Friday, January 08, 2021
How do you punish a mob?
Among all the images from Washington this week, one struck me especially: The photo of a looter, carrying out a lectern from the Capitol, stopping to smile and wave for the camera. That allowed the police to quickly identify him. The photo shows that the man clearly isn't conscious of breaking the law and being in danger of the consequences. The tendency of Trump supporters to not wear face masks, even in a crowd, will be working against them. The FBI and DC police put out a call to the public to help identify people from the many available images.
So at one point the participants of the mob will be identified. And then the question is under which laws to prosecute them. One frequently mentioned option is the Trump monument executive order, a racist document targeted against Black Lives Matter protesters. It could be ironically turned around to mean up to 10 years in prison for Trump supporters, who probably cheered the law on when Trump signed it. But now that a DC policeman has died following the riots, there is an even harsher option: The District of Columbia has felony murder statutes, which means that any unlawful death happening during a felony is considered murder not only for the person causing that death, but also all of his co-conspirators.
Laws like that exist because while it is comparatively easy to identify the group of people participating in a crime, and easy to identify what crime was committed, it is notoriously hard to attribute a specific criminal action to a specific individual. Unless the crime itself wasn't filmed, each of the rioters could claim that it wasn't them who attacked that policeman, broke that door, or stole that souvenir. And there clearly were "riot tourists" in the Capitol, was simply walked in after the more violent ones had breached the building, took a free unguided tour of the Capitol and made selfies. Wearing a buffalo headdress and a spear, in one case. Some of the rioters actually complained to the press about getting maced.
So maybe the waving and smiling looter in the photo is right. American justice, freshly packed with conservative judges everywhere, isn't exactly known to be color blind. These 10 years in prison or felony murder charges maybe only apply to black or left wing rioters. The Trump rioters identified might end up with a $100 fine for a first time misdemeanor of disturbing the peace.