The Question of Questioning Motives
Should Motivations Be Taken into Account in the Sentencing of January 6th Rioters,
and If So, Whose?
Politico offers a nuanced approach to sentencing for those who rioted at the Capitol on January 6th. Josh Gerstein comes at the debate about penalties from many different legal angles: criminal, political, judicial, and prosecutorial. It might seem that those four concerns should come from the same perspective. They do not. We pause to ask, “How much do motivations, or unseen human affections, impact judicial rulings?”
At issue is the use of the word “terrorism” in the cases brought against the January 6th offenders. Gerstein writes,
Some judges have publicly debated whether the charges against January 6th defendants qualify as “crimes of terrorism,” prosecutors have repeatedly pulled back on tougher sentences, citing unspecified “facts and circumstances.”
The question becomes one of motive. Can intention be the basis for the criminal charge of terrorism? Karen Greenberg, director of Fordham University law school’s Center on National Security, says that giving prosecutors the authority to pursue or not pursue a charge of terrorism provides too much power to prosecutors in the process of negotiating a plea.
“It’s just lying there as a cudgel if they want it. … It can be used so many different ways.”
So, how a law is used to bring charges against a person convicted of a crime has a prosecutorial motive. University of South Carolina law professor Wadie Said, explains what may be obvious to the public.
We want to think that [justice] operates in a vacuum, but of course it doesn’t. In court filings, prosecutors have been exceedingly vague about their decisions not to seek terrorism-level punishment in the handful of Jan. 6 felony cases that have gone to sentencing.
The question can be taken further, “Is there a political motive to sentencing?” How charges are pursued can have a political motive. Michael German, a former FBI agent and a fellow at the Brennan Center for Justice at New York University, said, “It’s very arbitrary in how and when the government wants to apply this enhancement.” German went on to explain,
Part of the problem with using a politically charged word like terror in our legal statutes is it is politicizing these determinations. Law enforcement is always going to view protests against government policy as inherently dangerous. If somebody broke a window, they should be charged with breaking a window. If they had some political purpose for that, that shouldn’t be part of the decision.
How words such as “terrorism” are used to describe the actions of alleged perpetrators has judicial motive. Assistant U.S. Attorney Mona Sedky made the declaration, “January 6th was an act of domestic terrorism.” But a defense attorney for one of the rioters, Patrick Leduc, strongly cautioned the court in his statement,
If we’re going to label this protest as domestic terrorism, then please consider this: “Where do we draw that line?”
Definitions of words indeed come from someone’s point of view. We expect people to disagree, even about how a term is interpreted. Indeed, Gerstein uses the word “ambiguities” toward the close of his essay in an attempt to understand how justice is served, how sentences are imposed.
A good number of the populace probably holds out for judicial blindfolds when it comes to actual courtroom decisions. “Lady Justice” statues, from the days of Rome through today, suggest a moral force within judicial systems. People desire the ideals of justice but know, even in the case of the riot at The Capitol on January 6th, 2021, that human motives in adjudicating cases can be unsure at best, impure at worst. Everyone makes judgments. No one should find questionable motives in judicial cases to be a surprise.
Human motives cannot be judged in a courtroom: there is no empirical evidence for the human spirit. But if human history has taught us anything it is that we cannot trust what the Bible calls “the thoughts and intents of the heart.” If we are honest with ourselves, and can admit it to each other, we insert our affections into every decision. Now, these aims may be conscious or unconscious. We cannot know the full extent of another’s internal choices. Politico, however, leaves the door open to examine the possibility that courtroom motivations – whether political, judicial, criminal, or prosecutorial – should be held up to legal review.
First published at Salvo 17 January 2022 with the title, “The Question of Questioning Motives.” Since judgments concerning the January 6th Capitol riot are back in the news, I thought it might be good to revisit my writing from January 2022 on the subject, with special concerns about the internal motivations of all involved, including lawyers, judges, and the embedded Politico article.
Picture credit: SnappyGoat.com