What is the appropriate punishment when our democratic institutions are attacked and people’s lives are endangered? From the halls of Congress to the courtroom, Americans are engaged in a heated debate over this very question.
Consider this:
On July 25, 2020, a large group of protesters dressed in helmets, goggles and other tactical gear, marched to the Aurora Municipal Center to protest the 2019 death of Elijah McClain.
Jordan Joseph White, a 20-year old man, dressed in military-style fatigues, along with other rioters, dismantled wooden boards attached to the side of the courthouse and used them to smash multiple windows in the Municipal Center. White was identified through video surveillance directing other protesters to help, and launching commercial-grade fireworks at officers and into buildings causing a small fire. Five courthouse employees were trapped inside the building. Fortunately, no one was struck or hurt.
After pleading guilty to arson, inciting a riot and criminal mischief, Arapahoe County Court Judge Ryan Stuart sentenced Jordan Joseph White to serve six years and pay nearly $75,000 in restitution. Ryan Stuart said that “(a)ttacks on our temples of democracy — our capitols and our courthouses — must be met with swift justice.”
Notably, however, White’s sentence is harsher than any of the more than 200 sentences delivered to any Jan. 6 Capitol rioter to date.
According to a Time Magazine tracker in January this year, the median prison sentence for the January 6th rioters is a mere 45 days.
With approximately 500 more defendants to be prosecuted, the question remains: what is the appropriate punishment for violently storming the United States Capitol for the purpose of preventing the peaceful transition of power after a legitimately certified election? White’s sentence in Aurora seems appropriate given the extent to which he endangered human life and damaged the Aurora Municipal Center.
The First Amendment of our Constitution protects our right to peacefully assemble and express our views through protest.
The keyword is peacefully.
Make no mistake, the rioters in Washington D.C. were not exercising their constitutional rights.
America has had a rich tradition of civil disobedience; peaceful assemblies that changed history as they disobeyed immoral laws. Dr. Martin Luther King, Jr. was arrested 30 times for things like disobeying a police officer, loitering and participating in a sit-in at an all-white Atlanta lunch counter. Congressman John Lewis was arrested 40 times over the span of less than a decade. These men bravely pushed America to uphold the ideals espoused in the Constitution and suffered abuse from the criminal justice system run by white men intent on silencing them, but they did not violently attack officers or vandalize and burn buildings.
Violent protests are not allowed anywhere in our country, no matter how just the cause. And, there is no unfettered right to protest on government property. So, when the barricades fell outside of the United States Capitol on Jan. 6 in an attempt to overthrow our democracy, the protesters’ First Amendment protections fell too.
According to CNN story last December, a split developed amongst judges: one group has delivered harsher punishments to rioters, including incarceration. While another group softened penalties avoiding jail time and instead imposing fines and probation.
Obviously, there are vast differences in culpability between violent and non-violent offenders, but in either scenario, the stakes involved in an attempted coup should merit special consideration.
Scott Fairlamb, a New Jersey gym owner and former MMA fighter broke into the Capitol, verbally abused officers before he physically assaulted them by shoving and punching an officer in the head. Fairlamb received 41 months in prison.
Duke Wilson was sentenced a few days ago to 51 months after storming the Capitol and, among other things, using a PVC pipe to strike and hit Capitol Police Sergeant Auilino Gonell. That’s still well shy of the 72 months White received for his actions during the Aurora protest.
Some of the sentences have been so lenient, that judges have called out the Department of Justice for being too soft.
Take, for example, District Judge Tany Chutkan, an Obama appointee. Four of her misdemeanor cases reached sentencing so far, and in all four cases, she went farther than the Justice Department’s recommendation and sent rioters to jail, ranging from 14 to 45 days. In another case, prosecutors requested three months of house arrest for Matthew Mazzocco, but Chutkan gave him 45 days in jail, saying, “there have to be consequences for participating in an attempted violent overthrow of the government, beyond sitting at home.”
Chutkan also sentenced Robert Palmer to 63 months, the longest sentence to any January 6th rioter to date, after Palmer threw a wooden plank at officers, spraying them with a fire extinguisher before using it as a weapon against the officers.
When democratic institutions are under attack and lives are endangered — whether a courtroom or our nation’s Capitol — the penalties must be strong enough to both punish the perpetrator and send a clear message that we will not, and frankly cannot, tolerate violence aimed at thwarting the peaceful transition of power.
Doug Friednash is a Denver native, a partner with the law firm Brownstein Hyatt Farber and Schreck, and the former chief of staff for Gov. John Hickenlooper.
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