The Right Finally Protests Brutal U.S. Jail Conditions—But Only for January Sixers

Two Years After the Capitol Attack, Dozens of Accused Rioters Are Behind Bars Without a Conviction. So Are ​​450,000 Other Americans.

by | January 9, 2023

This article was published in partnership with Truthout.

Republicans are not known for championing the rights of incarcerated people. Doing so would run counter to their purposefully cultivated “tough on crime” image, which often includes a penchant for harsh prison and jail conditions. But in the two years since the January 6 attack on the U.S. Capitol, the party—and especially its most extreme right wing—have made a cause célèbre of the several dozen accused insurrectionists languishing in the District of Columbia Jail.

Leading the charge is Rep. Marjorie Taylor Greene of Georgia, a far right conspiracy theorist and Trump loyalist. Greene wants the new Republican-majority House to investigate Speaker Nancy Pelosi and the U.S. Justice Department for their roles in the treatment of the incarcerated January 6 detainees.

In November, The New York Times reported that Louisiana’s Steve Scalise—who is poised to become House Majority Leader, second-in-command to the Speaker—promised Greene that the House will launch the investigation in the new session.

The D.C. Jail has long been notorious for its appalling conditions, which have been documented by local advocates, human rights attorneys, journalists, and incarcerated people and their loved ones. In recent years, inspections of the facilities have revealed vermin, mold, unsanitary food preparation, and a suicide rate three times the national jail average. For the first 13 months of the COVID-19 pandemic, jail officials locked everyone in their cells for 23 hours a day. Based on the conditions uncovered in an unannounced 2021 inspection, the U.S. Marshals Service found the jail to be below federal minimum standards of confinement.

But Greene’s public concern does not seem to extend to the rest of the 1,350 people held in the jail—most of whom hail from Washington, D.C. and are awaiting trial or serving short sentences, and 90 percent of whom are Black (compared to 45 percent of all D.C. residents).

Instead, Greene is specifically concerned with the well-being of the few dozen, mostly white, defendants facing charges of violence on January 6, who are under the jurisdiction of the U.S. Marshals and housed without bail in the D.C. Jail’s so-called “Patriot Wing.” Greene has not responded to requests for comments on whether she supports legislation that would ease similar conditions for hundreds of thousands of people incarcerated within the federal justice system.

Cruel and Not at All Unusual

Following the attack, Greene emerged as a cheerleader for the rioters, regretting only that they had failed in their attempt to block the certification of President-Elect Joe Biden. Last month, she boasted in a speech to the New York Young Republicans Club that, “If Steve Bannon and I had organized that, we would have won. Not to mention, we would’ve been armed.”

In December 2021, Greene joined like-minded House members Paul Gosar (R-Arizona), Matt Gaetz (R-Florida) and Louie Gohmert (R-Texas) for a press conference decrying the conditions in which people arrested for the attack were being held.

The politicians highlighted a report Greene published after touring the D.C. Jail unit. Titled “Unusually Cruel,” it notes that people in the D.C. Jail spent much of 2021 locked in cells for 22 or 23 hours a day, and that one man held on January 6 charges spent 200 days in solitary confinement. Greene stressed: “This type of treatment is being used against inmates who are all pre-trial. They have been convicted of nothing.”

Attorneys for the jailed January Sixers point to the D.C. Jail’s violations of the Mandela Rules, the United Nations’ guidelines for the minimum treatment of prisoners, which establish that solitary confinement is torture when used longer than 14 days or on people held pretrial. 

Greene and the others are correct. The extended use of solitary confinement is considered torture by the UN, as well as other human rights groups and mental health experts who study its effects. And being held pretrial has profound detrimental consequences on the lives of people who are legally innocent in the eyes of the law.

But they are wildly wrong—or just plain disingenuous—to assert that this treatment is somehow unusual or unique to the January 6 defendants.

Across the country, more than 75,000 people are held in solitary confinement on any given day in state and federal prisons. According to an estimate by the Vera Institute of Justice, at least 40,000 more are in solitary in local jails run by cities and counties, like the D.C. Jail.

Pretrial detention is even more common: 71 percent of the 636,300 people in local jails on any given day have not been convicted. The majority of them are simply too poor to pay the cash bail that would allow their release. (In contrast, those remaining in jail on January 6-related charges are there because the courts denied their pretrial release.) And although the Constitution guarantees the right to a speedy trial, long delays are common. In California alone, more than 1,300 people have been in county jails awaiting trial for more than three years.

In other words, then-Arizona gubernatorial candidate Kari Lake was very wrong when she called the pretrial detention of these January 6 defendants un-American.” Long waits in a dingy jail cell for your day in court are a hallmark of the U.S. criminal legal system.

American Exceptionalism

We asked two of the most outspoken Republican leaders whether their newfound concerns for the incarcerated extend beyond the fate of the January Sixers, but we have not received responses.

Neither Greene’s nor Rep. Steve Scalise’s offices responded to a question about whether they agree with the United Nation’s position that solitary confinement is torture when used beyond 14 days. They also have not responded to questions about whether they would vote for previously introduced U.S. House bills that would limit the use of solitary confinement and eliminate money bail in the federal prison system, and whether they support a local bill before the D.C. Council that would eliminate solitary in the D.C. jail system.

In fact, instead of supporting policies that would limit pretrial detention, Scalise has joined many others on the right in vocal opposition to abolishing or reforming money bail—the policy that would do the most to end pretrial detention.

In the absence of a desire for widespread criminal legal system reform, supporters of the January Sixers have sought to paint these individuals as uniquely deserving of sympathy. In doing so, they have told lie after lie.

It starts with the false far right narrative that people are being jailed without bail for “trespassing” or for entering the Capitol after being “invited in” by police.

In reality, the group remaining in jail represents a very small subset of those accused of involvement in the attacks. More than 2,000 rioters entered the Capitol building, and the Justice Department has so far issued various charges to more than 960, the vast majority of whom were released as they await trial. A federal appeals court instructed judges to deny bail only for those facing charges of violence, such as carrying out or planning the assault of police officers or breaking windows and barricades. The judges posited that these individuals “are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way.”

And despite claims of their conditions being “unusually cruel,” the January Sixers are actually held in the less egregious of the two facilities that make up the D.C. Jail complex. A 2021 Marshals Service investigation revealed particularly inhumane conditions in the complex’s other building, prompting the agency to remove all 400 people in their custody who were housed there, and transfer them to federal prisons. Meanwhile, the Marshals Service determined that conditions in the second building were adequate enough to leave its 120 detainees there—including those awaiting trial for charges stemming from January 6. (Of course, better than the absolute worst does not mean that the conditions there are acceptable or humane, but it does suggest that those involved in the riots were not singled out for worse treatment.)

In fact, some January Sixers seem to have received favorable treatment. Those in the D.C. Jail were given expanded access to electronic discovery usually denied to incarcerated defendants, and one man was granted temporary release to prepare for his trial. And when D.C. Jail officials withheld documents regarding insufficient medical care for a jailed January Sixer who had broken his wrist, a federal judge held the officials in contempt of the court and requested a Justice Department investigation into civil rights violations.

Another false narrative from several congressional Republicans is that those involved in the attack on the Capitol are being punished more harshly than people who committed acts of violence during the 2020 Black Lives Matter protests, in what Greene called a “two tiered justice system.” This claim has been debunked by the Associated Press, among others.

The actual two-tiered justice system is reflected in the fact that Black people are stopped by police, arrested and jailed at disproportionately high rates. It is also evident in the fact that pleas for help from the D.C. Jail’s mostly Black incarcerated population have gone unanswered for years.

“Recent reports about squalid conditions in the district jails are unfortunately not new,” pointed out D.C. Attorney General Karl A. Racine at a November 2021 hearing. “Concerns about conditions at the jail received little attention until they were raised by mostly white defendants accused of perpetrating the Jan. 6 insurrection.”

And despite claims from Greene, Gohmert, Gosar and other far right politicians that the January Sixers are political prisoners left to rot by the left, several Democratic senators, including Elizabeth Warren, have spoken against holding them in solitary confinement. So has the ACLU.

Despite all of this, January 6 defendants at the D.C. Jail continue to insist they are being singled out for poor treatment. In November, nearly three dozen filed a legal complaint requesting transfer to the notorious military prison at Guantánamo Bay, Cuba, where they say they would escape the “medieval standards of living” and “hellacious conditions” of the D.C. Jail.

Such claims will no doubt only grow louder with Republicans in control of the House. Equally likely is continued GOP silence on the plight of the rest of the 1,350 people in the D.C. Jail, and the 451,400 other pretrial detainees in U.S. jails.

Additional reporting by Jean Casella and Vaidya Gullapalli

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