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April 21, 2024

"The Relative Severity of Criminal Sentences in the January 6, 2021, Capitol Breach Cases"

The title of this post is the title of this new article authored by Sam Merchant which now has an abstract available up on SSRN.  I typically will not link to an SSRN posting unless and until the full draft article is available for download.  But this article's findings seem especially timely and notable; so here is its abstract:

Many observers claim that judges are imposing disproportionately lenient sentences on January 6, 2021, “Capitol Breach” offenders.  Some have even suggested a racial or political motivation for lighter sentences.  Comparative data on these sentences and offenders, presented here for the first time, refute this narrative. Individuals convicted of felonies related to the Capitol Breach appear to actually receive longer sentences than individuals convicted of the same crimes outside of the Capitol Breach context.

But sentences in Capitol Breach cases may indeed be “lenient” for a deeper, more structural reason — the current Federal Sentencing Guidelines do not adequately account for the severity of the conduct that occurred on January 6, 2021.  There is a qualitative difference between federal offenses and the same offenses committed in the context of the “treason spectrum.”  English and American legal traditions have historically viewed treason, rebellion, and subversive activities as “the worst crimes of all” because they are crimes against all citizens and threaten the constitutional order.  Yet no sentencing enhancement addresses the increased severity of conduct involving offenses that are on the treason spectrum.

Recognizing the increased seriousness of other conduct, Congress and the Sentencing Commission have enacted an array of enhancements to punish, incapacitate, and deter offenders whose conduct involves a dangerous weapon, body armor, or even use of a fake website during an offense.  This Article proposes a new sentencing enhancement in the Federal Sentencing Guidelines that properly accounts for the relative severity of conduct involving offenses on the treason spectrum.  To reaffirm a commitment to democratic values, to deter future subversive conduct, and ensure that the legal system is equipped to respond to the severity of subversive conduct, policymakers and judges should send clear signal that subversive activities are indeed among “the worst crimes of all.”

UPDATE: It now appears that the full paper is available for download at this SSRN link.

April 21, 2024 at 11:31 AM | Permalink


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