Set For Sentencing

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...

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 Alle...

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...

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,...

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 lear...

The government often weaves false sentencing narratives about our clients:   they are born bad, uncontrollably violent, no concern for others, no respect for the law.   T here's always a more truthful, powerful, and humanistic story to tell.   And in some of those cases that story could be LEAD POISONING! The fact is, the probability of those who have been poisoned with lead and other toxins as ch...

What better way to start off the new year than to review some of the big guideline changes that took effect at the end of the year, and some forward looking sentencing commission proposals for changes that could be coming in 2024? We kick off this year with our friend and colleague, guidelines and sentencing stats guru, Mark Allenbaugh.   He's drinking coke, I'm sipping Don Rico tequila.   IN THIS...

Hey everybody.  We've been dropping new episodes every week for for about 80 weeks now.  It's time to sit back, relax and ride out the rest of 2023.  We'll be back in full force come 2024.  Until then, enjoy some old episodes, like, share, subscribe and spread the word.  Together we will make meaningful and lasting change in our broken sentencing system.  Until then, keep the faith, hang in there,...

David DePape did something terrible, breaking into the San Franscisco home of Nancy and Paul Pelosi, attempting to Kidnap the former Speaker of the House, and savagely attacking her husband with a hammer.   He was just convicted in federal court for his crimes, with more to come in state court.    He is more than just his crimes.  But sadly, the likely truth of DePape's mitigation story has yet to...

Three lawyers (so far) have plead guilty in the Georgia State RICO case.   I had so many questions about what these pleas and sentencings really meant - for the lawyers who entered them, the remaining defendants, and the pending federal matters.  But, I don't practice in Georgia state court.   Therefore, I put out the "bat signal" on the NACDL listserve and found two wonderful lawyers to help us b...

The day after Halloween, all of the proposed guideline changes went into effect!  We've talked about many of them in detail on previous podcasts, but here, we do a quick run-through of all eigiht categories of amendments.  So what's in our candy bags the day after?  Well, in truth, most of what we got were TREATS, but we have a few TRICKS as well.   There's plenty to love here, but there are also...

It's Halloween! What better time to talk about FEAR!!!??? Many think fear is the great motivator, but it can also be the great debilitator.  Fear prevents lawyers from "going for it" at sentencing and making the extraordinary ask on behalf of their clients.  Fear also prevents those clients from communicating their own truth on the big day.   Therefore, helping us get Set For Sentencing is Prof. H...

In a "POST TRUTH" society, it can be hard to determine if what you are watching is the actual truth.  In reality TV, documentary filmaking, and even the so-called "news", truth is not always a sacred value.      But in my world, nobody would be surprised to hear me say, the truth is hard to discern.    But, many presume that those who advocate for the accused and convicted do not seek the truth. ...

Sam Bankman Fried is almost certainly on the Autism Spectrum.   And, if his lawyers can fully understand ASD, they would have a better chance at acquitting their client by explaining to the jury why his actions may not have been nearly as intentional and   calculated as they seem.  Moreover, if he's convicted, ASD would go far to present a compelling mitigation narrative. But, there seems to be ze...

On Nov 1, the Zero Point offender Amendment to USSG goes into effect. WE CALL IT THE ZIPPO (ZPO). It is retroactive, and thousands facing sentencing and already sentenced should be eligible to have their sentences reduced. BUT what happens if you received a guideline bump under 3B1.1, for being a "leader organizer"?   Because of the imperfect drafting of "CRITERION 10", the Sentencing Commission p...

A jury convicted Danny Masterson of two counts of forcible rape in California state court, and the judge just sentenced him to thirty years.  It was a daunting task for his lawyers, because Masterson maintained his innocence to the bitter end.  If the lawyers could have successfully threaded that needle, then Masterson would have potentially received fifteen years instead of thirty. Unfortunately,...

What is the purpose of prison?  Most people think the very fact of being removed from society, loved ones, and life in general, is the punishment .   But that's only the beginning.   Once you get inside the walls of the BOP, the real punishment begins . Intentionally or not, those in charge of BOP facilities make the time a client spends inside exponentially more punitive by exposing them to daily...

Telling your client's true and powerful mitigation story is the most important part of sentencing.  But we lawyers are never taught how to do it right.  The bigger problem is, a lawyer's failure to take control over the narrative can lead to disastrous consequences on the big day. Therefore, we need expand our horizons and learn from story professionals inside AND outside of the legal world.  Park...

The Zero Point Offender and Status Point modifications to the Sentencing Guidelines go into effect on November 1.   They are RETROACTIVE.   But not everyone knows whether they may benefit from the changes or how to go about getting that benefit.   Therefore, helping us get Set for Sentencing, Mark Allenbaugh, and Keith Hilzendeger to tell us everything you everything you need to know.  This episod...

Judges routinely hand out prison sentences in white collar/non-violent offender's cases, believing a client will end up in a minimum security "camp" and that their time there will therefore be less severe, or even "easy".   But, the days of the "Club Fed," if they ever existed at all, are OVER.   Decision makers need to understand that even low-level, non-violent offenders will do HARD TIME at the...

When a judge incarcerates a client awaiting trial, each of whom has not been convicted and is therefore presumed innocent, the practical result is that they go straight to sentencing  without passing go, without collecting 200 dollars.   Pre-trial detention should be reserved for the worst, or most potentially violent alleged offenders.   But it's not.  And the bigger problem is p re-trial detenti...

If you wanna feel really dim, spend an hour or so trying to debate the fine points of federal constitutional law with Prof. Doug Berman and Mark Allenbaugh.  We had to come back to the issue of how the guidelines condone using charges where a client goes to trial and a jury finds her not guilty, against them at a later sentencing proceeding.   The Supreme Court had the opportunity to strike down t...

Let us journey once more, into the BREACH, dear listeners.  We talked about sentencing implications of Hunter Biden's proposed plea agreement, but now we have to talk about why it all crashed and burned.  Spoiler alert, it's because of the plea provision discussing what happens if Hunter is found by the government to be in BREACH of the agreement! Why are we going into such great detail (yes, long...

Everyone is talking about the latest Trump indictment.  But nobody is talking about the possible sentence he might face if convicted.  That's what we do!  Spoiler alert -- it's a big deal.

All lawyers are not created equal, and that applies to private practice and public defenders.  But clients don't necessarily understand how to separate the wheat from the chaff.  Bilal Khan understands this better than most - he's been through it all, fighting his serious federal charges for years, and engaging seven lawyers in the process. He has taken his knowledge and know-how and shaped it int...