WaPo (“Jan. 6 riot caused $1.5 million in damage to Capitol — and U.S. prosecutors want defendants to pay“):
U.S. prosecutors this week put a price tag on damage to the U.S. Capitol from the Jan. 6 breach — $1.5 million so far — and for the first time are asking defendants to cover some of the bill in plea offers, prosecutors and defense lawyers said.
The U.S. attorney’s office in Washington cited the damage estimate Wednesday in court and in plea papers filed in the case of Paul Hodgkins, 38. The Tampa crane operator pleaded guilty to one felony count of obstructing an official proceeding of Congress and faces sentencing July 19 in Washington.
“Your client acknowledges that the riot that occurred on January 6, 2021, caused as of May 17, 2021, approximately $1,495,326.55 damage to the United States Capitol,” stated a plea agreement letter sent by Assistant U.S. Attorney Mona Sedky and signed by Hodgkins and his attorney in May.
The document said Hodgkins agreed to pay $2,000 restitution to the Treasury Department as part of the plea.
Several defense attorneys said prosecutors with the U.S. attorney’s office in Washington are seeking to require restitution of $2,000 in each felony case and $500 in each misdemeanor case.
A spokeswoman for the Justice Department and U.S. attorney’s office declined to comment beyond court filings.
Offhand, this strikes me as more than reasonable. While fines obviously have disparate impact depending on socioecomic status, these amounts are presumably rather small for people who can afford to travel to DC to riot. Beyond that, these are for actual damages inflicted, not a random punitive amount. Indeed, unless there are a whole lot more defendants than I imagine, these amounts won’t make much of a dent in covering the damage done.
But there seems to be some debate as to whether this is kosher.
One veteran defense attorney representing several defendants, speaking on the condition of anonymity because talks are pending, said the terms remain under negotiation. Another defense attorney, who spoke under the same conditions, questioned whether a judge could sentence a person to pay restitution if they were not actually charged with causing damage.
The basis of the $1.5 million damage estimate is not clear. Prosecutors gave no details, but the estimate appears to reflect the immediate costs of replacing broken windows, doors and other property. A spokeswoman for the Architect of the Capitol said the agency gave damage assessments to the Justice Department, which calculated the per case penalty.
The Capitol is a historical landmark with incredibly expensive fixtures. It’s essentially a museum. It’s not like you can run to the Home Depot and get the supplies and have One Man Handyman do the repairs.
Federal law allows judges at sentencing to order convicted offenders to reimburse victims for property damage and other losses, enforceable over 20 years. Whether restitution can be required usually depends on the crime as set by statute and whether losses are a direct and foreseeable result of an offender’s crime.
But the law also makes restitution a negotiable item pursuant to plea agreement.
If a court finds that more than one defendant contributed to the loss, it “may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants,” federal statute said.
Prosecutors appear to be reasoning that all Jan. 6 defendants bear some liability for what happened that day and should pay to repair the Capitol to some degree, even if they are charged separately or entered the Capitol after or where no damage was done.
As we’ve noted many times before, the incident was more than one thing. It’s likely that the majority of the people inside the Capitol, most of whom were not part of the initial violent break-in, were non-violent and non-destructive. It would be outrageous to, say, try to charge those people under the Felony Murder rule. But I don’t have any heartburn with applying the Pottery Barn rule: you broke it, you bought it. Even those who were “aggressive tourists” have some culpability and I don’t see $500, payable over time, as an excessive fine. Indeed:
To spare having to litigate each defendant’s liability or to ask judges to order everyone to pay the full $1.5 million when most couldn’t, “it is likely that the prosecutors are setting an amount that they think most people charged will be able to pay and that collectively will cover the costs of the damage,” said Cortney E. Lollar, a law professor at the University of Kentucky. “This is a way for the prosecutors to set payment amounts in a manner they think is most likely to be collectible.”
Ashton T. Kirsch, a Wisconsin lawyer whose clients include insurers for minority-owned businesses damaged in protests against racial injustice in Minneapolis last year, said the approach will save the government time, money and effort.
“The building was not insured, so the costs are going to fall on taxpayers — on all of us — if it doesn’t fall on the persons who caused the damage,” Kirsch said. “The hard part is what’s more fair — to have it paid by taxpayers or by some broad set of defendants who may or may not have caused the specific damage in question?”
Although, again, we’re unlikely to recover the full $1.5 million this way. Even at the $2000 felony rate, it would require 750 defendants. We’re well short of that thus far and I gather most are being charged with misdemeanors.
And, of course, the property damage inside the Capitol itself is hardly the only damage done. Some of the worst offenders will obviously be on the hook for massive civil suits as well.
