Will 22 Years Of Deterrence Work?

Having long been vociferous in my condemnation of excessive sentences for crimes ranging from drugs to murder, I come at this issue with far cleaner hands than most. Unsurprisingly, people who were chanting “if you can’t do the time, don’t do the crime,” have suddenly gotten religion when it comes to the J6 defendants.

Ethan Nordean, 32, of Auburn, Washington, was sentenced to 18 years in prison.

Joseph Biggs, 39, of  Charlotte, North Carolina, was sentenced to 17 years in prison.

Zachary Rehl, 38, of Philadelphia, Pennsylvania, was sentenced to 15 years in prison.

Dominic Pezzola, 45, of Rochester, New York, was sentenced to 10 years in prison.

Now, Enrique Tarrio, 39, of Miami, Florida, was sentenced to 22 years in prison.

These are extremely severe sentences. Yet, many on the left are heartily applauding their length, former tearful concerns about over-incarceration disappearing in the mist of their outrage and hatred. I share their outrage about what happened on January 6. I have made clear that I believe it to be an insurrection. I believe Trump to be culpable for the insurrection. But hating the crime and the appropriate length of sentence for those who engaged in it are two very different issues.

Federal sentencing must comport with 18 U.S.C. § 3553.

(a) Factors To Be Considered in Imposing a Sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

Note the wording in the prefatory paragraph, “not greater than necessary.” This is called the Parsimony Clause, and constrains judges to limit the sentences to only that which is justifiable under the four factors in subsection 2. Of course, subsection 2 is sufficiently vague, and the entire notion of sentencing is sufficiently voodoo, as to provide little substantive guidance beyond sentences given to other people in other cases.

What makes this case, these sentences, unusual is that there are no comparisons upon which to base these sentences. What’s a sentence for seditious conspiracy to be? What will it take to make these individuals recognize the wrongfulness of their conduct? If Pezzola is any example, after whimpering his heartfelt regret to the judge, he yelled “Trump won!” as he left the courtroom. Not exactly an act of contrition.

But these are very serious sentences, the sort that years ago would only be imposed on murderers. With the past five decades of sentences being increased, then increased again, then some more and some more, Americans have come to internalize Draconian sentences are “right” and “just.” There is no “correct” sentence for any particular crime or any particular defendant, one that satisfies the criteria of § 3353(a)(2), but no more.

Judge Tim Kelly had the difficult task of deciding what sentence to impose on Tarrio. The government asked for 33 years. It’s reasoning for that particular length of time was generic.

“This defendant, and his co-conspirators targeted our entire system of government,” assistant U.S. Attorney Conor Mulroe said during Tuesday’s hearing. “This offense involved calculation and deliberation. We need to make sure that the consequences are abundantly clear to anyone who might be unhappy with the results in 2024, 2028, 2032 or any future election for as long as this case is remembered.”

The defense had the better sentencing argument, that Tarrio was just a “misguided patriot” who was called to action by the president of the United States and believed he was doing his duty for his country.

“My client is no terrorist. My client is a misguided patriot, that’s what my client is,” Tarrio’s attorney Sabino Jauregui said. “He was trying to protect this country, as misguided as he was.”

This is a variation on the “just following orders” defense, and just as disingenuous as it’s been in the past. Tarrio, for his part, admitted he picked the wrong team.

“I will have to live with that shame and disappointment for the rest of my life,” Tarrio said. “We invoked 1776 and the Constitution of the United States and that was so wrong to do. That was a perversion. The events of Jan. 6 is something that should never be celebrated.”

Will these words deter anyone? Are they sincere, or just the sort of stuff a defendant facing sentencing reads off a prepared statement to appeal to the judge for whatever mercy he’s inclined to give? Who knows?

What distinguishes the J6 sentences for those Trump sycophants too gullible to realize they’ve been played is that they are the whipping boys for the next crop of fools when Trump calls upon his “army” to put their lives on the line for his vanity. The foremost factor in the sentencing of these “proud boys” is to deter the next group of  proud boys, or oathkeepers, or one percenters, or whatever pretentious name they go by, not to attempt another insurrection. They are paying close attention to the J6 cases, and to the sentences being imposed

Will they be deterred? Or will they dream of their chance to become martyrs to Trump, awaiting the day when they, too, can hear the judge impose sentence?