Why Wesley Snipes and Kodak Black went to prison, but Hunter Biden likely won’t

Why is Hunter Biden, President Joe Biden’s son, likely to avoid prison time after accepting a plea deal with federal prosecutors, while actor Wesley Snipes and rapper Kodak Black served prison sentences on similar charges?

That’s what some observers have asked after Hunter Biden’s June 20 agreement to plead guilty to two tax-related misdemeanor offenses and enter a pretrial diversion program to avoid prosecution on a separate felony firearm offense.

The younger Biden is not expected to serve prison time, though ultimately that will be up to a judge at a hearing scheduled for July 26. Some reports suggest the Justice Department will recommend probation for the tax charges. Following former President Donald Trump’s indictment, some people criticized what they called a "sweetheart deal" for Hunter Biden.

Rep. Byron Donalds, R-Fla., suggested a double standard in the Justice Department’s handling of criminal cases in a June 20 tweet. Referring to Snipes, who was sentenced in 2008 to three years in prison for tax evasion, Donalds tweeted, "When does evading millions in federal income taxes get a slap on the wrist? (Ask Wesley Snipes)."

Biden’s weapons charge also sparked comparisons to Black, who in 2019 was sentenced to nearly four years in prison after pleading guilty to lying on federal gun background-check forms about his history of violent criminal offenses. By comparison, Biden possessed a gun while using illegal drugs.

"2 tiers of justice? Kodak was charged for the same crime. Got over 3 years. Mr. Biden will not serve a day. Feels right? Do FBI agents and federal authorities take cases personally?," said Black’s attorney, Bradford Cohen, in a June 20 Instagram post. 

Legal experts told us the three highly publicized cases cannot be directly compared. 

They said in the Snipes case, two key factors were different than in Biden’s case: Snipes owed the U.S. government significantly more money, and he proceeded to trial rather than agreeing beforehand to plead guilty. Sentences are typically harsher in cases that go to trial, as sentencing guidelines permit lower sentences for plea deals. Federal plea deals are also common because the odds of acquittal at trial are low, PolitiFact reported.

In Black’s case, an extensive criminal history factored in his sentencing, experts said.  

Biden on June 20 agreed to plead guilty to misdemeanor charges of failure to pay more than $100,000 in income taxes in 2017 and 2018, according to court documents. 

News reports citing unnamed sources said the Justice Department would recommend probation instead of jail time for Biden on the tax charges. In 2021, Hunter Biden paid off the taxes he owed, according to news reports. 

U.S. Attorney David Weiss in Delaware, who was appointed by former President Donald Trump, had been investigating Hunter Biden’s finances since 2018. 

The Justice Department said June 20 that its investigation into Biden continues.  Biden’s attorney, Christopher Clark, said in a statement to The Associated Press that he believed the investigation was over.

Also, Biden agreed to enter a pretrial diversion program to avoid prosecution on a felony charge of possession of a firearm while being "an unlawful user of or addicted to a controlled substance," the documents say. That law’s constitutionality is being challenged in federal court after a Supreme Court ruling last year, and news reports have said Biden’s lawyers cited that as a consideration for prosecutors to take into account. 

Biden, according to news reports, was under investigation for lying on a federal gun-purchase form when asked if he was a drug user — a crime that could have carried a 10-year prison sentence. But he was not charged with that offense. 

Federal pretrial diversion programs such as the one Biden agreed to are sometimes offered in cases involving substance abuse. Failure to complete the program can sometimes result in later charges.

Jeffrey Fagan, a Columbia School of Law professor, said diversion in a gun case such as Biden’s is typical.

"With no prior record, I’m surprised that charges were even filed," Fagan said.

On its face, Snipes’ tax evasion case bears some resemblance to Biden’s. In 2008, a federal jury found Snipes guilty on three misdemeanor counts of failing to file federal income tax returns from 1999 to 2001. The actor was tried alongside co-defendants Eddie Ray Kahn, who owned a company that helped tax deniers avoid paying taxes, and Douglas Rosile, a former accountant for Kahn’s company. 

Snipes disputed the charges against him with common anti-tax arguments, including that his 14th Amendment rights had been violated as a "legal nontaxpayer."

Snipes, who owed the government about $7 million in unpaid taxes, also was acquitted for other charges: two felony charges of fraud and conspiracy and three other misdemeanor tax charges of not paying taxes from 2002 to 2004.

After losing a 2010 appeal for a retrial, Snipes served 28 months in prison and was released on April 2, 2013. He then spent about three more months under house confinement. 

Snipes’s stiffer sentence was a result of denying responsibility for his actions and taking his case to trial, experts said.

Michael Weinstein, a lawyer and former federal prosecutor, said the amount of the loss, and the statutes under which Snipes and Biden were prosecuted, were the major differences in the cases. 

"Tax case resolutions can range from probation to prison. I’ve seen both," he said. 

Black, whose legal name is Bill Kapri, in 2019 reached a plea deal with prosecutors and was sentenced to nearly four years in prison. He admitted lying about his criminal history on federal background-check forms on two separate occasions when trying to purchase firearms in Florida, according to news reports.

Black had other charges pending against him in other states when he was sentenced, including drug, weapons and sexual assault charges. Prosecutors said one of the guns he purchased was found at the scene of a Florida shooting with Black’s fingerprints on it. He was not charged in that case, the Sun-Sentinel, a southeast Florida newspaper, reported.

Experts said Black’s criminal record led to prison time even though he pleaded guilty.

"The guidelines rely on the criminal history of a defendant," said David Haas, a defense attorney and former federal prosecutor, who added that Black faced a different gun charge than Biden.

Trump, in a flurry of pardons and commutations on his final day in office, commuted Black’s sentence, of which the rapper had served nearly half. A White House press release cited Black’s charitable efforts. At the time of the commutation, Black was under indictment in a 2016 sexual assault case. In 2021, he pleaded guilty in that case to first-degree assault of a teenage girl in a South Carolina hotel room and received probation, The Associated Press reported

Robert Leider, a George Mason University assistant law professor, said he was surprised the Justice Department didn’t push for a felony conviction of Biden, even if it didn’t seek significant jail time.

"I think what’s most surprising here is structuring the deal to avoid the collateral consequences of a felony conviction," said Leider, adding that prosecutors often will seek the most serious charge the evidence will bear. He cited the 2019 college admissions bribery scandal, in which actor Felicity Huffman pleaded guilty to a felony and was sentenced to two weeks in federal prison.

Weinstein said prosecutors may sometimes agree to a misdemeanor charge if they think their evidence is shaky or a defense argument is stronger than originally understood. A misdemeanor charge could also be an enticement for the defendant to plead, he said

Leider said prosecutors were in a tough spot in Biden’s case. 

"If they don’t prosecute him at all, there are going to be allegations of special treatment. If they brought all the felonies they could have brought there are going to be allegations they’re treating him more harshly," he said. "They kind of split the baby here."

PolitiFact researcher Caryn Baird contributed to this report.