After the first attempt to topple the World Trade Center in 1993, the U.S. revised federal sentencing guidelines to give already existing charges stiffer penalties when connected to terrorism. When Timothy McVeigh bombed the Alfred P. Murrah Federal Building in Oklahoma City in 1995, those guidelines were revised again to take domestic terrorism into account. More revisions happened following 9/11, and in 2005 the United States Sentencing Commission gave the rules a final polish. Under the currently active guidelines, any offense involving “causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice” should get an automatic increase of eight levels from the base sentencing level. For incidents involving domestic terrorism, the maximum sentence is to be extended by 12 levels.

Based on the federal sentencing table, these increases make a differences that’s measured in years. For example, the base level offense of trespassing is level 4, resulting in a sentence of from zero to six months depending on the circumstances. But if that offense took place as part of a domestic terrorism incident, it could be sentenced at level 16, where the sentencing range starts at two years. For more serious charges, the domestic terrorism enhancement can increase the potential sentence by 15 years or more.

The sentencing guidelines connected to domestic terrorism seem harsh. Because they are. However, they’re also a tool, leverage that the Department of Justice can utilize when they want a member of a terrorist group to identify other suspects, or when attempting to expose the network of supporters behind an act of violence. 

So why, despite repeated statements from the White House, the Department of Justice, and the House select committee identifying the events of Jan. 6 as domestic terrorism, is everyone involved on the assault on the Capitol being prosecuted as it if were not domestic terrorism?

As Politico makes clear, some of the pushback has come from judges. (Though even calling it “pushback” seems an exaggeration.) Questioned by judges as to whether crimes committed by the over 700 Jan. 6-related defendants so far charged were “crimes of terrorism,” federal prosecutors seem to have uniformly pulled back from making any application of enhanced sentencing guidelines. It’s just one in a series of moves where the Department of Justice seems to be prosecuting the Jan. 6 insurgents with one hand tied behind their back … and it’s not clear why.

Back in June, CNN pointed out that none of those who invaded the Capitol building, raided congressional offices, damaged property, called for the death of Mike Pence and Nancy Pelosi, and wandered the halls with weapons and wrist restraints in an effort to derail the 2020 election have faced a charge of sedition. Conspiracy charges also seem to be off the table despite clear evidence that a number of those so far prosecuted worked together in planning and executing the violent assault. 

In fact, the Department of Justice has actually been allowing some of the low-level offenders to pick their own charges by pleading guilty to “a misdemeanor of their own choosing.”

That’s because all of these crimes are being treated as crimes that occurred in ordinary circumstances. Defendants are getting the same treatment as if they had wandered past a “No Trespassing” sign in the woods, or argued with a security guard at Macy’s. Several of the defendants have faced charges such as “unlawful picketing,” the use of which seems like a real stretch for the situation. What’s being left off of all charges so far is context—the fact that these crimes were committed to further the purpose of overturning the legitimate government of the United States. That’s a gift to each of the defendants that can be measured in years.

According to Politico, the threat of using the terrorism enhancements is playing a role behind the scenes in the sense that attorneys for the insurgents are being warned that, should their clients refuse to plead guilty, the Department of Justice could decide to put enhancements on the table. That’s a threat that should be tested soon as a number of defendants have insisted on going to a jury trial—including a pair of police officers and members of the Oath Keepers, whose actions involve violence against the Capitol Police. 

However, despite the fact that some of those who have pleaded to misdemeanor charges admitted to destruction and theft—actions that should have left them directly open to domestic terrorism enhancements—the Department of Justice has not yet asked that those enhancements be applied in any case. In fact, it’s destruction of federal property that most definitely is on the list of crimes where enhancements are possible. Other crimes that seem more violent, such as assaulting a police officer, are not on the list of actions considered domestic terrorism.

It’s not as if the federal government has shied away from terrorism enhancements in the past—it’s been used in a number of cases, including some where defendants were charged with growing marijuana in national forests. But when it comes to Jan. 6, the Department of Justice seems reluctant to pull out what could be their biggest weapon when it comes to gaining the full cooperation of defendants.

Prosecutors have also been oddly reluctant to apply charges of destruction of federal property—a charge that can carry a 10-year sentence—even in instances where defendants have bragged about exactly that:

In posts on Jan. 6, Ridge bragged that he participated in breaking down the door to Pelosi’s office. But a destruction of property charge, which could carry a 10-year sentence, wasn’t lodged.

However, there is one D.C. case where the government has informed the judge they were seeking a federal depredation of property charge. That’s the case of Black Lives Matter protester Micah Avery, who spray-painted the phrase “Yall not tired yet” onto stairs next to the Lincoln Memorial.

So far, most of those sentenced in connection with Jan. 6 have been those who the Justice Department considers low-level offenders. But they’re only low-level offenders if they’re treated as trespassers and “picketers” and not participants in an insurgency. Whether any of those who smashed their way into the Capitol ready to murder members of the government will face charges of sedition or domestic terrorism enhancements is yet to be seen. 

Avery is set for trial this month.