Failing to do so simply because most of the rioters are white and regard themselves as “patriots” would be deeply unjust.
Public officials from Vice President Mike Pence on down have sung a consistent refrain since a mob attacked the Capitol on January 6: Those involved should be prosecuted to the “fullest extent of the law.” For those implicated in the murder of the Capitol Police officer Brian Sicknick, the penalties are obviously severe. Murdering a federal official carries a life sentence and, depending on what is proven at trial, could carry the death penalty. For the others who swarmed the Capitol, though, the standard penalties could be underwhelming. The federal statute most on point, which is often used against protesters who disrupt congressional hearings, carries a maximum six-month sentence. The government-property statute has been used when protests get violent, but under that law, those who vandalized the Capitol would also face, at most, ten years’ imprisonment. Even those who physically clashed with Capitol Police face a maximum punishment of only eight years, so long as they didn’t use a weapon. Many of these punishments, well below the mandatory minimum someone would typically face in federal court for growing a small plot of marijuana, are out of step with the gravity of what transpired in Washington, D.C. Evidence is still coming in, but what we know shows that the attack on the Capitol was not a mere disruption of government business. It was a coordinated siege on the heart of our democracy. The acting U.S. attorney general for D.C. has suggested that his office is exploring sedition charges. But if prosecutors are truly serious about punishing those who attacked the Capitol to the fullest extent of the law, they will treat the attack as an act of terrorism. Although “domestic terrorism” is not a standalone federal crime, the United States Federal Sentencing Guidelines allow prosecutors to apply a “terrorism enhancement” to nearly every federal crime. Prosecutors have used this enhancement and the extraordinarily severe penalties it carries against any number of ethnic, religious, and political minorities over the past 25 years. Failing to apply it to those who stormed the Capitol in an effort to violently disrupt the peaceful transition of power simply because most are white and regard themselves as “patriots” would be deeply unjust. Chuck Schumer called the attack on the Capitol “domestic terrorism” as soon as he retook the floor of the Senate, and Joe Biden echoed the point the following day when he announced his nomination of Merrick Garland as attorney general. Thus far, however, many in the outgoing Trump administration have been notably reluctant to use those words, a reticence that has troubling echoes of the past four years.
