Editorial: The problem with punishing each and every Capitol rioter ‘to the fullest extent of the law’

Ten years in prison for everyone present. Felony murder charges all around. A place on the no-fly list. These are among the criminal and associated penalties being bandied about by elected officials and other Americans frightened and angry over the deadly Jan. 6 assault on the U.S. Capitol by a mob of President Trump’s supporters.

It stands to reason. The goal of many violent Capitol invaders was apparently to overthrow the government in one way or another, whether by intimidating Congress into tossing out valid election results, by kidnapping or killing members, or by otherwise usurping lawmakers’ power and keeping Trump’s term from ending. If punishment should fit the crime, and if the crimes included domestic terrorism, insurrection and murder, or plotting to commit more such offenses, it is fair to demand that the nation act decisively to protect itself by imposing criminal sanctions that are sufficiently tough to hold perpetrators to account.

But only the actual perpetrators. That’s something to remember when rereading the arguably accurate yet troubling tweet by Rep. Ted Lieu (D-Torrance), a sharp Trump critic and a former military prosecutor, following the death of Capitol Police Officer Brian Sicknick: “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.�

And only with appropriate sanctions. That’s something to keep in mind when hearing calls by some erstwhile Trump supporters to punish Capitol invaders “to the fullest extent of the law.� The same goes for when longtime Trump opponents say his June 26 executive order, which instructed federal prosecutors to seek the maximum 10-year term for people convicted of damaging any monument or otherwise vandalizing government property, should be applied here.

That order was a response to rioting and vandalism that grew out of last summer’s widespread protests against police violence. Using the same order against the pro-Trump mob would seem like poetic justice.

But we should be concerned with actual justice, not just the poetic kind. The U.S. is struggling to shake off decades of gratuitous and inordinate incarceration. If a 10-year term for a person spray-painting a statue outside a courthouse or in a town square is absurd in its excess — and it most certainly is — then so is a similar sentence for a person vandalizing a statue in the Capitol. If smearing blood and feces in a shopping mall should result in an order to pay cleaning costs and a referral for some serious psychiatric treatment, then so should similar acts in the Capitol. We need not answer every property offense (even the really disgusting ones) with prison.

Any justice system worth its salt should be able to distinguish between angry people who show up and shout — thereby exercising their sacred American right to protest — and those who trespass, vandalize or seek more nefariously to injure, kill and usurp, and who should be held accountable with well-considered sanctions.

We in the news media were exhorted last week (including by one another) not to call those marching on the Capitol “protesters,� but rather “rioters� and “insurrectionists.� But in fact, those who protest are protesters, and they do not become rioters until they riot, or criminals until they commit crimes. And the acts of those intent on violent overthrow of the government cannot be imputed to those who merely show up, any more than those who broke into and burned down buildings during the protests over the summer made all protesters at the scene looters and arsonists.

Exercising the right to assemble and the right to speak is fraught with hazard, and in the heat of the moment, it is possible to cross the lines that separate protest from petty crime and petty crime from felony. But the government’s job should be to identify and respect those lines, not to further blur them by punishing all for the actions of a few, or by excessively punishing offenders because we’re scared of them.

The nation need not — and, in fact, must not — shrug at insurrection and vicious mobs. It should root out plots, crimes and terrorist acts, and enforce laws against violent attempts to overthrow the government or subvert democracy, if those acts can be proved in court. So we welcome the comments Tuesday by the top federal prosecutor in the District of Columbia, who said, “We’re looking at significant felony cases tied to sedition and conspiracy.�

But enforcement must be targeted, and punishment must be measured. To act otherwise would be to relinquish the very liberties that criminals and terrorists seek to destroy.