(NEWSnet/AP) — Hundreds charged with storming the U.S. Capitol in 2021 have faced a choice in the three years since the attack: either admit guilt or take their chances on a trial in hopes of 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 attack, an Associated Press review of court records shows.

AP’s analysis reinforces a tenet of the U.S. criminal justice system: Pleading guilty and cooperating with authorities carries 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,"said Jimmy Gurule, a University of Notre Dame law professor and former federal prosecutor. "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,” 

More than 700 defendants have pleaded guilty to federal charges related to the Jan. 6 attack. More than 150 others have opted for a trial decided by a judge or jury in Washington, D.C. 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 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 AP’s review of more than 1,200 cases. Rioters who pleaded guilty to misdemeanors were far less likely to receive 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 in 2023 after a landmark trial for former leaders of Proud Boys convicted of seditious conspiracy.

A judge sentenced four ex-Proud Boys members to prison terms ranging 15-22 years. Prosecutors had recommended prison terms ranging from 27 to 33 years.

After the sentencings, defense attorney Norm Pattis filed plea offers that prosecutors made before Proud Boys participants 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.

Pattis argued 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, 2023, were the result of a guilty plea, according to statistics collected by Administrative Office of the U.S. Courts. Few criminal cases make it to a jury because defendants have incentive to plead guilty and spare the government from spending time and resources on a trial.

But advocates for reform have complained that plea-bargaining is unfairly coercive and can push people who are innocent to accept a deal out of fear of a lengthy prison sentence.

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

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