by a similar tilt toward defendants over 50. But it also results from an anomalously small cohort of female defendants in their late 20s, and an anomalously large cohort in their 50s. Such anomalies are not seen amongst the age distribution of male Capitol Breach defendants.

This finding on the age of the insurrectionists differs from Robert Pape's conclusion in The American Face of Insurrection. Looking at over 700 arrest records, Pape found a "startling . . . lack of individuals over 55" participating in the insurrection (as compared to the U.S. electorate and Trump electorate).126 This led him to conclude that the "aging Baby Boomers (between 57 and 75 in 2021) well represented in the electorate stay[ed] out."127 The data on the sentenced Capitol Breach defendants show that they did not stay out. While the bulk of defendants were under 50, those over 50 offended on January 6 at rates that exceed the typical offending rates for individuals their age.

The older median age of Capitol Breach defendants could be partly explained by the event's political nature. Two-thirds of Republicans are 50 years or older, with almost a third age 65 or older.128 This demographic reality, Trump's better performance amongst older 2020 voters, and his poorer performance amongst younger voters, may provide part of the reason why the January 6 rioters skewed old.129 There were simply a larger number of aggrieved older Republican voters after the 2020 election.

Alternatively, perhaps older Trump supporters were more susceptible to the narrative of the "Big Lie,"130 and thus felt more compelled to take action on January 6.131 Studies suggest that older adults are often more susceptible to misinformation, especially online misinformation.132 And the Trump campaign's promises of a return to an idealized America from the past likely resonated with an older demographic.133

The nature of the events may have also contributed to the violence. For many, the day began as a political rally, and they were present not to engage in violence or lawbreaking, but to support their presidential candidate. From there, the "mob mentality" effect may have induced people, otherwise not inclined to break the law, to follow the crowd and unlawfully enter the Capitol building.134 This account of events featured prominently in the Capitol Breach defendants' sentencing memoranda.135

Further study is required to explain why the female defendants were, as a set, older than the male defendants, and why females in their lates 50s are anomalously overrepresented while those in their late 20s are nearly absent. One possible explanation could be that some of these women in their 50s came to Washington, D.C. with their spouses and entered the Capitol building together.136 And perhaps female Republicans in their 20s were too few, too disinterested, or too smart to show up in significant numbers on January 6, or to break police lines and breach the Capitol if they were present. More fine-grained demographic data is needed to come to any conclusions.

C. RACE

The American criminal justice system is notorious for the overrepresentation of people of color as defendants. While the United States population is almost 60% non-Hispanic White,137 criminal defendants have long been disproportionately people of color.138 In the federal criminal justice system, in 2020, non-Hispanic Whites accounted for only 20% of all federal criminal defendants.139

On race, the sentenced Capitol Breach defendants look very different from the United States population and typical federal criminal defendants. While I did not have access to race data on the sentenced Capitol Breach defendants, other studies have found them to be overwhelmingly White. For example, Robert Pape's study of 716 people arrested for their actions on January 6 found that those in his data set are 93% White.140

In this regard, the Capitol Breach defendants as a group much more closely resemble the Trump electorate than typical federal criminal defendants.141 Still, they skewed even Whiter than the very White Trump electorate. The predominance of White Americans amongst the Capitol Breach defendants should probably come as no surprise, given the makeup of the Republican party and the racial dimensions of the MAGA movement.142 Indeed, Trump's rhetoric and imagery, as well as that of his supporters, frequently nods to White supremacy.143 Trump's "America First" slogan, for example, reprised an early twentieth century anti-interventionist phrase that some have linked to anti-immigration, anti-Semitism, and fascism.144 Consistent with this, the Confederate flag was prominently displayed by many during the Capitol Breach.145

This racial skew amongst the Capitol Breach defendants means that Republicans of color were either less likely to come to Washington, D.C. on January 6, or less likely to break the law and storm the Capitol if they did. While further study is needed, the data suggests that the belief in the legitimacy in political violence may be more widely held by White Americans, or at least White Republicans.146

D. STATE OF RESIDENCE

The U.S. Capitol is not centrally located in the United States. Nevertheless, the sentenced Capitol Breach defendants came from all over the country. They hail from every state in the Union but three.147 The greatest absolute numbers of sentenced Capitol Breach defendants were from three populous states: Texas, Pennsylvania, and Florida. While the defendants skew toward states closer to Washington, D.C., over 158 defendants (30% of the sentenced defendants) resided west of the Mississippi River. At least 233 of them (45%) lived in states that were 500 miles or more from Washington, D.C.148

Compared to their percentage of the U.S. population, several states were overrepresented as the home state of Capitol Breach defendants. They included the Red Trump states of Florida, Kentucky, Missouri, Ohio, Virginia, and West Virginia, and the D.C.-adjacent Blue Biden states of Maryland and Pennsylvania.149

Other states were underrepresented amongst the sentenced January 6 defendants. These include two distant Biden states (California and Oregon), a trio of Trump states in the South (Mississippi, Louisiana, and Arkansas) and a trio of northern Biden states (Massachusetts, Minnesota, and Wisconsin).150

More of the sentenced Capitol Breach defendants were from states that Trump won in 2020 (275 defendants) than states that Biden won (239 defendants). These defendants were supporters of a candidate who won at home but lost nationally. Together with all the noise about a supposedly rigged election, that may have compelled them to travel to Washington, D.C. and take action in support of their locally popular but vanquished candidate.

Robert Pape's study complicates the picture a bit. Examining residence at the county rather than state level, Pape found that January 6 arrestees were more likely to be from counties Biden won (53% of arrestees) than Trump counties (47%).151 On this account, these folks supported a candidate who lost both locally and nationally. Some further digging by Pape revealed that three-quarters of the arrestees were from urban counties, not rural counties, and that half of the arrestees were from counties that were less White than the national average.152 As Pape put it, the insurrectionists "are not limited only to the traditionally Republican strongholds" of rural, White America, but are "widely from urban, diverse, 'purple' counties."153 Moreover, Pape found that counties that had declining White populations in the last half-decade were more likely to produce insurrectionists at a higher rate.154 This led Pape to conclude that the "local decline of the non-Hispanic white population has a galvanizing effect."155

My data on the sentenced Capitol Breach defendants supports Pape's conclusion that the insurrectionists were not geographically concentrated in "red" states. Further study on the relationship between demographics and participation in the January 6 political violence could reveal further insights.156

E. PRIOR CRIMINAL RECORD

There is a first time for everything. But federal criminal court is typically not a place where someone is facing their first criminal prosecution. To the contrary, federal criminal defendants are likely to have been convicted of a prior offense. In FY2016, 72.8% of sentenced federal defendants already had a criminal conviction.157 The data on the percentage of the American population as a whole with a criminal record is a bit fuzzy, owing in part to inconsistency as to what counts as a "criminal record."158 Reported numbers vary from 20-33%.159

On this front, the people arrested for their actions on January 6 looked more like the American public than federal criminal defendants. Pape found that only 30-33% of the entire set had a criminal record.160 Women were much less likely to have a criminal record, with only 16% of the women arrested having a criminal record.161 Another study found smaller, but similar, percentages.162

Again, the data here shows that the Capitol rioters looked more like U.S. adults than typical federal criminal defendants.

Altogether, the demographic data shows that the political violence of January 6 was perpetrated by a set of people who, on the characteristics of sex and age, closely resemble typical federal criminal defendants. They were mostly men, and mostly under fifty. Yet, the insurrectionists differed in notable respects from the usual young, male criminal defendants. They are older, far more White, and much less likely to have a criminal record, than typical federal criminal defendants. On these factors, they more closely resemble the Trump electorate than they do typical federal criminal defendants.

These findings suggest that in 2021, the belief that political violence was necessary and legitimate was not restricted to young, male, right-wing extremists.163 Rather, a large cohort of White Americans thought lawbreaking on January 6 in the name of political goals was justified. This is a troubling finding for the rule of law and the future of democracy and elections in the United States. The pardons and commutations of all these offenders make it all the more so.

The next part of this Article examines the criminal justice response to insurrection.

IV. SENTENCING INSURRECTION

This section reports findings regarding the charges filed against the sentenced January 6 defendants, the convictions obtained in their criminal cases, and the sentences imposed on them. This data provide insight into whether the attack on the Capitol translated into serious criminal offenses, and how much the federal bench punished the guilty, both absolutely and compared to the typical federal criminal docket. It also looks at whether judicial political affiliation or sex affected sentencing outcomes.

A. CHARGING INSURRECTION

Criminal statutes define punishable behavior and grade its seriousness. Their enforcement permits the public to defend its moral code and, while doing so, deter others from future violations.164 Consistent with this relationship between crime and values, notions of what counts as a crime change over time.165 For example, in recent decades, driving under the influence of alcohol and domestic violence have been treated as more serious offenses, while marijuana possession and sale have been decriminalized in many jurisdictions.166

Federal criminal court is considered a place for serious cases.167 As such, the federal criminal docket is filled overwhelmingly with felony prosecutions.168

Nation-wide, almost two-thirds of federal criminal cases have either an immigration crime (such as felony illegal re-entry) or a felony drug crime as the most serious offense charged.169 Public order and property offenses make up another 19%, in roughly equal proportions.170 Approximately 12% of federal prosecutions have a weapons offense as the most serious offense charged.171 Just under 5% of federal criminal cases have a violent offense as the most serious offense charged.172

The United States District Court for the District of Columbia, where the Capitol Breach defendants were prosecuted and sentenced, has a somewhat different criminal case distribution. The biggest difference is that it lacks immigration cases. It also has a lower percentage of drug cases, and more firearms cases, than federal criminal courts nationwide.173 Nevertheless, violent offenses are similarly just 5% of all criminal cases in D.C federal criminal court.174

Examining the charges laid against the Capitol Breach defendants shows how their riotous behavior translated into alleged criminal conduct. Determining whether the defendants were charged with felonies or misdemeanors, and the maximum potential punishments for the charges brought, can show how serious the alleged actions are considered within the statutory scheme.

A brief side note is warranted before proceeding. Not all identified wrongdoing leads to a prosecution in criminal court. The decision to file charges against an individual is a matter of (largely unreviewable) prosecutorial discretion.175 For various reasons, such as a lack of evidence or credible witnesses, office priorities, limited resources, and bias, prosecutors may decline to prosecute someone who they believe (or even know for certain) has committed a crime.176 For example, in FY 2020, the federal government declined to prosecute 16.7% of criminal matters referred to it.177

Those who breached the Capitol do not appear to have benefitted from the exercise of prosecutorial discretion. Rather, the government seemed to prosecute all who it identified as breaching the U.S. Capitol. It appears that only minors and credentialed journalists who were inside the Capitol have not been prosecuted.178

This "prosecute-them-all" approach is a departure from typical practice. It is not explained by the type of cases that make up the January 6 prosecutions, since many match the kinds of cases that federal prosecutors decline to prosecute, as they have only a misdemeanor trespassing charge as a top charge, involve non-violent behavior, and involve defendants without a criminal record.179 Rather, it arguably reflects a belief amongst the Department of Justice prosecutors that each person who breached the Capitol must be held accountable. This holds even if they did not commit violence or property damage while inside the building, and even if they lack a criminal record.180 As prosecutors put it in many of the sentencing memoranda filed in Capitol Breach cases:

[E]ach person who entered the Capitol on January 6 did so under the most extreme of circumstances. As a person entered the Capitol, they would-at a minimum-have crossed through numerous barriers and barricades and heard the throes of a mob. Depending on the timing and location of their approach, they also may have observed extensive fighting with law enforcement and likely would have smelled chemical irritants in the air. Make no mistake, no rioter was a mere tourist that day.181

The range of charges laid against Capitol Breach defendants is broad. In total, they have been accused of violating at least sixteen different sections of the criminal code. Those charges included violating:

* 18 U.S.C. § 111(a) Assault, Resist, or Impede (Certain Officers or Employees),

* 18 U.S.C. § 111(a) and (b) Assault, Resist, or Impede (Certain Officers or Employees) with a Deadly Weapon,

* 18 U.S.C. § 231(a)(2) Firearm in Furtherance of Civil Disorder,

* 18 U.S.C. § 231(a)(3) Obstructing Officer During Civil Disorder,

* 18 U.S.C. § 371 Conspiracy to Obstruct Official Proceeding,

* 18 U.S.C. § 372 Conspiracy to Prevent Discharge of Duties,

* 18 U.S.C. § 641 Theftof Government Property,

* 18 U.S.C. § 875 Threats in Interstate Communication,

* 18 U.S.C. § 1361 Destruction of Government Property,

* 18 U.S.C. § 1363 Destruction of Government Property,

* 18 U.S.C. § 1512(c)(1) Corruptly Alter, Destroy, or Conceal a Record,

* 18 U.S.C. § 1512(c)(2) Obstruct Official Proceeding,

* 18 U.S.C. § 1512(k) Conspiracy to Obstruct Official Proceeding,

* 18 U.S.C. § 1752(a)(1) Entering and Remaining in a Restricted Building,

* 18 U.S.C. § 1752(a)(2) Disorderly or Disruptive Conduct,

* 18 U.S.C. § 1752(a)(1) and (b)(1)(A) Entering and Remaining in a Restricted Building with a Deadly Weapon,

* 18 U.S.C. § 1752(a)(4) Physical Violence,

* 18 U.S.C. § 2111 Robbery and Burglary (Special Maritime and Territorial Jurisdiction),

* 18 U.S.C. § 2384 Seditious Conspiracy,

* 26 U.S.C. § 5861(d) Possession of an Unregistered Firearm,

* 40 U.S.C. § 5104(d) Climbing on Wall of U.S. Capitol Grounds,

* 40 U.S.C. § 5104(e)(2)(A) Entering and Remaining on House Floor,

* 40 U.S.C. § 5104(e)(2)(D) Disorderly Conduct on U.S. Capitol Grounds,

* 40 U.S.C. § 5104(e)(2)(F) Physical Violence on Capitol Grounds, and

* 40 U.S.C. § 5104(e)(2)(G) Parading on U.S. Capitol Grounds.

Each defendant was charged with violating more than one.182

According to the Department of Justice, all Capitol rioters were charged with some form of trespass or disorderly conduct.190 However, an 11-defendant seditious conspiracy indictment did not allege any misdemeanor counts.191 As a result, 98% of sentenced January 6 defendants were charged with misdemeanor parading or disorderly conduct in violation of 40 U.S.C. § 5104(e), or misdemeanor entering and remaining in a restricted building in violation of 18 U.S.C. § 1752.192 A violation of 40 U.S.C. § 5104(e), for what boils down to trespassing, or disruptive trespassing, on U.S. Capitol grounds, is punishable by up to six months in prison.193 Misdemeanor entering and remaining in a restricted building carries a twelve month maximum sentence.194

While federal criminal cases involving misdemeanor charges are not unusual, a federal criminal case involving only misdemeanor charges is. According to the Bureau of Justice Statistics Federal Criminal Case Processing Statistics Data Tool, just 5.3% of persons charged in federal court in FY 2020 were charged with only a misdemeanor.195 By contrast, approximately half of Capitol Breach prosecutions have involved only misdemeanor charges.196

This charging data reveals two things about the criminal justice system's response to the Capitol Breach. First, the government backed up its rhetoric that the insurrection posed a serious threat to American democracy and the rule of law by devoting substantial resources to investigate and prosecute each identified person who breached the Capitol.197 This included hundreds who did not commit violence or destroy property and who lacked a prior criminal record, and who were charged with nothing more serious than a misdemeanor. Generally, prosecutors are more likely to decline to prosecute when the defendant committed no violence and lacked a prior criminal record. But until President Trump put an end to the prosecutions, this was an all-hands-on-deck effort. As such, it reflects the government's position that these cases demand criminal accountability and that similar insurrections in the future must be deterred by prosecuting the January 6 rioters.

Second, the large number of misdemeanor-only cases also demonstrates that the conduct of many of those who breached the Capitol did not translate into serious criminal charges. Trespass is not contextual. It is not graded more seriously when done to subvert democracy. Had more serious charges been presentable, prosecutors would have likely brought them.198 The prosecutors here charged broadly, but they did not overcharge.

B. CONVICTING INSURRECTION

A federal criminal prosecution ending in a conviction is almost as likely as the Harlem Globetrotters winning a basketball game.199 Of all criminal cases adjudicated in FY 2020 in U.S. district court, 92.6% of them resulted in a conviction.200 Over 98% of those convictions resulted from a guilty plea.201

Not only do the vast majority of federal criminal cases end in a conviction, they almost certainly result in a felony conviction. For FY 2020, the most serious offense at conviction was a felony in 95.7% of cases resulting in a conviction.202 Because 98% of convictions follow a plea, this means that in the regular course, federal prosecutors rarely make or accept plea deals that do not involve an admission to a felony charge.

The distribution of the most serious offense at conviction for federal criminal cases mirrored the rates for most serious offense at charging.203 Of all federal criminal convictions in FY 2020, almost two-thirds had a drug or immigration conviction as the most serious offense.204 A felony weapons conviction was the most serious offense in 11.8% of all cases resulting in conviction.205 Those with a violent felony as the most serious offense were only 2.8% of all cases resulting in conviction.206

Capitol Breach convictions were obtained in a similar way to usual federal criminal court convictions. A sliver over 90% of the sentenced Capitol Breach defendants pleaded guilty.207 Female-sentenced Capitol Breach defendants were more likely to resolve their cases via plea (96%) than males (89%).

Capitol Breach cases differ from typical federal criminal cases with regard to the most serious offense of conviction. Owing to the nature of the riot, they include no drug or immigration cases.

The following chart summarizes this charging data. The middle column adjusts the percentages of federal criminal case distribution after wholly excluding immigration and drug offenses, allowing more of an apples-to-apples comparison with the Capitol Breach cases.

As with charging (where Capitol Breach cases were much more likely to involve only misdemeanor charges),213 Capitol Breach cases were much more likely to result in a misdemeanor offense as the most serious offense at conviction. Whereas only 4.3% of federal criminal cases end with a misdemeanor as the most serious offense, an astounding 71.2% of the sentenced Capitol Breach defendants had a misdemeanor as their top charge of conviction.214 Women Capitol Breach defendants were more likely to have a misdemeanor as their top charge of conviction (92.7%) than men (67.6%).215

For all the government's rhetoric about the January 6 insurrection being "a crime unparalleled in American history," "a grave threat to our democratic norms," and "an attack on the rule of law,"216 that "no rioter was a mere tourist that day,"217 and that "[t]he gravity of these offenses demands deterrence,"218 most of the sentenced Capital Breach defendants did not end up with a felony conviction. Since 90% of the sentenced Capitol Breach defendants pleaded guilty, prosecutors accepted a misdemeanor-only resolution to the vast majority of the Capitol Breach cases.

Why were federal prosecutors willing to accept guilty pleas to misdemeanors to resolve nearly three-fourths of Capital Breach prosecutions when they rarely do so in the normal course in federal criminal cases? One explanation may lie with the underlying behavior. Many of those who breached the Capitol did not commit acts of violence, or damage property, or bring and use a weapon. Most did not devise elaborate plans to interrupt the certification of the election or coordinate with others. Their behavior simply did not translate to serious, felony-grade conduct under the criminal codes.219 Trespassing without more, even when it is done in the name of political insurrection as part of an attempted coup is, at the end of the day, just trespassing. With more serious charges simply not supported by evidence for many Capitol rioters, the government accepted misdemeanor pleas.

Further, pleas to misdemeanor trespass are undoubtedly prevalent because the charge is easy to prove. For all the Capitol Breach defendants, the Government had strong evidence of their presence inside the building in the form of surveillance camera footage and cell phone videos taken by those inside.220 Defendants charged with trespass had little chance (besides jury nullification) of avoiding a conviction by going to trial.221 When combined with the sentencing benefit of taking responsibility, both sides had reasons to resolve many of these cases with guilty pleas to misdemeanors.

The demographics of the Capitol Breach defendants (relatively White, older, and lacking criminal records) may have also impacted the plea-bargaining approach of prosecutors. Professor Carlos Berdejó has shown, for example, that race influences the plea deals that prosecutors offer.222 Specifically, Berdejó found that white people facing misdemeanor charges were more than 74 percent more likely than black people to have all charges carrying potential prison time dropped, dismissed, or reduced, and white people with no criminal history were more than 25 percent more likely to have charges reduced than black people with no criminal history.223 Professor Berdejó has also shown that gender disparities are present in plea bargaining, with female defendants about twenty percent more likely than male defendants to have their principal initial charge dropped or reduced, with the gender disparities greater in cases involving misdemeanors and low-level felonies.224 The data here align with these findings.

In addition to the high number of pleas to misdemeanor charges, another notable feature of the Capitol Breach cases is the small percentage of cases where a weapons offense was the most serious offense at conviction (just 1%). Even if all Capitol Breach convictions that included the use of a weapon are tallied together, then only 5.8% of sentenced Capitol Breach defendants were convicted of a weapons offense. This is much lower than typical of federal criminal cases (11.8%).

That the vast majority of those who breached the Capitol did not possess or use a weapon may support the notion that many defendants did not plan to commit political violence on January 6. That many who were charged and convicted of using a weapon used found or stolen items (such as chairs and flagpoles) as weapons further supports this idea.225 In addition, the lack of on-scene arrests on January 6 may have reduced the number of weapons charges that could be brought and proved. As the police were clearing the Capitol Building that day, once they regained control, they ushered most rioters out the doors and sent them on their way instead of detaining them.226

C. SENTENCING INSURRECTION

The primary consequence of a criminal conviction is the punishment that criminal justice system exists to punish wrongdoers.227 There is ample evidence that the government considered the January 6 insurrection to be a serious wrong that deserved serious punishment. Almost all Government sentencing memoranda filed in Capitol Breach cases describe the events of January 6 as "a crime unparalleled in American history," "a grave threat to our democratic norms," and "an attack on the rule of law."228 Words such as "riot," "mob," "attack," "violent," "weapons," "injure," "damage," and "terror" appear regularly in the Government's court filings.229

Consistent with this view of January 6, the Government has sought significant punishments for all convicted Capitol Breach defendants. Indeed, despite the fact that approximately half faced only misdemeanor charges and over 70% were found guilty of a misdemeanor as their most serious offense, the Government requested incarceration or some period of home detention at sentencing in all but 7 of the Capitol Breach cases in the data set.230 As prosecutors put it in many sentencing memoranda, "misdemeanor breaches of the Capitol on January 6, 2021 were not minor crimes."231

The next section reports findings on the sentences imposed on Capitol Breach defendants. It examines the imposition of incarceration, as well as supervised release, probation, fines, restitution, and community service. The following section looks at sentencing patterns amongst the presiding judges, keying in on whether political affiliation or sex correlated with particular sentencing outcomes.

1. Sentences Imposed

This section details the sentences imposed on the 514 Capitol Breach defendants in the data set. It breaks down the sentences imposed by offense type. It also disaggregates the data by defendant sex and age and compares the findings to data on federal criminal sentencing in other cases.

Capitol rioters received serious punishments for their actions on January 6. Collectively, the 514 Capitol Breach defendants in the data set were sentenced to just over 470 prison years. Twenty-six defendants were sentenced to 5 years or more in prison, with the longest sentence being 18 years.232

Nevertheless, the data reveals a collection of punishments for Capitol rioters predominated by light sentences. As a cohort, they were sentenced to incarceration less frequently, and for shorter periods of time, than typical federal criminal defendants.233 Moreover, judges turned to alternatives to incarceration, such as home confinement, probation, and community service, much more frequently than usual.234

This leniency belies the rhetoric. But it is partly explained by the severity, or lack thereof, of the Capitol Breach defendants' crimes of conviction, with almost three-quarters of them convicted of only a misdemeanor punishable by no more than six or twelve months in prison.235

A somewhat closer look reveals that there are two different buckets of Capitol Breach cases. In one bucket are those defendants who were convicted only of a misdemeanor. Many of these defendants were first-time offenders who committed no violence on January 6. Those in the misdemeanor bucket were punished quite lightly, both absolutely and compared to typical federal defendants convicted of a misdemeanor. Only 38.4% were sentenced to prison, with the median term being just forty days.236 Moreover, the median term of imprisonment for these defendants (forty days) was just one-third of the typical median sentence for misdemeanants in federal court (four months).237 While the existence of this bucket is not surprising, the size of it is striking.

The other bucket holds those convicted of a felony. These offenders' punishments look much like those typically imposed in federal criminal cases. Nearly all were sentenced to incarceration (96.6%).238 The median sentence for those in the felony bucket was three years.

In sum, the Capitol Breach defendants contain an unusually large number of defendants convicted of only a misdemeanor who were sentenced to unusually short prison sentences, and a set of defendants convicted of felonies punished on par with typical federal criminal defendants.

The following sections detail the results by type of punishment imposed.

a. Incarceration

Defendants convicted in federal criminal court are overwhelmingly likely to be sentenced to a term of incarceration. In FY 2020, over 90% of federal defendants were sentenced to some amount of prison time.239 The median prison term for federal offenders in FY 2020 was approximately three years.240 Those convicted of a felony were more much likely to be sentenced to incarceration (93%) than those convicted of a misdemeanor (39.1%).241 Those convicted of a felony had a median sentence of thirty-three months, while the median sentence for those convicted of just a misdemeanor was only four months.242

For shorter periods of incarceration, a judge may order that the time be served intermittently, such as on weekends. Federal judges use this option very infrequently. In FY 2020, judges ordered intermittent confinement in a mere 0.14% of all sentencings.243

Not surprisingly, incarceration rates and the amount of incarceration time imposed on federal criminal defendants vary by offense type.

Those convicted of violent offenses are the most likely to be ordered incarcerated (96.8%) and are sentenced to the longest median sentences (eighty-five months).244 The least likely to be ordered incarcerated are those convicted of only a misdemeanor. They were sentenced to prison just 39.1% of the time, for a median prison term of just four months.245

As an alternative to prison, a judge may order a period of home detention for a defendant. In 2020, federal judges ordered some amount of home detention in just 3.1% of cases.246 A period of six months home confinement was the most frequent length imposed.247

Judges frequently require that a prison term be followed by a period of supervised release. In FY 2020, federal judges imposed supervised release in 72.9% of all cases.248 The most frequently imposed length for supervised release was thirty-six months, with 74% of supervised release orders being thirty-six months or less.249

The sentences imposed on Capitol Breach defendants look quite different. Federal judges imposed some incarceration time on only 313 of the 514 (60.9%) sentenced Capitol Breach defendants.250 This is a much lower percentage than the typical set of convicted federal criminal defendants (91% incarcerated).251

Still, the sentences add up to a lot of prison years. Altogether, federal judges imposed over 171,000 days of incarceration on Capitol Breach defendants in the data set, or just over 470 prison years. Incarceration orders ranged from ten days on the short end to 216 months (eighteen years) for Oath Keeper founder Stewart Rhodes.252

The bulk of the prison sentences were on the shorter end. The median prison term for all Capitol Breach defendants ordered to prison was just three months, far less than the 33-month median prison term for 2020 federal criminal defendants.253 Indeed, the 3-month median for the 313 Capitol Breach defendants sentenced to incarceration was shorter than the 4-month median prison sentence imposed in FY 2020 on federal criminal defendants convicted of just a misdemeanor.254

As with typical federal criminal defendants, there were large differences in incarceration depending on the Capitol rioter's top offense of conviction. Not surprisingly, incarceration rates, and the length of incarceration terms, steadily rose as the top offense of conviction became more serious.

For those whose top offense was a felony, the sentenced Capitol Breach defendants looked quite similar to typical federal criminal defendants. All but 5 of 148 were ordered to some time in prison. That is a 96.6% incarceration rate, slightly higher than the 91% incarceration rate for convicted felons in federal criminal court. The median prison sentence for those whose top offense was a felony was 36 months. This is comparable to the 33-month median sentence for the typical federal criminal defendant convicted of a felony.255

Whether you look at incarceration rate or median prison sentence length, there are two buckets of Capitol Breach sentences. In one bucket are those convicted of a felony (90+% incarceration rate), and in the other are those convicted of a misdemeanor (45% incarceration rate). The incarceration rate for felons is consistent with that for typical federal criminal defendants convicted of a felony (91%). The incarceration rate for those convicted of only a misdemeanor is slightly higher than that for typical federal criminal defendants (39%).

While the median sentence length provides an aggregate snapshot of punishment for particular crimes, the length of incarceration varied widely for those defendants convicted of the same crime. This was true whatever the crime. A couple of factors explain the variation. First, a single statutory section can capture a broad spectrum of behavior. Take assault, for example.263 For this offense, prison sentences ranged from zero to ninty months. From case to case, the defendant's actions varied in ways that suggest more or less serious wrongdoing. Defendant Grayson Sherill swung a metal pole at a police officer and missed,264 and was convicted of assault and sentenced to seven months incarceration.265 Defendant Albuquerque Head was convicted of the same assault charge. Head grabbed Officer Michael Fanone by the neck and dragged him out of the Lower West Terrance tunnel and into a mob of rioters, who then tased and assaulted Officer Fanone while Head held him down.266 Head received a ninty month sentence, more than twelve times as long as Sherrill's sentence for the same crime of conviction.267

Second, the wide variance in sentencing, including the decision to impose incarceration, and the extent of incarceration, for those convicted of the same crime reflects the prominence of individualization in American punishment.268 Sentencing in America can also turn on the characteristics of the offender, in addition to the charge of conviction.269 Under the sentencing guidelines, those with prior criminal offenses, for example, receive longer sentences than those convicted for the same crime but who lack a criminal record.270 Other individual factors matter as well.271 For example, two Capitol Breach defendants convicted of felony assault as Albuquerque Head avoided prison entirely.272

Research has shown that certain characteristics of defendants not part of the sentencing guideline calculation correlate with better or worse sentencing outcomes. For example, federal judges are less likely to order female defendants to be incarcerated than male defendants.273 When they do order females incarcerated, judges impose on average shorter prison sentences than they do on male defendants.274

Recent data hold true to those findings. According to Federal Justice Statistics, 2020, male defendants are more likely to be sent to prison than females (69.3% for males compared to 57.8% for females).275 Male federal defendants received a median prison term of thirty months in FY 2020, whereas female defendants had a median prison term of twenty-seven months.276

These sex disparities are evident in the Capitol Breach sentences as well.

At any given age range, male Capitol Breach defendants were incarcerated at higher rates than females and received longer sentences.

The higher incarceration rates and longer median sentences for male insurrectionists are most directly explained by the fact that males were convicted of more serious crimes.277 Whereas male Capitol Breach defendants were convicted of felonies in almost a third of their cases, females Capitol Breach defendants were convicted of a misdemeanor as their top offense in 92.7% of the cases.

Unlike sex, age did not correlate with different incarceration rates for the bulk of the sentenced Capitol Breach defendants. The incarceration rates by sex were almost identical for those under 50 and those 50 and over. Only for the senior citizen crowd, however, did incarceration rates drop off. This senior sentencing discount is consistent with recent research findings.278

The choice to plead guilty or go to trial can make a sentencing difference as well. Typically, being convicted at trial almost guarantees that a federal defendant will be sentenced to prison.279 In addition, many scholars believe that defendants who go to trial suffer a "trial penalty" at sentencing, receiving harsher punishments than those who pleaded guilty to the same crime of conviction.280 This is in part, but not exclusively, because defendants who do not plead guilty do not get credit for taking responsibility under the sentencing guidelines and thus end up with longer sentences.281

Consistent with this data, incarceration was almost guaranteed for Capitol Breach defendants found guilty after trial. Forty-nine out of the 50 in the data set convicted at trial were ordered incarcerated.282 For those who pleaded guilty, 56% were ordered incarcerated.283

All told, the Capitol Breach defendants as a group were sentenced to prison less often, and for a shorter time, than typical federal criminal defendants. That is largely the result of the large number of rioters who were convicted of a misdemeanor as their top charge. When separated into two buckets-those convicted of felonies, and those convicted of misdemeanors-the incarceration rates largely track those for typical criminal defendants. Still, the median sentences of each group were somewhat shorter than average.

b. Home Detention/Confinement

As an alternative to prison, a judge may order a period of home detention for a defendant. In 2020, federal judges ordered some amount of home detention in 3.1% of all sentencings.284 A period of 6 months home confinement was the most frequent length imposed.285

Federal judges ordered home detention at a much higher rate for Capitol Breach defendants. Of the 514 sentenced Capitol Breach defendants, 21% (108) were ordered to some home detention time. The lengths of time ranged from 14 days to 365 days. Male defendants (22%) were somewhat more likely to be ordered to a period of home detention than female defendants (18.3%). Defendants 50 years of age or older (20.3%) were slightly less likely to be sentenced to home detention than defendants under age 50 (21.9%).

As with lower incarceration rates and shorter prison terms, the atypically frequent use of home detention can be seen as another form of lenient sentencing for Capitol Breach defendants compared to typical federal criminal defendants.

c. Probation

Prison is not the only punishment that federal judges can impose. If a judge does not sentence a defendant to incarceration, she typically will require that the person undergo a period of government supervision known as probation.286 According to the U.S. Sentencing Commission Guidelines Manual, "[p]robation may be used as an alternative to incarceration, provided that the terms and conditions of probation can be fashioned so as to meet fully the statutory purposes of sentencing, including promoting respect for law, providing just punishment for the offense, achieving general deterrence, and protecting the public from further crimes by the defendant."287

In FY 2020, federal judges sentenced a defendant to a period of probation in 7.7% of cases.288 Convicted felons were much less likely to receive a probation-only sentence (6.7%) than those convicted of a misdemeanor (32.5%).289 Nearly all probation terms (over 98%) were between 7 and 60 months, with the most in the 25-36 month range (38.7% of probation sentences) and the 49-60 months range (24.5% of probation sentences).290

For sentenced Capitol Breach defendants as a whole, 280 (54%) were sentenced to a period of probation. This includes some who received so-called split sentences, which involve an imposition of incarceration and a period of probation.291 Of the 201 Capitol Breach defendants who were not sentenced to incarceration (39% of the entire set), each one received some period of probation. Probation terms ranged from 2 months to 60 months. The most frequent term of probation imposed was 36 months (120 defendants) followed by 24 months (85 defendants).

As with incarceration and home detention, the imposition of probation at rates five times those of typical federal criminal cases reflects a more lenient approach to Capitol Breach defendants than typical federal criminal defendants.

d. Fine/Restitution

Federal defendants are sometimes required to pay for their crimes not just in incarceration or supervision, but in money.292 Restitution is designed to compensate victims for their loss.293 Fines operate more like penalties.294 Federal judges imposed a fine in 5.3% of sentences in FY 2020.295 Sometimes a fine is the only sentence imposed. Those convicted of misdemeanors were more likely to receive a fine-only sentence (28.4%) than those convicted of felonies (0.4%).296

In the Capitol Breach cases, judges ordered some amount of fine or restitution in 98.2% of the cases. Over two-thirds (69%) of Capitol Breach defendants were ordered to pay $500 in restitution. Anything higher than this default figure required proof that the defendant caused specific property damage. The highest restitution award for a sentenced Capitol Breach defendant was $43,315.25.297

Some defendants were required to pay a fine in addition to some amount of restitution.298 Unlike restitution, fines serve as a monetary form of punishment. The highest fine imposed by a judge was $25,000 on Nathanial DeGrave. DeGrave made extensive plans before January 6, and arrived with guns in his car, bear spray on his person, and wearing tactical gear.299 After his arrest, he raised over $100,000 via online fundraising, referring to himself as a political prisoner.300 The prosecutor argued that a significant fine would "account for his prolific fundraising unrelated to and beyond any legitimate legal defense expense."301

The damage caused by January 6 rioters was nearly three million dollars.302 Federal judges used restitution and fines broadly in the Capitol Breach cases, attempting to recoup some of those damages via the offenders. Still, in the absence of specific proof of property damage, most defendants were ordered to pay only $500. Considering the significant damage, higher restitution and fine awards would have been justified.

e. Community Service

Defendants may also be ordered to complete a period of community service as part of their sentence. In FY 2020, federal judges used community service sparingly, imposing a term of community service in just 2.7% of cases.303 A little over two-thirds of these orders were for between one and one hundred hours of community service.304

For sentenced Capitol Breach defendants, federal judges were much more likely to impose a period of community service. All told, 38.3% were ordered to complete some amount of community service. Orders ranged from twenty hours to 250 hours, with sixty hours the most frequently imposed term of community service.

Judges' more frequent use of community service can also be seen as a form of sentencing leniency, especially if it was imposed in place of incarceration.305 Alternatively, given the nature of the Capitol riot as a public crime against democracy, community service may strike judges as particularly fitting for insurrectionists.306

All told, judges imposed some serious punishments on the Capitol rioters in the data set. More than half (61%) were sentenced to incarceration. Collectively, they were sentenced to just over 470 prison years. Twenty-six of them received sentences of five or more years in prison, with the longest sentence being eighteen years. Nevertheless, as a cohort, they were sentenced to incarceration less frequently, and for shorter periods of time, than typical federal criminal defendants.307 Moreover, judges turned to alternatives to incarceration, such as home confinement, probation, and community service, much more frequently than usual.308

This leniency belies the government's rhetoric about the seriousness of the Capitol Breach and the need for a strong message of deterrence. It is partly explained by the severity of the Capitol Breach defendants' crimes of conviction, with almost three-quarters of them convicted of only a misdemeanor punishable by no more than six or twelve months in prison.309 Only 38.4% were sentenced to prison, with the median term being just forty days.310 Their median term of imprisonment (forty days) was just one-third of the typical median sentence for misdemeanants in federal court (four months).311 Those rioters convicted of a felony received sentences that look much like those typically imposed in federal criminal cases. Nearly all were sentenced to incarceration (96.6%).312 The median sentence for those in the felony bucket was three years.

2. The Sentencing Judges

A person becomes a federal judge after being nominated by the President of the United States and confirmed by the Senate. It has become an intensely political process. Yet, by a traditional account of judging, judges are neutral arbiters who apply the law unencumbered by political motivations.313 Were that true, political affiliation-or other social characteristics of judges-would have no impact on judicial decision-making. A large and continually expanding body of literature belies this account.314 Research has found that factors such as political affiliation and sex of the judge correlate with different sentencing outcomes.315

This section reports findings on whether and how much the sentences imposed on Capitol Breach defendants differed by the sentencing judges' political affiliation and sex, and the defendants' sex.

Twenty-one different federal district court judges sentenced the Capitol Breach defendants in the data set. They were nominated to the bench by seven different presidents. Judges nominated by a Democratic President sentenced more than half of the defendants (57.4%), with judges nominated by President Obama having the most cases (47.5%).

Overall, judges nominated by a Democratic president incarcerated Capitol Breach defendants at a slightly higher rate (62.4%) than judges nominated by a Republican president (58.9%). This is contrary to recent findings that Republican judges are harsher sentencers.316

This aggregate pattern is likely explained in part by the politics of January 6. The Capitol Breach defendants rioted to prevent the certification of fair election results in which the Democratic candidate defeated the incumbent Republican. When sentencing these defendants for their attempt to undermine the 2020 Election, it is not surprising that judges appointed by a Democratic president would find the riotous and anti-democratic behavior in support of the Republican candidate who lost a fair election more culpable, and in need of more condemnation and deterrence, than judges nominated by the very person who encouraged the riot and was its intended beneficiary.

But those aggregate numbers do not show s drastic a difference. Moreover, they obscure some intriguing variation. The President whose judicial appointees imposed incarceration at the lowest rate was Joseph Biden, though in a small sample size of just fifteen cases. And even though Republican-appointed judges incarcerated Capitol Breach defendants at a lower rate than Democratic-appointed judges overall, the presidents whose judicial appointees imposed incarceration at the highest rates were Republican presidents George H.W. Bush and Ronald Reagan.

Why might the judges nominated by 20th century Republican presidents have come down so hard on Capitol Breach defendants? Their age and extensive years on the bench would not seem to explain it. Research suggests that older judges may punish less harshly.317 Rather, their high incarceration rates compared to judges nominated by 21st century Republican presidents may be due to their different sensibilities regarding the actions of Capitol Breach defendants, and their lack of alignment with President Trump and his brand of Republicanism.318 Moreover, there is evidence that Trump was more likely to nominate more conservative judges than his Republican predecessors.319 As some have observed, "Trump has publicly identified judges as if they belong to him-'my judges'-or as if they belong to a predecessor president who nominated them-'Obama's judge.'"320 These judges may be less inclined to punish lawbreakers who were acting ostensibly in the name of, and support of, the Republican candidate for President and the very person who nominated them to the federal bench.

Research has also identified the sex of judges as a factor that may affect sentencing outcomes. For example, several studies have found that female judges tend to impose harsher sentences on defendants than male judges.321 Specifically, some studies show that female judges are more likely to incarcerate and impose longer sentences than male judges.322

The data for sentenced Capitol Breach defendants is consistent with this research. In the aggregate, male judges imposed incarceration in 57.1% of their cases. Female judges, by contrast, imposed incarceration in 67.6%.

Looking at the sex of the judge and the defendant, female judges punish both male and female defendants more harshly than male judges. Both male and female judges punish male defendants more harshly than female defendants. That is, in cross-sex situations, we find both the highest incarceration rates (female judges sentencing male defendants) and the lowest incarceration rates (male judges sentencing female defendants).

A closer look at the data complicates the matter a bit. Female judges appointed by a Republican president incarcerated at the lowest rate (46.5%), whereas female judges appointed by a Democratic president incarcerated at the highest rate (73.9%). Male judges were in between these extremes. Male judges nominated by a Republican president incarcerated Capitol Breach defendants at a higher rate (61.9%) than male judges nominated by a Democratic president (51.6%).

For Democratic-appointed judges, the research showing that female judges punish more harshly than male judges held. For Republican-appointed judges, the research showing that female judges punish more harshly than male judges did not hold. That the only female judge nominated by a Republican president who sentenced Capitol Breach defendants was nominated by President Trump may go far in explaining the result.

But why did male judges nominated by Republican presidents incarcerate at a higher rate than male judges nominated by a Democratic president? Further study is demanded here.

The more characteristics are considered, the more puzzles appear. When examining the political party of the nominating president, the sex of the judge, and the sex of the defendant, one group of judges incarcerated at a notably higher rate than any other: Democratic-appointed female judges sentencing male defendants (75.8% of 120 defendants). At the other extreme was the lone female judge appointed by a Republican President (Trump) sentencing female defendants (incarcerating 0% of 6 defendants).331

For the curious, Appendix B includes a chart that adds the specific appointing President to the matrix.

The above findings do not account for the severity of the cases before the judges. To account for underlying case severity on incarceration rates, I developed a measure that I call the "case severity score." It is based on the statutory maximum sentence for a defendant's top charge of conviction. One point was awarded for each year of the top charge's statutory maximum sentence. Thus, I awarded:

* ½ point for cases where the top charge of conviction was 40 U.S.C. § 5104 (0-6 month incarceration range),

* 1 point where the top charge of conviction was 18 U.S.C. § 1752 (without a weapon) or 18 U.S.C § 641 (1 year maximum),

* 5 points where the top charge of conviction was 18 U.S.C. § 231 obstruction (5 years maximum),

* 8 points where the top charge of conviction was 18 U.S.C. § 111(a) assault (8 years maximum),

* 10 points where the top charge of conviction was 18 U.S.C. § 1361 or 18 U.S.C. § 1752 with a weapon (10 year maximum), and

* 20 points where the top charge of conviction was 18 U.S.C. § 1512 obstruction, or assault with weapon, or seditious conspiracy (20 year maximum sentence.

To create a judge's "case severity score", I added up the points awarded for each case in which a judge pronounced sentence and divided by the number of Capitol Breach defendants sentenced by that judge. For example, if a judge sentence 5 defendants who each faced an 8 year statutory maximum sentence, and 5 defendants who each faced a 1 year statutory maximum sentence, that judge's case severity score was 4.5 (5 x 8 = 40 points, 5 x 1 = 5 points; 45 divided by 10 = 4.5). A lower number indicates that the judge was sentencing Capitol Breach defendants who were convicted of less severe crimes (as measured by the statutory maximum sentence). The higher the number, the more severe the crime of conviction of the defendants sentenced by the judge.

For the 514 Capitol Breach cases as a whole, the average case severity score is 4.51.340 Judges with a case severity score higher than 4.51 sentenced defendants whose top charge of conviction subjected them to longer maximum possible sentences. Judges with a case severity score lower than 4.51 sentenced, on the average, defendants whose top charge of conviction was less serious than the average.

The case severity score for judges appointed by Republican presidents was slightly higher (4.57)341 slightly higher than the case severity score for judges appointed by Democratic presidents (4.47).342 Thus, case severity does not explain why Republican-appointed judges incarcerated Capitol Breach defendants at a lower rate. Nor does case severity explain why female judges were more likely to incarcerate Capitol Breach defendants than male defendants. In fact, female judges had a lower case severity score as a set (4.36)343 than male judges (4.6).344 This suggests that other factors are playing a larger role in the sentencing decisions of federal judges in these cases than the statutory maximum sentence for the top charge of conviction.

Comparing the sentencing patterns of individual judges reinforces the idea that case severity is less important than other factors in the final sentencing decisions. For example, Judge Trevor McFadden, a male nominated to the bench by Republican President Trump, had the second highest case severity score of all judges who sentenced Capitol Breach defendants at 7.2. This means he was sentencing defendants on average who were convicted of serious felonies. Nevertheless, he only incarcerated 53.8% of the defendants he sentenced, below the average incarceration rate for the judges as a whole (61%) and below the rate for Republican judges as a whole (58.9%).

When Judge McFadden did sentence rioters to prison, however, he had the second highest median incarceration length (at two years and eight months). That is, Judge McFadden less frequently sent insurrectionists to prison (despite a high case severity score), but when he did, he sent them to prison for longer than most judges. Republican-nominated Judge Timothy Kelly had similar results - a higher than average case severity score and a lower than average incarceration rate. Yet Judge Kelly's median incarceration length was much shorter than Judge McFadden's, at just eight months.

By contrast, Judge Emmett Sullivan, a male nominated by Republican President George H.W. Bush, had the second-lowest case severity score (at 0.95). His average case had a misdemeanor as the top charge of conviction. Nevertheless, he sentenced 10 out of 11 Capitol Breach defendants to incarceration (the second highest incarceration rate of any individual judge). Several other judges had case severity scores lower than average but incarceration rates higher than average (such as Judge Amy Berman Jackson, Judge James Boasberg, and Judge Reggie Walton).

Another judge worth noting is Judge Tanya Chutkan, who was appointed by President Obama. She is known for presiding over one of the criminal proceedings against Donald Trump related to January 6.347 Judge Chutkan sentenced every single Capitol Breach defendant in her courtroom to some prison time. At thirty-five cases, she has one of the highest number of completed cases, so her high incarceration rate is not the result of a small sample size. On top of that, Judge Chutkan's case severity score is higher than average. This earned her a reputation in some places as a "tough punisher" in January 6 cases.348

But deciding to impose prison time is not the full story with regard to toughness in sentencing. A full accounting also considers the length of the sentences imposed. When assessed by the median prison sentence imposed on Capitol Breach defendants, Judge Chutkan has arguably taken one of the most lenient approaches towards the Capitol Breach defendants. For all Capitol rioters who have been sentenced to some amount of prison time, the median sentence is 90 days. Judge Chutkan's median sentence is lighter still, at just 45 days.349 Thus, while Judge Chutkan has sent every Capitol rioter before her to prison, she typically has not sent them to prison for very long. In this sense, she has taken the opposite approach of Judge McFadden.

Several of Judge Chutkan's colleagues, on the other hand, have been carrying a much heavier stick. The longest median sentence length, at 3 years and 8 months, belongs to Obama-appointee Judge Amit Mehta.350 Three out of the four Trump-appointed judges who have heard Capitol Breach cases have longer median incarceration sentences than Chutkan. Judge Trevor McFadden has a median prison sentence of over two and a half years, Judge Timothy Kelly a median sentence of 8 months, and Judge Dabney Friedrich a median sentence of 5 months. While these Trump-appointed judges are only incarcerating about 55% of Capitol Breach Defendants, when they do impose prison time, they imposed longer sentences on average than Judge Chutkan.

Case severity is admittedly a crude assessment of the seriousness of the offense that a judge is punishing because it considers only one factor- the maximum statutory sentence for that offense.351 Sentencing is a more complicated process than that. We do not simply punish someone for their wrong act. Judges consider a nearly endless variety of factors when deciding on a punishment. They include not just the seriousness of the offense, but also a defendant's criminal history, characteristics, uniformity across defendants, and the purposes of punishment.352 Future work by scholars will undoubtedly provide additional insights to the sentencing patterns of individual judges in these Capitol Breach cases.

The judges who presided over the Capitol Breach prosecutions varied in sentencing. The data show some correlations between the political party of the nominating President and incarceration rates and sentence length. This belies the traditional model of apolitical, umpire judges. Similarly, the data show correlations between judge sex, defendant sex, and incarceration rates and sentence length. Again, this belies the traditional neutral model of judges and lends further support that personal and social characteristics matter. At the same time, a closer look reveals individual results that buck these aggregate patterns, suggesting that more than just political affiliation and sex are influencing the results.

CONCLUSION

This study has considered data concerning the January 6 Capitol Breach and the criminal justice response to it. Based on the demographics of the Capitol Breach defendants, the perceived need for and legitimacy of lawbreaking and political violence in 2021 was not confined to right-wing extremists. Rather, women and men, young and old, from all over the United States, many without a prior criminal record, broke police lines and unlawfully entered the U.S. Capitol in an effort to prevent the certification of legitimate election results. The bulk, however, were White, older males.

In the aggregate, the set of sentenced Capitol Breach defendants is an unusual collection of federal criminal defendants sentenced to unusually light sentences. Yet a closer look reveals two distinct buckets of Capitol insurrectionists. In one bucket are those defendants who were convicted of a felony. Except for their overwhelming Whiteness, these offenders look a lot like the usual felony suspects in federal criminal cases and received sentences that mirror those given to typical federal criminal defendants.

In the other bucket are those convicted of a misdemeanor. The defendants in the misdemeanor bucket were punished quite lightly, both absolutely and compared to typical federal defendants convicted of a misdemeanor. While the existence of those two buckets is not surprising, their comparative size is striking. Where federal criminal cases typically result overwhelmingly in felony convictions (91%), over 70% of the sentenced Capitol Breach defendants were convicted of only a misdemeanor.353

The findings described in this Article support three possible stories about the criminal justice response to the January 6 insurrection. The first story is that the Department of Justice backed up its rhetoric about January 6 being an unprecedented attack on democracy by prosecuting anyone who breached the Capitol that day and seeking significant punishments. Achieving the goals of accountability and deterrence requires not just prosecuting the most violent offenders but also making a federal case out of trespassing. This is a story about preserving political stability, democracy, and the rule of law through prosecution. That judges ended up imposing light sentences for many Capitol Breach defendants may undermine those deterrence ends.

The second story is that the January 6 prosecutions, in their breadth, reflect an over-aggressive American criminal justice system.354 On this account, prosecutors making a federal case out of so much trespassing is overeager, not imperative. This story recognizes the unusual number of misdemeanor-only charges, misdemeanor-only convictions, and the atypically light sentences not as leniency or bias, but proportionality. That the data shows Capitol Breach defendants convicted of felonies received sentences on par with typical federal criminal defendants lends support to this narrative.

The third story is one where politics and the demographics of the Capitol Breach defendants moderated the punishments that the judges imposed. In this story, political affinities led Trump-appointed judges to punish insurrectionists less harshly and Democratic-appointed federal judges to punish more harshly. At the same time, bias (whether conscious or unconscious) operated to the benefit of White, male, older defendants.355 This is a potentially worrisome story for justice, political stability, and the rule of law.

It is too early to confidently say which, if any, of these stories best explains the January 6 prosecutions. Perhaps all three are true to some degree. Hopefully, this study will provoke others to dig in and advance our understanding of this important episode in American criminal justice history.

Footnote

1 Mob Storms Capitol: Lawmakers Reject Voiding Two States' Votes After Pro-Trump Riot Disrupts Congress, WALL ST. J. (Jan. 7, 2021), https://www.wsj.com/public/resources/ documents/gMlTrgQVfLclXnowQyoU-WSJNewsPaper-1-7-2021.pdf [https://perma.cc/YR6Y-ZKKG].

2 Riot at Capitol, COMMERCIAL-APPEAL (Memphis) (Jan. 7, 2021), reprinted in David Baratz, Front Pages Capture Chaos of Riots at US Capitol, USA TODAY (Jan. 7, 2021), https://www.usatoday.com/picture-gallery/news/nation/2021/01/07/front-pages-capture-chaos-riots-us-capitol/6577931002/ [https://perma.cc/ZK7Q-L2H5].

3 'Intolerable Attack' on Democracy, ATLANTA JOURNAL-CONSTITUTION (Jan. 7, 2021), reprinted in David Baratz, Front Pages Capture Chaos of Riots at US Capitol, USA TODAY (Jan. 7, 2021), https://www.usatoday.com/picture-gallery/news/nation/2021/01/07/front-pages-capture-chaos-riots-us-capitol/6577931002/ [https://perma.cc/FJ89-DZXF]; see also Assault on Democracy, IDAHO STATESMAN (Jan. 7, 2021), reprinted in January 7, 2021: Newspaper Front Pages the Day After the Attack on the U.S. Capitol, CONSTITUTIONAL RIGHTS FOUNDATION, https://teachdemocracy.org/images/pdf/jan-7-newspaper-front-page. pdf [https://perma.cc/V2VR-F66Q].

4 Insurrection, MILWAUKEE JOURNAL-SENTINEL (Jan 7, 2021), reprinted in David Baratz, Front Pages Capture Chaos of Riots at US Capitol, USA TODAY (Jan. 7, 2021), https://www.usatoday.com/picture-gallery/news/nation/2021/01/07/front-pages-capture-chaos-riots-us-capitol/6577931002/ [https://perma.cc/53KM-NZ4W].

5 FINAL REPORT OF THE SELECT COMMITTEE TO INVESTIGATE THE JANUARY 6TH ATTACK ON THE U.S. CAPITOL, H.R. REP. NO. 117-663, at 76 (2022) [hereinafter "H.R. REP. NO. 117- 663"] ("more than 2,000 . . . gained access to the interior of the Capitol building" on January 6), https://www.govinfo.gov/collection/january-6th-committee-final-report?path=/GPO/ January%206th%20Committee%20Final%20Report%20and%20Supporting%20Materials% 20Collection [https://perma.cc/6LL9-XH6C].

6 Jack Healy, These Are the 5 People Who Died in the Capitol Riot, N.Y. TIMES (Oct. 13, 2022) https://www.nytimes.com/2021/01/11/us/who-died-in-capitol-building-attack.html [https://perma.cc/T8JN-9ULK]. Four people died on January 6, and Capitol Officer Brian Sicknick, who was assaulted while defending the Capitol on January 6, died the following day after suffering two strokes. United States Capitol Police, Medical Examiner Finds UCSP Officer Brian Sicknick Died of Natural Causes, (Apr. 19, 2021), https://www.uscp.gov/ media-center/press-releases/medical-examiner-finds-uscp-officer-brian-sicknick-died-natural -causes [https://perma.cc/XMS6-9MZA].

7 U.S. Attorney's Office for the District of Columbia, 48 Months Since the Jan. 6 Attack on the Capitol, https://www.justice.gov/usao-dc/48-months-jan-6-attack-us-capitol (Jan. 6, 2025) [https://perma.cc/9AC4-QU9B] (last visited Jan. 24, 2025). The Dept. of Justice's Capitol Investigation Resource Page, which included detailed information about the Capitol Breach cases, disappeared from the internet sometime on January 24, 2025. Scott MacFarlane, Judges in Jan. 6 Cases and Watchdog Groups Recoil at Justice Department's Deletion of Records, CBS (Feb. 1, 2025, 5:32 PM), https://www.cbsnews.com/news/jan-6- judges-react-doj-deleting-records/ [https://perma.cc/WC2R-9RLQ].

8 U.S. ATT'Y OFF., supra note 7.

9 Proclamation No. 10887, 90 Fed. Reg. 8331 (Jan. 20, 2025). Fourteen individuals had their sentences commuted (each of these defendants had been charged with seditious conspiracy), and another thousand were pardoned. See id. The Constitution grants the President the pardon power, which is understood to include commuting sentences. U.S. CONST. art. II, § 2, cl. 1 ("The President shall . . . have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."). A commutation is a reduction of a sentence currently being served, while a pardon voids a conviction entirely. Office of the Pardon Attorney, Frequently Asked Questions, U.S. DEPT. OF JUST., https://www.justice.gov/pardon/frequently-asked-questions [https://perma.cc/6WZR-BPP5] ("A commutation of sentence reduces a sentence, either totally or partially, that is then being served, but it does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction" whereas a pardon "is an expression of the President's forgiveness . . . [that] remove[s] civil disabilities . . . ."). Enrique Tarrio, the Proud Boy leader convicted of seditious conspiracy who had been sentenced to 22 years of incarceration, the longest sentence imposed on anyone for actions related to the January 6 Capitol Breach, received a full, complete, and unconditional pardon. See Proclamation No. 10887, 90 Fed. Reg. 8331 (Jan. 20, 2025) (granting full pardon to all unnamed individuals convicted of January 6 offenses).

10 U.S. ATT'Y OFF., supra note 7.

11 By political violence, I mean the deliberate use of power or force (including physical harm or property destruction), intimidation, or inaction leading to harm intended to achieve political goals.

12 Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005) (statement of John G. Roberts, Jr., Nominee, C.J. of the U.S.) ("Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role.").

13 See, e.g., Wendy R. Calaway et al., The Role of Judicial Political Affiliation in Criminal Sentencing Outcomes, 66 WAYNE L. REV. 347, 369-72 (2021) (identifying political affiliation of judge as a primary driver of judicial decision making in criminal sentencing); Alma Cohen & Crystal S. Yang, Judicial Politics and Sentencing Decisions, 11 AM. ECON. J.: ECON. POL'Y 160, 185 (2019) (finding that Republican-appointed federal judges sentence black defendants to longer prison terms than similarly-situated nonblack defendants, and sentence female defendants to shorter sentences than similarly-situated male defendants, compared to Democratically-appointed judges); Lydia Tiede et al., Judicial Attributes and Sentencing Deviation Cases: Do Sex, Race, and Politics Matter?, 31:3 JUST. SYS. J. 125, 144 (2010) (finding that the political party of the president appointing federal judges affects sentencing decisions); Max Schanzenbach & Emerson H. Tiller, Reviewing the Sentencing Guidelines: Judicial Politics, Empirical Evidence, and Reform, 75 U. CHI. L. REV. 715, 723 (2008) (finding that Republican-appointed judges impose longer sentences than Democratic-appointed judges).

14 Throughout the paper, I refer to the prosecutions that came out of events at or near the U.S. Capitol on January 6 as the "Capitol Breach" cases, as the Department of Justice did.

15 See infra Part II for an explanation of the data set.

16 Other components of the project are (1) a qualitative analysis of the sentencing memoranda filed by the Department of Justice and defense counsel in Capitol Breach cases that explores the stories of punishment told by the parties to sentencing judges, and (2) a qualitative analysis of the transcripts of the sentencing hearings held in Capitol Breach cases that explores the rhetoric coming from federal court judges as they decide and explain their punishments.

17 See infra Part II(C).

18 Yair Ghitza & Jonathan Robinson, What Happened in 2020, CATALIST, fig. 6, https://catalist.us/wh-national/ [https://perma.cc/H9ZB-9CJA] (last visited Apr. 26, 2025).

19 See infra Part II(B).

20 Males were about 87% of individuals charged with federal crimes in FY 2020, with almost half age 34 or below. See MARK MOTIVANS, FEDERAL JUSTICE STATISTICS, 2020, U.S. DEP'T JUST., OFF. JUST. PROGRAMS: BUREAU JUST. STAT. 9 tbl. 5 (Jul. 18, 2023) [hereinafter as FEDERAL JUSTICE STATISTICS 2020]. Almost two-thirds were age 39 or younger. Id.

21 By right-wing extremist, I mean those sometimes referred to as the "alt-right", which is defined by white nationalist and misogynistic beliefs. See Alt-Right, S. POVERTY L. CTR, https://www.splcenter.org/resources/extremist-files/alt-right/ [https://perma.cc/CZG3-SY2 W] (last visited May 3, 2025) (defining "alt-right" as "groups and individuals whose core belief is that 'white identity' is under attack by multicultural forces using 'political correctness' and 'social justice' to undermine white people and 'their' civilization").

22 See infra Part IV(B).

23 See infra Part IV(C)(1).

24 See infra Part IV(C)(1).

25 The Oath Keepers is considered an anti-government, far-right organization. Oath Keepers, GEO. WASH. UNIV. CTR. ON EXTREMISM, https://extremism.gwu.edu/oath-keepers [https://perma.cc/2ZBQ-E8GM].

26 See infra Part IV(C)(1)

27 See infra Part IV(C)(2).

28 See infra Part IV(C)(2).

29 See infra Part IV(C)(2).

30 See infra Part IV(C)(2).

31 See infra Part IV.

32 See, e.g., Stephen Collinson & Maeve Reston, Biden Defeats Trump in an Election He Made About Character of the Nation and the President, CNN (Nov. 7, 2020, at 21:44 ET), https://www.cnn.com/2020/11/07/politics/joe-biden-wins-us-presidential-election/index.html [https://perma.cc/6ELU-D2SE].

33 H.R. REP. NO. 117-663, supra note 5, at 195-97.

34 See Nick Niedzwiadek, The 9 Most Notable Comments Trump has Made About Accepting the Election Results, POLITICO (Sept. 24, 2020, at 18:04 ET), https:// www.politico.com/news/2020/09/24/trump-casts-doubt-2020-election-integrity-421280 [https://perma.cc/7L9C-X37V] (recounting pre-election statements made by Trump about the upcoming election, including a July 30, 2020, X post "2020 will be the most INACCURATE & FRAUDULENT Election in history" and several statements at rallies like "The Democrats are trying to rig this election because that's the only way they're going to win.").

35 See H.R. REP. NO. 117-663, supra note 5, at 195-260; Id. at xv ("Donald Trump's fraud allegations were concocted nonsense, designed to prey upon the patriotism of millions of men and women who love our country."); Id. at 8-98 (summarizing the plan and actions taken, including making unsubstantiated and knowingly false fraud allegations, pressuring states to change the election outcome and to create and transmit fake electoral slates to Congress, attempting to corrupt the Department of Justice, attempting to obstruct the January 6 certification of election results, and summoning a mob and directing them to march on the Capitol).

36 President Trump Statement on 2020 Election Results, C-SPAN (Dec. 2, 2020), https://www.c-span.org/video/?506975-1/president-trump-statement-2020-election-results.

37 Donald Trump (@realDonaldTrump), X (Dec. 19, 2020, at 12:42 CT), https:// x.com/realdonaldtrump/status/1340185773220515840; see also Donald Trump: Social Media Archive, FACTBASE, https://factba.se/topic/twitter-stats [https://perma.cc/QY8E-JZ59] (last visited May 3, 2025).

38 H.R. REP. NO. 117-663, supra note 5, at 55.

39 Id.

40 There is no official crowd size estimate for the number of people who gathered for Trump's speech at the Ellipse, or who were present around the Capitol Building. Id. at 76 (stating that "more than 2,000 . . . gained access to the interior of the capitol building" on January 6).

41 See, e.g., Committee Video of January 6 Attack on Capitol, C-SPAN (June 6, 2022), https://www.c-span.org/video/?c5019121/committee-video-january-6-attack-capitol. On January 3, sentenced defendant Charles Bradford Smith sent a Facebook Messenger message to a friend that said: "Got a K-BAR knife today . . . it's the Military killin knife . . . Just needed a good one for DC." Statement of Offense at 5, United States v. Charles Bradford Smith, No. 21-CR-567-RCL-2 (D.D.C. June 23, 2022).

42 On December 22, 2020, sentenced Capitol Breach defendant Kelly Meggs wrote on Facebook: "Trump said It's gonna be wild!!!!!!! It's gonna be wild!!!!!!! He wants us to make it WILD that's what he's saying. He called us all to the Capitol and wants us to make it wild!!! Sir Yes Sir!!! Gentlemen we are heading to DC pack your shit!!" Joan Donovan et al., "PRESIDENT TRUMP IS CALLING US TO FIGHT": WHAT THE COURT DOCUMENTS REVEAL ABOUT THE MOTIVATIONS BEHIND JANUARY 6 AND NETWORKED INCITEMENT 12 (July 18, 2022), https://casebook-static.pages.dev/sites/default/files/media-files/j6_motivations_ working_paper.pdf [https://perma.cc/B8TF-JAJZ].

43 H.R. REP. NO. 117-663, supra note 5, at 62.

44 Id. at 639.

45 Id. at 68.

46 Id. at 68, 640.

47 Id. at 72.

48 A transcript of Trump's remarks from the Ellipse are available at: Brian Naylor, Read Trump's Jan. 6 Speech, A Key Part of Impeachment Trial, NPR (Feb. 10, 2021, at 14:43 ET), https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial [https://perma.cc/228Y-H5U4]. Video of Trump's speech at the Ellipse is available here: President Donald J. Trump, President Trump's January 6 Rally Speech, C-SPAN (Jan. 6, 2021), https://www.c-span.org/video/?507744-1/trumps-jan-6-rally-speech.

49 Naylor, supra note 48 ("[W]e're going to the Capitol, . . . we're going to try and give our Republicans . . . the kind of pride and boldness that they need to take back our country. So let's walk down Pennsylvania Avenue.").

50 For some video of the events, see PBS NEWSHOUR, WATCH: Jan. 6 Committee Shows New Footage of Capitol Attack, YOUTUBE (June 9, 2022), https://www.youtube.com/watch? v=b3_O91gyj9o&t=75s&ab_channel=PBSNewsHour [https://perma.cc/X6QT-MNTT].

51 H.R. REP. NO. 117-663, supra note 5, at 38, 646.

52 Id. at 77.

53 Id. at 650.

54 Id. at 652, 656, 659.

55 Metropolitan Police Officer Michael Fanone was grabbed around the neck and pulled down the stairs into the crowd by rioters as he attempted to defend the West Terrace doors of the Capitol. He was punched, tased, and beaten with a flagpole. His badge and police radio were stolen from him. He suffered multiple injuries, drifted in and out of consciousness, and had a heart attack. Id. at 663; Peter Hermann, 'We Got to Hold This Door': How Battered D.C. Police Made a Stand Against the Capitol Mob, WASH. POST (Jan. 14, 2021), https://www.washingtonpost.com/dc-md-va/2021/01/14/dc-police-capitol-riot/ [https://perma.cc/DF4C-NHXR].

56 H.R. REP. NO. 117-663, supra note 5, at 653; Michael S. Schmidt & Luke Broadwater, Officers Injuries, Including Concussions, Show Scope of Violence at Capitol Riot, N.Y. TIMES (Feb. 11, 2021), https://www.nytimes.com/2021/02/11/us/politics/capitol-riot-police-officer-injuries.html [https://perma.cc/34ME-SJ8X].

57 H.R. REP. NO. 117-663, supra note 5, at 656-59.

58 Video: Jan. 6 Rioters Searched For Speaker Pelosi After She Was Evacuated From Capitol, CBS NEWS (Feb. 10, 2021), https://www.cbsnews.com/sanfrancisco/news/video-jan-6-rioters-searched-for-speaker-pelosi-after-her-evacuation-from-capitol/ [https://perma.cc/N6MQ-PRHK].

59 Brandon Gage, Ted Cruz Reveals He Hid in a "Closet" During Capitol Riot After Leading Jan. 6 Objections, Salon (Oct. 24, 2022, at 11:30 ET), https://www.salon.com /2022/10/24/ted-cruz-reveals-he-hid-in-a-closet-during-capitol-riot-after-leading-jan-6- objections_partner/ [https://perma.cc/W582-9NDM].

60 H.R. REP. NO. 117-663, supra note 5, at 665.

61 Kelly McLaughlin, Photos Show Pro-Trump Rioters Inside the US Senate Chamber, BUS. INSIDER (Jan. 6, 2021, at 17:04 CT), https://www.businessinsider.com/trump-supporters-storming-capitols-senate-chamber-dais-photos-2021-1 [https://perma.cc/6DE5- N3TC].

62 Nora McGreevy, Curators Seek $25,000 to Repair Artworks Damaged in U.S. Capitol Attack, SMITHSONIAN MAG. (Feb. 26, 2021), https://www.smithsonianmag.com/smart-news/ smithsonian-curators-discuss-artworks-damaged-violent-capitol-attacks-180977103/ [https://perma.cc/XYG6-AHMP].

63 Ryan Lucas, Where the Jan. 6 Insurrection Investigation Stands, One Year Later, NPR (Jan. 6, 2022, at 5:00 ET), https://www.npr.org/2022/01/06/1070736018/jan-6- anniversary-investigation-cases-defendants-justice [https://perma.cc/89WH-HTMU].

64 H.R. REP. NO. 117-663, supra note 5, at 92. At the end of the one-minute message, Trump added "We love you. You're very special." President Trump Video Statement on Capitol Protesters, C-SPAN (Jan. 6, 2021), https://www.c-span.org/video/?507774-1/ president-trump-video-statement-capitol-protesters. In a now deleted X post, Trump urged his followers to "Remember this day forever!". Gerhard Peters & John T. Woolley, Donald J. Trump (1st Term), Tweets of January 6, 2021, AM. PRESIDENCY PROJECT, https://www. presidency.ucsb.edu/documents/tweets-january-6-2021.

65 H.R. REP. NO. 117-663, supra note 5, at 669.

66 Id. at 669.

67 U.S. ATT'Y OFF., supra note 7.

68 Id.

69 Proclamation No. 10887, supra note 9. Fourteen individuals had their sentences commuted (each of these defendants had been charged with seditious conspiracy), and another thousand were pardoned. The Constitution grants the President the pardon power, which is understood to include commuting sentences. U.S. CONST. art. II, § 2, cl. 1 ("The President shall [] have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."). A commutation is a reduction of a sentence currently being served, while a pardon voids a conviction entirely. Frequently Asked Questions, DEPT. OF JUST., https://www.justice.gov/pardon/frequently-asked-questions [https://perma.cc/TQW4-G7WQ]. Enrique Tarrio, the Proud Boy leader convicted of seditious conspiracy who had been sentenced to 22 years of incarceration, the longest sentence imposed on anyone for actions related to the January 6 Capitol Breach, received a full pardon. See Proclamation No. 10887, 90 Fed. Reg. 8331 (Jan. 20, 2025) (granting full pardon to all unnamed individuals convicted of January 6 offenses).

70 Proclamation No. 10887, supra note 9.

71 Kathy Frankovic, January 6: One Year Later, Americans Still View the Capitol Takeover with Dismay, YOUGOV (Jan. 5, 2022, at 2:25 GMT), https://today.yougov.com /politics/articles/40305-capitol-january-6-one-year-later-poll [https://perma.cc/H7JU-T4SL] (finding that 81% of Americans polled strongly or somewhat disapprove of Jan. 6 capitol takeover); William A. Galston, Polls Show Americans are Divided on the Significance of January 6, BROOKINGS (Jan. 6, 2023), https://www.brookings.edu/articles/polls-show-americans-are-divided-on-the-significance-of-january-6/ [https://perma.cc/DZT9-DY7L]. According to one survey, more than 70% of respondents labeled the January 6 rioters as "extremist", approximately 20% labeled them as "protester", and less than 5% labeled them as "patriot." Rebecca Bucci et al., Visualizing How Race, Support for Black Lives Matter, and Gun Ownership Shape Views of the U.S. Capitol Insurrection of January 6, 2021, 8 SOCIUS 1, 1-2 (2022), https://journals.sagepub.com/doi/10.1177/23780231221110124 [https://perma.cc/3W9F-ARF7].

72 See Aaron Blake, The Meh-ification of Jan. 6, WASH. POST (Jan. 6, 2025), https://img.washingtonpost.com/politics/2025/01/06/jan-6-american-attitudes-polling-trump/ (reporting that the percentage of Republicans who disapprove of the rioters has dropped from 75 percent to 50 percent, and the percentage who strongly disapprove has dropped from 55 to 24 percent).

73 See, e.g., Government Sentencing Memorandum at 1, United States v. Adams, No. 1:21-CR-00358, (D.D.C. Mar. 24, 2023).

74 See, e.g., Government Sentencing Memorandum at 35, 39, United States v. Rubenacker, No. 21-CR-193-BAH (D.D.C. May 6, 2022).

75 H.R. Res. 503, 117th Cong. (2021).

76 H.R. REP. NO. 117-663, supra note 5, at vii (calling January 6 a "domestic terror attack on the Capitol, the Congress and the Constitution").

77 See, e.g., Jordain Carney, McConnell Breaks with RNC: Jan. 6 'Violent Insurrection', THE HILL (Feb. 8, 2022, 2:47 PM), https://thehill.com/homenews/senate/593339-mcconnell-breaks-with-rnc-jan-6-violent-insurrection/ (quoting Senator majority leader Mitch McConnell as saying "It was a violent insurrection with the purpose of trying to prevent a peaceful transfer of power after a legitimately certified election."); SENATOR MITT ROMNEY, Sen. Romney: "What Happened Today was an Insurrection Incited by the President of the United States," YOUTUBE (Jan. 6, 2021), https://www.youtube.com/watch?v=1kRa350L6 OE&ab_channel=SenatorMittRomney [https://perma.cc/6SJJ-544D] ("What happened here today was an insurrection . . . . Those who choose to continue to support [Trump's] dangerous gambit by objecting to the results of a legitimate, democratic election will forever be seen as being complicit in an unprecedented attack against our democracy . . . . [T]hey will be remembered for their role in this shameful episode in American history.").

78 Republican Representative from Arizona Paul Gosar called the January 6 rioters "peaceful patriots." Meena Venkataramanan, Gosar Calls Jan. 6 U.S. Capitol Attackers 'Peaceful Patriots,' says Slain Rioter 'Executed,' AZ CENTRAL (May 12, 2021, at 18:16 MT), https://www.azcentral.com/story/news/politics/arizona/2021/05/12/rep-paul-gosar-calls -jan-6-us-capitol-attackers-peaceful-patriots/5063404001/ [https://perma.cc/B82Y-N6GD]; Jason Lemon, Marjorie Taylor Greene Calls D.C. Jail Section Holding Jan. 6 Rioters 'Patriot Wing', NEWSWEEK (Nov. 5, 2021, at 10:27 ET) https://www.newsweek.com/ marjorie-taylor-greene-calls-dc-jail-section-holding-jan-6-rioters-patriot-wing-1646323 [https://perma.cc/5Y94-4C83].

79 NEWSWEEK, Donald Trump Calls Jan. 6 Rioters 'Hostages', YOUTUBE (Mar. 18, 2024), https://www.youtube.com/watch?v=WJYz1K9eXE8 [https://perma.cc/6J6N-22EJ].

80 Proclamation No. 10887, supra note 9.

81 At least three cases against Capitol Breach defendants were prosecuted in District of Columbia Superior Court. Those cases are excluded from the data set.

82 Morgan-Lloyd pleaded guilty to a single charge of misdemeanor parading, demonstrating, or picketing a Capitol building in violation of 40 U.S.C. 5104(e)(2)(G). She was sentenced by Judge Royce Lamberth (nominated to the bench by President Trump) to 36 months of probation, 120 hours of community service, and ordered to pay $500 in restitution. See Judgement in a Criminal Case at 1-2, 4-5, U.S. v. Anna Morgan-Lloyd, No. 21-cr-00164-RCL-1 (D.D.C. June 28, 2021)

83 Joseph Hackett, 53, and David Moerschel, 45, both from Florida, were found guilty after trial of four counts, including seditious conspiracy, conspiracy to obstruct, obstruction, and conspiracy to prevent the discharge of duties. Each was sentenced by Judge Amit Mehta (nominated to the bench by President Obama) to 42 months of incarceration and 36 months of incarceration, respectively, plus three years of supervised release. U.S. DEP'T OF JUSTICE, Four Additional Oath Keepers Sentenced for Seditious Conspiracy Related to the U.S. Capitol Breach (June 2, 2023), https://www.justice.gov/archives/opa/pr/four-additional-oath-keepers-sentenced-seditious-conspiracy-related-us-capitol-breach [https://perma.cc/2T88-F7XY].

84 Proclamation No. 10887, supra note 9.

85 In Fischer v. United States, the Supreme Court held that to prove a violation of 18 U.S.C. § 1512(c)(2) the government must establish that "the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or . . . other things used in an official proceeding, or attempted to do so." 603 U.S. 480, 498 (2024). As a result of this holding, cases involving January 6 defendants accused of, or convicted of, violating 18 U.S.C. 1512(c)(2) are being reviewed. Fifty-seven defendants in the data set were convicted of 1512(c)(2), 49 of them had 1512(c)(2) as their top charge of conviction. No Capitol Breach defendant was charged only with 1512(c)(2). The resentencing for these defendants may result in equal or shorter sentences than they originally received.

86 U.S. ATT'Y OFF., supra note 7.

87 Key documents included the Indictment, Notice of Appearance, Sentencing Memoranda, and Judgment.

88 That page was found at the following link: https://www.justice.gov/usao-dc/capitol-breach-investigation-resource-page. Sometime on January 25, 2025, the page began to return a "page not found" message. The page as it last appeared can be found at: https://web. archive.org/web/20250123014329/https://www.justice.gov/usao-dc/capitol-breach-investigation-resource-page [https://perma.cc/U4R8-24VR]. See Scott MacFarlane, Judges in Jan. 6 Cases and Watchdog Groups Recoil at Justice Department's Deletion of Records, CBS NEWS (Feb. 1, 2025, at 17:32 ET), https://www.cbsnews.com/news/jan-6-judges-react-doj-deleting-records/ [https://perma.cc/2QJK-3ABU].

89 Chart of Jan. 6 Cases, U.S. DEP'T OF JUST. (Apr. 18, 2023), https://www.justice.gov /file/1579211/download [https://perma.cc/2AVB-Z8RY] (as of February 2025, this link produces a chart of cases dated April 18, 2023). The chart identified the Defendant, the offense(s) of conviction, the Government's sentencing recommendation, and the sentence imposed. Based on my review of court documents and the chart, the information in the Department of Justice chart was not 100% accurate.

90 Capitol Hill Siege Cases, GEO. WASH. PROGRAM ON EXTREMISM https://extremism. gwu.edu/capitol-hill-siege-cases [https://perma.cc/AN2Q-V77R] (last visited May 8, 2025).

91 COURT LISTENER, https://www.courtlistener.com/ [https://perma.cc/K2VR-9PCN] (last visited May 8, 2025).

92 PACER, https://pacer.uscourts.gov/ [https://perma.cc/2ZXV-LMDA] (last visited May 8, 2025).

93 AMERICAN GULAG, https://americangulag.org/ [https://perma.cc/JME9-RQGZ] (last visited May 8, 2025).

94 Chart of Individuals and Case Documents, AMERICAN GULAG https://americangulag. org/individuals/ [https://perma.cc/2KPE-DXPU] (last visited May 8, 2025.)

95 Defendant's sex is the only factor that involved a possibly erroneous presumption on my part. To determine a defendant's sex, I relied on pronoun usage in Defense sentencing memos, as well as language in government filings, press releases, and media reports.

96 Two convictions for violating 18 U.S.C. § 1752(a)(1) and (b)(1)(A) (entering and remaining with a deadly weapon) were felonies and classified as felony firearms/weapons offenses here.

97 See ROBERT PAPE, NEW INSIGHT INTO SUPPORT FOR POLITICAL VIOLENCE IN AMERICA FROM THE RIGHT AND LEFT 7 (Chi. Project Sec. & Threats 2023), https://cpost. uchicago.edu/publications/new_insight_into_support_for_political_violence_from_the_right _and_left/ [https://perma.cc/RN3C-Y9ZU] (finding that 23 million Americans agreed that use of force is justified to ensure members of Congress and other government officials do the right thing, including 10.6 million Republicans, 7.6 million Democrats, and 4.8 million independents).

98 Lockett v. Ohio, 438 U.S. 586, 602 (1978) (plurality opinion) ("We begin by recognizing that the concept of individualized sentencing in criminal cases generally, although not constitutionally required, has long been accepted in this country."); Meghan J. Ryan, Framing Individualized Sentencing for Politics and the Constitution, 58 AM. CRIM. L. REV. 1747, 1747 (2021); William W. Berry III, Individualized Sentencing, 76 WASH. & LEE L. REV. 13, 14 (2019).

99 ROBERT PAPE, AMERICAN FACE OF INSURRECTION: ANALYSIS OF INDIVIDUALS CHARGED FOR STORMING THE US CAPITOL ON JANUARY 6, 2021 3 (Chi. Project Sec. & Threats 2022), https://cpost.uchicago.edu/publications/american_face_of_insurrection/.

100 Id. See also MARK DENBEAUX & DONNA CRAWLEY, THE JANUARY 6 INSURRECTIONISTS: WHO THEY ARE AND WHAT THEY DID 3 (2023), https://papers.ssrn. com/sol3/papers.cfm?abstract_id=4512381 [https://perma.cc/SY4A-K9Q6]. (finding that the 716 people arrested between January 6, 2021 and January 6, 2022 for acts on January 6 "mostly mirror the profile of Americans as a whole . . . minus striking differences in race and gender").

101 PAPE, supra note 99, at 5-13. For an overview of American Far Right at the time of the 2020 Presidential campaign, see MARK PITCAVAGE, SURVEYING THE LANDSCAPE OF THE AMERICAN FAR RIGHT (Geo. Wash. Program on Extremism 2019), https://extremism.gwu. edu/sites/g/files/zaxdzs5746/files/Surveying%20The%20Landscape%20of%20the%20Ameri can%20Far%20Right_0.pdf [https://perma.cc/YYL2-FAE2].

102 PAPE, supra note 99, at 5.

103 See also Rachel Kleinfeld, The Rise in Political Violence in the United States and Damage to Our Democracy, CARNEGIE ENDOWMENT INT'L PEACE, https://carnegie endowment.org/posts/2022/03/the-rise-in-political-violence-in-the-united-states-and-damage-to-our-democracy?lang=en [https://perma.cc/23SM-GVEV] (last visited May 8, 2025) ("Today, the majority of individuals committing spontaneous or organized political violence do not formally belong to any radical group.").

104 See infra Part III (A) - (E).

105 Id.

106 QuickFacts, U.S. CENSUS BUREAU, https://www.census.gov/quickfacts/fact/table/ US/PST045222 [https://perma.cc/B2LA-9NUY] (last visited May 5, 2025); Sonja B. Starr, Estimating Sex Disparities in Federal Criminal Cases, 17 AM. L. & ECON. REV. 127, 127 (2015).

107 Deborah W. Denno, Gender, Crime, and the Criminal Law Defenses, 85 J. CRIM. L. & CRIMINOLOGY 80, 80-81 (1994) ("Gender is among the strongest predictors of crime, particularly violent crime. Arrest, self report, and victimization data consistently show that men and boys commit significantly more crime, both serious and not, than women and girls." (footnote omitted)).

108 FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 9 tbl. 5. This sex disparity results from a number of factors. First, on the whole, men commit more crime than women, and more serious crimes than women. Denno, supra note 107, at 80-81. (In addition, women appear to benefit more from discretion at the arrest and charging decision points. See, e.g., Carlos Berdejó, Gender Disparities in Plea Bargaining, 94 IND. L.J. 1247, 1250 (2019) ("Female defendants are approximately twenty percent more likely than male defendants to have their most serious initial charge dropped or reduced").

109 Robert Pape's study of individuals arrested for actions on January 6 found a higher percentage of males (93%). PAPE, supra note 99, at 5. See also Denbeaux & Crawley, supra note 100, at 12 (finding that 87% of 716 people arrested between January 6, 2021 and January 6, 2022 for acts on January 6 were male). Perhaps the difference between their numbers and mine is that the initial arrests included more males than later arrests, or that the cases of the arrested women proceeded faster to sentencing.

110 Denno, supra note 107, at 80-81.

111 See Paige W. Eager, From Freedom Fighters to Terrorists: Exploring Women and Political Violence, 31 WOMEN'S RTS. L. REP. 268, 268 (2010) ("engaging in political violence and terrorism has largely been deemed a man's world").

112 ALEKSANDRA DIER & GRETCHEN BALDWIN, MASCULINITIES AND VIOLENT EXTREMISM 1 (Int'l Peace Inst. 2022), https://www.ipinst.org/wp-content/uploads/2022/06/Masculinities-and-VE-Web.pdf [https://perma.cc/8LNM-UFHZ].

113 Danielle Kurtzleben, Trump Has Weaponized Masculinity As President. Here's Why It Matters, NPR (Oct. 28, 2020, at 05:00 ET), https://www.npr.org/2020/10/28/928336749/ trump-has-weaponized-masculinity-as-president-heres-why-it-matters [https://perma.cc/2QPL-FTZS]; Kali Holloway, How Toxic Masculinity Explains the Trump Presidency, Nat'l Memo (Aug. 16, 2017), https://www.nationalmemo.com/toxic-masculinity -explains-trump-presidency/ [https://perma.cc/FH8A-LWQB]; Jackson Katz, White Masculinity and the January 6 Insurrection, Ms. Mag. (Jan. 6, 2025, at 13:34 PT), https://msmagazine.com/2022/01/05/white-men-insurrection-january-6-masculinity-trump/ [https://perma.cc/F753-MMWC].

114 See Fabiola Cineas, Donald Trump is the Accelerant, VOX (Jan. 9, 2021, at 10:04 CT), https://www.vox.com/21506029/trump-violence-tweets-racist-hate-speech [https:// perma.cc/4FM7-UZMV]; Nikita Savin & Daniel Treisman, Donald Trump's Words, NAT'L BUREAU OF ECON. RSCH. 1 (Oct. 2024) (finding that "Trump's use of violent vocabulary has intensified over time-reflecting increasing attention to wars but even more to crime-and is now among the most extreme of any democratic politicians studied."), https://www. nber.org/papers/w32665 [https://perma.cc/E8RQ-PXDB].

115 "We will never give up. We will never concede . . . . you have to get your people to fight . . . . we're going to have to fight much harder . . . . we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore." Brian Naylor, Read Trump's Jan. 6 Speech, A Key Part of Impeachment Trial, NPR (Feb. 10, 2021, at 14:43 ET, https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial [https://perma.cc/4BRN-MSYU]. During the speech, the audience was chanting "Fight for Trump."

116 See generally JEREMY ENGELS, THE POLITICS OF RESENTMENT: A GENEALOGY (2015) (explaining how resentment has become a primary rhetorical instrument to influence and fracture the public); KATHERINE J. CRAMER, THE POLITICS OF RESENTMENT: RURAL CONSCIOUSNESS IN WISCONSIN AND THE RISE OF SCOTT WALKER (2016) (exploring the rise and role of rural resentment in political consciousness), Patrick Iber, How the GOP Became the Party of Resentment, NEW REPUBLIC (Aug. 11, 2020), https://newrepublic.com /article/158680/republican-party-resentment-reaganland-rick-perlstein-book-review [https://perma.cc/Y8B4-WC23] (noting that conservative intellectuals and the Republican base in the second half of the 20th century were often animated by similar grievances and resentments); Anthony Conwright, American Myths Are Made of White Grievance-and the Jan. 6 Big Lie is Just the Latest, MOTHER JONES (Jan.-Feb. 2023), https://www.mother jones.com/politics/2023/01/trump-jan-january-6-insurrection-big-lie-white-supremacy-confederate/ [https://perma.cc/62AZ-J37V] ("It would do history a disservice if we were to portray the [January 6] insurrectionists as race-neutral victims of Trump's swindle rather than what they are: junior partners of white supremacy.").

117 MICHAEL R. GOTTFREDSON & TRAVIS HIRSCHI, A GENERAL THEORY OF CRIME 124 (1990) (stating the age-crime curve has "remained virtually unchanged in 150 years").

118 See From Youth Justice Involvement to Young Adult Offending, NAT'L INST. OF JUST. (Mar. 10, 2014), https://nij.ojp.gov/topics/articles/youth-justice-involvement-young-adult-offending [https://perma.cc/Z7PX-D965] ("This bell-shaped age trend, called the age-crime curve, is universal in Western populations."). Terrie Moffitt argues that there are two broad categories of offenders: adolescent-limited offenders who engage in crime during their teenage years and then stop, and life-course persistent offenders who begin offending early and continue to offend well into their adult years. Terrie E. Moffitt, Adolescence-Limited and Life-Course-Persistent Antisocial Behavior: A Developmental Taxonomy, 100 PSYCHOL. REV. 674, 674-75, 679 (1993).

119 The typical explanations for this rise and desistance are two-fold. First, brain development makes the teen years and early twenties a time when risk is particularly attractive, and long-term consequential thinking less predominant. As humans age, risk becomes less attractive, and they can more accurately recognize and appreciate the long-term consequences of their actions. In addition, the responsibility that attends being a member of a family and having a career-both things that are increasingly likely after the teen years-seems to discourage offending. See Kevin Lapp, Databasing Delinquency, 67 HASTINGS L.J. 195, 202 (2015).

120 FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 9 tbl. 5.

121 Id.

122 Id.

123 Id.

124 For a chart of age data for sentenced Capitol Breach defendants, see Appendix A. See also Denbeaux & Crawley, supra note 100, at 10 (finding that 26.5% of 716 people arrested between January 6, 2021 and January 6, 2022 for acts on January 6 were over 50).

125 Only 53.1% of the sentenced Capitol Breach defendants are between the ages of 25- 39 (compared to 65.7% of 2020 federal defendants), and 70.8% are between 20 and 49 (compared to 85.9% of 2020 federal defendants).

126 PAPE, supra note 99, at 6.

127 Id.

128 Philip Bump, Biden Talked a Lot About Seniors. There's an Obvious Reason, WASH. POST (Feb. 8, 2023), https://www.washingtonpost.com/politics/2023/02/08/biden-seniors-medicare-social-security/ [https://perma.cc/2894-LL4K].

129 Ruth Igielnik et al., Behind Biden's 2020 Victory, PEW RSCH. CTR. (June 30, 2021), https://www.pewresearch.org/politics/2021/06/30/behind-bidens-2020-victory/ [https://perma.cc/NVF2-DJCQ] (61% of 2020 Trump voters were over fifty (compared to 55% of total voting population; 50% of Biden voters)).

130 The "Big Lie" refers to the false claim that the results of the 2020 Presidential election were fraudulent and that Donald trump actually won. See H.R. REP. NO. 117-663, supra note 5, at 195-260.

131 Philip Bump, Why MAGA is so Appealing to Older Republicans, WASH. POST (Mar. 14, 2023), https://www.washingtonpost.com/politics/2023/03/14/trump-maga-older-republicans-diversity/ [https://perma.cc/EQE4-88DE].

132 Nadia Brashier & Daniel Schachter, Aging in an Era of Fake News, 29 CURRENT DIRECTION PSYCH. SCI. 316, 316 (2020) (finding that older adults engage more frequently with fake news).

133 Bump, supra note 131.

134 See Note, Feasibility and Admissibility of Mob Mentality Defenses, 108 HARV. L. REV. 1111, 1126 (1995) (rejecting a mob mentality defense to riotous or group criminal behavior).

135 See Defense Sentencing Memorandum, United States v. King, 1:22-cr-00205, at 4 (D.D.C. May 4, 2023) ("The crowd, en masse, started to move up the steps to the East Rotunda doors. Patrick and Brian were swept up in this crowd and, at the top of the steps, they were swept in with the crowd through the open door and into the building.").

136 See, e.g., various news articles about husband-and-wife rioters where the women were in their 50s: Chuck Goudie et al., Lockport couple to tell court Jan. 6 US Capitol riot happened because 'Trump invited them', ABC NEWS CHI. (Feb. 7, 2025) https://abc7 chicago.com/post/lockport-couple-kelly-fontaine-brian-dula-court-jan-6-us-capitol-riot-happened-because-trump-invited/15356185/ [https://perma.cc/HRK7-9WTJ] (50-year-old woman); Cody Lilich, Surprise couple charged in connection to Jan. 6 riot at US Capitol, ARIZONA'S FAMILY (Sept. 19, 2024, at 15:44 CT) https://www.azfamily.com/2024/09/ 19/surprise-couple-charged-connection-jan-6-riot-us-capitol/ [https://perma.cc/DA6B-S7UP] (50 year old woman); Jordan Fischer, Texas couple, who said they shouldn't be prosecuted if Trump wasn't, convicted of assaulting police on Jan. 6, WUSA 9 (Feb. 13, 2024, at 16:44 ET) https://www.wusa9.com/article/news/national/capitol-riots/texas-couple-who-said-they-shouldnt-be-prosecuted-if-trump-wasnt-convicted-of-assaulting-police-on-jan-6-mark-jalise-middleton/65-f2895db3-2b6f-4cad-8088-e313e6ae9d05 [https://perma.cc/X7WZ-CDQ3] (50 year old woman); Christopher Spata, Pinellas husband and wife who smoked in Capitol during riot sentenced to jail, TAMPA BAY TIMES (Dec. 9, 2022), https://www.tampabay. com/news/pinellas/2022/12/09/pinellas-husband-wife-who-smoked-capitol-during-riot-sentenced-jail/ [https://perma.cc/UG4U-S597] (59 year old woman). But see Detective files for divorce after wife pictured at Capitol riots with another man, YAHOO NEWS (Mar. 22, 2021, at 20:33 CT), https://www.yahoo.com/news/detective-files-divorce-wife-pictured-013300239.html [https://perma.cc/QE69-9P8X]. Further investigation of the circumstances of these defendants is necessarily before any conclusions can be made.

137 U.S. CENSUS BUREAU, supra note 106.

138 See, e.g., Elizabeth Hinton, Unjust Burden: The Disparate Treatment of Black Americans in the Criminal Justice System, VERA INSTITUTE (May 2018), https://www. vera.org/publications/for-the-record-unjust-burden (discussing present and historical racial disparities in criminal justice); Radley Balko, There's Overwhelming Evidence that the Criminal Justice System Is Racist. Here's the Proof, WASH. POST (Sept. 18, 2018), ttps://www.washingtonpost.com/graphics/2020/opinions/systemic-racism-police-evidence-criminal-justice-system/.

139 FEDERAL JUSTICE STATISTICS 2020, supra note 20. Hispanics (19.5% of the United States population) made up 56% of all federal criminal defendants. Id.; U.S. CENSUS BUREAU, supra note 106. This is due in large part to the large immigration docket of federal criminal courts. Blacks or African-Americans (13.6% of U.S. population) were 20.5% of all federal criminal defendants in 2020. U.S. CENSUS BUREAU, supra note 106; FEDERAL JUSTICE STATISTICS 2020, supra note 20. The remaining defendants were 1.5% Asian/Native Hawaiian/Other Pacific Islander, and 2% were American Indian/Alaska Native. Id. This racial breakdown has been similar since the Bureau of Justice Statistics began distinguishing Hispanic and non-Hispanic white as separate racial categories in 2005, with the percentage of white defendants steadily decreasing over time. In 2005, whites were 27% of all federal criminal defendants. Id.

140 PAPE, supra note 99, at 5. See also DENBAUX & CROWLEY, supra note 100, at 10 (finding that 92% of 716 people arrested between January 6, 2021 and January 6, 2022 for acts on January 6 were white).

141 Ruth Igielnik et al., Behind Biden's 2020 Victory, PEW RSCH. CTR. (June 30, 2021), https://www.pewresearch.org/politics/2021/06/30/behind-bidens-2020-victory/ [https://perma.cc/SY7V-QH5U] (85% of 2020 Trump voters were White); Andrew Prokop, A new report complicates simplistic narratives about race and the 2020 election, VOX (May 10, 2021, at 14:30 CT), https://www.vox.com/2021/5/10/22425178/catalist-report-2020- election-biden-trump-demographics [https://perma.cc/2VK8-XYYZ] (Trump voters were 85% White); John Gramlich, What the 2020 electorate looks like by party, race and ethnicity, age, education and religion, PEW RSCH. CTR (Oct. 2020), https://www. pewresearch.org/short-reads/2020/10/26/what-the-2020-electorate-looks-like-by-party-race-and-ethnicity-age-education-and-religion/ [https://perma.cc/WR4J-UQ5G] (White voters have consistently accounted for a much larger share of Republican and Republican-leaning registered voters than of Democratic and Democratic-leaning voters (81% vs. 59% as of 2019)).

142 KHYATI Y. JOSHI, WHITE CHRISTIAN PRIVILEGE: THE ILLUSION OF RELIGIOUS EQUALITY IN AMERICA 59 (1st ed. 2020) (Trump normalized "white Christian supremacist rhetoric"); Jennifer Rubin, Just how racist is the MAGA movement? This survey measures it, WASH. POST (Sept. 28, 2022), https://www.washingtonpost.com/opinions/2022/09/28/racism -survey-prri-maga-republicans/ [https://perma.cc/8LRD-MH8H].

143 Nicole Narea, Donald Trump's long history of enabling white supremacy, explained, VOX (Nov. 29, 2022, at 12:50 CT), https://www.vox.com/policy-and-politics/23484314 /trump-fuentes-ye-dinner-white-nationalism-supremacy [https://perma.cc/QW6K-3DVY].

144 Matthew Specter & Varsha Venkatasubramanian, "America First": Nationalism, Nativism, and the Fascism Question, 1880-2020, in FASCISM IN AMERICA: PAST AND PRESENT 108-09 (Gavriel D. Rosenfeld & Janet Ward eds., 2023); Sean Illing, How "America First" ruined the "American Dream", VOX (Oct 22, 2018, at 18:31 CT), https://www.vox.com/2018/10/22/17940964/america-first-trump-sarah-churchwell-american-dream [https://perma.cc/JM72-AHNN]; Sarah Churchwell, 10-Minute Talks: America first and American fascism, THE BRITISH ACADEMY (June 20, 2020) https://www.thebritishacademy.ac.uk/podcasts/10-minute-talks-america-first-and-american-fascism/ [https://perma.cc/7Z6G-CHGP].

145 Javonte Anderson, Capitol riot images showing Confederate flag a reminder of country's darkest past, USA TODAY (Jan. 13, 2021, at 10:09 ET), https://www.usatoday. com/story/news/2021/01/07/capitol-riot-images-confederate-flag-terror/6588104002/ [https://perma.cc/J8UK-QCP8]; Maria Cramer, Confederate Flag an Unnerving Sight in Capitol, N.Y. TIMES (Jan. 9, 2021), https://www.nytimes.com/2021/01/09/us/politics/ confederate-flag-capitol.html [https://perma.cc/F5KC-GN5C].

146 See PRRI, Threats to American Democracy Ahead of an Unprecedented Presidential Election: Findings from the 2023 American Values Survey 6 (finding that 33% of Republicans believe that "true American patriots may have to resort to violence to save the country" compared with 22% of Independents and 13% of Democrats), https://www.prri. org/wp-content/uploads/2023/10/2023-AVS-Presentation.pdf [https://perma.cc/N2ND-A7GG]; Arie Perliger, Contextualising the Jan 6th Report: Contemporary Trends in Far-Right Violence in the US, INT'L CTR. COUNTER-TERRORISM (Jan. 2, 2023), https://www. icct.nl/publication/contextualising-jan-6th-report-contemporary-trends-far-right-violence-us [https://perma.cc/4BWS-KMHE] ("The findings of the Jan 6th report have shed new light on the scope and sophistication of many militant organisations on the far-right, who planned and coordinated the insurrection months in advance."); Miles T. Armaly & Adam M. Enders, Who Supports Political Violence?, 22 PERSP. ON POL. 427, 428 (2024) (finding that "feelings of victimhood, authoritarianism, populist sentiments, white identity, and military service are the strongest correlates of support for violence").

147 Only Vermont, North Dakota, and Nebraska have no residents amongst the data set. As of October 2024, only Vermont remains without a Capitol Breach defendant. See Appendix C.

148 There were many more than 233 that had to travel more than 500 miles to get to Washington, D.C., but they were not included in this tally because parts of their state were within 500 miles of Washington, D.C. For example, Atlanta, Nashville, Memphis, and the Upper Peninsula of Michigan are all more than 500 miles from D.C., but insurrectionists from Georgia, Tennessee, and Michigan are not included in the 233 tally.

149 See Appendix C.

150 Id.

151 PAPE, supra note 99, at 18.

152 Id. at 18-19.

153 Id. at 20.

154 Id. at 21.

155 Id. at 18.

156 See, e.g., Michael Jendryke & Stephen C. McClure, Mapping crime - Hate crimes and hate groups in the USA: A spatial analysis with gridded data, 111 APPLIED GEOGRAPHY 1, 8 (2019) (finding that concentrations of hate crimes and incidents are often found in dense urban areas).

157 Tracey Kyckelhahn & Emily Herbst, The Criminal History of Federal Offenders, U.S. SENT'G COMM'N 2 (May 2018), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2018/20180517_criminal-history.pdf [https://perma.cc/ZL9A-YVFD].

158 JAMES JACOBS, THE ETERNAL CRIMINAL RECORD 1-2 (2015) (noting that court records of charges, convictions and sentences, police records of arrests and bookings, including those not followed by a conviction, and criminal investigative and intelligence databases all can be considered a criminal record).

159 THE SENTENCING PROJECT, AMERICANS WITH CRIMINAL RECORDS, https:// www.sentencingproject.org/app/uploads/2022/08/Americans-with-Criminal-Records-Poverty-and-Opportunity-Profile.pdf [https://perma.cc/S6Z7-283J] (finding 70-100 million Americans, or as many as 33%, have some type of a criminal record). Robert Pape's study says 20% of 2020 Trump voters and 20% of the 2020 electorate have a criminal record. PAPE, supra note 99, at 13.

160 Id.

161 Id. at 24.

162 See also Denbaux & Crowley, supra note 100, at 20 (finding that 22.2% of 716 people arrested between January 6, 2021 and January 6, 2022 for acts on January 6 had a criminal record). My data collection is not complete with regard to the criminal record of sentenced Capitol Breach defendants.

163 Kleinfeld, supra note 103 ("According to nearly every measure of both beliefs and actual incidents, political violence is considered more acceptable than it was five years ago").

164 Joshua Kleinfeld, Why the Mind Matters in Criminal Law, 53 ARIZ. ST. L.J. 539, 564 (2021) ("criminal law in liberal societies defends a thin floor of shared values"); see also Daniel M. Mandil, Chance, Freedom, and Criminal Liability, 87 COLUM. L. REV. 125, 125 n.6 (1987) (identifying "the preservation of order and cohesion in society, the centralization of coercive power in the state, and the reform of individual offenders" as substantive social values that give rise to liability and punishment).

165 Geraldine Szott Moohr, The Crime of Copyright Infringement: An Inquiry Based on Morality, Harm, and Criminal Theory, 83 B.U. L. REV. 731, 775 (2003) ("Criminal law necessarily evolves to reflect changes in the community consensus about wrongful or immoral behavior, and it continuously adapts to societal changes.").

166 Domestic violence was a legal right of husbands, not a crime, until the turn of the twentieth century. Mark Irving, Domestic Violence, 4 GEO. J. GENDER & L. 451, 451-52 (2002). Oliver Roberts, The New Federalism Frontier in Marijuana Legalization and Decriminalization, 73 S.C. L. REV. 319, 319 (2021) ("Over the past two decades, the movement for marijuana legalization and decriminalization has achieved widespread success on the state level.").

167 The idiom "make a federal case out of it" suggests that someone is treating a matter as much more serious than it really is. See Make a federal case out of something, CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/us/dictionary/english/make-a-federal-case-out-of [https://perma.cc/WB5U-AUP7].

168 U.S. SENTENCING COMMISSION, FISCAL YEAR 2021 OVERVIEW OF FEDERAL CRIMINAL CASES 4 (April 2022) (reporting that felony offenses were 96.8 percent of all reported federal criminal cases).

169 Federal Criminal Case Processing Statistics Data Tool, BUREAU OF JUST. STAT., https://fccps.bjs.ojp.gov/home.html?dashboard=FJSP-Prosecution&tab=ProsecutionCourts DefendantsChargedinCriminalCasesAdvanced [https://perma.cc/X2RS-EM5M] (reporting 31.9% of all cases having a drug offense as the most serious charge and 32.3% of all cases having an immigration offense as the most serious charge).

170 Id. (reporting 9.9% of all cases having a public order offense as the most serious charge and 9.6% of all cases having a property offense as the most serious charge).

171 Id. (reporting 12.2% of all cases having a weapons offense as the most serious charge).

172 Id. (reporting 4.2% of all cases having a violent offense as the most serious charge). As used by the Department of Justice's Bureau of Justice Statistics, "violent crime" includes murder, negligent or nonnegligent manslaughter, aggravated or simple assault, sexual abuse, robbery, kidnapping, and threats against the U.S. president. FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 2.

173 Criminal Federal Judicial Caseload Statistics, U.S. DIST. CTS. (Mar. 31, 2020), https://www.uscourts.gov/statistics/table/d-3/federal-judicial-caseload-statistics/2020/03/31 [https://perma.cc/HE6M-RYCA].

174 Id. For the year ending March 2020, 488 criminal cases were commenced in D.C. District Court: 26 = violent offenses (5%); 68 = property (mostly fraud) (13.9%); 92 = drug (18.8%); 120 = firearms (24.6%); 31 sex offenses; 38 = justice system offenses (including obstruction) (7.8%); 86 = general offenses; 26 = regulatory offenses; 1 = immigration offense.

175 See Michael Edmund O'Neill, Understanding Federal Prosecutorial Declinations: An Empirical Analysis of Predictive Factors, 41 AM. CRIM. L. REV. 1439, 1439 (2004). According to the Justice Manual, which sets forth Department of Justice policies and procedures, "the attorney for the government should commence or recommend federal prosecution if he/she believes that the person's conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution." U.S. Dep't of Just., Justice Manual 9-27.220, https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution#9-27.220 [https://perma.cc/HF56- 2A5Z].

176 See Wayne R. LaFave, The Prosecutor's Discretion in the United States, 18 AM. J. COMPAR. L. 532, 533-35 (1970) (noting that prosecutors may decline to prosecute for a variety of reasons, including legislative overcriminalization, resource constraints, individualized justice, victim input, and other reasons); Angela Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny, 86 IOWA L. REV. 393, 409 (2001) (observing that prosecutors may decline to prosecute because they cannot prove the charges, because of the triviality of the offense or the victim's lack of interest in prosecution, or considerations of fairness and justice). See also Justice Manual 9-27.220, supra note 175 (outlining situations when a federal prosecutor should consider declining prosecution).

177 FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 7 tbl. 4. Prosecutors most frequently chose to prosecute weapons offenses (76%) and drug offenses (73%). These cases are often easier to prove since they can require merely proving possession. Prosecutors had lower prosecution rates for violent offenses (54%) and public order offenses (48.5%) referred to them. Id. Beyond these figures, data on prosecutorial declinations are difficult to gather. See Michael Edmund O'Neill, When Prosecutors Don't: Trends in Federal Prosecutorial Declinations, 79 NOTRE DAME L. REV. 221, 252 (2003) (reporting declination rates between 26% and 36% overall for the years 1994-2000).

178 All the Capitol Breach Defendants were at least 19 years old. See Appendix A. See Government Sentencing Memorandum, United States v. Spencer 1:21-cr-00147 (D.D.C. Dec. 2, 2021) (noting that the defendant brought her 14-year old into the Capitol Building during the riot). See also Michael Kunzelman & Jacques Billeaud, Some Jan. 6 defendants try to use journalism as riot defense, ASSOCIATED PRESS (Apr. 18, 2021, at 06:21 CT), https://apnews.com/article/nm-state-wire-government-and-politics-journalism-riots-7019282 3f35380b860b6f2708904bc5c [https://perma.cc/75BW-Y2MP]. The government entered into cooperation agreements with a few capitol Breach defendants. At least 4 defendants charged with seditious conspiracy cooperated against other defendants, and were given sentences of time served. Roger Parloff, Evenhanded Injustice: Jan. 6 Pardons, Commutations & Dismissals, LAWFARE (Feb. 3, 2025, at 13:00), https://www.lawfaremedia. org/article/evenhanded-injustice-jan.-6-pardons-commutations-dismissals [https://perma.cc/MSW6-4E4W].

179 According to the Bureau of Justice Statistics Federal Criminal Case Processing Statistics Data Tool, just 5.3% of persons charged in federal court in FY 2020 were charged with only a misdemeanor. Federal Criminal Case Processing Statistics Data Tool, supra note 169 (reporting that 3863 of 73256 defendants faced only misdemeanor charges).

180 Dina Temple-Raston & Tim Mak, The Justice Department is Struggling to Bring Capitol Riot Cases to Trial: Here's Why, NPR (July 27, 2021, at 16:15 ET), https://www.npr.org/2021/07/27/1013500073/the-justice-department-is-struggling-to-bring-capitol-riot-cases-to-trial-heres- [https://perma.cc/LZ2M-2X8T] (describing the shorthand of "tourist cases" used by Department of Justice officials and defense attorneys to describe those who "who went inside the Capitol and allegedly walked around but aren't charged with property damage or assaulting police").

181 Government Sentencing Memo, United States v. Tagaris, 1:21-cr-00368 (D.D.C. May 23, 2022). This paragraph appears in almost all government sentencing memos in cases where the defendant was convicted of misdemeanor parading as the top charge. Cf. Temple-Raston & Mak, supra note 180 (describing the shorthand of "tourist cases" used by Department of Justice officials and defense attorneys to describe those who "who went inside the Capitol and allegedly walked around but aren't charged with property damage or assaulting police").

182 See Kyle Graham, Overcharging, 11 OHIO ST. J. CRIM. L. 701, 702 (2014).

183 The total percentages add up to more than 100% because defendants faced multiple charges. My data on the sentenced Capitol Breach defendants who faced particular charges is not yet complete, but there is no reason to think it will differ significantly from this reported data.

184 18 U.S.C. §§ 5104, 1752.

185 18 U.S.C. § 111(a); see also U.S. ATT'Y OFF., supra note 7 (reporting that 608 of 1,583 charged were charged with assault).

186 18 U.S.C. §§ 361, 1641; see also U.S. ATT'Y OFF., supra note 7 (reporting that 159 of 1,583 charged were charged with destruction or theftof government property).

187 18 U.S.C. §§ 111(a), 111(b); see also U.S. ATT'Y OFF., supra note 7 (reporting that 174 of 1,583 charged were charged with using a deadly or dangerous weapon or causing serious bodily injury to an officer).

188 18 U.S.C. §§ 1512, 231. The last Dept. of Justice update on obstruction charges was in its 36 month update. See Three Years Since Jan. 6 Attack on U.S. Capitol, WEST ORLANDO NEWS (Jan. 7, 2024), https://westorlandonews.com/three-years-since-jan-6-attack-on-capitol-results-of-ongoing-investigation/ [https://perma.cc/CTX5-R8VB] (332 of 1265 defendants charged with corruptly obstructing, influencing, or impeding an official proceeding, or attempting to do so).

189 18 U.S.C. § 2384; see also U.S. ATT'Y OFF., supra note 7 (18 of 1,583 charged were charged with seditious conspiracy).

190 U.S. ATT'Y OFF., supra note 7.

191 Eight of the 11 defendants charged in a seditious conspiracy indictment are included in the data set. None of those individuals were charged with a misdemeanor. See United States v. Rhodes, No. 1:22-cr-00015 (D.D.C. filed Jan. 12, 2022), https://www.courtlistener. com/docket/62601657/united-states-v-rhodes-iii/ [https://perma.cc/7TE2-9JTQ]. Those eight are Stewart Rhodes, Kelly Meggs, Kenneth Harrelson, Jessica Watkins, Roberto Minuta, Joseph Hackett, David Moerschel, and Edward Vallejo.

192 To get to 98%, I subtracted the 8 (of the 11) felony-only seditious conspiracy indictment defendants in the data set from the 514, leaving 506 of 514 (98%) charged with misdemeanors.

193 40 U.S.C. § 5104(e).

194 18 U.S.C. § 1752.

195 Federal Criminal Case Processing Statistics Data Tool, supra note 169 (reporting that 3863 of 73256 defendants faced only misdemeanor charges). It was 7% for the period 2016 to 2020. The vast majority of those cases were filed before magistrate judges, who have authority to adjudicate or dispose of misdemeanor offenses. 18 U.S.C. § 3401. Just 14% of those few cases where a misdemeanor was the top charge were filed in District Court. Federal Criminal Case Processing Statistics Data Tool, supra note 169 (reporting that 549 of 3863 defendants had their cases filed and resolved before a magistrate).

196 Tom Jackman & Spencer Hsu, Most Jan. 6 Defendants Get Time Behind Bars, but Less Than U.S. Seeks, WASH. POST (Jan. 5, 2024), https://www.washingtonpost.com/dc-md-va/2024/01/05/january-6-riot-sentences/ [https://perma.cc/H6DK-EHMH].

197 See supra notes 74-76.

198 Graham, supra note 182, at 706 (describing various forms of prosecutorial overcharging, including as disproportionate to the defendant's conduct, and to obtain leverage in plea bargaining).

199 See Harlem Globetrotters FAQs, https://www.harlemglobetrotters.com/about/faq/ #:~:text=Yes.,the%20history%20of%20professional%20sports [https://perma.cc/HR2H-NG4Q] (noting the Harlem Globetrotters basketball team has a winning percentage of 98.7%).

200 FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 10 tbl.6.

201 Id.; Michael Pinard, Race Decriminalization and Criminal Legal System Reform, 95 N.Y.U. L. REV. ONLINE 119, 133 (2020) ("the criminal court process, as a whole, is a plea mill. The criminal legal system needs and relies on defendants-lots of them-to plead guilty.").

202 FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 11 tbl.7.

203 Id.

204 Id. at 11 tbl. 7 (Drug offenses were 25.9% of cases (17,055 of 65,848), immigration offenses were 39.4% of cases (25,956 of 65,848).

205 Id. (7,755 of 65,848).

206 Id. (1,881 of 65,848).

207 By January 2025, the percentage of all convicted Capitol Breach rioters who were convicted via guilty plea had dropped to 80%. See U.S. ATT'Y OFF., supra note 7 (1,009 have pleaded guilty, out of 1,270 convictions).

208 27 Capitol Breach defendants were convicted of 111(a)(1) assault as their top charge, and an additional 25 Capitol Breach defendants were convicted of 111(a)(1) assault with a weapon as their top charge.

209 14 Capitol Breach defendants were convicted of felony property crimes, 10 where the felony property crime was the top charge of conviction (seven were violations of 641 theftof government property; 3 were violations of 1361 destruction of government property).

210 A total of 96 Capitol Breach defendants were convicted of a felony obstruction offense. Of those, 75 had an obstruction offense as the top charge of conviction (48 were for convictions for violating 1512; 23 were for convictions for violating 231; 2 were for convictions for violating 875 interstate threats; 1 was for a conviction for violating 371 conspiracy to obstruct). An additional 6 were convicted of seditious conspiracy as their top charge, which I have included in this chart as a public order offense.

211 A total of 30 Capitol Breach defendants (5.8%) were convicted of an offense that involved a weapon. 25 Capitol Breach defendants were convicted of 111(a)(1) assault with a weapon. Those convictions were categorized as "violent felonies" for purposes of this chart.

212 297 Capitol Breach defendants were convicted of 5104 parading as their top charge; 6 were for convictions for violating 5104 disorderly conduct as the top charge; 1 was a conviction for violating 5104(d); 1 was for a conviction for violating 5104(e)(2)(F). 1752 convictions: 52 were for convictions for violating Entering and remaining; 9 were for convictions for violating disruptive or disorderly conduct. (45 of those 61 incarcerated). Enter and remain (75%); disorderly conduct (71.4%)

213 See supra note 195-96.

214 305 defendants convicted of § 5104 crimes + 61 defendants convicted of § 1752 misdemeanors as most serious offense (one 1752 conviction was with a weapon, so felony) = 71.2% misdemeanor (of 514).

215 My data.

216 See, e.g., Government Sentencing Memorandum, United States v. Rubenacker 1:21- cr-00193 (D.D.C. May 6, 2022).

217 Government Sentencing Memo, United States v. Tagaris, 1:21-cr-00368 (D.D.C. May 23, 2022). This paragraph appears in almost all government sentencing memos in cases where the defendant was convicted of misdemeanor parading as the top charge. Cf. Temple-Raston & Mak, supra note 180 (describing the shorthand of "tourist cases" used by Department of Justice officials and defense attorneys to describe those who "who went inside the Capitol and allegedly walked around but aren't charged with property damage or assaulting police").

218 Government Sentencing Memorandum, United States v. Youngers, 1:21-cr-00640 (D.D.C. Aug. 14, 2022). ("The gravity of these offenses demands deterrence. This was not a protest . . . . And it is important to convey to future rioters and would-be mob participants- especially those who intend to improperly influence the democratic process-that their actions will have consequences. There is possibly no greater factor that this Court must consider.")

219 See Sam Merchant, The Relative Severity of Criminal Sentences in the January 6, 2021 Capitol Breach Cases, 17 DREXEL L. REV. 171, 180 (2024) (proposing a new sentencing enhancement in the Federal Sentencing Guidelines to account for the relative severity of conduct involving offenses on the treason spectrum) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4785822 [https://perma.cc/CEY9- CZ7F].

220 There were thousands of hours of video of January 6. See H.R. REP. NO. 117-663, supra note 5, at 687 n.306 (noting that the Select Committee staffanalyzed thousands of hours of surveillance footage from the Capitol); Committee on House Administration Releases 5,000 More Hours of January 6 Footage, COMM. ON HOUSE ADMIN. (Mar. 1, 2024), https://cha.house.gov/2024/3/committee-on-house-administration-releases-5-000-more-hours-of-january-6-footage [https://perma.cc/FK8N-UTS8]; see also Video Evidence Shown in the capitol Insurrection Criminal Cases, PROPUBLICA (Sept. 9, 2022), https://projects. propublica.org/jan-6-video-evidence/ [https://perma.cc/GBU8-Z8DJ] (hosting hundreds of video exhibits shown in capitol Breach cases).

221 Richard Lorren Jolly, Jury Nullification as a Spectrum, 49 PEPP. L. REV. 341, 344-45 (2022) ("nullification typically refers to those instances in which the jury deliberately issues a verdict that contradicts the law's clearly dictated outcome" such as by "acquitting a defendant in the face of obvious guilt").

222 Carlos Berdejó, Criminalizing Race: Racial Disparities in Plea Bargaining, 59 B.C. L. REV. 1187, 1216, 1221 (2018) (finding that white people facing misdemeanor charges were more than 74 percent likely than black people to have all misdemeanor charges carrying potential prison time dropped, dismissed, or reduced, and white people with no criminal history were more than 25 percent more likely to have charges reduced than black people with no criminal history). Research is mixed on whether older defendants get better pleas deals. RAM SUBRAMIAN ET. AL, IN THE SHADOWS: A REVIEW OF RESEARCH ON PLEAS BARGAINING 31 (Sept. 2020).

223 Berdejó, supra note 222.

224 Carlos Berdejó, Gender Disparities in Plea Bargaining, 94 IND. L.J. 1247, 1255-56 (2019).

225 Alternatively, maybe some rioters had their weapons seized by the Secret Service when they passed through the magnetometers at the Ellipse earlier in the day. See H.R. REP. NO. 117-663, supra note 5, at 68 (on January 6, the Secret Service confiscated 242 canisters of pepper spray, 269 knives or blades, 18 brass knuckles, 18 tasers, 6 pieces of body armor, and 3 gas masks from attendees who passed through magnetometers at the Ellipse).

226 Id. at 666-69.

227 But see generally MALCOLM FEELEY, THE PROCESS IS THE PUNISHMENT: HANDLING CASES IN A LOWER CRIMINAL COURT (1979) (arguing that, particularly in lower criminal courts, the adjudicative process imposes greater costs and burdens on defendants than sentencing outcomes and, thus, is the primary punishment imposed in such cases); NACDL, COLLATERAL DAMAGE: AMERICA'S FAILURE TO FORGIVE OR FORGET IN THE WAR ON CRIME 9 (May 2014) (discussing the thousands of collateral convictions of criminal convictions that impose post-sentence disabilities on individuals). See also Kevin Lapp, American Criminal Record Exceptionalism, 14 OHIO ST. J. CRIM. L. 303, 303 (2016) (detailing "the long, devastating shadow that criminal records cast, including isolating stigma, formal disabilities such as disenfranchisement, statutory ineligibility for certain jobs, deportation for noncitizens, restrictions in housing options and welfare benefits, and untold informal discrimination.").

228 See, e.g., Government Sentencing Memorandum, United States v. Rubenacker 1:21- cr-00193 (D.D.C. May 6, 2022).

229 See, e.g., id.

230 The only cases in the data set where the government did not seeks either incarceration or home detention are Anna Lloyd Morgan, Douglas Wangler, Bruce Harrison, Donna Sue Bissey, Jacob Hiles, Trudy Castle, and Valerie Erhke. The amount of incarceration requested for sentenced Capitol Breach defendants ranged from 7 days at the low end to 300 months (25 years) at the high end.

231 Government Sentencing Memorandum at 12, United States v. Ehrke, No. 1:21-cr-00097 (D.D.C. Sept. 10, 2021).

232 The longest sentence imposed so far has been 22 years, for Enrique Tarrio, the former Proud Boys national chairman, for seditious conspiracy. See U.S. Att'y Off., Proud Boys Leader Sentenced to 22 Years in Prison on Seditious Conspiracy and Other Charges Related to U.S. Capitol Breach, U.S. DEP'T OF JUST. (Sept. 5, 2023), https://www.justice. gov/usao-dc/pr/proud-boys-leader-sentenced-22-years-prison-seditious-conspiracy-and-other-charges [https://perma.cc/H97J-X88F]. Tarrio was sentenced after the data set closed.

233 See infra Part IV(C)(1)(a).

234 See infra Part IV(C)(1)(b)-(e).

235 See supra Part IV(B).

236 See infra Part IV(C)(1)(e)(2).

237 FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 11.

238 Just five Capitol Breach defendants in the data set convicted of a felony avoided prison. See infra Part IV(c)(1)(a). See also Jackman & Hsu, supra note 196 (finding that 94% of sentenced Capitol Breach defendants convicted of a felony were sentenced to incarceration).

239 FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 11 (reporting that 65,848 convicted defendants were sentenced in FY 2020. Of those, 90.6% were sentenced to some amount of prison time. According to the U.S. Sentencing Commission, 91.8% of offenders were sentenced to some prison time (89.1% to a prison-only sentence, and 2.7% to a prison and some alternative confinement such as a half-way house or home confinement). U.S. SENT'G COMM'N, FISCAL YEAR 2020: OVERVIEW OF FEDERAL CRIMINAL CASES 8 (April 2021). See also Federal Criminal Case Processing Statistics Data Tool, supra note 169 (91.85% got prison, 59,301 of 64,565). For consistency's sake, I will be using the numbers from the FJS 2020 report in the text and charts.

240 FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 11 (33 months). The U.S. Sentencing Commission reports that the average sentence in months was 40 for FY2020. U.S. SENT'G COMM'N, supra note 239, at 9.

241 FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 11. For those convicted of a felony, 23.3% received a suspended sentence. For those convicted of a misdemeanor, 15.1% received a suspended sentence. Id.

242 Id. (33 months). According to the United States Sentencing Commission, the average sentence was 40 months. U.S. SENT'G COMM'N, supra note 239, at 9.

243 Federal Criminal Case Processing Statistics Data Tool, supra note 169 (95 of 64,565 cases).

244 Data can be found in FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 11.

245 FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 11.

246 Federal Criminal Case Processing Statistics Data Tool, supra note 169 (Under "persons sentenced", open the "Sentence: home confinement" dropdown and deselect "none ordered" and the tool shows that 1,988 of 64,565 persons sentenced were sentenced to some amount of home confinement).

247 Id.

248 Id. (Under "persons sentenced" open the "Sentence: supervised release" dropdown, deselect "none ordered" and open the "Sentence: prison" dropdown and deselect "none ordered", and the tool shows that 47,062 (of 59,301) persons sentenced to prison were ordered to have a period of supervised release follow their prison term. It was imposed in 72.9% of all cases where the defendant was sentenced (47,062 of 64,565)).

249 Id. (Under "persons sentenced" open the "Sentence: supervised release" dropdown, deselect all boxes for lengths greater than 36 months and the tool shows that 34,779 of 47062 defendants were ordered to a term of supervised release of between 1 and 36 months).

250 Of the 201 who were not ordered to prison, 84 were ordered to complete some period of home confinement. A total of 107 defendants were ordered to some period of home confinement (some defendants were ordered to a period of incarceration followed by a period of home conferment). Id.

251 Id.

252 U.S. Att'y Off., Court Sentences Two Oath Keepers Leaders to 18 Years in Prison on Seditious conspiracy and Other Charges Related to U.S. Capitol Breach, U.S. DEP'T OF JUST. (May 25, 2023).

253 FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 11.

254 Id.

255 See id.

256 25 defendants were convicted of 18 U.S.C. § 111(a)(1) and (b) assault with a weapon as their top charge of conviction; 4 defendants were convicted of 18 U.S.C. § 1752 enter and remain with a weapon as their top charge of conviction; 1 defendant was convicted of 26 U.S.C. § 5861 possession unregistered firearm as their top charge of conviction.

257 18 U.S.C. § 111(a)(1) (assault).

258 A total of 96 Capitol Breach defendants were convicted of a felony obstruction offense, with 92 of them incarcerated. Of those, 74 had an obstruction offense as the top charge of conviction (47 defendants were convicted of 18 U.S.C. § 1512 as their top charge of conviction; 23 defendants were convicted of 18 U.S.C. § 231 as their top charge of conviction; 2 defendants were convicted of 18 U.S.C. § 875 interstate threats as their top charge of conviction; 1 defendant was convicted of 18 U.S.C. § 371 conspiracy to obstruct as their top charge of conviction), and 73 of them were ordered to prison.

259 14 Capitol Breach defendants were convicted of felony property crimes, 10 where it was top charge (7 defendants were convicted of 18 U.S.C. § 641 Theftof Government Property as their top charge of conviction; 3 defendants were convicted of 18 U.S.C. § 1361 destruction of government property as their top charge of conviction).

260 52 defendants were convicted of 18 U.S.C. § 1752(a)(1) Entering and remaining as their top charge of conviction; 9 defendants were convicted of 18 U.S.C. § 1752(a)(2) disruptive or disorderly conduct as their top charge of conviction. Forty-five of those 61 were ordered incarcerate (Enter and remain (75%); disorderly conduct (71.4%)).

261 297 defendants were convicted of 40 U.S.C. § 5104(e)(2)G) Parading as their top charge of conviction; 6 defendants were convicted of 40 U.S.C. § 5104(e)2)(D) disorderly conduct as their top charge of conviction; 1 defendant was convicted of 40 U.S.C. § 5104(d) Climbing on Wall of U.S. Capitol Grounds as their top charge of conviction; 1 defendant was convicted of 40 U.S.C. § 5104(e)(2)(F) Physical Violence as their top charge of conviction. Of these 305 defendants, 125 were sentenced to some prison time.

262 180 of the 305 whose top charge was a 40 U.S.C. § 5104 offense were not ordered to prison, so the median prison term was zero. Forty days reflects the average prison term for the 125 people whose top conviction was a 40 U.S.C. § 5104 offense and who were ordered incarcerated.

263 18 U.S.C. § 111(a).

264 Government Sentencing Memorandum at 2, United States vs. Sherrill, No. 1:21-cr-00282 (D.D.C. 2023).

265 Michael Gordon, NC man to serve 7 months for striking cop during Capitol riot, CHARLOTTE OBSERVER (May 5, 2023, at 19:11 ET), https://www.charlotteobserver.com/ news/local/crime/article275078421.html [https://perma.cc/HQG4-PJ6F].

266 Government Sentencing Memorandum at 3, United States v. Head, No. 1:21-cr-00291-ABJ (D.D.C. 2022).

267 U.S. Att'y Off. D.C., Tennessee Man Sentenced to 90 Months in Prison for Assaulting Law Enforcement Office During Capitol Breach, U.S. DEP'T OF JUST. (Oct. 27, 2022), https://www.justice.gov/usao-dc/pr/tennessee-man-sentenced-prison-assaulting-law-enforcement-officer-during-capitol-breach [https://perma.cc/LUL4-XVGN].

268 Lockett v. Ohio, 438 U.S. 586, 602 (1978) (plurality opinion) ("We begin by recognizing that the concept of individualized sentencing in criminal cases generally, although not constitutionally required, has long been accepted in this country."); Meghan J. Ryan, Framing Individualized Sentencing for Politics and the Constitution, 58 AM. CRIM. L. REV. 1747, 1749 (2021); William W. Berry III, Individualized Sentencing, 76 WASH. & LEE L. REV. 13, 14 (2019).

269 The late twentieth-century experiment in determinate sentencing that was the mandatory federal sentencing guidelines-still a heavily individualized process-appears largely over. United States v. Booker, 543 U.S. 220, 222 (2005) (holding that sentencing guidelines are advisory, not mandatory). The guidelines are still relevant and undoubtedly impose some discernable though penetrable guardrails on judicial sentencing discretion. Nevertheless, federal judges use the entire breadth of their statutory discretion to sentence offenders to the minimum and the maximum allowed under the statute, and everywhere in-between.

270 A criminal record adds points under the federal sentencing guideline calculation, increasing the recommended sentence. See U.S. SENT'G COMM'N, PRIMER ON CRIMINAL HISTORY 1 (2021) (explaining how to calculate guideline sentencing for those with criminal records).

271 Under the sentencing guidelines, courts must consider the following: (1) the nature and circumstances of the offense, (2) the history and characteristics of the defendant, (3) the need for the sentence to reflect the seriousness of the offense and promote respect for the law, (4) the need for the sentence to afford adequate deterrence, and (5) the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct. 18 U.S.C. § 3553.

272 On January 6, Nicholas Rodean was one of the first rioters to enter the building, smashed two windowpanes of the U.S. Capitol building with a metal flagpole, and displayed a hatchet during a confrontation with U.S. Capitol police offer. Government Sentencing Memorandum at 11-13, United States v. Rodean, No. 21-cr-00057 (2022). At the sentencing hearing, Judge Trevor McFadden observed that "I believe your Asperger's syndrome was a major factor in your conduct on January 6th and significantly mitigates the blameworthiness of your conduct" and that "Ultimately, I believe the unique factors of this case and in particular your Asperger's diagnosis justify a noncustodial sentence here." Transcript of Sentencing Hearing at 49-50, U.S. v. Rodean, No. 21-cr-00057 (D.D.C. 2022). Defendant Matthew Council's struggles with mental illness and Chronic Traumatic Encephalopathy (CTE) contributed to his sentencing judge declining to impose incarceration. See Christopher Spata, No jail for 'frothing' Capitol rioters who faced mental health struggle, TAMPA BAY TIMES (Dec. 12, 2022), https://www.tampabay.com/news/crime/2022/12/12/doom-guy-matthew-council-january-6-capitol-riot-sentence-football-cte/ [https://perma.cc/RJ4X-ALZ3]. Both Rodean and Council received 6 months of home detention.

273 Carlos Berdejó, Gender Disparities in Plea Bargaining, 94 IND. L.J. 1247, 1255-56 (2019) (noting that "[s]imilar studies focusing on state criminal cases have also documented differences in incarceration rates and sentencing outcomes between male and female defendants.").

274 See , e.g., U.S. SENT'G COMM'N, 2023 DEMOGRAPHIC DIFFERENCES IN FEDERAL SENTENCING 5 (Nov. 2023) ("When examining all sentences imposed, females received sentences 29.2 percent shorter than males. Females of all races were 39.6 percent more likely to receive a probation sentence than males. When examining only sentences of incarceration, females received lengths of incarceration 11.3 percent shorter than males.").

275 FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 12 tbl. 8.

276 Id.

277 See infra Part IV(c)(2). As explained below, male Capitol rioters were more likely to be convicted of a top charge that carried a longer statutory maximum sentence than female defendants.

278 FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 12 tbl. 8 (Defendants aged 25- 49 are sentenced to prison more than 90% of the time (highest = 93.6 for those 30-39), compared to 70.2% for those 65 and older). See Adam M. Gershowitz, Old Age as the Hidden Sentencing Factor, 29 ELDER L.J. 249 (2022) (finding that older defendants received sentencing discounts far more often than younger defendants convicted of the same crime).

279 FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 12 tbl. 8.

280 See Andrew Chongseh Kim, Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study, 84 MISS. L.J. 1195, 1207 (2015).

281 See U.S. SENT'G GUIDELINES § 3E1.1 (U.S. SENT'G COMM'N 2024) (outlining how clear demonstration of acceptance of responsibility can decrease a defendant's offense level).

282 Only one sentenced Capitol Breach Defendant (Nicholas Rodean) who was convicted at trial for assault was not sentenced to incarceration. On January 6, Mr. Rodean was one of the first rioters to enter the building, smashed two windowpanes of the U.S. Capitol building with a metal flagpole, and displayed a hatchet during a confrontation with U.S. Capitol police offer. Sentencing memorandum, at 11. At the sentencing hearing, Judge Trevor McFadden observed that "I believe your Asperger's syndrome was a major factor in your conduct on January 6th and significantly mitigates the blameworthiness of your conduct" and that "Ultimately, I believe the unique factors of this case and in particular your Asperger's diagnosis justify a noncustodial sentence." Transcript of Sentencing Hearing at 49-50, U.S. v. Rodean, 21-cr-00057 (Oct. 26, 2022), available at: https://www.courtlistener.com/docket/ 58812780/united-states-v-rodean/ [https://perma.cc/5WX5-J53K].

283 464 defendants in the data set pled guilty, with 262 of them ordered incarcerated.

284 Federal Criminal Case Processing Tool, BUREAU OF JUSTICE STATISTICS, https://www.bjs.gov/fjsrc/ [https://perma.cc/2MEJ-S9M5] (click on "offenders sentenced" and then you create your own tables by selecting variables) (showing that 1,988 of 64565 defendants were ordered to some amount of home detention, with 863 ordered to 6 months of home detention).

285 Id.

286 Under the Comprehensive Crime Control Act of 1984, probation is a sentence in and of itself. 18 U.S.C. § 3561.

287 U.S. SENT'G COMM'N., GUIDELINES MANUAL 2021 409 (2021).

288 Federal Criminal Case Processing Statistics Data Tool, supra note 169 (Click on "offenders sentenced" and then you create your own tables by selecting variables (showing that 4963 of 64565 defendants were sentenced to a period of probation)). FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 11 tbl. 7 (7.8% of FY 2020 defendants sentenced to probation only).

289 FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 11 tbl. 7.

290 Federal Criminal Case Processing Statistics Data Tool, supra note 169 (Click on "offenders sentenced" and then you create your own tables by selecting variables).

291 These so-called "split sentences" have been challenged by Defendants in federal court, with at least one Court of Appeals finding them unlawful. U.S. v. Little, No. 22-3018, (D.C. Cir. Aug. 18, 2023).

292 18 U.S.C. 3571 ("A defendant who has been found guilty of an offense may be sentenced to pay a fine.").

293 18 U.S.C. 3663; U.S. SENT'G COMM'N, supra note 287, at 435.

294 According to the U.S. Sentencing Commission, judges are supposed to "impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine." U.S. SENT'G COMM'N, supra note 287, at 448.

295 Federal Criminal Case Processing Statistics Data Tool, supra note 169 (Click on "offenders sentenced" and then you create your own tables by selecting variables. 3434 of 64565). FEDERAL JUSTICE STATISTICS 2020, supra note 20, at 11 tbl. 7. In only 1.6% of cases were defendants sentenced to neither prison nor probation, but were ordered to pay a fine only.

296 Id.

297 Josiah Kenyon was ordered to pay $2,000 in restitution for his participation in the riot, and $41,315.25 for damage he caused to a Capitol Building window. U.S. Att'y Off., Nevada Man Sentenced for Assaulting Officers During Jan. 6 Capitol Breach, U.S. DEP'T OF JUST. (Apr. 11, 2023), https://www.justice.gov/usao-dc/pr/nevada-man-sentenced-assaulting-officers-during-jan-6-capitol-breach [https://perma.cc/TQV3-CCF6].

298 Cortney E. Lollar, What Is Criminal Restitution?, 100 IOWA L. REV. 93, 94, 139-40 (2014) (noting the rise of restitution awards as part of criminal sentences and arguing that restitution is a form of punishment).

299 Government Sentencing Memorandum, United States v. DeGrave, 1:21-cr-00088 pg. 2 (D.D.C. May 3, 2023).

300 Id. at 3.

301 Id. at 4.

302 See U.S. ATT'Y OFF., supra note 7.

303 Federal Criminal Case Processing Statistics Data Tool, supra note 169 (Click on "offenders sentenced" and then you create your own tables by selecting variables (showing that 1720 of 64565 defendants received an order of community service)). Kathleen Landis, Determinate Sentencing and the Rise of Alternative Sanctions: Does Shame Meet the Goals of Sentencing Reform?, 55 WASH. U. J.L. & POL'Y 243, 257 (2017) (explaining how "community service is only sporadically implemented either as an alternative to punishment or as a condition of supervised release").

304 Federal Criminal Case Processing Statistics Data Tool, supra note 169. Eleven people were required to complete more than 1000 hours of community service.

305 Malcom M. Feely, Richard Berk, & Alec Campbell, Between Two Extremes: An Examination of the Efficiency and Effectiveness of Community Service Orders and Their Implications for the U.S. Sentencing Guidelines, 66 S. CAL. L. REV. 155, 160 (1992).

306 See generally Jordan Blair Woods, Addressing Youth Bias Crime, 56 UCLA L. REV. 1899, 1928 (2009) (noting that one "purpose of community service is to transform perpetrators into ethical and productive members of society by requiring them to give back to the communities affected by their crimes").

307 See supra Part IV(C)(1)(a).

308 See supra Part IV(C)(1)(b)-(e).

309 See supra Part IV(B).

310 See supra Part IV(C)(1)(a).

311 Id.; FEDERAL JUSTICE STATISTICS 2020, supra note 20 at 11.

312 Just five Capitol Breach defendants in the data set convicted of a felony avoided prison. See supra Part IV(C)(1)(a). See also Jackman & Hsu, supra note 196 (finding that 94% of sentenced Capitol Breach defendants convicted of a felony were sentenced to incarceration), https://www.washingtonpost.com/dc-md-va/2024/01/05/january-6-riot-sentences/ [https://perma.cc/BDA6-9LN5].

313 Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 55-56 (2005) ("Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role.").

314 See, e.g., CHAD M. OLDFATHER, JUDGES, JUDGING, AND JUDGMENT: CHARACTER, WISDOM, AND HUMILITY IN A POLARIZED WORLD 31, 35 (2024) ("In a great many of the matters they face, judges are not automatons applying fixed and precise rules, or even umpires just calling balls and strikes. Nor could they be."); Wendy R. Calaway et al., The Role of Judicial Political Affiliation in Criminal Sentencing Outcomes, 66 WAYNE L. REV. 347, 361 (2021) (identifying political affiliation as a primary driver of judicial decision making in criminal sentencing); Alma Cohen & Crystal S. Yang, Judicial Politics and Sentencing Decisions, 11 AM. ECON. J.: ECON. POL'Y 160, 185 (Feb. 2019) (finding that Republican-appointed federal judges sentence black defendants to longer prison terms than similarly-situated nonblack defendants, and sentence female defendants to shorter sentences than similarly-situated male defendants, compared to Democratically-appointed judges); Tiede et al., supra note 13, at 31 (finding that the political party of the president appointing federal judges affects sentencing decisions); Max M. Schanzenbach & Emerson H. Tiller, Reviewing the Sentencing Guidelines: Judicial Politics, Empirical Evidence, and Reform, 75 U. CHI. L. REV. 715, 723 (2008) (finding that Republican-appointed judges impose longer sentences for serious crimes than Democratic-appointed judges).

315 Schanzenbach & Tiller, supra note 314, at 723 (finding that Republican-appointed federal district court judges impose longer sentences for serious crimes than Democratically-appointed judges); Cohen & Yang, supra note 314, at 185 (showing that Republican-appointed judges sentence black defendants to longer prison terms than similarly-situated nonblack defendants, and sentence female defendants to shorter sentences than similarly-situated male defendants, as compared to Democratically-appointed judges); OLDFATHER, supra note 314, at 37 (""Judges vary in their interpretation of legal materials, and that variance is correlated with crude measures of ideology . . . . But it is not present to the same degree in all types of cases. Nor is it present to the same degree in all courts or all judges.").

316 Schanzenbach & Tiller, supra note 314, at 723 (finding that Republican-appointed federal district court judges impose longer sentences for serious crimes than Democratically-appointed judges).

317 Mark W. Bennett et al., Judging Federal White-Collar Fraud Sentencing: An Empirical Study Revealing the Need for Further Reform, 102 IOWA L. REV. 939, 969 (2017) (finding "no correlation between years of judicial experience and the length of the sentence, [but] there was a correlation between the age of the federal judge and the length of the sentence . . . [showing] the older the judge, the shorter the sentence.").

318 Nate Cohn, It's Not Reagan's Party Anymore, N.Y. TIMES (Aug. 10, 2023), https://www.nytimes.com/2023/08/10/upshot/reagan-trump-gop-stool.html?partner=slack&smid=sl-share [https://perma.cc/6BFN-FR97]; Adam Liptak and Alan Feuer, 'This Should Be Shocking:' Read a Federal Appeals Panel's Sharp Rebuke of the Trump Administration, N.Y. Times (Apr. 17, 2025) (noting that an opinion in the Kilmar Armando Abrego Garcia case authored by Reagan appointee Judge J. Harvie Wilkinson III "rebuked Trump officials" and "lamented recent attacks by President Trump and his allies on the federal courts.").

319 See Kenneth A. Mannin et al., The Decision-Making Ideology of Federal Judges Appointed by President Trump, JUD. PROCESS IN AM. 12 (Univ. of Mass. at Dartmouth, Working Paper, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3716378 [https://perma.cc/3UU3-CN8A] ("Trump has appointed judges who exhibit a distinct decision-making pattern that is, on the whole, significantly more conservative than previous presidents."); Memorandum from Jon Green, on The Ideology of Trump's Judges to Demand Justice 3 (finding that Trump's judicial appointees are "reliably conservative"), https://www.filesforprogress.org/memos/Trump%20Judges%20Memo%20- %20Demand%20Justice%20-Final.pdf [https://perma.cc/2UUM-B8VE]; Stephen J. Choi et al., Trump's Lower-Court Judges and Religion: An Appraisal, U. VA. SCH. OF L. 1, 31 (2023). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4488397 [https://perma.cc/ YN6T-5KWY] (finding that Trump federal judicial appointees were much more likely to be members of the Federalist Society (56% overall, 46% district court judges) than other Republican appointees (22% overall, 16% district court judges)); Nancy Scherer & Banks Miller, The Federalist Society's Influence on the Federal Judiciary, 62 POL. RSCH. Q. 366, 371 (2009) (finding that Federalist Society members on U.S. Courts of Appeal are significantly more conservative than nonmembers).

320 James E. Moliterno & Peter Čuroš, Recent Attacks on Judicial Independence: The Vulgar, the Systemic, and the Insidious, 22 GERMAN L. REV. 1159, 1186 (2021) (citing Katie Reilly, President Trump Escalates Attacks on 'Obama Judges' After Rebuke From Chief Justice, TIME (Nov. 21, 2018), https://time.com/5461827/donald-trump-judiciary-chief-justice-john-roberts/ [https://perma.cc/SG8L-ATAH]).

321 See, e.g., Tiede et al., supra note 13, at 139 (finding that female judges are less likely to favor defendants); Darrell Steffensmeier & Chris Hebert, Women and Men Policymakers: Does the Judge's Gender Affect the Sentencing of Criminal Defendants?, 77 SOC. FORCES 1163, 1163 (1999) (finding that women judges are more likely to incarcerate and impose longer sentences than men judges); John Gruhl et al., Women as Policymakers: The Case of Trial Judges, 25 AM. J. POL. SCI. 308, 314 (1981) (finding that female judges are slightly more likely to incarcerate, but show no difference in sentence lengths). Other studies have found little or no difference along sex lines. David S. Abrams et al., Do Judges Vary in Their Treatment of Race?, 41 J. LEGAL STUD. 347, 372-73 (2012); Richard Fox & Robert Van Sickel, Gender Dynamics and Judicial Behavior in Criminal Trial Courts: An Exploratory Study, 21 JUST. SYS. J. 261, 271 (2000).

322 See, e.g., Tiede et al., supra note 13, at 139 (2010) (finding that female judges are less likely to favor defendants); Steffensmeier & Hebert, supra note 321, at 1163 (finding that women judges are more likely to incarcerate and impose longer sentences than men judges); John Gruhl et al., Women as Policymakers: The Case of Trial Judges, 25 AM. J. POL. SCI. 308, 314 (1981) (finding that female judges are slightly more likely to incarcerate and give stiffer sentences).

323 Of 272 male Capitol Breach defendants sentenced by a male judge, 162 were sentenced to incarceration. See Appendix B.

324 Of 157 male Capitol Breach defendants sentenced by a female judge, 111 were sentenced to incarceration. See Appendix B.

325 Of 57 female Capitol Breach defendants sentenced by a male judge, 25 were sentenced to incarceration. See Appendix B.

326 Of 28 female Capitol Breach defendants sentenced by a female judge, 14 were sentenced to incarceration. See Appendix B.

327 Of 176 Capitol Breach defendants sentenced by a male judge appointed by a Republican president, 109 were sentenced to incarceration. (Trump 50 of 88 (56.8%), Reagan 32 of 47 (68.1%), Bush 17 of 30 (56.7%), and HW Bush 10 of 11 (90.9%). See Appendix B.

328 Of 43 Capitol Breach defendants sentenced by a female judge appointed by a Republican president (a single judge appointed by Trump), 20 were sentenced to incarceration (46.5%). See Appendix B.

329 Of 153 Capitol Breach defendants sentenced by a male judge appointed by a Democratic president, 79 were sentenced to incarceration (51.6%) (Obama 75 of 141 defendants (53.2%), Clinton 4 of 12 defendants (33%). See Appendix B.

330 Of 142 Capitol Breach defendants sentenced by a female judge appointed by a Democratic president, 105 were sentenced to incarceration (73.9%) (Obama 81 of 103 (78.6%), Clinton 19 of 24 (79.2%), Biden 5 of 15 (33%). See Appendix B.

331 See Appendix B.

332 See Appendix B (showing that female judges appointed by a Democratic president sentencing male defendants incarcerated 75.8% (91/120) (Obama - 73/91, Clinton - 15/19, Biden - 3/10).

333 See Appendix B (showing that male judges appointed by a Democratic president sentencing male defendants incarcerated 54.7% (70/128) (Obama - 66/119, Clinton - 4/9).

334 See Appendix B (showing that male judges appointed by a Republican president sentencing male defendants incarcerated 63.9% (92/144) (Trump - 46/74, Bush - 15/25, Reagan - 27/41, H.W. Bush - 4/4).

335 See Appendix B (showing that the lone female judge appointed by a Republican president sentencing male defendants incarcerated 54.1% (20/37) (Trump).

336 See Appendix B (showing that female judges appointed by a Democratic president sentencing female defendants incarcerated 63.6% (14/22) (Obama - 8/12, Clinton - 4/5, Biden - 2/5).

337 See Appendix B (showing that male judges appointed by a Democratic president sentencing female defendants incarcerated 36% (9/25) (Obama - 9/22, Clinton - 0/3).

338 See Appendix B (showing that male judges appointed by a Republican president sentencing female defendants incarcerated 50% (16/32) (Trump - 4/14, Bush - 2/5, Reagan - 4/6, H.W. Bush - 6/7).

339 See Appendix B (showing that the lone female judge appointed by a Republican president sentencing female defendants incarcerated none of the 6 defendants.

340 The total cohort produced a sum of 2320.5 points. When divided by 514 defendants, the resulting score is 4.51. The average male defendant case severity score was 5.03, the average female defendant case severity score was 1.83, indicating that male Capitol Breach defendants were convicted of crimes carrying higher maximum sentences.

341 1001 points divided by 219 defendants.

342 1319.5 points divided by 295 defendants.

343 806 points divided by 185 defendants.

344 1514.5 points divided by 329 defendants.

345 The median listed is only for those Defendants that the judges ordered to prison.

346 Judge Mehta sentenced the Oath Keepers, who were convicted of seditious conspiracy, explaining his longer median. See, e.g., Press Release, Court Sentences Two Oath Keepers Leaders to 18 Years in Prison on Seditious Conspiracy and Other Charges Related to U.S. Capitol Breach, U.S. DEP'T OF JUST. (May 25, 2023), https://www.justice. gov/usao-dc/pr/court-sentences-two-oath-keepers-leaders-18-years-prison-seditious-conspiracy-and-other [https://perma.cc/QNX3-7GTM].

347 Charlie Savage & Adam Goldman, The Trump Jan. 6 Indictment, Annotated, N.Y. TIMES (Aug. 1, 2023), https://www.nytimes.com/interactive/2023/08/01/us/politics/trump-jan-6-indictment-2020-election-annotated.html [https://perma.cc/89XL-ZNQQ].

348 See Michael Kunzelman & Alanna Durkin Richer, In Jan. 6 cases, 1 judge stands out as the toughest punisher, ASSOCIATED PRESS (June 12, 2022, at 10:49 CT), https://apnews.com/article/capitol-siege-only-on-ap-donald-trump-government-and-politics-sentencing-de394dd56b3251aac5a50014f4d6afa7 (reporting that Judge Chutkan "has consistently taken the hardest line against Jan. 6 defendants of any judge serving on Washington's federal trial court . . . "); Spencer S. Hsu & Tom Jackman, Judge Tanya Chutkan is the toughest Jan. 6 sentencer. Next on her docket: Trump, WASH. POST (Aug. 1, 2023), https://www.washingtonpost.com/dc-md-va/2023/08/01/judge-chutkan-trump-jan-6- special-counsel/.

349 Only one judge had a lower median sentence in Capitol Breach cases than Judge Chutkan. That judge, Jia Cobb, sent just a single defendant to prison.

350 This is largely because Judge Mehta sentenced several prominent Oath Keepers and organizers of January 6 insurrection (Rhodes, Watkins, Harrelson, Meggs). As the data set grows, this may change.

351 A study comparing the incarceration rates and sentence length with the sentencing guideline midpoints for Capitol Breach defendants would be an alternative, and more precise, measure of case severity.

352 18 U.S.C. § 3553.

353 See supra Part IV(B).

354 See generally JOHN PFAFF, LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATION AND HOW TO ACHIEVE TRUE REFORM (2017) (identifying charging decisions of prosecutors as a driver of prison growth); Graham, supra note 182, at 702.

355 See, e.g., Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges?, 84 NOTRE DAME L. REV. 1195, 1195 (2009) (finding "that judges harbor the same kinds of implicit biases as others").