Editor’s Note: Dennis Aftergut is a former federal prosecutor, currently Of Counsel at the Renne Public Law Group in San Francisco. The opinions expressed here are his own. Read more opinion at CNN.
On July 19, Paul A. Hodgkins, the first insurrectionist convicted of a felony to be sentenced for his crime of storming the Capitol on January 6, received an eight-month sentence to federal prison. Federal district court Judge Randolph Moss, former Assistant Attorney General in the Department of Justice, sent a pitch perfect sentencing message in two important ways.
First, he made clear that the damage Hodgkins and his fellow rioters caused went far beyond the several hours’ delay in certifying the 2020 presidential election. Rather, by trying to block the peaceful transition of power, the judge emphasized, Hodgkins and his collaborators in crime were “declaring their loyalty to one individual rather than to the nation.” Judge Moss referred to the riot as “the stain on our nation that will remain for decades.”
Moss did not buy arguments that Hodgkins’ participation was just “15 minutes of bad judgment” or that he was simply exercising his First Amendment right of assembly.
Second, Judge Moss tailored his sentence to the individual before the court, exactly as judges are supposed to do. Hodgkins had four things going in his favor – actions and history that may not apply to the next insurrectionists sentenced:
- He pleaded guilty, an act that reflects someone taking responsibility for his crime. Judges appreciate such pleas for this reason and also because they help clear court dockets. Shorter sentences are typical for a guilty plea.
- Hodgkins expressed remorse, saying, “I can say without a shadow of a doubt that I am truly remorseful and regretful for my actions in Washington, DC, on January 6. … I say this because of the damage that day’s incident caused and the way this country that I love has been hurt.”
- The fact that Judge Moss took a recess after Hodgkins spoke and before delivering his sentence suggests to this former prosecutor that the judge had initially come out ready to impose more time in jail. He may have reconsidered in light of Moss’ apparent sincerity.
- Hodkins engaged in no violence to others and destroyed no public property.
- He had no criminal record.
In light of those mitigating factors, eight months is a serious sentence. Others awaiting trial for the insurrection may think hard about the benefits of pleading guilty.
Some observers are sure to note that the prosecutors recommended 18 months in prison. But it’s important to note that prosecutors usually recommend more time than judges are willing to impose. In sentencing former Minneapolis police officer Derek Chauvin for the murder of George Floyd, Judge Peter Cahill cut seven and one-half years off the recommendation of Chauvin’s prosecutors.
If you still think eight months is a short time for someone to spend without liberty, take some time to recount what you’ve done since before Christmas last year. If you’ve always been able to go wherever you wanted, or don’t like being told what to do, it’s no fun spending even a day in jail. I even hated hearing the door clink behind me as a prosecutor when I visited cooperating witnesses locked up after their arrests for their involvement in a conspiracy.
One other reflection about how long the sentence is. It seems like a century ago that House Minority Leader Kevin McCarthy (R-CA) was pinning the blame for the insurrection on then-President Donald Trump. Or that Sen. Lindsey Graham (R-SC) was saying, “Count me out, enough is enough” with regard to Trump. Both statements were made far less than eight months ago.
Punishment for crime serves many purposes in society. The overarching goal for prosecutors is deterrence. It is particularly important in this case, with the Department of Homeland Security’s May 2021 heightened warnings about domestic violence.
Fear of jail time is something that ought to concern most people who might consider participating in some future attack on a government site – even if hardcore militants are incorrigible. In terms of preventing another insurrection, reducing the number of those backing up violent leaders of disorder is key.
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This first sentence to jail time should remind those who love our Republic to appreciate Justice Department leaders and prosecutors who are aggressively holding the rioters to account. Former DOJ members like myself know: Getting a defendant sentenced within six months of a notorious crime is warp speed.
May the Justice Department use these prosecutions to follow the evidence as far as it goes. All who “gave aid and comfort” to the violent assault on our government – as the anti-insurrection statute, 18 U.S.C § 2383, provides – must be brought to justice.