On Sept. 28, Dawn Bancroft pleaded guilty to illegally parading, demonstrating or picketing in the Capitol on Jan. 6. Bancroft was arrested after a concerned friend sent the FBI a selfie-style video of Bancroft and another woman as they were leaving the Capitol. In the video, Bancroft says, “We broke into the Capitol ... we got inside, we did our part.” She also says, “We were looking for Nancy to shoot her in the friggin’ brain, but we didn’t find her.” Bancroft was originally charged with two felonies, which carry 10-year maximum sentences, as well as two misdemeanors. But a plea agreement offered to her by the government on Aug. 26 allowed her to plead guilty to only one of the misdemeanor counts in return for having the other charges dismissed.
Bancroft is one of more than 650 people who have been arrested in connection with the storming of the Capitol on Jan. 6. To date, only approximately 100 of those individuals have pleaded guilty, most of them to similar, relatively minor misdemeanor charges as Bancroft. These plea deals have prompted questions—including questions from federal judges—about whether these defendants are getting off too lightly given the seriousness of what happened on Jan. 6.
Although the vast majority of cases in the criminal justice system are resolved by plea bargaining, most people aren’t particularly familiar with the process and the law surrounding plea bargains. This gap in understanding presents challenges for the public in assessing whether the Jan. 6 defendants are receiving unusually lenient treatment or whether these plea deals are just “business as usual.” While the misdemeanor plea bargains may seem too lenient in a few cases, it appears that the government is going to insist on guilty pleas to felony charges for those rioters who clashed with police or engaged in planning before they stormed the Capitol.
Television shows and movies about crime often show a defendant being convicted after a jury trial. But in reality, criminal jury trials are vanishingly rare. Fewer than 3 percent of convictions come from jury trials—the rest are a result of defendants pleading guilty. Sometimes defendants will plead guilty without securing concessions from the prosecutor, hoping that a guilty plea will earn them some leniency from the judge at sentencing. But, as I’ve explained elsewhere, guilty pleas are more often the result of a negotiation with the prosecutor—a plea bargain.
In return for pleading guilty, rather than insisting on a trial, defendants can win concessions from prosecutors. Maybe they can convince the prosecutor to drop some of the charges against them. Or maybe the prosecutor is willing to make a favorable sentencing recommendation to the judge. In some cases, defense attorneys and prosecutors are allowed to negotiate about the length and terms of the sentence directly—their agreement on what punishment the defendant will receive is binding on the judge if the judge decides to accept the guilty plea.
Because these negotiations can be beneficial for both parties—the defendant can reduce her punishment while the prosecutor can avoid the time and hassle of a trial—the Supreme Court has upheld plea bargaining against constitutional attack, saying that it is a permissible “give-and-take negotiation” between the prosecutor and the defendant. But this characterization obscures the fact that the two sides do not have equal bargaining power. If the plea negotiation falls apart, the prosecutor will have to squeeze a trial into her busy work schedule while the defendant risks spending much more time in jail. One recent study found that people who were convicted at trial serve, on average, three times longer than defendants who plead guilty. As a result, defendants often feel as though they have to accept whatever deal that prosecutors are willing to offer.
In recent decades, the pressure on defendants to plead guilty has grown as legislatures have changed the laws to give prosecutors more leverage in those negotiations. For example, when the government official responsible for revising New York’s criminal laws in the 1960s was asked whether plea bargaining influenced his work, he responded, “Decidedly!” He then explained how the laws they adopted allowed prosecutors to better negotiate with defendants to reduce charges. More recently, Sen. Chuck Grassley successfully blocked efforts to lower the mandatory minimum sentences for federal drug crimes. Grassley opposed changing the mandatory minimum sentences because he thought the harsh drug laws served the “intended goal” of pressuring defendants to plead guilty and cooperate with law enforcement, which allows prosecutors to more easily build cases against other defendants.
Long sentences and the inherently unequal bargaining conditions have led many people who study plea bargaining to conclude that it leaves prosecutors holding all the cards: Because defendants face even harsher sentences if they are convicted at trial, prosecutors are able to pressure most defendants into pleading guilty and accepting harsh sentences. Indeed, the leverage that prosecutors have can be so overwhelming that even innocent people have pleaded guilty.
Plea Bargaining and the Jan. 6 Defendants
Because prosecutors have so much power in plea bargaining, one might expect that the Department of Justice would use its leverage to pressure the Jan. 6 defendants into plea deals involving lengthy sentences. But that isn’t what has happened—at least, it’s not what has happened so far. Very few defendants (approximately 15 percent) have entered guilty pleas, and most of those who have pleaded guilty have gotten good bargains from the government.
Federal prosecutors have a lot of leverage in the Jan. 6 cases. As Bryce Klehm, Alan Rozenshtein and Jacob Schulz wrote on Lawfare, “Federal criminal law is, to put it mildly, expansive on the subjects relevant to” the events of Jan. 6. There are many crimes—some of which carry long sentences—that are meant to prevent people from doing things like storming the Capitol to stop the certification of an election. But rather than insisting that defendants plead guilty to any of the various felonies that carry long sentences, the Justice Department appears to have decided to let most of these defendants plead guilty to a single misdemeanor—parading, demonstrating or picketing in any of the Capitol buildings. There is no doubt that the Jan. 6 defendants committed this misdemeanor. But they also clearly committed more serious federal crimes, such as knowingly entering or remaining in a restricted building without lawful authority. Indeed, even when defendants admit to other illegal conduct—like Eduardo Gonzalez, who admitted to smoking marijuana while he was in the Capitol, as well as distributing it to others—prosecutors are still permitting a plea to the parading misdemeanor alone.
Some observers have begun to expressly question prosecutors’ decisions in these pleas and at the charging stage. In the case of Dawn Bancroft, the fact that she not only entered the Capitol but also talked about shooting Nancy Pelosi prompted Judge Emmet Sullivan to implicitly question prosecutors’ decision not to bring other charges against Bancroft, asking, “Did that not rise to the level of a threat?” The prosecutor explained to the judge that they decided not to charge Bancroft for making a threat because Bancroft had made the statement as she was leaving the Capitol.
Presumably, because she was on her way out of the building as she made the comment, prosecutors believed it would be difficult to prove that Bancroft intended to threaten Pelosi. But that does not explain why the government decided that a person who spoke so casually about killing a government official while trying to stop the certification of an election deserves only a misdemeanor conviction, rather than a conviction for any of the other more serious charges in Bancroft’s indictment. Nor does it explain why this statement wasn’t clear evidence of Bancroft intending to impede and disrupt the orderly conduct of government business—the felony charge that prosecutors agreed to dismiss in return for Bancroft’s guilty plea. But the government did not explain what motivated its decision to treat Bancroft no differently than other defendants who didn’t make statements about shooting government officials in the head.
Judge Sullivan is not the only member of the federal bench to question the Jan. 6 plea deals. In late July, U.S. District Court for the District of Columbia Chief Judge Beryl Howell asked prosecutors to explain why a misdemeanor conviction, which carries a maximum sentence of 6 months in jail, is appropriate for defendants who are admitting to “joining a mob, breaking into the Capitol building through a broken door, wandering through the Capitol building and stopping a constitutionally mandated duty of the Congress and terrorizing members of Congress, the vice president, who had to be evacuated[.]”
It is fair to ask prosecutors to answer these questions. Prosecutors’ decisions about plea bargaining can place serious limits on the punishments judges can impose at sentencing. For example, the parading misdemeanor that Bancoft and others have pleaded guilty to carries a maximum sentence of six months in jail. Given how many defendants are pleading guilty to that single misdemeanor charge, the Justice Department must have decided that the average person who participated in the Jan. 6 riot should not face much punishment for that crime.
What is motivating that decision? When responding to Judge Howell, federal prosecutors emphasized defendants’ willingness to plead guilty early on and to cooperate with law enforcement by turning over electronic devices and giving access to social media. In other words, prosecutors defended their plea bargaining decision because it made their jobs easier. But, as Howell pointed out, many of the misdemeanor plea deals that the government is offering don’t require defendants to provide full cooperation to help law enforcement identify or prosecute others who participated in the Jan. 6 riot. Instead, defendants are agreeing only to turn over their electronic devices, provide access to their social media accounts and speak to law enforcement about their own misconduct. In other words, the government could—and often does—require more cooperation from defendants but has decided not to do so in these misdemeanor plea bargains.
The idea that defendants should get a better deal for helping prosecutors is hardly new. Those who defend plea bargaining say that it makes the system more efficient. If every defendant insisted on going to trial, they argue, the system would collapse. If prosecutors are free to hand out lenient deals, then fewer defendants will insist on going to trial. But, as one federal judge pointed out recently, the number of cases that go to trial has dropped dramatically. In 1990, the federal courts held nearly 8,000 criminal trials; in 2016, they held fewer than 2,000. That drop in the number of trials occurred at the same time the capacity of the courts—including the number of judges and prosecutors—continued to increase. In other words, the system previously handled more trials with fewer resources than it has now. So prosecutors should be expected to justify the plea bargains they give based on more than just how quickly defendants plead guilty and cooperate.
Does that mean that the Jan. 6 defendants are receiving plea deals that are too lenient? Not necessarily. When I was conducting research for my new book about plea bargaining, I found a number of cases in Cleveland, Ohio, where defendants charges with serious sex crimes against children were allowed to plead guilty to a non-sex misdemeanor charge. When plea deals like that receive public attention, there can be a big backlash against prosecutors, like we saw in the Jeffrey Epstein case. But most plea bargains stay out of the limelight, and so the public doesn’t realize how often prosecutors will offer particularly lenient deals to avoid trials.
It also isn’t clear that defendants who were part of the mob on Jan. 6, but who didn’t do anything other than walk around the Capitol and then leave, should necessarily receive harsh sentences. Although some judges have questioned prosecutors’ plea bargaining decisions, those judges who have been imposing sentences on defendants have rarely imposed the maximum sentences. In some cases, judges have imposed sentences that are shorter than what prosecutors and the federal sentencing guidelines recommend. When a judge imposes a sentence that is shorter than what the prosecutor recommends, it doesn’t signal that the prosecutor has been too lenient in plea bargaining.
We also do not yet know what federal prosecutors will do in the hundreds of pending Jan. 6 cases. At this point, the government has entered into cooperation agreements with a few defendants who were part of larger, organized groups, such as the Oath Keepers. It has also offered plea bargains to a few defendants who scuffled with police before gaining entry to the Capitol. Prosecutors made these defendants plead guilty to felony charges, and they will undoubtedly use the defendants’ testimony to convict others if they insist on going to trial.
The government may also end up going to trial in some misdemeanor cases. For example, defendant Pauline Bauer is insisting on representing herself (rather than having a lawyer appear on her behalf), and her failure to follow court orders and repeated disruptions landed her in jail. Even though she is facing only misdemeanor charges, Bauer is fighting those charges by invoking sovereign citizen talking points, stating (among other things) that the court does not have jurisdiction over her. This sort of behavior suggests that Bauer may insist on her day in court no matter what the consequences.
In short, it may be too soon to judge how federal prosecutors are using their plea bargaining leverage in the Jan. 6 cases. Only a small fraction of those cases have resulted in guilty pleas at this point. And it appears that so far the government has been prioritizing those defendants who did little more than enter the Capitol, walk around and leave. More generally, defendants who plead guilty sooner tend to get shorter sentences than those who plead guilty later. In fact, some prosecutors make “exploding” plea offers that expire if a defendant takes too long to plead guilty. All of these factors suggest that the bulk of the Jan. 6 defendants may end up receiving far less lenient plea bargains than we’ve seen so far. Although it seems like a safe prediction that other Jan. 6 defendants will get lenient plea deals, whether that is what actually happens is in the hands of the government. When it comes to plea bargaining, prosecutors hold all the cards, and so while a handful of Jan. 6 defendants may choose to go to trial, prosecutors will get to dictate what the guilty pleas look like for the rest of them.