What the new rioter charges may mean

Shortly after January 6, the first charges were brought against the Capitol rioters. Those charges tended to be of the minor, misdemeanor variety. At the time, I blogged the following:

“I’ve read many comments decrying the fact that some of the most egregious offenders have only been charged with minor infractions. At this stage in the investigation, prosecutors are simply assembling the group of people who are involved in illegal activity. As more facts are received and evaluated, more charges will follow, especially for those engaged in the most abhorrent activity. Complicating their work is the fact that there is a host of charges that may come into play, ranging from murder, sedition, criminal conspiracy and RICO to the more mundane illegal entry.”

Within the last couple of weeks, additional charges have now been levied against many of these people and additional defendants are regularly being identified. If you are following developments on a regular basis, some charging decisions do not appear to make sense. Why, for example, are two people who seem to have acted in a similar manner facing different charges?

The unsatisfying answer is that the charging process is not going to make sense, at least in the short term. From the outside, we view criminal matters linearly. We see it as an orderly process, beginning with the criminal act and ending with the conviction or acquittal. Prosecutors, especially in a complex case, approach it, well, backwards. Let me illustrate.

The Capitol invasion is a highly complex case involving hundreds of individuals and affiliated groups. Some of those involved were simply caught up in the moment. Others had distinctly nefarious motives. The goal of the prosecution, when all is said and done, is to see to it that appropriate justice is meted out to everybody. In order to accomplish this goal, prosecutors need to work backwards from the goal to see how various charges, plea agreements, agreements to testify against others, and trials will accomplish those ends. Each individual defendant plays a part in this matrix.

Back to the initial question: why are similar people not charged the same? A lot of the answer often comes down to an individual’s value to the prosecution in related cases. Take two people who have done similar things and have a similar criminal background (if any). One of them is willing to provide information or testify about what he observed or knows. The other person is not. The cooperator will be charged with misdemeanors so that his plea agreement will result in a more lenient sentence. The non-cooperator will be charged with a felony and suffer greater consequences.

My example is, of course, a tremendous oversimplification, and other factors come into play as well. It does, however, give you a little insight into the variables that prosecutors weigh.