Justice Jettisoned: The Great Punishment Deficit of January 6 Rioters

If the standard for justice rests upon the principle that the punishment given is equal to the offense done, then the overall prosecution of the January 6 rioters, to date, represents an abject miscarriage of justice. None were charged with domestic terrorism, attempted murder, treason, or advocating the overthrow of government. No one was found guilty of a hate crime, not even vandalism. Certainly none suffered any cruel and unusual punishment. In fact, a few were not punished at all; and hundreds of these vile criminals plea bargained their way out of jail. Although sentences remain pending for many guilty defendants and the hunt for more participants in this attempt putsch continues, the verdict is already in: our judicial system is guilty of excessive leniency in sentencing the domestic terrorists of January 6. Here are some of the incriminating facts.

As of late September, 919 persons have been arrested for criminal participation in the January 6 insurrection; 431 defendants entered guilty pleas with sentencing still pending for 168 of them; five have been found guilty in a court trial and sentenced, while eight others found guilty in court of all charges brought against them still await sentencing. One case has been dismissed; one defendant was declared not guilty; and one defendant remains a fugitive. With court trials resulting in comparatively stiffer sentences (10 years incarceration in one exceptional case), little wonder that so many defendants charged with multiple federal offenses have opted for a plea agreement.

By far, the most popular plea agreement involves violating federal statute 40 U.S.C. § 5104 (Parading, Demonstrating or Picketing in a Capitol Building). 248 defendants entered a guilty plea for this offense; 179 were sentenced, while 69 other offenders of this statute await sentencing. Guilty pleas have also been filed for 10 other federal offenses. In no case of plea bargaining was the maximum allowable punishment imposed upon the offender. Even the terrorist who viciously assaulted police officer Michale Fanone escaped the maximum sentence on September 27. Each adjudicated case, to date, was characterized by sizable punishment deficits.  Even when sentences include home detention, community service and/or restitution (typically $500), the pattern of punishment imposed falls far short of the severity of crimes committed. It is no exaggeration to assert that these terrorists have largely been given the functional equivalent of a slap on the wrist. That will hopefully change as militia members (Proud Boys, Oath Keepers, 3%ers) are tried, convicted and sentenced; but nevertheless the disturbing fact remains that the bulk of the domestic terrorists got away with punishment far less than they richly deserve and the law potentially demands.

Summary of Violations, Sentences and Punishment Deficits

The punishment deficit – the glaring gap between the sentences that could and should have been imposed and the meek ones that actually were – is alarming for a number of reasons. First and foremost, the extreme leniency in prosecuting the insurrectionists directly involved in this attempted fascist putsch adds to the overall strength of the fascist MAGA movement which threatens to destroy American democracy. Secondly, the failure by the Department of Justice to adequately punish those hell-bent on overthrowing the declared will of the people represents an institutional weakness in the struggle to defend democracy under siege. Needed now more than ever in US history is a united front against fascism, a resistance that is only as strong as its weakest link. It is imperative that our institutions, especially the judicial system, become and remain core participants of that united front.  Without institutional resistance to fascism, our democracy cannot survive. The nation came dangerously close to democracy’s utter demise on January 6 when not only hundreds of domestic terrorists stormed the Capitol in an unprecedented outbreak of political violence, but select institutions, not least of which is the White House, instigated and helped sustain this assault. The severity of these outrageous crimes stand in stark contrast to the meekness of imposed punishments. Once before, in the aftermath of a failed fascist putsch in 1923, a key participant served less than a year in prison, an exceedingly mild punishment for treason. A decade later, Adolf Hitler and his fascist party took over the German government. Institutions which coddle fascist criminals invite an existential risk.