In the past two weeks, four of the leaders of the Proud Boys, who planned and executed the Jan. 6 assault on the Capitol, received long prison sentences — ranging from 10 years to 22 years in prison. Those sentences were denounced by two of the leading Republican candidates for president.
On Tuesday, Vivek Ramaswamy, responding to the sentences, tweeted: "This is wrong & it's sad that I'm the only candidate with the spine to say it." In a statement on Wednesday, he also promised to pardon all "peaceful, nonviolent" Jan. 6 participants and said, "America now has a two-tiered justice system: Antifa and B.L.M. rioters roam free while peaceful Jan. 6 protesters are imprisoned without bail."
Gov. Ron DeSantis took a similar tack in an interview with Newsmax on Wednesday, speaking of some of the protestors: "They just walked into the Capitol. If they were B.L.M., they would not have been prosecuted." As for the others, "they may have been violent, but to say it's an act of terrorism when it was basically a protest that devolved into a riot, to do excessive sentences — you can look at, OK, maybe they were guilty, but 22 years if other people that did other things got six months?"
Of course, Ramaswamy didn't point to any protestors being held without bail; the sentences he was reacting to were not for peaceful, nonviolent protestors, nor did DeSantis say who it was who got six months instead of 22 years. So much for the comparisons.
Still, the argument that the justice system has treated the Jan. 6 protestors more harshly than the Black Lives Matter protestors is a familiar one. The problem with it is that it fails to distinguish between the mostly peaceful BLM protests and the violent assault on the Capitol, between an effort to interrupt the functioning of the government and nonviolent demonstrations.
Judge Carl Nichols, a Trump appointee, rejected a selective prosecution argument from a Jan. 6 defendant who claimed he should receive a lenient sentence because armed protestors in Portland, Oregon, who protested at a federal courthouse were treated less harshly.
"The Portland rioters' conduct, while obviously serious, did not target a proceeding prescribed by the Constitution and established to ensure a peaceful transition of power. Nor did the Portland rioters, unlike those who assailed America's Capitol in 2021, make it past the buildings' outer defenses. The defendant has failed to point to any Portland case that is similar to this one and in which the government made a substantially different prosecutorial decision."
The simple fact is that Jan. 6 was a more serious crime that deserves more serious punishment. The Proud Boys sought nothing less than the violent overthrow of the democratic process. DeSantis and Ramaswamy refuse to recognize that.
It is not a minor crime. It is not comparable to a peaceful protest. It is not even comparable to a violent protest. It was an assault on our democracy.
They were charged not with the sort of minor offenses that resulted in short prison terms handed out to the majority of other Jan. 6 protestors — who, according to various studies, received an average of 120 days in prison (compared to two years, the average for BLM protestors).
The Proud Boy leaders were charged with a seditious conspiracy, defined as two or more people plotting to overthrow the federal government by force. If that isn't a serious crime, what is? They got the sentences they deserved for conduct that threatened the very heart of our democracy.
Susan Estrich is a politician, professor, lawyer and writer. Whether on the pages of newspapers such as The New York Times, the Los Angeles Times and The Washington Post or as a television commentator on countless news programs on CNN, Fox News, NBC, ABC, CBS and NBC, she has tackled legal matters, women's concerns, national politics and social issues. Read Susan Estrich's Reports — More Here.