To plead or not to plead? That is the question for hundreds of Capitol riot defendants

Hundreds of Donald Trump supporters charged with storming the U.S. Capitol have faced the same choice in the three years since the attack: either admit their guilt and accept the consequences or take their chances on a trial in hopes of securing a rare acquittal.

Those who have who gambled — and lost — on a trial have received significantly longer prison sentences than those who took responsibility for joining the Jan. 6, 2021 attack, an Associated Press review of court records shows.

The AP’s analysis of Capitol riot sentencing data reinforces a firmly established tenet of the U.S. criminal justice system: Pleading guilty and cooperating with authorities carries a substantial benefit when it comes time for sentencing.

″On one hand, the Constitution guarantees the accused a right to a jury trial. It’s a fundamental constitutional right. But the reality is that if you exercise that right ... you’re likely to be punished more severely than you would have been had you pled guilty to the offense,” said Jimmy Gurulé, a University of Notre Dame law professor and former federal prosecutor.

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More than 700 defendants have pleaded guilty to federal charges related to the Jan. 6 attack, while over 150 others have opted for a trial decided by a judge or jury in Washington, D.C. It’s no surprise most cases have ended in a plea deal — many rioters were captured on video inside the Capitol and later gloated about their actions on social media, making it difficult for their lawyers to mount much of a defense.

The average prison sentence for a Jan. 6 defendant who was convicted of a felony after a contested trial is roughly two years longer than those who pleaded guilty to a felony, according to the AP’s review of more than 1,200 cases. The data also show that rioters who pleaded guilty to misdemeanors were far less likely to get jail time than those who contested their misdemeanor charges at a trial.

Lawyers for some Jan. 6 defendants who went to trial have complained about what has long been described as a “trial tax”— a longer sentence imposed on those who refused to accept plea deals. A defense lawyer made that argument last year after a landmark trial for former leaders of the far-right Proud Boys extremist group convicted of seditious conspiracy.

A judge sentenced four ex-Proud Boys leaders to prison terms ranging from 15 to 22 years. Prosecutors had recommended prison terms ranging from 27 to 33 years for a plot to stop the peaceful transfer of presidential power from Donald Trump to Joe Biden.

After the sentencings, defense attorney Norm Pattis filed plea offers that prosecutors made before the Proud Boys went to trial. Prosecutors’ sentencing recommendations after the trial were three or four times higher than what they had estimated the defendants would face if they had pleaded guilty to seditious conspiracy before the trial.

Prosecutors persuaded the judge to apply a “terrorism enhancement” that significantly increased the range of prison terms recommended under sentencing guidelines. Pattis argued that the government’s recommendations amounted to a trial tax that violated the Sixth Amendment.

“In effect, the defendants were punished because they demanded their right to trial,” he wrote.

In the federal court system overall, nearly 98 percent of convictions in the year that ended Sept. 30 were the result of a guilty plea, according to data collected by the Administrative Office of the U.S. Courts. Few criminal cases make it to a jury because defendants have a powerful incentive to plead guilty and spare the government from spending time and limited resources on a trial.

But advocates for reform have long complained that plea bargaining is unfairly coercive and can even push people who are innocent to take a deal out of fear of a lengthy prison sentence if they take their chances at trial.

As of Jan. 1, at least 157 defendants have been sentenced after pleading guilty to felony charges for serious crimes related to the Capitol attack. They received an average prison sentence of approximately two years and five months, according to the AP’s data.

At least 68 riot defendants have been convicted of a felony after trials with contested facts. They have been sentenced to an average of approximately four years and three months behind bars.

The AP’s comparison excludes 10 sentences for seditious conspiracy convictions because nobody who pleaded guilty to the same charge has been sentenced yet. The analysis also excludes convictions from over a dozen “stipulated bench trials,” in which the judge decided the cases based on facts that both sides agreed to before the trial started.

The gap is similarly wide for a subset of felony cases in which a Capitol rioter was convicted of assault. The average prison sentence for 83 rioters who pleaded guilty to an assault charge was approximately three years and five months. The average prison sentence for 28 rioters convicted of an assault charge at trial was roughly six years and one month.

The trend also applies to misdemeanor cases against Capitol rioters who didn’t engage in violent or destructive behavior. Of 467 riot defendants who pleaded guilty to a misdemeanor, more than half avoided jail time. Meanwhile, judges handed down terms of imprisonment to 22 of 23 defendants who went to trial and were convicted only of misdemeanors.

After the first trial for a Jan. 6 case, U.S. District Judge Dabney Friedrich sentenced a Texas man to more than seven years in prison after a jury convicted him of storming the Capitol with a holstered handgun, helmet and body armor. Prosecutors had recommended a 15-year prison sentence for Guy Reffitt, but before the trial, prosecutors presented him with a possible plea deal that would have recommended less than five years in prison.

Reffitt’s attorney, F. Clinton Broden, said in a court filing that the government’s 15-year recommendation “makes a mockery of the criminal justice system.”

“One of the things when we talk about our democracy and our Constitution is this idea that you have a right to go to trial. You’re not sentenced to three times as high of a sentence if you go to trial,” Broden said during the hearing, according to a transcript.

Justice Department prosecutor Jeffrey Nestler told the judge that the government wasn’t seeking “a trial penalty in any stretch of the imagination,” adding, “It’s because of the defendant’s conduct here.”

The judge said Reffitt’s sentencing guidelines range would have been roughly two years lower if he had accepted responsibility early and pleaded guilty.

“There’s a cost for going to trial, and the guidelines make pretty clear what that cost is,” Friedrich said.

The risks of going to trial also are illustrated by the case against Dr. Simone Gold, a leading figure in the anti-vaccine movement. Gold entered the Capitol with John Strand, a boyfriend who worked for a group that Gold founded.

Both were charged with the same crimes. Gold pleaded guilty to a misdemeanor. Strand went to trial and was convicted of five charges, including a felony obstruction charge.

U.S. District Judge Christopher Cooper sentenced Gold to two months in prison and sentenced Strand to two years and eight months behind bars. Prosecutors had sought a prison sentence of six years and six months in prison for Strand.

Strand’s lawyer, Stephen Brennwald, questioned why the government’s sentencing recommendation for Strand was nearly 40 times longer than Gold’s prison sentence. Strand was following Gold’s lead on Jan. 6, the attorney argued.

“It would stand to reason that Mr. Strand should receive a lesser sentence. After all, they both engaged in exactly the same conduct that day, though Dr. Gold was the reason that both of them went into the Capitol,” Brennwald wrote in court papers.

The judge told Strand that he wasn’t getting a trial penalty for exercising his constitutional rights. Unlike Gold, Strand didn’t get credit for accepting responsibility for his conduct on Jan. 6.

“And to the contrary, you’ve not accepted responsibility in a pretty remarkable way. You have professed not just that the government didn’t prove its case, but you have professed your innocence numerous times,” Cooper said, according to a transcript.

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Associated Press writer Alanna Durkin Richer in Boston contributed to this report.