• Show Notes

By Joyce Vance

Dear Listener, 

Last week brought the sentencing of the first person convicted of a felony in connection with the events on January 6. Paul A. Hodgkins had previously pled guilty to one count of obstructing an official proceeding, a felony that carried a statutory penalty of as much as 20 years in custody. Prosecutors recommended a sentence of 18 months in custody, the midway point in Hodgkins’ guideline range of 15-21 months. The judge imposed a sentence of just 8 months. 

To many, this sounded an alarm, a concern that no one would be held accountable in connection with the insurrection.  There is some reason to be concerned — federal judges are supposed to avoid sentencing disparities among people convicted of similar crimes, so future defendants will cite this low-ball sentence when seeking reductions of their own. Despite this, there are strong indications from this sentencing proceeding that DOJ is serious about holding insurrectionists accountable.

First off, let’s dispense with the notion that Hodgkins was ever going to receive a sentence near the 20-year maximum for his crime. The statutory maximum is a ceiling the judge can’t go above; the sentence a defendant receives is usually much shorter. In determining the actual length of a defendant’s sentence, judges use guidelines created by the United States Sentencing Commission to assign a range of times within which a defendant should be sentenced. The range is based on a defendant’s criminal conduct in the case being sentenced and their prior criminal history. Guideline ranges can be much lower than the statutory maximum sentence, as we saw in Hodgkins’ case.

In calculating the guidelines for obstructing an official proceeding, the crime Hodgkins stands convicted of, a defendant who engages in destruction of property, or threatens or assaults another person would have a sharply higher range than Hodgkins, who the government determined did none of those things. For instance, a defendant convicted of the same offense, who damaged property while committing the crime, would likely be looking at a range of at least 41-51 months for sentencing. The range Hodgkins faced reflected that he was not one of the most serious offenders on January 6. In addition, his range was reduced because he pled guilty. The guidelines give significant credit to a defendant who accepts responsibility and pleads guilty — without that, Hodgkins’ guideline sentencing range would have been 24-30 months instead of 15-21.

It’s worth rehearsing the government’s assessment of the guidelines in Hodgkin’s case, because they give insight into prosecutors’ view of the seriousness of these crimes. We know there are cases coming behind this one that involve damage to property, threats against police officers and actual, brutal physical assaults, as well as conspiracy. The government’s pleadings made clear that they calculated Hodgkins’ range and based their recommendation on the absence of this kind of conduct in his case. As they move into more serious cases, including those that involve violence, expect them to seek higher sentences.

Of course, judges can, as this judge did, decline to impose the sentence the government suggests. In this case, the judge rejected not only the government’s 18-month recommendation but also the probation department’s 15-month recommendation, saying he was concerned about this defendant paying the price for what other defendants had done. While that benefited Hodgkins, who didn’t have any prior criminal history and was only inside the Capitol for thirty minutes, it bodes poorly for future defendants and perhaps for individuals who are yet to be charged.

A factor that could influence future cases is the cooperation agreements a number of defendants have with prosecutors. Prosecutors do not know whether cooperation will be successful until it is well underway, but it could potentially lead to prosecution of people who funded, organized, incited, or engaged in violence during the insurrection. This might mean that some of these defendants would receive lower sentences than their guidelines call for, but that would make sense if their cooperation led to prosecutions against “big fish.” There are no guarantees, but the existence of ongoing cooperation agreements suggests prosecutors are diligent and committed to pursuing prosecutions against the most culpable participants. 

Finally, it’s important to compare apples to apples. Some commentators have expressed concern that Hodgkins’ sentence is much lighter than the sentence of as much as 20 years that a Texas man, Hervis Rogers, may face. Rogers voted in the 2016 primary while on parole for a prior conviction. That’s a crime in Texas, although he maintains he was unaware he was ineligible to vote. But that case is being prosecuted by Texas prosecutors under Texas law, not by DOJ under federal law. This isn’t to justify the potential disparity in sentencing between these two cases, but rather to explain that federal prosecutors did not make a decision to treat Rogers more seriously than a participant in the insurrection. In fact, all indications are that they are taking the insurrection very seriously.

So, concerns that DOJ won’t hold the most culpable people who participated in the insurrection responsible seem, at best, premature, especially if they’re based on the sentence the judge imposed in this one case.

For prosecutors — and for all of us if we want to continue to live in a country grounded in the rule of law — the process matters, and especially due process. No one should be charged until a thorough investigation has developed evidence sufficient to establish guilt beyond a reasonable doubt. Sometimes prosecutors are viewed as being too slow or too cautious. While it may look that way from the outside, prosecutors are focused on getting it right, rather than rushing to a decision. Nowhere is that more true than with the effluvium of the Trump administration. 

In other words: the sky isn’t falling. Despite the judge’s decision to reject DOJ’s recommendation in Hodgkins’ case, DOJ gives every indication it intends to hold those who participated in the insurrection responsible. If there are any tea leaves to be read, they point to the Justice Department handling the January 6 cases with the diligence, respect for the law, and commitment to the legal process that we’re entitled to expect of it.

Stay Informed,

Joyce