Bench Memos

Judge Richard Roberts’s Troubling Confusion

Is political terrorism wrong because it is an ineffective means of pursuing a legitimate political goal? Or, in a free society, is it always wrong? From the extraordinary comments that he made last week, it would appear that Richard W. Roberts, the chief judge of the federal district court in Washington, D.C., strongly inclines towards the former position.

Judge Roberts’s comments came at the sentencing hearing for Floyd Lee Corkins II, who in August 2012 attacked the Family Research Council office in Washington, D.C. As this Washington Post article sums it up, Corkins “had plotted to kill ‘as many people as possible’ at conservative organizations that he viewed as anti-gay.” Corkins’s rampage was cut short by the heroic actions of Leonardo Johnson, the Family Research Council guard who was shot by Corkins but who nonetheless managed to subdue him.

Corkins pled guilty to three counts, including a charge under District of Columbia municipal law of committing an act of terrorism while armed. In the course of sentencing Corkins to 25 years in prison, Judge Roberts addressed these comments to Corkins:

You are not alone in criticizing those who oppose gay rights, but a man killing opponents does not change the opponents’ minds. It does not open their hearts. It does not bring about gay rights. If anything, it makes opponents more entrenched. If anything, it feeds whatever moral arsenal they perceive to fight against gay rights. Many indications show the opponents losing favor, but it has not been because of anyone killing them.

When a president thoughtfully spoke up, it shook loose many of the entrenched opponents in his faith community. When some women and men highly revered in America chose to come out, that added far more support for gay rights than murder ever will. That’s how we affect positive change in this country, not by shootings. [Transcript, 43:13-44:1]

Roberts’s comments strike me as grossly ill-conceived in two respects.

First, Roberts somehow thinks it proper to volunteer that he shares Corkins’s political outlook on “gay rights.” (If the first paragraph left any doubt about Roberts’s views, his references in the second paragraph to how “a president thoughtfully spoke up” and to “positive change” ought to eliminate that doubt.) Roberts is of course entitled to hold whatever views he wants, on this or any other issue, in his personal capacity. But what legitimate purpose is there to highlight his views (one way or the other) on the very matter that motivated Corkins’s terrorism? The only effect is to invite suspicion that Roberts rejected the federal government’s Department of Justice’s) recommended sentence of 45 years because he sympathizes with Corkins’s cause.

If you’re unpersuaded, consider this analogous hypothetical: A judge sentencing an anti-abortion protester for acts of violence volunteers that he is pro-life and then imposes a sentence that is barely half that proposed by prosecutors.

Second, the argument that Roberts offers against pro-gay terrorism is remarkably weak and dependent on his own contestable assessments about how to “affect positive change.” Someone who is contemplating terrorism (in support of whatever cause) may be more interested in intimidating or punishing opponents than in persuading them. And if he’s not the president or someone else “highly revered,” he may well conclude that he needs to use the tools at his disposal. Why not just say flatly that resorting to violence to pursue a political goal is always wrong (irrespective whether it’s effective)?

In fairness to Roberts, I will note that a paragraph later he did state: “Political activism is civic engagement. Killing human beings is not political activism, it is criminal behavior.” But even that statement neglects the distinctive harm that political terrorism inflicts, a harm that the federal prosecutors spelled out. As one prosecutor put it:

[Corkins’s] purpose was not just to attack individuals and kill them, he was attacking an institution, an entity that was involved in free and open political discourse at the core of our society, and he was going to attack that entity in the nation’s capital, and that is the definition of terror. [12:20-25]

In the words of the other prosecutor:

The core of the political system and the law here is to protect the right to engage in free speech and open debate about political views without fear of violence, and the defendant showed the ultimate disrespect for the law here when he chose not to engage in debate in a peaceful manner, but rather take a shortcut and resort straight to violence in order to intimidate others.… [26:19-25]

Indeed, Corkins himself, in his brief statement, declared that “I also realize that it’s not okay to result [sic] to violence to gain a political end.”  [42:16-18] What a shame that Roberts doesn’t see, or at least didn’t state, the matter as clearly.

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