Rioters have been punished for the havoc they wrought in the summer of 2020 — but not enough.
Rioters have been punished for the havoc they wrought in the summer of 2020 — but not enough.
I t is a good thing to see serious jail time given to major, visible participants in the January 6 Capitol riot. Exemplary crimes require exemplary punishment. The core of the criminal-justice system is vindicating crimes that harm particular victims. But some crimes — such as riots, terrorism, hate crimes, and attacks on core democratic and rule-of-law processes such as trials, elections, and legislative votes — also do harm to the public at large and to the social order.
Any society that seeks to hold back the forces of anarchy should punish those crimes more severely. That is not about being unfair to individual defendants; it is about taking a clear-eyed view of the unique harm particular crimes do to society as a whole.
Few things go to the heart of conservatism more than the defense of social order from street mobs. Indeed, conservatism without order is an oxymoron. Order is the foundation upon which the whole rest of conservatism is built. “The principle of order,” Russell Kirk once wrote, was “the central idea in [Edmund] Burke’s system.” Burke’s horror at the mob madness of the French Revolution gave birth to conservatism as a philosophy.
From Burke to Washington to Reagan and Thatcher, conservatism has always been repelled by mob violence and has appealed again and again to the ordinary citizen’s desire to see order restored. Benjamin Franklin’s wife defended the family home with a musket from Stamp Act rioters. The Founding Fathers wrote a federal district into the Constitution to avoid a repeat of a mob of soldiers surrounding a helpless Congress in 1783. England stared down the revolutions of 1848 when London sent out a call for volunteer “special constables,” and more of them showed up than the rioters. Everyone from shopkeepers to former and future prime ministers walked the beat.
Defense of law and social order means protecting the political and legal process as well as protecting businesses and communities. As I wrote recently in recounting the endless parade of left-wing mobs in recent years harassing public officials at their homes, shouting down speakers, and grinding government operations to a halt, civility in politics does not mean using decorous language; “it does mean that contending sides let each other speak, let the democratic and legal process do its business, and not stalk people to restaurants and their homes.” And that was before left-wing activists followed Kyrsten Sinema into a bathroom to harass her, only to see Joe Biden defend them. The mob also ruined a wedding Sinema was attending, despite tearful entreaties from the bride and her mother.
None of this is okay. Politicians who encourage it should pay a political price. Members of mobs that break the law, cause injuries and property damage, and impair the functioning of our institutions should be prosecuted, and their prosecutions should seek to make a public example for all to see that this will not be tolerated. As National Review editorialized last summer, riots should be suppressed by force, up to and including the use of the armed forces:
Abraham Lincoln used the army to restore order in New York’s draft riots in 1863, dispatching combat veterans directly from the battlefield in Gettysburg. In modern times, the Insurrection Act has been invoked by Dwight Eisenhower and Lyndon Johnson against resistance to racial integration, and by George H. W. Bush to restore order in the Los Angeles riots in 1992, whose origins were similar to today’s crisis…
Our constitution itself was written in response to a rebellion in Massachusetts that had to be suppressed solely by state authorities because the federal government was too weak to help. George Washington and Abraham Lincoln were not fascists for using military force when it was necessary to end rebellions and riots.
It is also not okay when people on the political Right adopt the mob tactics of the Left, which is why I have consistently argued for consequences for Donald Trump and the January 6 rioters. And yet, we face the bizarre spectacle now of voices on the Right begging for lenient treatment, either by minimizing what happened that day, or by arguing that we should suspend any consequences for “our” rioters until “their” rioters are adequately punished.
This is cowardice. A conservatism that is not against riots —unflinchingly, uncompromisingly, without reservation or regard to whether the rioters are friend or foe — has given up even trying to conserve anything. If you read the history of conservatives who lived through the 1960s, an extraordinarily common story is how many were converted to the cause by riot and disorder and liberalism’s inability to stand up to its ideological allies in the street. Roger Scruton’s 2003 essay “Why I Became a Conservative” is representative of the genre:
It was when witnessing . . . May 1968 in Paris, that I discovered my vocation. In the narrow street below my window the students were shouting and smashing. The plate-glass windows of the shops appeared to step back, shudder for a second, and then give up the ghost, as the reflections suddenly left them and they slid in jagged fragments to the ground. Cars rose into the air and landed on their sides, their juices flowing from unseen wounds. The air was filled with triumphant shouts, as one by one lamp-posts and bollards were uprooted and piled on the tarmac, to form a barricade against the next van-load of policemen. . . . For the first time in my life I had felt a surge of political anger, finding myself on the other side of the barricades from all the people I knew.
Today’s Right should not aspire to be the heirs of Sixties liberal academics who were too scared of their side’s street cadres, and in the end found that they had lost both control of their institutions and public trust in their authority.
In the aftermath of January 6, two opposing narratives have arisen, with such opposite views of the facts that one wonders how they exist on the same planet. One is the argument, current in many corners of the Right, that nothing has been done to prosecute anybody for the riots that shook the nation’s cities in the summer of 2020. The soft version of this is from Mollie Hemingway of the Federalist, arguing that one cannot support exemplary punishment for the January 6 rioters without endorsing “disparate treatment for the left’s legion of rioters,” as if being against some rioters means you are defending other rioters rather than standing consistently for a principle of being against all rioters:
National Review out here supporting the Pelosi/Democrat approach — disparate treatment for the left's legion of rioters who destroyed American cities in their summer of violence vs. the J6 rioters. https://t.co/HBAVuSAx80
— Mollie (@MZHemingway) November 18, 2021
On the opposite pole, we have progressives – echoed by the president of the United States – acting as if the real problem is that we were far too hard on the 2020 rioters by comparison to January 6. Aaron Morrison of the Associated Press, for example, wrote on January 7, 2021:
Black Lives Matter protests, 2020: Overwhelming force from law enforcement in dozens of cities. Chemical dispersants. Rubber bullets and hand-to-hand combat with largely peaceful crowds and some unruly vandals and looters. More than 14,000 arrests. The U.S. Capitol, Jan. 6, 2021: Barely more than a few dozen arrests. Several weapons seized, improvised explosive devices found. Members of a wilding mob escorted from the premises, some not even in handcuffs.
The key difference? The first set of protesters were overwhelmingly Black Americans and their allies. The second group was overwhelmingly white Americans who support outgoing President Donald Trump’s baseless claims of election fraud. The violent breaching of the halls of power on Capitol Hill by the insurrectionist mob on Wednesday, which left one woman dead of a police gunshot wound, represents one of the plainest displays of a racial double standard in both modern and recent history.
Morrison then quoted Biden:
On Thursday, President-elect Joe Biden noted the double standard, saying he had received a text message from his granddaughter, Finnegan, of a photo showing “military people in full military gear — scores of them lining the steps of the Lincoln Memorial” during a BLM protest last year. “She said ‘Pop, this isn’t fair.’” the president-elect recounted. “No one can tell me that if it had been a group of Black Lives Matter protesting yesterday … they would have been treated very, very differently than a mob of thugs that stormed the Capitol,” Biden said. “We all know that’s true. And it is unacceptable,” he added.
The truth lies in between, and requires us to recount some examples of how our criminal-justice system has handled the 2020 riots.
It’s a daunting task to compare how the 2020 rioters were treated vs. the January 6 ones in any systematic way. The latter rioted as part of a single event on federal property within exclusive federal jurisdiction, and the resulting prosecutions have been centralized. By contrast, the disorder of 2020 was spread across the country and, in many cases, handled by local law enforcement. Both involved people who should have been arrested and weren’t, and people who were arrested and should have been charged, and people who were arrested and not charged because they should never have been arrested. Quantifying all of this is a nearly impossible to do in a way that takes adequate consideration of the facts of particular cases.
That said, we can generalize two conclusions. One is that quite a lot of people were, in fact, prosecuted for the riots in 2020, some of them quite vigorously. The other is that quite a lot of people were allowed to get away without much punishment. That was a deliberate choice by Democratic politicians and by left-leaning prosecutors. Conservatives who are angry about that should focus on the undue leniency shown to the 2020 rioters, not on the justice meted out to the 2021 rioters.
Consider Portland, one of the icons of progressive tolerance of left-wing lawlessness. It witnessed some of the worst violence last summer, including left-wing protestors setting fire to the federal courthouse. In August 2020, the United States Attorney’s Office announced with fanfare:
74 people are facing federal charges for crimes committed adjacent to or under the guise of peaceful demonstrations in Portland since at least May 29, 2020. . . . Several of the charges being used to prosecute violent agitators carry significant maximum prison sentences. For example, felony assault of a federal officer with a dangerous weapon is punishable by up to 20 years in prison. Arson is punishable by up to 20 years in prison with a mandatory minimum sentence of five years.
NPR noted, however, that
the majority of the charges are for what could be considered minor offenses . . . . Of those cases charged, 11 are for citations and 42 are for misdemeanors, meaning that more than 70% of the total charged cases are not felonies. “A citation is the least serious of a charge, it’s really more of a ticket,” said Lisa Hay, the federal public defender for Oregon.
As for state prosecutions, by October 2020, an official dashboard tracking prosecutions showed that “the local Portland police have referred almost 1,000 protest-related cases to the Multnomah District Attorney’s Office since late May and prosecutors have declined to file charges in nearly 70 percent of them.” The dashboard now shows 894 cases rejected compared to 197 prosecutions, an 82 percent rate, with only 22 referrals still unresolved. In 706 of those cases, by the office’s own admission, charges were dropped “in the interests of justice” rather than for lack of evidence of prosecutable crimes.
Of course, some of that reflects priorities and the low-level culpability of collateral actors. In cases involving arson, property damage, or the use of force, 155 cases have been prosecuted, 62 abandoned for insufficient evidence, 21 have required follow-up, and 62 abandoned “in the interests of justice.” The latter number, while much lower than the share of all cases, still seems suspiciously high.
Mike Schmidt, the Multnomah District Attorney who took office in midsummer 2020, was explicit that he was going easy on protestors who broke the law because he was sympathetic to their political cause:
Schmidt announced Tuesday that his office will decline to prosecute cases related to the protests that do not involve violence, theft, or deliberate property damage. His office will not pursue charges of disorderly conduct, interfering with a police officer, criminal trespass and most charges of rioting. There will be no change in how prosecutors handle cases like arson and assault. Schmidt said Tuesday that the policy was an attempt to “create a forum” for Portlanders to express their “collective grief, anger and frustration” about the death of George Floyd . . . and about “the countless other abuses people of color have endured in our country throughout history. . . . As prosecutors, we acknowledge the depth of emotion that motivates these demonstrations and support those who are civically engaged through peaceful protesting.”
Whom has he gone after instead? In June, the Portland police department’s entire crowd-control team resigned in protest after one of their number was charged with assault for striking a woman with his baton, a prosecution the cops described as “political.”
Nonetheless, some Portland prosecutions by federal and state prosecutors have resulted in significant prison sentences. In June, Black Lives Matter protestor Gavaughn Streeter-Hillerich was sentenced to five years in prison for setting a dumpster fire near a police precinct as part of a clash between protestors and the police. He also pleaded guilty to coercion, unlawful use of a weapon, and two counts of fourth-degree assault, and will pay restitution and face three years of supervised release after his sentence. He had previously been charged federally as well.
In September 2021, Cyan Bass was sentenced to four years in prison for a fire at the Multnomah County Justice Center prison in September 2020 and for throwing a Molotov cocktail at police. “Bass used a wrist rocket slingshot to damage the building’s windows, then used flammable liquid to set plywood lining the building on fire, resulting in an estimated $46,000 in damages, prosecutors said.” His co-defendant, Hannah Lilly, got off with probation and $46,000 in restitution.
Last November, Marquise Love got two years in prison and 36 months of probation — a real sentence but still a fairly tepid one, under the circumstances — for a vicious beating reminiscent of the 1992 Reginald Denny beating, in which a man was dragged from his car and beaten unconscious.
In September 2021, Edward Schinzing, who was caught when surveillance video picked up his last name tattooed on his back, was sentenced to 15 months in federal prison and three years of supervised release over a different fire at the Multnomah County Justice Center on May 29, 2020, that could have threatened the lives of 300 inmates housed there, to say nothing of prison staff.
In September 2021, Jacob Michael Gaines of Texas pleaded guilty to attacking a U.S. Marshal with a hammer during the protests in July 2020, and has been held in custody ever since. He will be sentenced in December, likely to real prison time, albeit much less than the 20-year maximum sentence.
In June 2021, Andrew Steven Faulkner was sentenced to three years’ federal probation, including six months of home detention and 40 hours of community service, for shining a high-powered laser at police during a protest at the Portland federal courthouse.
In other cases, the feds have played the same politics as the D.A. In August 2021, Kevin Benjamin Weier of Vista, Calif., pleaded guilty to attempting to set fire to the federal courthouse in Portland. The charges carried a maximum of ten years in prison, but he was sentenced this Monday, and given a slap on the wrist: two years probation. Josh Gerstein wrote in Politico in April about how the Biden administration has empowered federal prosecutors to drop charges against many of the rioters in that city:
In recent weeks, prosecutors have approved deals in at least half a dozen federal felony cases arising from clashes between protesters and law enforcement in Oregon last summer. The arrangements — known as deferred resolution agreements — will leave the defendants with a clean criminal record if they stay out of trouble for a period of time and complete a modest amount of community service, according to defense attorneys and court records.
Some lawyers attribute the government’s newfound willingness to resolve the Portland protest cases without criminal convictions to the arrival of President Joe Biden’s administration in January and to policy and personnel changes at the Justice Department.
These were not all just minor cases:
Five of the Portland cases in which deals were recently struck involved a felony charge of interfering with police during civil disorder. Some defendants are accused of punching or jumping on police officers during the street battles.
Some of the assaults described in the Portland cases bear similarities to the Capitol violence. Prosecutors said one of the civil -disorder defendants, Alexandra Eutin, used a wooden shield and hoses to strike a Portland police officer in the head while he was trying to make an arrest. Several Capitol riot suspects are accused of using riot shields to shove police or obstruct their efforts to secure the building from the mob.
Gerstein has warned, in fact, that the leniency in these cases in Portland could come back to haunt efforts to prosecute the January 6 defendants, although it is very difficult to make selective-prosecution claims stand up in court. The choice to prosecute those cases in federal court in D.C. also limits the availability of diversion-from-prosecution programs, as the D.C. federal court does not have one; it typically sends cases for diversion to the D.C. courts.
The Justice Department has argued that January 6 was different, since it actively interrupted congressional business, whereas even the Portland attacks on the courthouse did not breach the building, and much of the rioting happened at night. That is true as far as it goes, and explains why some of the statutes used – such as the “official proceeding” law under which Jacob Chansley (the “Q shaman”) was charged – were not used in most other riots. On the other hand, the use of the law now establishes a precedent in future cases. When protestors chased senators into elevators, interrupted hearings, and breached the Capitol during the Kavanaugh hearings, no real effort was made to bring charges. That ought to be reconsidered in the future.
The other major statute used in a lot of these cases – over a dozen cases in Portland and over 150 in the Capitol cases – is 18 U.S.C. § 2101, which prohibits traveling or communicating interstate to “incite a riot . . . organize, promote, encourage, participate in, or carry on a riot . . . commit any act of violence in furtherance of a riot; or to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot.” The federal riot law was passed in 1968 and once used against Abbie Hoffman. The Portland and January 6 rioters have both rehashed old challenges to the constitutionality of the law, but it has been repeatedly upheld, most recently in Portland:
Federal prosecutors said Kevin Phomma used bear spray on Portland police officers. . . . In Mobile, Alabama, prosecutors charged Tia Pugh with civil disorder after they said she broke the window of an occupied police cruiser that was being used to block the entrance to Interstate 10 . . . . Prior to last summer, the civil disorder charge had been used in roughly a dozen cases nationwide over the preceding three decades, including actions over the Dakota Access Pipeline and the Baltimore police killing of Freddie Gray.
Both the Fourth and Ninth Circuits, just in the past two years, have concluded that portions of the statute are unconstitutional, specifically, its inclusion of “organize,” “promote,” and “encourage” as actions criminalized. But both Circuits nonetheless upheld the act’s remaining prohibitions.
The Portland prosecutors kept trying to quietly dispose of cases. As the Wall Street Journal noted, also in April 2021:
Federal prosecutors in Portland, Ore., have moved to dismiss almost half the cases they charged in connection with violence accompanying last year’s protests over racial injustice, as authorities grapple with how to tamp down politically motivated unrest that has arisen since then. Of 96 cases the U.S. attorney’s office in Portland filed last year charging protesters with federal crimes, including assaulting federal officers, civil disorder, and failing to obey, prosecutors have dropped 47 of them. . . . None have gone to trial.
The penalties levied so far against any federal defendants, most of whom were arrested in clashes around federal buildings in Portland including the courthouse, have largely consisted of community service, such as working in a food bank or encouraging people to vote.
That didn’t calm things; Portland arrested a battery of additional defendants after more rioting on May Day 2021. By May 3, Fox News noted that the list of abandoned cases had risen to 58:
David Bouchard admitted he put a Customs and Border Protection officer in a chokehold. Charles Comfort was indicted by a grand jury of civil disorder for twice charging at Portland Police Bureau officers and hitting them with a makeshift shield then kicking a third officer while being arrested. Both men faced federal charges stemming from their actions during a summer of more than 100 straight nights of often violent protests in Portland. But Bouchard and Comfort are among dozens of Portland federal arrestees whose cases were dismissed or are being deferred without so much as a day behind bars.
New York has been a story similar to Portland. In June 2021, a WNBC-TV investigation found the widespread abandonment of arson and looting prosecutions:
In The Bronx — which saw fires in the street and mass looting in June 2020 — more than 60 percent of arrestees have had charges dropped . . . . Seventy-three of the 118 people arrested in the borough had their cases shelved altogether, another 19 were convicted on lesser counts like trespassing, which carries no jail time . . . . In Manhattan — where looters ran rampant across Soho and Midtown— 222 of those arrested had their cases completely dropped, while 73 got lesser counts . . . . Of the 485 people busted in the borough, 128 have open criminal court cases, while 40 juvenile defendants had their cases moved to family court . . . . Sources in the DA’s offices insisted that in many of the cases, the evidence was not strong enough to secure a conviction. The offices are also swamped with a backlog of cases created by the courts’ prolonged closure during the COVID-19 pandemic.
The city’s most notorious case is being handled more aggressively. Two lawyers from white-shoe New York law firms pleaded guilty in October 2021 to throwing Molotov cocktails in Brooklyn, cases that already cost them their jobs will likely get them disbarred:
Prosecutors said one of the lawyers, Urooj Rahman, threw a gasoline-filled bottle into an empty police vehicle, attempted to distribute Molotov cocktails to others, and then fled in a minivan driven by Colinford Mattis . . . . U.S. District Judge Brian Cogan set their sentencing for Feb. 8. They face up to 10 years in prison under a terrorism-related sentencing provision. “The terrorism enhancement is going to be a big issue. I have no idea where I’m going to come out on that,” Cogan said.
Cogan, a George W. Bush appointee to the bench, has a chance to send a real message by handing down a serious jail sentence.
Is the tide ready to turn? Andy Ngo, a tenacious critic of the Portland Antifa scene, noted in June that even in Portland, patience with left-wing agitators had run thin enough to prompt a renewed law enforcement push:
More than two dozen suspected Antifa rioters have been charged in Portland in the past two weeks, signaling an escalation by both local and federal prosecutors following a full year of riots in the besieged Oregon city. On Thursday, the Multnomah County District Attorney’s Office announced charges against 10 suspects following several grand jury indictments. [Three defendants were charged with] felony riot, felony first-degree criminal mischief and second-degree criminal mischief [over] a black-clad mob that broke most of the windows on the Multnomah County Democrats’ headquarters on Nov. 8, 2020. At the time, Antifa accounts on social media promoted the “direct action” to oppose the presidential election. In a separate indictment, six other suspects were charged with felony crimes for their alleged roles in the Antifa Inauguration Day riot on Jan. 20 . . . .
The charges are a 180-degree turn for left-wing District Attorney Mike Schmidt, who last year dropped over 90 percent of riot and protest-related cases . . . . In addition to the 10 charged by the district attorney last week, there have been more arrests.
Malik Muhammad of Indianapolis faces the most serious charges, 26 separate felonies carrying up to ten years in prison:
According to court records, Muhammad threw lit Molotov cocktails at police officers on multiple occasions during protests last September. One of those incendiary devices briefly lit a police officer’s pants on fire, prosecutors say. Just weeks later, Muhammad allegedly used a metal baton to smash out windows at the Oregon Historical Society, Portland State University and other businesses during an Oct. 11 riot in downtown Portland, according to court records. An undercover FBI agent said they watched Muhammad break the windows . . . charges were dismissed on Feb. 10 but were reinstated in April, along with the more serious attempted aggravated murder charges.
It remains to be seen, of course, how seriously these charges will be pursued. State-law penalties are frequently less than those available in federal court. But decent, law-abiding Oregonians should demand that these cases be pursued with the aim of multi-year prison sentences.
There is also the matter of bail, which has routinely been denied in the January 6 cases. Over the objections of the district attorney, given the efforts that had been required to extradite him from Indiana, Muhammad was bailed out (to the tune of $2.1 million) with the help of the lavishly funded Portland Freedom Fund, while another of the defendants was bailed out by the Portland chapter of the National Lawyers Guild’s “Mass Defense Fund.” These are among the network of groups, some of them linked to Antifa, that have bailed out riot defendants, especially in Portland. During the presidential campaign, Kamala Harris even encouraged supporters to donate to the Minnesota Freedom Fund:
If you’re able to, chip in now to the @MNFreedomFund to help post bail for those protesting on the ground in Minnesota. https://t.co/t8LXowKIbw
— Kamala Harris (@KamalaHarris) June 1, 2020
What about nationally? According to Alanna Durkin Richer, Michael Kunzelman, and Jacques Billeaud of the Associated Press in late August 2021:
An Associated Press review of court documents in more than 300 federal cases stemming from the protests sparked by George Floyd’s death last year shows that dozens of people charged have been convicted of serious crimes and sent to prison. The AP found that more than 120 defendants across the United States have pleaded guilty or were convicted at trial of federal crimes including rioting, arson and conspiracy. More than 70 defendants who’ve been sentenced so far have gotten an average of about 27 months behind bars. At least 10 received prison terms of five years or more . . .
President Joe Biden’s Justice Department has continued the vast majority of the racial injustice protest cases brought across the U.S. under Trump and has often pushed for lengthy prison time for people convicted of serious crimes . . .
Some examples:
Just this month, [Shamar Betts] was sentenced to four years behind bars and ordered to pay what his attorney said is likely to exceed $1.5 million in restitution after pleading guilty to inciting a riot last spring in Champaign, Illinois . . .
In Utah this month, a federal judge sentenced 25-year-old Lateesha Richards to nearly two years in prison for tossing a pair of basketball shorts onto an overturned, burning patrol car and hurling a baseball bat toward police officers during a May 2020 protest in Salt Lake City. There’s no evidence that the bat struck anybody . . .
Kelsey Donnel Jackson traveled to downtown Charleston, South Carolina . . . [and] lighted a shirt on fire and tossed it onto the trunk of a vandalized police car. Jackson also vandalized businesses and public property, assaulted two people and streamed a video of himself on Facebook Live in which he held a handgun and made threatening statements about police, according to prosecutors. He was sentenced this summer to two years in prison after pleading guilty to maliciously damaging a police vehicle with fire.
In August 2021 in Minneapolis, Black Lives Matter rioter Matthew Rupert of Galesburg, Ill., was sentenced to 105 months — almost nine years — for torching a cellphone store last summer. In December 2020, Fornandous Cortez Henderson was sentenced to six and a half years in federal prison for setting fire to a Dakota County government building. Five more people were charged in Minneapolis for a New Year’s Eve riot. In Kenosha, Wis., four men were indicted in June 2021 on federal charges for arson, looting, and other crimes.
If you step back from the politics of the moment – of left-wing causes triggering riots in 2020, and right-wingers rioting in 2021 – and ask what we should do to address riots, the obvious answer should be to arrest and prosecute rioters, looters, arsonists, and protestors who obstruct the proceedings of the democratic and legal processes. We should do so with vigor, and without fear or favor. Armed by that conviction, conservatives who are serious about conserving civil society should not be whining about the January 6 defendants; we should be hammering Joe Biden and blue-state and big-city prosecutors who give a pass to their allies to run riot.