The Surprise Ruling That Tosses a Grenade Into the Jan. 6 Prosecutions

James Little invaded the U.S. Capitol on Jan. 6, 2021, to prevent Congress from certifying Joe Biden’s victory over Donald Trump. He later pleaded guilty but remains unrepentant, insisting that he engaged in a “patriotic” protest that was hijacked by antifa, Black Lives Matter, and Capitol Police as part of a “setup” to entrap Trump supporters. In light of his criminal conduct and ongoing lack of remorse, U.S. District Judge Royce Lamberth sentenced Little to 60 days in prison and three years of probation. He appealed, asserting that this penalty was illegal. On Friday, the U.S. Court of Appeals for the District of Columbia Circuit agreed by a 2–1 vote, vacating his sentence.

The D.C. Circuit’s decision is, on its face, a win for Little and others like him. It throws a surprise wrench into the Department of Justice’s prosecution strategy for low-level rioters while stripping judges of the ability to impose a stint behind bars followed by long-term supervision. But the decision, if upheld, may prove to be a Pyrrhic victory for some number of Jan. 6 defendants whom it ostensibly benefits. That’s because, by abolishing the flexibility of a split sentence, it may well lead to more prison time rather than less—the opposite of what Little and his fellow rioters seek. Still, the decision could be a disaster for the DOJ, which relied on the split-sentence possibility when making many decisions to offer plea deals to the people who stormed the Capitol on Jan. 6. If those sentences are now overturned, dozens—maybe hundreds—of Jan. 6 rioters will essentially be let off the hook for their crimes.

Little is just one of an estimated more than 2,000 people who broke into the U.S. Capitol on Jan. 6; like him, every individual who entered the building without permission violated federal law. So far, the DOJ says, it has made more than 1,106 arrests. The precise offenses of each defendant, however, vary in severity, a fact reflected in charges brought by the department. Some, like the Proud Boys, plotted and led the attack, which resulted in convictions for seditious conspiracy. Others helped to physically breach the Capitol or assault its law enforcement officers, which led to serious felony charges. But a large number of rioters obstructed the counting of electoral votes by invading and remaining in the building without engaging in overt acts of violence or vandalism.

The DOJ charged many of these individuals with unlawfully parading or demonstrating in the Capitol, a so-called petty offense. Federal judges have frequently sentenced these rioters to a split sentence of prison and probation—typically, a short term of incarceration followed by a lengthier term of probation. The AP estimates that more than 80 rioters, about 12 percent of all Jan. 6 defendants so far, received a split sentence for this crime, with more in the pipeline. Judges favor this sentence because it imposes brief, direct punishment (prison time) as well as a longer, less intrusive restriction on liberty (probation), reducing the odds that a defendant will participate in another riot or other political violence. Most judges on the federal district court in D.C. have concluded that federal law permits this sentence; the only other court to consider the issue, the U.S. Court of Appeals for the 4^th Circuit, declared that such a sentence is “unquestionably” permitted.

It was startling, then, when a D.C. Circuit panel overturned this reading of the law on Friday. The majority opinion, written by Judge Justin Walker (a Trump appointee) and joined by Judith Rogers (a Bill Clinton appointee), is tough to follow and harder to swallow. It revolves around the federal statute that limits probation to certain defendants. (Most defendants receive “supervised release” rather than probation, though the difference is not relevant here.) The statute says a defendant can be sentenced to probation unless he “is sentenced at the same time to a term of imprisonment for the same or a different offense that is not a petty offense.” Those last six words are key: They tell courts, as a rule, not to impose probation if a defendant has been sentenced to prison—but that this rule does not apply to petty offenses. Walker resisted this conclusion by detaching the word same from the remainder of the sentence. Under his reading, a court may impose prison and probation for two different petty offenses, but not for “the same” petty offense. That’s a real problem for federal prosecutors, who have relied extensively on plea deals featuring the single count of unlawful demonstration in the Capitol. At least 967 defendants have been charged with entering or remaining on restricted Capitol grounds, though many of those cases include other counts as well.

As Judge Robert Wilkins, a Barack Obama appointee, noted in dissent, the majority’s interpretation overrides “the natural and common reading of the statutory text.” The statute tells courts that they need not “choose either punishment or rehabilitation for petty offenses”; they can impose both through “a short prison sentence” plus probation. Walker’s reading, Wilkins wrote, compels judges to violate “a bedrock mandate” of sentencing law, creating an inexplicable incongruity that contradicts Congress’ clear intent.

The only remotely plausible justification for this departure from the text would be an application of the “rule of lenity,” which holds that an ambiguous criminal law should be interpreted in favor of leniency. That may be the case for Little, who already served his 60-day sentence and will now ask Lamberth to end his probation. For other defendants, though, the decision will not lead to more lenient outcomes. That’s because judges—unable to tack on probation to a short prison stint—may instead opt for lengthier prison sentences. (Lamberth, like his colleagues on the D.C. district court, has been vocal about the need for prison time to drive home a lesson about the consequences of political violence.) In Little’s case, that would have been six months in prison rather than 60 days.

Moreover, the DOJ is not going offer any more single-count, split-sentence plea agreements; it now has every incentive to insist upon two or more counts to preserve the option of prison and probation. Prosecutors will, as a result, be far less likely to settle for a plea deal with the lone count of unlawful demonstration in the Capitol. They have a much greater incentive to secure at least two counts so judges can impose probation atop prison time. And multiple counts, of course, empower judges to hand down longer sentences.

It’s possible that the full D.C. Circuit could reverse Walker’s decision if asked to rule en banc, though that’s not at all inevitable. Rogers is an idiosyncratic jurist, but she does lean left, and the D.C. Circuit’s other liberals may take her vote to mean that the majority position has merit. If the full court fails to act, the Supreme Court might decide to wade into the morass of Jan. 6 sentencing—or dodge the issue, forcing the DOJ to accept defeat and refine its strategy. That will translate into stricter plea deals with multiple counts and, quite possibly, lengthier prison sentences for low-level rioters. Which means that despite Little’s ostensible victory, the biggest losers here may be the Jan. 6 defendants themselves.