What Should Happen to the Capitol Invaders?

Now more than ever, it’s important to separate feelings of anger from the needs of justice.

Much of America came to a screeching halt on Wednesday as supporters of President Donald Trump, driven by unfounded conspiracy theories that the election had been stolen and unwilling to accept his defeat, invaded the U.S. Capitol, shattering windows, storming congressional offices, and fighting with police.

Words like insurrection, sedition, and domestic terrorism were tossed about with angry abandon. Many noted that the Capitol Police seemed a lot more careful and polite about getting the angry mob out of the building than law enforcement in general treated Black Lives Matter protesters in Washington, D.C., though police did shoot and kill an unarmed woman during Wednesday's riot. Arrests were few during the incident itself. Afterward, the FBI began to search out people who participated in the trespassing and vandalism for prosecution. Many more arrests followed.

While it's abundantly clear that America is deeply embedded in a populist culture war, it's dangerous to respond to emotion-driven criminal behavior with emotion-driven legal enforcement. After a year of calls to reform America's policing so that officers don't respond to every problem with violence and to reform our justice system so that we don't lock people up for long periods of time unnecessarily, now is not the time to backslide into bad habits.

The desire to "make examples" out of people charged with crimes out of the belief that this deters future criminals has long contributed to America's extremely high incarceration rate. And yet, as we see with incredibly harsh mandatory minimum sentences as part of America's drug war, the cure is often crueler than the crime and is not particularly effective in controlling people's behavior.

In a country that values liberty, what does "justice" look like for the men and women who trespassed in the U.S. Capitol? We should consider what's appropriate on the basis of the reforms some Americans have been pushing for years.

Limit pretrial detention to those who may be planning more crimes.

America has a pretrial detention problem. We have half a million people who are behind bars who have not yet been convicted of a crime. This is, fortunately, much less common on the federal level, where there are fewer than 50,000 people being detained prior to trial (this isn't counting immigration holds).

Pretrial detention is intended to be used when there's no other option to make sure defendants show up for court dates or prevent them from committing other crimes while awaiting trial. But the reality is that our justice system has been throwing people in jail because they couldn't afford bail requirements or because prosecutors exaggerate dangers, and then apply pressure on defendants to accept plea deals so that they hopefully stop languishing in jail. Pretrial detention has turned justice on its head by punishing citizens before they've been convicted.

We are also in the midst of a pandemic that has hit jails and prisons hard. We do not need to be filling up jail cells with people who, emotional responses aside, were acting out a deluded fantasy and are likely not an imminent threat. Throughout 2020, Reason covered prisons' mishandling of the COVID-19 pandemic and the deaths that followed. Twenty percent of the prison population across the country has been infected with the virus.

And in this case, given that the rioters weren't exactly following pandemic safety protocols, the risk here is that these people may bring COVID-19 into jail with them, potentially exposing guards and other inmates.

Seek restitution, not jail time, whenever possible.

The damage to the U.S. Capitol can be repaired. The responses to the Capitol invasion have echoed reactions to violence and looting that cropped up during Black Lives Matter protests, heavily fueled with whataboutism. Some see media quick to tar all these participants as threats to public order while dismissing the violence and destruction that took place over the summer. Others see police treating these angry white folks a lot more nicely than they do protesting minorities, even attempting to justify the behavior of the vandals.

To the extent that these claims are true, they represent ongoing cultural criminal justice concerns that are part of reform efforts. The Justice Department's response to crimes that took place in the Capitol should align with these efforts to make America a country that incarcerates at far lower rates than it does now.

Resist the urge to pile on more crimes based on a sense of outrage. The U.S. Capitol is not, in fact, some sort of sacred, unsullied fortress. It's a big building that serves as one of many laboratories of democracy. It should not be treated as somehow more valuable under the law because of what takes place in the building. It's the people that make democracy function, not architecture.

For those responsible for organizing and encouraging violence, those who apparently planted pipe bombs, and those who directed their violence toward other human beings (not buildings), tougher penalties should apply, but we should still, when possible, strive for restitution rather than incarceration, making them pay for the costs of setting things right, repair or replace what was vandalized, and cover the medical care of anybody they injured. Federal prison terms should be considered for those we believe will continue to attempt to cause harm or try to foment further violence if they remain free.

Hold people responsible for what they did, and only what they did.

On Thursday evening, Capitol Police announced that an officer on the scene, Brian Sicknick, had died of injuries he had received while trying to respond to the assault on the Capitol building.

The response to Sicknick's death brought out some of the worst instincts of Twitter users, with some people saying that anybody who participated in the invasion of the Capitol should be held accountable for the man's death.

Take note of this tweet from Rep. Ted Lieu (D–Calif.) on his personal account:

Every single #MAGA rioter who committed a felony in relation to the death of the US Capitol police officer can be charged with felony murder.

Also, @realDonaldTrump needs to resign immediately. https://t.co/ViviuQOyik

— Ted Lieu (@tedlieu) January 8, 2021

He's referring to the rule of felony murder, a legal doctrine that allows prosecutors to charge a person with murder if somebody dies during the commission of a felony, even if the offender played no role in the person's death and did not intend for anybody to die.

The felony murder rule is terrible. It's not justice. It should be eliminated. We should not be convicting people of murder when they did not, in fact, commit murder. I bring up Lieu's tweet here because California, the state he represents, mostly eliminated its own version of the felony murder rule in 2018 (though it is worth noting that killing a police officer remains its most significant exception, and so it would still apply here if this all took place in California).

There are many, many penalties we can throw at these people, and federal prosecutors habitually charge defendants with any possible violation they can unearth in order to intimidate them into plea bargains. The only people we should consider charging with murder are those who are actually responsible for Sicknick's injuries.

We have enough laws to address this invasion and don't need more.

There have been dozens of arrests related to the assault on the Capitol. Everything any of these people did that harmed a person or property at the Capitol is a violation of an existing law.

It feels important to point this out because, in the wake of any outrage-inducing criminal event, politicians will quickly come forth to try to take advantage of the situation to introduce laws to make the government more powerful and increase the punishment and incarceration of citizens.

President-elect Joe Biden says he is open to passing more laws to address domestic terrorism, possibly including "red flag laws" that allow the government to forbid citizens from possessing guns even if they haven't been convicted of crimes out of fear of what they might do.

If Trump's presidency has taught us anything at all, it should be that the federal government is extremely powerful. What happened on Wednesday is a result of poor planning and police control, not a result of the government not being powerful enough to stop it.

Fox News pointed out that these trespassers could face long federal prison sentences thanks to Trump's call to prosecute anybody damaging federal monuments, an executive order he put in place to go after antifa members.

Nobody should face 10 years in federal prison for breaking windows, or stealing a bust, or destroying chairs. That's not a proportionate response. That's anger and disgust channeled through the halls of authority, not justice. It will not create peace. It will create martyrs. It won't prevent future violence—it will foment it.

Make sure these people are aware of the mercies extended to them.

There is an irony, of course, that many of these same people believe in the same extremely harsh forms of justice that Trump does. They see antifa everywhere. Some cynically attempted to blame the invasion on antifa. They refuse to accept the harshness of the criminal justice system because they aren't typically the targets.

Resist the instinct to "teach them a lesson" by making them the targets. But do make sure they know exactly what could have happened. Make sure they know that it's only because of the activism of the very criminal justice reformers they dismiss that they're not being treated the way the federal government treated criminals in the 1990s.