Set For Sentencing Doug Passon

Today history is being made, as the first criminal trial of a former president for multiple felony allegations begins in New York.
But none of the pundits seem to be talking about what happens if Trump loses at trial.
Therefore, helping us get set for sentencing is a superb New York criminal defense attorney, Richard Willstatter, to break it all down.
 
IN THIS EPISODE:
 
Possible sentencing ranges if convicted; Whether, if convicted, he could be taken into custody upon conviction or sentencing; Whether the judge can consider “other conduct” of Trump at sentencing if convicted; Where Trump might serve a sentence if convicted; How quickly might sentencing occur should he be convicted; Whether Trump could delay his sentencing if convicted. LINKS:
Trump Indictment & Trump Statement of Facts:
https://www.politico.com/news/2023/04/04/read-the-trump-indictment-document-00087925
 
Richard Willstatter:
http://greenandwillstatter.com/
 

Last Thursday, Judge Lewis Kaplan sentenced Sam Bankman-Fried to 25 years in prison.  Some think that’s an appropriate result.  Some think it should have been more.
But this sentence far more than necessary to meet the goals of sentencing.  The bigger problem is, there were likely missed opportunities to convince the Judge that justice demanded a lower sentence for Sam. 
Therefore, here is the straight scoop on SBF’s sentencing (we have the full transcript) and the larger problems it reveals about federal sentencing and beyond.
 
IN THIS EPISODE:
 
Judge Kaplan’s “tip of the cap” to the insurrectionists; The missed opportunity to present powerful sentencing statistics, including average federal sentences for murder, kidnaping, sexual abuse, and child pornography; Judge Kaplan’s explicit comments regarding broken guidelines; Autism Spectrum Disorder – the (largely ignored) elephant in the room; SBF’s sentence compared to  (spoiler alert, his sentence is HIGHER than all of ‘em); The missed opportunity of highlighting a LIFE EXPECTANCY analysis at sentencing; The missed opportunity to tell the story of BOP classification issues;  
LINKS:
 
Ep. 73: Sam Bankman-Fried: Is Autism the Missing Piece of Mitigation?
https://youtu.be/jkh6eEkvBRg?si=qXJxNu4SBKCqTWEq
 
 

The guidelines commission is gearing up to make their recommendations for the next round of amendments.  It’s the follow-up album to their first hit record, which included memorable songs like The “Zero Point Offender Boogie”, and “Release Me (Compassionately)”.  The real question is can they top their debut with their sophomore effort?  Will there be any hits?  Can we dance to it? 
Mark Allenbaugh and I hit the highlights, and offer up some B-side pontifications about the death of the administrative state, why Trump’s immunity claim is destined to die in the Supreme Court, and what rhymes with “acquitted conduct”????
 
IN THIS EPISODE:
 
Proposed amendment to reclassify classic “departures” into a generic category; Proposed amendment to deal with “intended loss” issue in fraud cases; The possible death of “Chevron Deference” and what that could mean for the guidelines (spoiler alert – it will render all commentary meaningless); Remembering the “rule of lenity”; Proposed changes to “youthful offender” criminal history provision; Following up on “acquitted conduct”; A really cool discussion about Booker and how the guidelines should (and must) interplay with 18 USC 3553; The only true fix to render the guidelines constitution is to implement “charge offense sentencing”; Revisiting the proposed amendment to criterion 10 of the Zero Point Offender guideline.  
LINKS:
 
Acquitted Conduct Revisited with Mark Allenbaugh & Prof. Doug Berman:
https://youtu.be/iRG6cbZ_YCY?si=VZ_IEDp5Zq8Z8esC
 
Imperfect 10: The Commission’s attempt to fix the Zero Point Offender Criteria:
https://youtu.be/amEXfhgMpa8?si=_tZ9-FIOrw-b4huP

Mitigation has been an integral part of death penalty defense for decades and there are minimum standards that apply in that context.  When an early and thorough mitigation workup occurs, good things happen.
But, many non-capital attorneys don’t recognize the need to adopt this approach in their everyday criminal matters.  Without good mitigation, even in non-cap cases, the sentening results will almost certainly be disastrous.
It’s time to make MITIGATION a priority for every defense team.   
To that end, a phenomenal and deeply important new article makes the case for the creating minimum standards of care for developing mitigation in non-capital cases.   In this week's set for sentencing, we talk to the fantastic four authors of this piece, Elizabeth Vartkessian, Thea Posel, Anthony Ginez, and Lela Hubbard!
 
IN THIS EPISODE:
 
Going back three generations to develop mitigation; Need for repeated and face-to-face interviews;  The need for a team approach to mitigation;  The importance of “coalition building”;  Anticipated resistance to uniform mitigation standards in non-cap cases; How uniform standards will force more funding for mitigation; How uniform standards will give attorneys more support for second-look cases; How to bridge the gap between the data and the narrative;  Preventing mitigation “backfire”; Where we are in the process of securing uniform standards and how you can help.  
LINKS: 
 
Article under consideration:
https://law.utexas.edu/faculty/publications/2023-when-justice-depends-on-it-the-need-for-professional-standards-for-mitigation-development-/download
Capital guidelines For Mitigation:
https://law.hofstra.edu/pdf/academics/journals/lawreview/lrv_issues_v36n03_cc1_guidelines_final.pdf
https://www.americanbar.org/content/dam/aba/administrative/death_penalty_representation/Standards/National/supplementary-guidelines-mitigation-july-2008.pdf
Campaign for fair sentencing of youth: https://cfsy.org/
Community Resource Initiative  (now “Full Picture Justice”)  https://www.fullpicturejustice.org/about
Advancing Real Change (ARC)  https://advancechange.org/
 
FIRST EPISODE WITH DR. LIZ!  As we discussed, Dr. Vartkessian was the VERY FIRST guest on Set for Sentencing.  For a stroll down memory lane, here is that link:
https://setforsentencing.com/podcast/disrupting-the-dehumanizing-sentencing-process/
 

The Bureau of Prisons is dysfunctional, dangerous and dehumanizing.  Its failures have been well-documented recently in the press, in OIG reports, and in judicial opinions.
But some judges still don't understand that they have the power and the responsibility to do something about it.  Moreover, lawyers don't always know that BOP dysfunction is powerful sentencing mitigation. More specifically, if the BOP is ill-equipped to provide adequate medical care, mental health treatment, programming and safety, then we MUST send less people to BOP and for less time!
This isn’t just my opinion – it’s a direct quote from the Director of the Bureau of Prisons, Collette Peters, on her recent appearance on 60 Minutes.
Helping us get set for sentencing is a returning champion, Walter Pavlo, frequent Forbes contributor and founder of prisonology.com, a reputable BOP consulting firm.
 
IN THIS EPISODE:
The good, bad and ugly of Collette Peters’s recent 60 Minutes appearance; The scathing new opinion from Judge Furman of the SDNY concerning abysmal conditions in MDC Brooklyn; Changes to the sentencing guidelines support giving less time to less people and alternatives to incarceration; Practical advice for presenting BOP problems as MITIGATION in every sentencing and re-sentencing (i.e. compassionate release, clemency, etc.). LINKS:
Walter Pavlo:  www.Prisonology.com
60 minutes piece with Collette Peters:  https://youtu.be/3l6wdVxr6nE?si=71Wy9-d9WoQkDh6B
Furman Opinion (U.S. v. Chavez):  https://www.nysd.uscourts.gov/sites/default/files/2024-01/22cr303%20US%20v%20Chavez%20Opinion%201.4.2024-1.pdf
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Other BOP PODCAST EPISODES: 
Prison Consultants and the Myth of the Fixer:           https://setforsentencing.com/podcast/prison-consultants-and-the-myth-of-the-fixer-how-to-separate-substance-from-snake-oil/
BOP Stands for Big Ol' Problems: Exposing Dysfunction & Danger at the Federal Bureau of Prisons https://youtu.be/kYn1uq-Hfes?si=b6fWmPDMdc8Soe0_
 
BOP Stands for “Backwards On Purpose” With Current BOP inmate Bilal Kahn:  https://youtu.be/MQjT-anqAjg?si=sVk0c3yn-T96AyZ
Telling the story of Prison at Sentencing with Maureen Baird: https://youtu.be/fCls6d1pzuA?si=kprd9q2DCaI7XPie
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Recent OIG report on inmate deaths (suicides, medical emergencies, homicides) in BOP:
https://oig.justice.gov/news/doj-oig-releases-report-issues-surrounding-inmate-deaths-federal-bureau-prisons-institutions
 
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The Federal Prison System is in Crisis.  Here are the Top 3 Reasons Why, The Hill, 2/9/24
https://thehill-com.cdn.ampproject.org/c/s/thehill.com/opinion/4457805-the-federal-prison-system-is-in-crisis-here-are-the-top-3-reasons-why/amp/

The criminal justice system is a tool of social control.  And no where is that more evident than on our nation's Indian reservations.  American Indians have been the targets of the wrath of the criminal process since the day a renegade Sioux warrior Crow Dog shot Chief Spotted Tail dead in the late 1800's. 
We can watch wonderful films like Dances With Wolves & Killers of the Flower Moon to learn about the atrocities committed against American Indians way back when.  
But many of us believe those terrible days are behind us and the American Indian now enjoys full and unfettered rights.  Of course, that’s a myth, and no where does that myth come into living color than in tribal and federal court.
Therefore, helping us get Set for Sentencing this week is Arizona attorney, member of the Navajo Nation, and fierce public defender working for the Salt River Pima Indian community in the greater Phoenix Area, Melanie Yazza. 
Melanie and I met years ago when we had a mutual American Indian client who was wrongfully accused of sexually assaulting his teenaged step-daughter.  It was a hard fought case, and thankfully justice was done. 
 
IN THIS EPISODE:
 
How a person ends up being charged BOTH tribally and federally for the same offense; Different possible punishments in tribal and federal court; Why the concept of “double jeopardy” does not apply; Whether tribal judges must actually be lawyers; Whether you are entitled to a jury trial in tribal court; Who makes the sentencing decisions in tribal court; The story of Crow Dog & Spotted Tail and how the feds stole jurisdiction away from the tribes for “major crimes”; The story of how we successfully defended a wrongfully accused client; Cultural differences that make a difference in defending an American Indian client and some practical advice to bridge the cultural gap; Drugs on the reservation and mandatory minimum sentences for simple possession.  
LINKS:  If you want some more scoop on the feud between Crow Dog and Spotted Tail and the ensuing Major Crimes Act, here’s the wiki:  https://en.wikipedia.org/wiki/Ex_parte_Crow_Dog