Criminal sentencing conveys a society’s moral sense. The worst crimes get the death penalty or life without parole. At the other extreme, misdemeanor offenders may be met with fines, diversion programs, time served in county jail, or probation. In between are many gradations, which reflect the individual characteristics of the offender and the objective aspects of the crime itself.
This week, we saw extreme sentencing for the Capitol protest on January 6, 2021. Specifically, members of the Proud Boys received draconian sentences for the archaic, rarely prosecuted crime of “seditious conspiracy.”
Stretching Archaic Statutes
The offense of seditious conspiracy is incredibly vague, but the Civil War-era statute is aimed at violent attempts to overthrow the government. Under the statute’s language, calling the protests a seditious conspiracy is a real stretch. Almost everyone involved thought they were protesting an unfair electoral count in accordance with their constitutional rights to “peaceably assemble” and “to petition the Government for a redress of grievances.” Obviously, there was no way their protests (and even any violence) would overthrow the government or change the election’s outcome. Julie Kelly deserves credit for exposing the shaky legal foundations for these charges.
At most, the nonviolent offenders engaged in technically illegal, but minor offenses, such as trespassing or “parading” in the Capitol. This used to be praised as “civil disobedience,” but now the government treats picayune violations of the law as the equivalent of the Battle of Bull Run.
By way of background, conspiracy liability could apply to any offense. Conspiracy liability—and its cousin, RICO enterprise liability—have faced substantial criticism for their extensive scope. Under the law governing conspiracy, the only necessary act to support a conviction is an agreement to engage in the illegal act. From there, every conspirator is liable for the acts of every other conspirator in furtherance of the conspiracy.
This is why the Proud Boy’s leader, Enrique Tarrio, has been found guilty, even though he was not even present in Washington D.C. on January 6. He was ultimately sentenced to 22 years, the longest sentence to date for a January 6 defendant. His codefendant Joe Biggs received 17 years, which included a terrorism enhancement for shaking one of the barriers outside the Capitol.
These Sentences are Extreme Compared to Ordinary Federal Sentences
While conceding that these are harsh punishments, one might believe that they are typical of the federal system. After all, federal sentences tend to be long and, even with good time credit, inmates must serve at least 85% of their time. But a review of federal sentences for ordinary crimes provides important context.
In May of 2022, Samuel Templeman was sentenced to 13 years and 4 months for conspiring to sex traffic a child—his child to be exact. His wife received 6 years for possession of child sexual abuse material. No word on whether either of them may have shaken a fence.
A convicted felon, Antonio Eugene Brutton, was convicted of possessing a firearm, as well as possession with intent to distribute meth, fentanyl, heroin, and marijuana; he got a whopping 16 years in federal prison.
A real jerk, Diane Durbon, got 10 years for defrauding a vulnerable elderly person of half a million dollars. Her coconspirator and daughter got 2 years.
Michael Virgil, who robbed an armored truck of $312,000 in cash, got 10 years in federal prison.
These sentences sound appropriate and normal, about what one would expect. The one exception is the punishment of the sexually abusive parents; in that case, the court showed incredible leniency considering their horrific human trafficking offenses.
One might also consider another hypothesis: that the combination of criminal acts and hostility to the government drove the long sentences. This does not withstand scrutiny. Compare the sentencing of the January 6 offenders to the genuinely violent BLM rioters from the summer of 2020.
An Antifa protester attacked a U.S. Marshal with a hammer during a protest in Portland; he received a sentence of a little under four years.
A BLM arsonist lit a pawn shop on fire in Minnesota and someone died in the fire; the DOJ charged the arsonist, Montez Lee Jr. with a federal offense. But when it came time for sentencing—and the guideline sentence was 20 years because of the loss of life—the government asked for a downward departure from the guidelines.
The government’s presentence filing said that Lee was in Minneapolis “to protest unlawful police violence against [Black] men, and there is no basis to disbelieve his statement.” Lee was ultimately sentenced to 10 years in prison.
In asking for the downward departure, the Assistant U.S. Attorney invoked the words of Martin Luther King Jr., who told CBS-TV in 1966, “We’ve got to see that a riot is the language of the unheard.” Indeed, it is.
Not Hypocrisy, But Hierarchy
Conservatives love to play “Hypocrisy Bingo,” pointing out the left’s double standards. But the left is not going to be shamed from its current course. Advancing leftism is the lodestar for their morality.
That is why there is now a very clear hierarchy for those caught up within the federal criminal justice system. Left-wing offenders are the least culpable, and they get prosecutors to argue for downward departures. Then come street criminals, who are sentenced within the guidelines. Then there are those on the right, who face novel charges and get the book thrown at them.
There is some precedent for this. Soviet dissident Alexander Solzhenitsyn wrote in the Gulag Archipeligo how political prisoners were treated worse in the Soviet system than regular criminals, whom the regime used to terrorize its political enemies. We also know how the Soviet Union, like other totalitarian regimes, created a whole class of pseudocriminals, who were given extremely harsh sentences for things like telling the wrong kinds of jokes or convoluted claims of sabotage and hoarding.
The key to understanding these apparent contradictions was the concept of “class justice.” Class justice was less concerned with what one did compared to the question of one’s membership among the disfavored bourgeoisie or Kulaks. Class justice simply makes the “friend/enemy” distinction a formal part of the law.
Such repression may repellent and hateful, but that does mean it is ineffective. While repression and politicized justice risk galvanizing the opposition, such activities can also create a climate of compliance and fear. Judging by the disappearance of right-wing street activism since 2020, it is having some effect. There’s no more MAGA truck parades or Berkeley street battles, nor massive demonstrations outside the courthouses where Trump is being persecuted.
Looking back, this is one reason I wrote that the January 6 protest was “worse than a crime, it was a mistake.” The overheated protest, which devolved into a low-key riot, involved sufficient force and symbolic violence to infuriate the regime and also fill it with paranoia, but it was not nearly focused or violent enough to leave the regime’s leaders and functionaries in actual fear. It’s not like there were a wave of resignations from federal employment the way we saw police resigning during 2020’s BLM riots.
After 2020, I believe the governing class realized that they were truly hated by millions of Americans, even though their opponents on the right continued to follow the old rules of American politics. So the system changed the rules. It treated trespassers like felons. It pretended election protests were an unprecedented affront to the peaceful transfer of power. And it launched a nationwide dragnet, treating minor acts of civil disobedience as if they were worse than the 9/11 attacks.
In short, the right tried to swing a punch, and the left-in-power responded with a howitzer.
Resistance in a Time of Persecution
The ongoing lack of right-wing activism suggests that the issue is not fear, but realism. People on the right are beginning to accept how hostile the system is. They know that the more edgy groups are crawling with feds and confidential informants. And they also now realize that if someone they’re associated with decides to “act the fool,” they could get in trouble. The indictments of Trump and his top lieutenants only reinforces this view.
Under these conditions, why pretend things are normal, as if we just need to do more precinct walks and run the right TV ads? While the Republican primary crew haven’t gotten this messages, most Republican voters have, which is why they’re going to support Trump no matter what. They are skeptical he will be allowed to win and also skeptical that he will be allowed to govern if he does win. But voting for Trump is a loud and clear “no confidence” message to the system and the corrupt managerial class that rules it.
Between censorship, rigged elections, relentless propaganda, and two-tiered criminal punishment, the system is not leaving many ordinary political options for its opposition. Besides the obvious lesson to be cautious and circumspect, we can learn a few things from the left. While we disagree profoundly with their goals, we can learn from their methods.
The most important lesson is that the left never punches left. They resist with all their might criticizing the more extreme elements among them, including their street fighters. They treat these groups as a necessary vanguard, who function to pry open the Overton Window.
We need to adopt a similar aloofness from any pressure to condemn the more vigorous elements on the right. Such condemnation produces no good will, and it encourages a regime strategy of “divide and conquer.” We need to stand with the Proud Boys and January 6 defendants and all of the political prisoners who are now being punished chiefly for their beliefs.
All dissidents must act as people functioning outside of the system, whether they like it or not.