What Should Happen to the Capitol Invaders?
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 th
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