The Case For Extremely Severe Penalties For January Sixth Insurrectionists

Deterrence ought to be proportional

The insurrectionists on January sixth, for the first time since roughly the civil war, got frighteningly close to killing various members of the federal government and launching a successful insurrection. If January sixth was repeated ten times, likely at least one of them would have been accompanied by extreme violence carried out against sitting congress people, or a fraught hostage situation concerning sitting members of congress. The federal government could very well have ground to a halt, the vice president might have been executed, and a historically unprecedented disaster would have occurred.

The worst thing about January sixth wasn’t what happened. Nothing much happened, as it turned out. While the certification of the vote was delayed by a bit, and some capitol police officers got injured, in the grand scheme of things, it turned out to be little worse than the typical riot—except insofar as it was supported by the sitting president. What was most frightening about January sixth was what almost happened. What would have happened if, for instance, the rioters had got to congress and killed sitting congresspeople? What would have happened to the transfer of power? What if they’d taken them hostage? The situation was quite terrifying and quite unprecedented. While we can now look back at it and breathe a sigh of relief, it was a serious risk to the vitality of our institutions and the peaceful transfer of power.

Most of the people rioting, it seems, were not malicious, hardened career criminals. They were instead crackpots who made the mistake of following the words of the sitting president. They took what Donald Trump said about fraud seriously. If you genuinely believe that the election has been stolen—that a fraud of historic proportions has been carried out by a cadre of malicious actors—then actions of the sort carried out on January sixth become reasonable. If the deep state has subverted Democracy, then taking things back by forth is the responsible course of action.

For this reason, lengthy prison sentences are not primarily serving the aim of incapacitation. Most of the people who are now in prison for their offenses are unlikely to commit other crimes. I doubt that the Q-Shaman, for instance, is going to take up a life of robbery and arson. He seems more like a crank than a serious career criminal.

Nonetheless, I think the people who acted on January sixth should be given very severe sentences.

Imagine that several low-information dunces attempted to detonate a nuclear bomb in the middle of New York City. They got frighteningly close. They did this because they thought that New Yorkers were going to start a nuclear war, and detonating a nuclear bomb was the only way to stop them. Assume such people were led to this extreme action by misinformation that they heard on various news sources and that they’d be unlikely to commit any other crimes in the future. They were dopes, not hardened career criminals.

Nonetheless, it would make sense to give them extremely severe penalties. Penalties ought to be proportional to the offense carried. It’s important to deter future dangerous offenses.

The principle behind giving severe penalties to the J6ers is the same. They’re not exceptionally bad people by and large. But it’s important to have very severe penalties when people almost pull off something that would be bad on a scale rarely seen in American history. Had the J6ers succeeded in deposing the government or keeping congress hostage, their actions would be much, much worse than the actions of the typical child murderer. If all left-wing congresspeople were decapitated all at once, that would have been an unprecedented threat to Democracy.

If the January sixth people get a slap on the wrist, the next time someone is seriously considering an insurrection, or some other similar offense, they won’t be majorly deterred. In contrast, if they get very severe penalties, then this will deter such future offenses. If we gave the death penalty to all the J6ers—and I wouldn’t advocate anything that extreme, to be clear—it would be highly unlikely that another J6 would ever occur in the future.

The primary benefits of prison is incapacitation. Criminals commit lots of crimes, and they can’t do that if they’re locked up. But still, some benefit comes from deterrence. The most important deterrence comes from deterring the most important things, like almost having a successful coup! While criminals are unlikely to pay much attention to aggregate crime statistics, if some offense has only been carried out once in U.S. history, criminals considering attempting the same crime are likely to take seriously the penalties that were given to the previous batch of criminals. Thus, extreme penalties for the J6ers have uniquely efficacious deterrence potential.

Now, probably the sorts of people who seriously consider coups aren’t that responsive to incentives. But so long as they have even minimal response to incentives, having harsh penalties for J6ers ends up being worth it. Even a low probability of preventing or thwarting a coup is worth making people spend a long time in prison.

Whether or not some action actually turns out very bad doesn’t affect how much we should punish it. We punish attempted murderers, because we want to deter murder. Whether you succeed in your murder isn’t determinative of whether or not we punish you. Similarly, though the coup failed, it’s still worth taking fairly drastic action to deter future coups.

I’m not unsympathetic to the plight of at least many of the J6ers. Most of them were mislead, not malevolent criminals. But despite this, I think the right policy is to lock them up and throw away the key. They did something that was in expectation extremely bad, and it’s worth deterring extremely bad things.