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

Hundreds of Donald Trump supporters accused of storming the U.S. Capitol have faced the same choice in the three years since the attack: either admit guilt and accept the consequences, or take their chances at trial in the hope of a rare acquittal.

Those who gambled — and lost — during a trial received significantly longer prison sentences than those who took responsibility for participating in the Jan. 6, 2021, attack, an Associated Press court investigation has found.

The AP's analysis of Capitol riot conviction data reinforces a well-entrenched principle of the U.S. criminal justice system: Pleading guilty and cooperating with authorities has a significant advantage when it comes time for sentencing.

“On the one hand, the Constitution guarantees suspects the right to a jury trial. It is a fundamental constitutional right. But the reality is that if you exercise that right, you will likely be punished more severely than you would have been if you had pleaded guilty,” said Jimmy Gurulé, a law professor at the University of Notre Dame and a former federal federal government official. prosecutor.

More than 700 defendants have pleaded guilty to federal charges in connection with the January 6 attack, while more than 150 others have opted for a trial decided by a judge or jury in Washington, DC. It's no surprise that most cases have ended in settlements — many rioters were captured on video inside the Capitol and later raved about their actions on social media, making it difficult for their lawyers to mount a strong defense.

The average prison sentence for a Jan. 6 defendant convicted of a crime after a contentious trial is roughly two years longer than for those who plead guilty to a crime, according to the AP's investigation of more than 1,200 cases. The data also shows that rioters who pleaded guilty to misdemeanors were much less likely to receive prison time than those who contested their misdemeanor charges at trial.

Attorneys for some of the Jan. 6 defendants who went to trial have complained about what has long been described as a “trial burden” — a longer sentence imposed on those who refused to accept plea deals. A lawyer made that argument last year after a landmark trial of former leaders of the far-right extremist group Proud Boys, 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 of 27 to 33 years for a plot to stop the peaceful transfer of presidential power from Donald Trump to Joe Biden.

After the convictions, defense attorney Norm Pattis submitted a plea that prosecutors filed before the Proud Boys went to trial. Prosecutors' post-trial sentencing recommendations were three to four times higher than what they estimated the defendants would face if they had pleaded guilty to seditious conspiracy before trial.

Prosecutors have convinced the judge to grant a “terrorism enhancement” that significantly increases the number of prison sentences recommended in the sentencing guidelines. Pattis argued that the administration's recommendations amounted to a test tax that violated the Sixth Amendment.

“In fact, the defendants were punished for demanding their right to trial,” he wrote.

In the federal court system as a whole, nearly 98 percent of convictions in the year ending 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 the jury because suspects 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 negotiations are unfairly coercive and can push even innocent people into taking a deal out of fear of a long prison sentence if they take their chances at trial.

As of Jan. 1, at least 157 defendants were sentenced after pleading guilty to serious crime charges related to the attack on the Capitol. They received an average prison sentence of about two years and five months, according to AP data.

At least 68 riot defendants have been convicted of a crime after trials involving disputed facts. They are sentenced to an average of about four years and three months behind bars.

The AP's comparison excludes 10 sentences for seditious conspiracy convictions because no one who has pleaded guilty to the same charge has yet been sentenced. The analysis also excludes convictions from more than a dozen “certain court trials,” in which the judge decided the cases based on facts both sides agreed to before the trial began.

The gap is also 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 assault was about three years and five months. The average prison sentence for 28 rioters convicted of assault at trial was about six years and one month.

The trend also applies to crimes against Capitol rioters who did not engage in violent or destructive behavior. Of the 467 riot defendants who pleaded guilty to a crime, more than half avoided prison time. Meanwhile, judges have imposed prison sentences on 22 of the 23 defendants who went to trial and were convicted solely of misdemeanors.

Following the initial 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 pistol, 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 administration'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 the idea that you have the right to go to trial. You are not going to be sentenced to three times the penalty 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 was not seeking “a criminal penalty of any kind,” adding, “It's because of the conduct of the suspect here.”

The judge said Reffitt's sentencing guidelines would have been about two years less if he had accepted responsibility early and pleaded guilty.

“There are costs associated with a lawsuit, and the guidelines make it quite clear what those costs are,” Friedrich said.

The risks of a lawsuit are also illustrated by the case against Dr. Simone Gold, a leading figure in the anti-vaccine movement. Gold entered the Capitol with John Strand, a friend who worked for a group Gold had 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 one count of obstruction.

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

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

“It would make sense that Mr. Strand would receive a lesser sentence. After all, they both exhibited exactly the same behavior that day, even though Dr. Gold was the reason they both entered the Capitol,” Brennwald wrote in the lawsuits.

The judge told Strand that he would not face a criminal trial for exercising his constitutional rights. Unlike Gold, Strand received no credit for accepting responsibility for his behavior on January 6.

“And on the contrary, you have not accepted responsibility in a quite remarkable way. Not only have you claimed that the government has not proven its case, but you have also 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.