The first prison sentence has been handed down in a prosecution arising out of the Jan. 6 melee at the Capitol, and it’s steep.
In June, Paul Allard Hodgkins pled guilty to one felony count of entering the Capitol to obstruct Congress. Today he was sentenced to eight months behind bars.
To date, only one other person has been sentenced for the activities that occurred on Jan. 6. Anna Morgan-Lloyd, a 49 year-old grandmother from Indiana, was sentenced in late June to three years of probation and ordered to pay $500 in restitution after pleading guilty to one charge of misdemeanor disorderly conduct.
Hodgkins is the first person convicted of a felony to be sentenced.
A 38 years-old former Eagle Scout who lives in the Tampa Bay area, Hodgkins was a blue collar worker with a steady nine-to-five over the last seven years.
On Jan. 6, he traveled alone by bus from Florida to Washington, D.C. to attend the Stop the Steal rally. After the rally, he made his way to the Capitol building with the crowd, and, following others, walked into the Capitol an hour after the Congress had recessed.
Hodgins, said his lawyer in his sentencing memorandum to the court,
“had an absolutely miniscule … role in [the events of Jan. 6]. Mr. Hodgkins was not involved in any way, shape or form, with violence toward anyone in law enforcement. Mr. Hodgkins was not involved in any way, shape or form with any property damage done to the Capitol. Mr. Hodgkins never touched a single item within the Capitol building itself. His sole participation simply included walking into the building, onto the floor of the United States Senate, and leaving the same building, all within a 15-minute period of time.
According the government’s sentencing memorandum, Hodgkins entered the Senate Chamber holding a Trump 2020 flag, took a selfie, and prayed with “other rioters” who were congregated there before exiting the Senate Chamber and the U.S. Capitol.
Hodgkins was arrested on February 16, 2021, but unlike many others who were present at the Capitol on Jan. 6 who remain remanded in solitary confinement, Hodgkins was allowed to remain at liberty throughout his criminal prosecution. (I previously wrote about one of the less fortunate arrestees –Timothy Hale-Cusanelli – at Legal Insurrection here.)
He was thereafter indicted in March on five criminal counts. Just one of those was a felony – Obstruction of an Official Proceeding and Aiding and Abetting under 18 USC 1512(c)(2). The rest were misdemeanors sounding in trespass and disorderly conduct.
For the last five months, Hodgkins was effectively on house arrest – he wore an ankle monitor and adhered to a curfew. According to the probation officer who had been monitoring Hodgkins throughout the criminal case, he was fully compliant while on release.
In June, he pled guilty. And it’s not hard to see why – he simply lacked the resources to put up a fight.
In his sentencing memorandum, Hodgkins’ lawyer described his client as someone who is “not wealthy in any way, shape or form.” Hodgkins, said his lawyer, “rents a home in what is considered the poorest, working class neighborhood in Tampa,” and “works over 40 hours a week, lives pay check to pay check, barely getting by financially.”
Despite the fact that Hodgkins had no prior criminal record and was entirely cooperative with law enforcement, federal prosecutors recommended a sentence of 18 months’ incarceration (the federal sentencing guidelines called for a recommended range of between 15 to 21 months.)
The first reason given by the government to justify their sentencing recommendation was that Hodgkins carried rope, eye goggles, and latex rubber gloves in his backpack on the day of the melee, and that this meant that he acted with premeditation and was “prepared for violence from the outset.”
Although Hodgkins explained that these items were part of a First Aid kit, the government responded that even if that were so, such a kit meant that Hodgkins anticipated the possibility of being involved in a violent conflict in D.C.
The government next asserted that such its proposed sentence was “necessary to promote respect for the law” because “[t]he violence and destruction of property at the U.S. Capitol on January 6 showed a blatant and appalling disregard for our institutions of government and the orderly administration of the democratic process.”
Finally, the government contended that a significant jail sentence was essential “to deter others” from engaging in “domestic terrorism,” which it said “the breach of the Capitol certainly was.” On this point, the government stated that “terrorists, even those with no prior criminal behavior, are unique among criminals in the likelihood of recidivism, the difficulty of rehabilitation, and the need for incapacitation.”
There has been an alarming trend among the federal law enforcement and national security apparatuses of labeling those who don’t subscribe to liberal orthodoxy as domestic terrorists, white supremacists and violent extremists. This has been easy to do since there is no domestic terrorism statute, and therefore no uniform definition of what the term means.
The FBI’s website defines “domestic terrorism” as “[v]iolent, criminal acts committed by individuals and/or groups to further ideological goals stemming from domestic influences, such as those of a political, religious, social, racial, or environmental nature.” While the violent and destructive conduct of Antifa and Black Lives Matter in Portland, Seattle, Minneapolis, and other cities throughout the country over the last year fit the bill, the phrase “domestic terrorism” is just not used in reference to these groups or their campaigns of intimidation, destruction and violence.
Instead, the absence of a settled definition for domestic terrorism has allowed the phrase to be flexibly applied against anyone who the entrenched DOJ bureaucrats wish to target. And to date, it has been used almost exclusively against those on the ideological right.
That certainly was the case with Mr. Hodgkins.
What was so troubling about the government’s sentencing arguments in this case was that all of their reasons for incarceration turned on actions undertaken by individuals other than the actual criminal defendant. Indeed, at no time on Jan. 6 did Hodgkins ever engage in any violence or property destruction. He trespassed, yes, but beyond that he simply carried a flag, took a selfie and prayed.
The government’s message was clear – those on the ideological right are fungible, and we can punish one for the sins of the others.
That type of kin punishment – a hallmark of authoritarian regimes from the Nazis to North Korea – might be how the criminal law works in Third World Banana Republics and under Sharia Law, but not in America, right?
Hodgkins’ attorney argued with passion that sentencing is not a blunderbuss activity, but an intensely personal one – indeed, federal law requires that, before imposing sentence, courts scrutinize the unique characteristics and history of the individual defendant as well as the specific circumstances of the charged offense.
He exhorted that a prison sentence was unnecessary to take the proverbial pound of flesh from his client:
“Because [Hodgkins] is now a convicted felon for the entirety of his life, he loses his right to bear arms, his right to vote in the State of Florida, will have to register as a convicted felon wherever he lives, [and] will lose the ability to rent a residence at most locations who do background checks.”
Hodgkins’ “15-minutes of bad judgment,” said his lawyer, would serve to “cancel” him, and his felony conviction would brand him with a “scarlet letter” that he would have to wear “for the rest of his life.”
Further, argued Hodgkins’ attorney, a prison sentence “would take a productive taxpaying member of the Tampa Bay community, and turn him into a ward of the State. [Hodgkins] would go from being fully and gainfully employed as a working-class Tampa resident, to unemployed and homeless.”
Despite the force of these arguments, they ran into an unsurmountable headwind: The court wanted to send a political message.
Hodgkins was not sentenced for the crimes he committed, but for those perpetrated by others – and above all else, for the mortal sin of supporting Donald Trump.
In his sentencing memo, Hodgkins’ lawyer wrote poetically that the story of his client was one of
“a man who for just one hour on one day, lost his bearings and his way. It is the story of a man who made a fateful decision to follow the crowd, and found himself for approximately 15 minutes in a place that he sincerely regrets to have been. It is the story of a man who is worthy of this Court’s mercy and grace. Paul is an avatar of us all, and how this Court deals with his misconduct will say much about where we are and what we will become as a nation.”
Today, the court is the one that lost its way. And how it dealt with Paul Hodgkins says a lot about where we are today as a nation.
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Ameer Benno is an appellate and constitutional law attorney. He was the Republican candidate for the U.S. House of Representatives in 2018 in New York’s Fourth Congressional District, and he frequently appears on national television and radio to give legal and political commentary. Follow him on Twitter at @AmeerBenno.
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