Set For Sentencing

The Supreme Court determined that individuals with intellectual disabilities are less culpable and should not face capital punishment. Diminished Capacity is also applied in non-capital sentencings. In Hamm v. Smith, the Supreme Court is revisiting the 70 IQ cutoff because of new understandings about errors in measurement. But the bigger problem is IQ tests fail to measure key cognitive deficits tied directly to moral and criminal responsibility. Therefore, it's time for courts to move beyond IQ as the sole measure of brain functioning. IN THIS EPISODE: Five misconceptions about whether IQ is a valid reflection of impaired cognitive functioning; A list of all cognitive deficits IQ tests do NOT measure; "The Practice Effect" and other measurement errors in IQ testing; Atkins in the context of Autism – the rationale for Atkins is the same, but the standard is useless; The curious case of Phineas Gage – frontal lobe damage doesn't always impact IQ; Traumatic brain injury doesn't always impact IQ; The right testing to measure cognitive deficits. CONTACT INFO FOR DR. LIDSKY: 732-580-6157 | [email protected] LINKS: A deep dive into Hamm v. Smith on Scotus Blog: https://www.scotusblog.com/2025/12/hamm-v-smith-and-the-future-of-capital-punishment/ Other Set for Sentencing Ep. with Dr. Ted Lidsky: Ep. 81: A Child's Poison

Charles "Sonny" Burton is a 75 year old man on Alabama's death row. But he NEVER KILLED ANYONE. He was convicted under the archaic and unjust "felony murder" rule. His more culpable co-defendant got life. Six jurors regret their vote and want him to live. The victim's daughter wants him to live. There has likely never been a more compelling case for clemency. It's now in the hands of the governor to spare his life. Act now to save him! Contact Governor Kay Ivey and make your voice heard -- 334-242-7100 Instagram: @governorkayivey go to www.charlessonnyburton.com to sign a petition. Here's a compelling new NBC News report on Sonny: Alabama set to execute man who didn't kill anyone

Congress intended most first-time non-violent offenders receive a non-custodial sentence. That's how federal law worked before the guidelines. But, the guidelines did not fulfill that promise because the majority of those sentenced, end up having to serve time in the crumbling, overcrowded Bureau of Prisons. All that may be about to change, with revolutionary new proposals the Commission is considering. Take a listen, and then make your voice heard by lodging your comment on the USSG website: https://www.ussc.gov/policymaking/public-comment/public-comment-2026-proposed-amendments IN THIS EPISODE: Trump Tarriff case and it's implications in the criminal world; The major questions doctrine; Proposed complete restructuring of sentencing guidelines table; Proposed post-offense rehabilitation reductions LINKS: Visit the SET FOR SENTENCING SHOWNOTES FOR THE FOLLOWING LINKS: -prior recent podcast on other guideline amendment -3 R'S of Sentencing Narrative Article -New Law 360 Article by Doug Passon and Mark Allenbaugh on Guideline changes

It's easy to get overwhelmed by the onslaught of horrible headlines. But advocates need to fight, and words are our weapons. But the problem is, lawyers are never taught how to cut through the noise and get to the heart of the argument. Part 1 defined the problem: Abuse of Power; Trump exerting total control over the Department of Justice to weaponize the law against his enemies. Don Lemon is the target de jure. In this, Part 2 of "Absolute Power" we consult with communications expert Dr. Randy Olson on how to cut the noise and speak clear truth to power. But it's not easy, particularly when the powers that be engage in Steve Bannon's strategy of "flooding the zone with shit." Therefore, Dr. Olson provides valuable guidance on how we can better communicate the truth of what's happening. IN THIS EPISODE: Cutting through the information maelstrom to find the central theme of your communication (the "Dobzhansky" template); Understanding the power of narrative; Messaging for turbulent times; How Steve Bannon weaponizes non-narrative to "Flood the Zone with Shit"; "The Gish Gallop"; The "DNA" of narrative: Dream, Nightmare, Action; Constructive critique of Abbe Lowell's press release in the Don Lemon case; The key to narrative is proper framing; A musical finale – in honor of friends and family in Minnesota – "Hospital in Duluth" (written and performed by Doug Passon, with Ken Murray on harmonica). LINKS: MORE ON DR. RANDY OLSON & THE "ABT" NARRATIVE TEMPLATE

Our founders wanted US attorneys to retain significant independence from the Department of Justice. If that happens, then experienced prosecutors have the credibility, and moral fortitude to serve as a buffer between the unfettered power of the government and the people. But the Trump administration wants absolute power. That's why we're seeing a slew of illegal US attorney appointments, installation of outsiders with zero prosecutorial experience, and the prosecutions of Trump's political enemies. Absolute power corrupts absolutely and nowhere is that more apparent than the recent arrest of journalist Don Lemon simply for exercising his first amendment rights. Therefore the public needs to see this for what it is-- the canary in the coal mine signaling America's rapid descent into authoritarian rule. More importantly, attorneys need to do more to implore courts to curb these blatant abuses of power. This is a 2-part episode. During the first hour, we talk with Gary Restaino, the former US Attorney for the District of Arizona. He gives his take on why this is not normal and why it matters. In part two, we speak with communications expert, Dr. Randy Olson, who implores us to cut through "the information maelstrom" with clear communication. But that's not easy, particularly when there's so much happening all at once (Steve Bannon's "flood the zone with shit" strategy). Therefore, Dr. Olson provides valuable guidance on how we can better communicate the truth of the urgency of now. IN THIS EPISODE: The need for "insiders" i.e. experienced prosecutors who understand criminal litigation; Over-politization and weaponization in the current DOJ; The prosecution of Don Lemon; Challenging the prosecutors' grand jury presentations; The Trump takeover of individual US Atty offices; The danger of unchecked paramilitary forces on city streets; What are laypeople and lawyers can do to combat ongoing and blatant abuses of power. LINKS: Gary Restaino on LinkedIn – His posts present a powerful perspective from someone who had a front row seat to how a local US attorney office should be run: https://www.linkedin.com/in/gary-restaino-a27290370 Terrifying Abuses of Power: https://www.politico.com/news/2026/01/23/abuse-of-power-new-jersey-prosecutors-office-00745493

There were big changes in federal sentencing in 2025, and more on the horizon for 2026. So enjoy the first episode of the new year, as we discuss it all with the fabulous Prof. Doug Berman (Ohio State University) and of course, the incomparable Mark Allenbaugh of sentencingstats.com. IN THIS EPISODE: Doug's Tequila of choice: G4 (Which symbolizes the 4 pt. spread in the IU/OHIO state game)( https://g4tequilas.com/) New home for Prof. Berman's legendary blog: https://sentencinglawandpolicy.wordpress.com/ Quick recap of big 2025 guideline amendments; Tips on seeking early termination of Supervised Release under new guideline; The work ahead for the commission, and whether they will have a quorum; Berman's predictions on how the elimination of departures will play out moving forward; Proposed changes to the fraud guidelines, including loss table; The current pardon situation & how to use it to achieve better sentencing outcomes; New proposed guideline "specific offense characteristics" & post-offense rehabilitation; Predictions for new proposed guideline amendments; Compassionate release limitations may be on the horizon; Pending S.Ct. case on plea agreement appeal waivers. LINKS: Berman's Blog: If you haven't been receiving those great emails from Prof. Doug Berman's sentencing Blog, it's because it moved. His old platform shut down without warning, taking his subscriber base with it. So PLEASE sign up (or sign BACK up) to Berman's blog at his new home: https://www.sentencinglawandpolicy.com/ Mark Allenbaughs Washington Post article about his stats work for 1/6 pardons: https://wapo.st/45dDz1R Drugs on the Docket Podcast ( Drug Enforcement and Policy Center (DEPC) at The Ohio State University): https://moritzlaw.osu.edu/faculty-and-research/drug-enforcement-and-policy-center/depc-education/drugs-on-the-docket-podcast A Second Chance: A Federal Judge Decides Who Deserves It: https://a.co/d/2dmE9bb

More than ever, we live in a country of selective justice. Some commit crimes with impunity and others are forced to run the gauntlet. The events of last week contain many stark examples, from prosecutions to pardons. So Mark Allenbaugh and I couldn't wait until the new year to talk about it. So, here's one last episode for 2025! IN THIS EPISODE Conviction of Judge Hannah Dugan on Obstructing ICE and possible sentences; Epstein Files; The Pardon/Clemency situation; How pardon stats might be used to impact sentencing stats; Updates on Appointments Clause litigation; Solving Doug's Mystery tequila gift; A word on the "FIFA Peace Prize."

It's the last podcast of the year, and what better way to end than with a presentation to the amazing group, White Collar Support (www.prisonist.org). I was grateful to have the opportunity to present to this community, a brainchild of attorney Jeff Grant. It's particularly fitting for a 2025 finale, as the hour is a recap of the effective sentencing strategies we've been discussing on this podcast, and deploying in our own cases. Please like, share and subscribe. Have great holidays. Drink a responsible amount of great tequila, and we will see you in 2026!!! IN THIS EPISODE: Doug Passon's story! Including Mitigation Filmmaking, Sentencing Consulting, and Autism-informed criminal defense; Narrative is everything; Defense Maps; The "3Rs" of mitigation narrative; There are at least TWO SENTENCINGS that occur in every case; Mitigation development must start EARLY; Use of qualified experts to bolster sentencing narratives; Choosing your prison experts wisely – all are not created equal; Effectively using sentencing and life expectancy statistics; The nuts and bolts of sentencing mitigation films; The value (or lack thereof) of sentencing letters; The power of allocution; Tips for choosing the very best lawyer for your case. LINKS: White Collar Support: https://prisonist.org/ Defense Maps: https://www.defensemap.com/ Sentencing Statistics: www.sentencingstats.com Dr. Not Guilty, by Muhamad Aly Rifai, MD. The Simpsons Do Mitigation Videos!? (Clip from Season 30, ep. 15, "101 Mitigations") FREE DOWNLOADS: CLICK HERE TO VISIT MAINPAGE of the podcast for downloads: CHAPTER EIGHT OF DR. NOT GUILTY -- CHOSSING YOUR DEFENDER 3RS OF SENTENCING NARRATIVE (BY DOUG PASSON) SAMPLE SENTENCING LETTER REQUEST (BY DOUG PASSON)

Justice-involved autistic individuals have valuable insights for understanding criminal legal challenges related to autism. With proper support and guidance, positive outcomes are possible. Dr. Nick Dubin transformed his own experience in the criminal system into a story of advocacy and hope. IN THIS EPISODE: Autism is a condition of profound isolation; Examples of autistic vulnerabilities; A discussion of "theory of mind" (inability to intuit the intentions or feelings of others); How Dr. Dubin became ensnared in the criminal system; How to help decision makers understand the truth of autistic deficits; Advice for lawyers representing clients with autism; Why traditional therapy is not only unhelpful, but potentially traumatizing; Autistic "meltdowns"; Dr. Dubin's advocacy and accomplishments. PUBLICATIONS BY DR. NICK DUBIN: The Autism Spectrum, Sexuality and the Law: What every parent and professional needs to know https://www.amazon.com/dp/1849059195/ Autism Spectrum Disorder, Developmental Disabilities, and the Criminal Justice System https://www.amazon.com/Spectrum-Disorder-Developmental-Disabilities-Criminal/dp/1787753611/ Caught in the Web of the Criminal Justice System: Autism, Developmental Disabilities, and Sex Offenses https://www.amazon.com/Caught-Criminal-Justice-System-Developmental/dp/1785927132/ OTHER LINKS: D3: https://dthree.org/ Autism Innocence Project: https://autisminnocenceproject.org/ Judicial System | Autism Speaks: https://www.autismspeaks.org/judicial-system Laurie Program/Video: Autism & The Justice System: Dr. Laurie Sperry and Doug Passon on Vimeo : https://vimeo.com/1105914147

The appointments clause is enshrined in our Constitution. Checks and balances and separation of powers are a part of our Country's DNA. It's a system we have used for 250 years, designed to prevent abuse of power. If we adhere to that system, then individual liberty is protected. But this administration daily demonstrates the dangerous view that the executive branch is all powerful. In this case, it does an endrun around the constitution and laws to install loyalist US attorneys who will protect his friends and punish his enemies. Therefore, the people must pay attention, the lawyers must make every lawful objection, and the courts must send a strong and clear message to the president - comply with the law or face significant consequences. IN THIS EPISODE: Explaining the illegal appointment issue; Why we believe this issue is NOT WAIVABLE by the defense, as it is a structural defect; and Why this is a constitutional crisis that every American should care about. LINKS: MOTION TO DISMISS. To download a copy of the motion dismiss we just filed on this issue, go to the main page for this podcast at: https://setforsentencing.com/podcast/llegals/

Joy Betrand is a world-class criminal defense lawyer with valuable insights on lawyer wellness. The stress and trauma of legal work can harm mental and physical health. In this episode, we discuss manifest injustices we've encountered in the criminal system, and share coping strategies for stress. IN THIS EPISODE: The infamous Phoenix "Backpage Trial"; Authoritarianism dressed up as "law and order"; Advocating for pregnant women in custody; Managing hostility and finding your courage; Practical tips for managing stress. LINKS: Athena in the Well (fight giants and win – Joy's podcast) Joybertrandlaw.com Michigan psychodrama center "Hold Fast" Podcast on the Backpage case (Audible)

Robert Roberson is set to be executed by the state of Texas on October 16, 2025. But he is innocent. He has spent 20 years on death row, having been convicted of killing his 2 year old daughter Nikki. Robert's wrongful conviction was based on the now universally debunked theory of "shaken baby syndrome". But autism plays a significant role in this tragedy as well, because the powers that be misinterpreted Robert's "odd" behavior, as evidence of his guilt. Robert's case has garnered BIPARTISAN support in the TEXAS legislature. Even the lead detective in the case now unequivocally concludes Robert is innocent. Lastly, a cadre of independent experts have presented unassailable evidence that Nikki's death was not a homicide. But despite all of this, the Texas Attorney General, Ken Paxton, and the governor, Greg Abbot, refuse to stop this injustice. Now, it is up to us. Please listen to this episode, which includes two experts from the case, and then ACT. You can: 1) Call Gov. Abbot (737-277-6778) or reach out to him online and ask him to use his power to grant a 30 day reprieve to allow the courts to rule on his pending petion for a new trial; 2) Visit the innocence project and sign their petition https://innocenceproject.org/cases/robert-roberson/ 3) Show up for a rally in support of Mr. Roberson, on October 4 at 1:00pm at the Texas Capitol in Austin, TX. ADDITIONAL LINKS: Watch New York Times Opinion Video by former lead detective Brian Wharton here. More information about Robert Roberson's case can be found here: What People Are Saying About Robert Roberson and here: https://innocenceproject.org/news/what-to-know-about-robert-roberson-on-texas-death-row-for-a-crime-that-never-occurred/ To speak with an attorney for Robert Roberson please contact: [email protected] or 202-669-3411.

The murder of Charlie Kirk is tragic and unacceptable, and the perpetrator must face justice. If we can all agree on that, we can begin to heal. But, it's not "terrorism" under any definition, because at this point there has been zero indication that the alleged perpetrator acted with the intent to intimidate or coerce a civilian population or to influence or retaliate against government policy. Branding Americans "domestic terrorists" when the label does not legally apply risks further dividing an already fractured country, and is yet one more strategy taken straight from the authoritarian's playbook. We talk about this through the lens of a brand-new court opinion dismissing state terrorism charges against Luigi Mangione, the alleged killer of the United Health Care CEO. The language there is instructive for any state AND federal so-called terrorism case, moving forward. IN THIS EPISODE: Dismissal of state terrorism counts of Luigi Mangioni and rationale; Whether the kirk murder case could and/or should go federal; Conflict of interest in the kirk case; The problem of pretrial publicity; Federal definition of terrorism; Federal guidelines that exponentially increase sentence in so-called terrorism cases; Definition of "civilian population"; All upward departures (except 5K) go away, come Nov. 1, 2025; The unfair and likely unconstitutional federal grand jury process; Ideology, in and of itself, is NOT terrorism. LINK: Prior episode on Terrorism Enhancement: Ep. 108: Reign of Terror: Tesla, Luigi Mangione, & Beyond.

To quote the great Rocky Balboa, "it ain't about how hard ya hit. It's about how hard you can get hit and keep moving forward." That sums up the incredible journey of attorney Jeff Grant, founder of White Collar Support and organizer of the upcoming White Collar Conference online seminar. IN THIS EPISODE: Jeff's redemption story of overcoming addiction and prison to regain and reimagine his law practice; The importance of finding the right lawyer; The Federal Expungement Initiative; Upcoming White Collar Support Online Seminar, which includes powerhouse speakers like Jeffrey Toobin, Joe Bankman, and Prof. Doug Berman. It's basically free ($10 bucks). October 11, 2025.** LINKS: WHITE COLLAR CONFERENCE (AND WHITE COLLAR SUPPORT) FEDERAL EXPUNGEMENT INITIATIVE GRANT LAW OFFICES **Note, this is a completely UNPAID promotion. I am not affiliated with the conference in any way, but I think it looks great and wanted to help Mr. Grant spread the word.

In Part II of our deep dive into the Ghislaine Maxwell case, we begin with BOP Prison consultant, Walter Pavlo of prisonology.com to talk about her transfer to a minimum security camp. Then, we resume with Mark Allenbaugh of sentencingstats.com for one of our famous "sentencing post-mortems" to see what we can learn from Maxwell's sentencing proceeding. IN THIS EPISODE: Maxwell's unprecedented transfer to a minimum camp; Cheers for the government for understanding the power of narrative lies in the specifics; Cheers to the defense for creating a theme (Epstein's empty chair) and telling her human (redemption) story; Cheers to the defense for zero mention of the Booker case and unnecessary boilerplate – we all know the guidelines are advisory; Cheers to outside the box advocacy where the defense lawyer personally addresses the victims of her own client's crimes; Jeers for ignoring the stats and life expectancy arguments.

The saga of Jeffrey Epstein is ongoing and ever-present in the news. And there are powerful lessons to be learned. But the talking heads are mostly just spinning their wheels. So, if you're seeking some straight talk and inside scoop about all of it, you've come to the right place. This is a 2-part episode, as there is much ground to cover. The title, of course, is an homage to the great Beatles song. But in truth, Ms. Maxwell does indeed wield a hammer. The Trump folks want to use it to do damage control and she's looking to dig a tunnel out of the federal bureau of prisons. It remains to be seen whether Ghislaine Maxwell will be the extinguisher or the accelerant to this dumpster fire of a case. IN THIS EPISODE: Preamble: Ghislaine is talkin' to the feds, but to what end? Thoughts on whether Epstein took his own life, through the lens of the suicide and mental health epidemic in jails and prisons; The non-prosecution plea agreement that Ghislaine Maxwell says requires dismissal of all her charges; What this really shows is the importance of well drafted plea agreements; Statistical analysis of the "trial penalty"; Fighting the dreaded appeal waiver in plea agreements; Pleading "straight up" when the government is offering you a terrible plea agreement. Stay tuned for PART II!

An independent judiciary is the cornerstone of a healthy democracy. But judges are under attack. Therefore, we must stand the post and protect judges from intimidation, unlawful prosecution, incredulous calls to impeach, or worse. And, when it comes to federal criminal sentencing, judicial independence is also crucial to the fair administration of justice. But judicial independence has been undermined for decades by adherence to the stringent, dehumanizing, US sentencing guidelines. Since 2005, these guidelines have been discretionary, yet many judges and lawyers continue to use them rigidly, leading to undesirable outcomes for clients. Therefore, attorneys need to be more creative and comprehensive in their sentencing approach, and help the judges understand that the guidelines are not a useful tool to determine a human being's ultimate fate. This discussion features Nancy Gertner, former US District Court Judge and current Harvard Law Professor, who provides valuable insights on these topics. The first half of our discussion addresses the actions of the Trump administration and its efforts to influence the judiciary. For those interested solely in sentencing advocacy without political context, please proceed to the second half of the podcast, approximately at the 38:00 mark, for a master-class in sentencing advocacy from a former federal judge. This segment offers essential information for every defense lawyer and client facing sentencing. #JudicialIndependence, #SentencingJustice, or #DignityOverData IN THIS EPISODE: Milwaukee Judge Hannah Dugan's arrest and prosecution for allegedly obstructing ICE; Assessing the merits of the charge against Judge Dugan; How ICE's conduct presents its own form of obstruction of justice because it denies people their day in court and increases the chances of bringing harm and violence to innocents; The adminstration's effort to target judges for arrest, impeachment, or worse; Whether the administration can defy a judge's orders without consequence; A word on the plight of Kilmar Abrego-Garcia; The new pardon paradigm and how it may impact sentencing; Judge Gertner's incredible sentencing advocacy advice, which includes the power of narrative, her take on sentencing mitigation films, irrational adherence to guidelines, lackluster attorney performance, the importance of allocution, telling the story of prison, and more! Judge Gertner's take on using A/I in court (in the context of an A/I generated video of the deceased victim giving his sentencing statement from beyond the grave); The legacy of Justice Souter, who passed away the morning we recorded this podcast. Commentary: A former judge's call to eliminate mandatory-minimum sentencing laws 150 Former Judges Tell Pam Bondi They're Not 'Deranged' AI used to make video of deceased victim deliver impact statement in court : NPR