No, not the grammatical type. The criminal law type.
I remember the first time I ever saw a criminal sentencing. When I was in college, one summer I was an intern for Customs Enforcement in Mobile, Alabama. One day I was tasked with some errand or other at the federal courthouse. Might have been the first, or one of the first, times I’d ever been in a courthouse. As I was wandering around, trying to find the office I was looking for, I passed a doorway, on the other side of which was a very large courtroom. A judge was sitting on the bench, and a gentleman (I use the word advisedly) in a jumpsuit and wearing bright, shiny bracelets was standing in front of him beside another gentleman (I again use the word advisedly) who was, I assume, his attorney. Just as I passed the doorway, I heard the judge say, “I’m sentencing you to twenty years in the federal penitentiary” (or words to that effect).
That one sentence (no pun intended, but nevertheless right on the mark) hit me hard between the eyes. To a twenty-two-year-old, twenty years is an unthinkably long, long time to spend in a jail cell.
I’ve revisited that memory a number of times of the last few weeks, as various individuals have been sentenced for their roles in the January 6, 2021, incursion of the United States Capital.
Sidebar: It is difficult to find a neutral term to describe the entry of unauthorized individuals into the Capital building that day. Most words — invasion, assault, occupation, takeover — carry some sort of connotation, all of which are negative, and many of which have military overtones,. That is not necessarily inappropriate; many of the . . . incursors? . . . were wearing military-type fatigues, carrying military-style equipment, using military lingo, and acting in militaristic fashion. Even use of the word “trespassing” elicits the objection that the American people cannot trespass in the People’s buildings (a morally dubious, and legally laughable argument).
By my last count, over 700 defendants had been charged. Over 600 pleaded guilty. Most of the rest were found guilty at trial. I should note that the vast majority of defendants were sentenced to some number (i.e. 2 to 6) of months of home confinement and probation (e.g. no jail time). However, when it comes to the individuals who primarily orchestrated and led the incursion, such as the leaders of the Proud Boys and the Oath Keepers groups, we’re seeing sentences of 10 years to 22 years. As I stated above, that’s a lot of time to spend in a jail cell. And if my understanding of federal criminal law is correct (a big caveat), those individuals will serve every day of that; no parole or probation possible.
Consider this, however: the last time anyone successfully invaded the United States Capital was when the British burned Washington D.C. during the War of 1812. You’ll notice the word “War” in the title — invading the capital is an act of war. Threatening to harm, or even kill, our elected leaders (such as, I don’t know, the Vice-President or the Speaker of the House) is, likewise an act of war. Or, at the least, rebellion and/or insurrection. The penalty for rebellion or insurrection can put you in jail for up to 10 years. You can look it up. But that’s just insurrection. Seditious conspiracy can land you 20 years. Advocating the overthrow of the government can, likewise, get you 20 years in the Big House. And that’s just the big ticket items — it doesn’t count the lesser or more mundane charges such as trespassing, disorderly conduct, assaulting and/or obstructing law enforcement officers, and a whole slew of others.
The leaders of the Proud Boys and the Oath Keepers did all of these things. If you don’t agree, that’s fine, but in every single case it wasn’t a potentially partisan prosecutor or judge who determined their guilt or innocence — it was unanimously determined by 12 U.S. citizens just like you (presumably) and I, sitting as a jury, hearing the evidence, and applying the law.
So how to explain a sentence of 22 years, when the maximum sentence is 20 years? Well, if a defendant is found guilty of multiple crimes (i.e. conspiracy and insurrection), the sentences can be consecutive: 20 years + 10 years. So, for example, Henry Tarrio, a Proud Boys leader, was convicted of seditious conspiracy and obstructing a congressional proceeding. The conspiracy charge got him 20 years, and the obstruction charge an additional two. He’s lucky — he could have gotten more.
I’ve seen the inside of dozens, if not hundreds, of jails (as an attorney and law enforcement officer). I haven’t seen one yet in which I would wish a single day upon my worst enemy. They are not fun places. And I actually think some criminal justice reform would be a very good thing. Even though I believe without a doubt we have the best criminal justice system in the world, there are nevertheless still too many unacceptable injustices.
But these sentences aren’t them.
