The government argues the events of January 6 along with the defendants’ skepticism about the outcome of the 2020 election are evidence the accused are a threat to society.
I've been in solitary confinement for a hundred days now and haven’t been convicted of any crime with no end in sight.”
That was part of a lengthy message Jacob Lang sent to his father, Ned, the last week of April. Jacob was arrested on January 16 in New York and charged with several crimes related to his activity in Washington, D.C. on January 6. Lang, who turned 25 while incarcerated, is accused of assaulting police officers using a dangerous or deadly weapon. The government’s evidence against him appears to be strong. He has pleaded not guilty to all charges.
But Lang and dozens of January 6 defendants already have been convicted by Joe Biden’s Justice Department and sentenced by federal judges—presumed guilty until proven innocent—awaiting trials that won’t begin for months. It’s all part of what Attorney General Merrick Garland promised is his “top priority”—the sprawling investigation into the alleged insurrection—and what another top prosecutor boasted is the “shock and awe” campaign to punish Americans protesting the results of the 2020 presidential election.
So far, more than 400 people have been arrested in the nationwide manhunt with more charges to come, and at the same time, emerging evidence proves law enforcement allowed protestors to enter and remain in the building.
At the direction of Biden’s Justice Department, at least 50 defendants have been transported from their home states to a D.C. jail, a purely punitive move since all court hearings into the foreseeable future are virtual. In several cases, federal prosecutors successfully argued against release orders issued by local judges. The government repeatedly cites the overall events of January 6 in addition to the defendants’ skepticism about the outcome of the 2020 presidential election as evidence the accused are a threat to society.
“He armed himself and assaulted law enforcement with the intent to unlawfully enter the U.S. Capitol and stop the functioning of our government as it met to certify election results,” one assistant U.S. attorney wrote in the government’s pre-trial detention motion for Lang. “The defendant was a spoke in the wheel that caused the historic events of January 6, 2021, and he is thus a danger to our society and a threat to the peaceful functioning of our community.”
Of course, that sort of dramatic rhetoric has nothing to do with keeping people safe and everything to do with punishing law-abiding Americans who have the audacity to doubt the outcome of last year’s election. It’s guilt-by-association—anyone who supports Donald Trump is guilty of challenging the regime and must pay the price.
Which is why so many January 6 detainees now languish in solitary confinement conditions, some reportedly abused by prison guards, denied routine access to family members and defense attorneys. While there’s no doubt most of those behind bars awaiting delayed trials face the most serious charges related to the Capitol breach, the double standard of justice is in clear view. The same Justice Department dropping cases against Portland rioters, including those charged with assaulting federal officers, is treating January 6 defendants as hardened criminals even though most have no criminal records.
Lang told his father his fellow detainees are being tortured “mentally, physically, socially, emotionally, legally, and spiritually.”
The jail allows them to leave their cells for an hour a day. Religious services are not allowed; they can’t exercise and access to personal hygiene such as showers is nearly nonexistent, according to defense lawyers and relatives I’ve spoken with. The detainees, before a single moment of their trial has begun, suffer the same harsh treatment as convicted criminals incarcerated in the D.C. prison system—pandemic-justified conditions recently condemned by elected officials of both parties.
The treatment is so bad that the detainees have found advocates in two unlikely allies: Senators Elizabeth Warren (D-Mass.) and Richard Durbin (D-Ill.). “Solitary confinement is a form of punishment that is cruel and psychologically damaging,” Warren told Politico last month. “And we’re talking about people who haven’t been convicted of anything yet.” Durbin expressed surprise at how the January 6 detainees were being held and urged progressives to “amplify their criminal justice reform calls even on behalf of Donald Trump supporters who besieged the entire legislative branch in January.”
When Richard Barnett, the man photographed in House Speaker Nancy Pelosi’s office, finally was released from the D.C. jail after being held for nearly four months, the first thing he asked for was a nail clipper. “All the inmates had to share one nail clipper and it was never cleaned,” Barnett’s attorney, Steven Metcalf, told me. “He hadn’t cut his nails in four months.”
Barnett turned himself in to law enforcement after he arrived home to Arkansas on January 8; news photographers had been positioned inside Pelosi’s office to take pictures and the image of Barnett went viral immediately, leading to death threats against his family. Although he had no criminal history, D.C. District Court Judge Beryl Howell agreed with the government that Barnett was a danger to society. In addition to a few misdemeanor charges, he is accused of carrying—not using—a walking stick that can be used as a stun gun.
“Defendant’s involvement in the Capitol assault and brazen conduct inside the Capitol and offices of the Speaker of the House pose an obvious danger,” Howell wrote on January 29.
“The court finds that the defendant poses a danger to the community because of his brazenly illegal conduct . . . and access to firearms and weapons, like a stun gun, that remain missing.”
(Howell, a former Democratic Senate staffer and Obama appointee, has been a major Trump antagonist from the bench.)
Howell’s prejudicial conclusion that Barnett engaged in “illegal” activity based solely on the government’s initial evidence is just one example of how January 6 defendants are “being treated as though they’ve already been sentenced,” Metcalf said.
Prison guards “instill fear” in the detainees, Metcalf said. Ryan Samsel, behind bars since January, allegedly was beaten by prison guards who handcuffed him with zip ties. “He has definitely suffered serious injuries, including a shattered orbital floor, a broken orbital bone, his jaw was broken, his nose was broken,” his lawyer said in an interview last month. Samsel, she said, is currently unable to see out of his right eye and may permanently lose his vision.
Further, those held in the D.C. jail cannot participate in their own defense, a clear violation of basic constitutional protections.
“It’s impossible to have a free-flowing conversation with your clients,” Metcalf said. “Meetings are in open cages where there is no confidentiality, everyone can hear the conversations including prison guards.” If a detainee meets with a lawyer in person at the jail, he must then quarantine for 14 days as “retaliation,” Metcalf said. Attorney-client privilege is nonexistent.
The government, with the consent of federal judges as I wrote last week, is using every legal trick necessary to keep Capitol surveillance footage from January 6 under wraps from both defendants and legal counsel. The video captured by the Capitol’s security system and used against Lang and other defendants to support pretrial detention motions is considered “highly sensitive” and concealed by protective orders. Defendants only have access to the clips created by the Justice Department, not full recordings; the videos can be viewed in a supervised setting. Defendants and lawyers cannot download, copy, or share the clips.
Last week, Jacob Lang, according to a text message sent to his mother on Sunday, was placed in an empty cell for at least 14 hours as punishment for advising other detainees against accepting plea deals. (Only one person has so far accepted a plea arrangement. All other defendants have pleaded not guilty.) According to the message, shared by his father to me, Jacob had “no water, nothing in my cell, no chair to sit, no blanket, no Bible, no toothbrush, no toilet paper . . . and no human contact.” Jacob said the water is brown and comes out “in chunks.”
His next court hearing is June 15.
“They are literally torturing me exactly like they do to political prisoners in China,” he wrote his mother. “I’m a united states [sic] citizen and Constitutional patriot and they are . . . torturing me. I’m not even convicted of a crime!! This is how they treat ‘innocent until proven guilty people in America???”
Only, as Lang and his fellow detainees are learning the hard way, if you’re on the wrong side of American politics.