Set For Sentencing

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 --------------- 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 -------- 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 ---------- 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

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. There'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 children are much more likely to run afoul of the law because of frontal lobe damage affecting judgement, impulsivity, executive functioning, and a host of other impairments. Moreover, there's a significant correlation between lead poisoning and violent crime. External factors such as stress and trauma exacerbate the effects of lead poisoning. I'm sure I've missed this issue more than a handful of times in the 1000+ cases I've handled, because I didn't know what I didn't know on this subject. I don't want that to happen to you. Therefore, in order to put this issue on all of our radars, helping us get set for sentencing is a world-class expert on lead poisoning, neuropsychologist Dr. Ted Lidsky. IN THIS EPISODE: What are common ways a child can be exposed to lead; How do you quantify or prove lead exposure if it happened so long ago; Half-life of lead in the brain and bones; Some telltale signs of lead poisoning; Lead causing problems with impulse control; Socio-economic disparities of lead poisoning and help to ameliorate the fallout; Why a child can appear normal yet still have significant brain damage; The importance of "effect modification" in developing the whole lead poisoning narrative. If you think you need an expert to deal with a led poisoning issue in your case, reach out to Dr. Lidsky at: [email protected]

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 EPISODE: Some major changes we gave short-shrift to in previous episodes, including the 3rd point for acceptance of responsibility, and changes to status points related to criminal history, and changes to the "safety valve provision"; The need for aggressive pre-trial litigation, and now without fear of losing the 3rd point; Newly proposed amendment pertaining to "acquitted conduct"; Newly proposed amendment moving "intended loss" into text of guideline, thereby resolving the issue created by Kisor v. Wilkie; Newly proposed amendment related to "criterion 10" of the Zero Point Offender guideline (ZIPPO), and the need to reach out to the commission to oppose this; Doug's plans to publish his book on mitigation videos in 2024. CONTACT THE SENTENCING COMMISSION (OR YOUR CONGRESSPEOPLE) ABOUT PROPOSED GUIDELINE AMENDMENTS: We spent a fair amount of time on the proposed changes to the new Zero Point Offender provision, in particular, the Commissions stated desire to amend the guideline to clarify the leader/organizer exclusion. There is NO EMPIRACAL evidence to support the claim that those who participated in a conspiracy and had an enhanced role in the crime are prone to recidivism! You can find all proposed amendments here: https://www.ussc.gov/guidelines/amendments/proposed-2024-amendments-federal-sentencing-guidelines For some proposed language to include in your correspondence, this is the gist of our argument: The proposed amendment to criterion 10 to place the "continuing criminal enterprise" language into a separate criterion is not a "technical" amendment. It would presumably preclude any offender who received an upward adjustment under 3B1.1 from receiving the new downward adjustment under 4C1.1. The commission prides itself on making data/empiracally based adjustments to the guidelines. However, the Commission has cited no empirical evidence to support such a broad exclusionary criterion. Moreover, given the significant litigation that already has ensured regarding both the prospective and retrospective application of 4C1.1, any amendments now will cause further confusion over application of USSG 4C1.1. As the Commission itself has indicated, criterion 10 (in its current form) is taken from the fourth prong of the safety valve at 18 USC 3553(f)(4). Courts have interpreted 18 USC 3553(f)(4) to exclude from the safety valve only management-level drug traffickers, i.e., only those engaged in a "continuing series" of drug offenses "from which such person obtains substantial income or resources." 21 USC 848(c)(2). Excluding such individuals from receiving the Zero Point Offender adjustment makes sense inasmuch as such offenders are, by definition, recidivists. However, the Commission created 4C1.1 to address the fact that those with zero criminal history points have significantly lower rates of recidivism than those with even a single point. As there is no evidence to suggest that an offender that otherwise meets all the 4C1.1 criteria presents a substantial risk of recidivism merely because the offender received an adjustment under 3B1.1, the Commission should decline to make further amendments to the criteria at 4C1.1 at this time. Readers may submit their comments to the Commission on or before February 22, 2024 here: https://comment.ussc.gov/apex/r/ussc_apex/publiccomment/home LINKS TO OTHER RELEVANT SET FOR SENTENCING EPISODES: Ep. 36: Presumed Guilty: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences: https://youtu.be/93dOQ76t7tw?si=jx1_CFV2P8JnITt8 Ep. 65: Acquitted Conduct Revisited: Mmmmm... Flavors of Evil: https://youtu.be/iRG6cbZ_YCY?si=5tOVXg2QWKES--Js Ep. 72: Imperfect 10: Why thousands will be deemed ineligible for the ZPO and what to do about it: https://youtu.be/amEXfhgMpa8?si=jEJ_W9fiGvRCDKis Last, but not least, the wonderful tequila I was sipping in this episode, is Don Rico (Don Rico Tequila | ¡Ay Qué Rico! | Austin, Texas (ayquerico.com)) I don't get compensated for these endorsements. I just love talking about (and sipping) great tequila! The cool thing about Don Rico, besides it being delicious and confirmed additive free on Tequila Matchmaker, is that the company was started by a fellow lawyer, Rick Olivo. Rick represented a major brand, fell in love with tequila, and started his own brand. It's not yet available in every state, but hopefully it will be soon.

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, and take care of yourselves. www.setforsentencing.com www.dougpassonlaw.com

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 be, and may never be fully told. So let's get set for sentencing with Doug Passon and Mark Allenbaugh! IN THIS EPISODE: Sentencing guidelines discussion; Why DePape faces an almost certain life sentence; DePape's potential incarceration location; The ongoing terrible dysfunction of the Federal Bureau of Prisons; Discussing DePape's possible mental health issues and why they have not yet come into play; The BOP's inadequacy providing mental health (or any health) treatment. LINKS: We talked about data Mark obtain from the Judicial Sentencing INformation database, or "JSIN". We did a podcast on this a while back: https://setforsentencing.com/podcast/jsin-will-judicial-sentencing-information-mutilate-the-stats-or-slash-sentences/ Doug mentioned that the crimes here were very similar to that of the plot to kidnap the govenerner of Michigan (Gretchen Whitmer) and livestream her "trial". The difference here, at least as it comes to defendant Ty Garbin, was that Mr. Garbin came to understood how wrong his beliefs and conduct were, and went to great lengths to atone for his crimes. As such, unlike his co-defendants who went to trial and fought to the bitter end, he received a very lenient sentence. The same fate does not await Mr. DePape, who also is still unfortunately unyeildingly entrenched in his conspiracy theories. If you'd like to see the sentencing mitigation video Doug Passon produced for Mr. Garbin's case, his lawyers made it available here: https://youtu.be/AOhOY3uuvRQ?si=AOxezRfKx-0bYkfX Lastly, Doug mentioned a case involving a client with Delusional Disorder. He litigated that case with an extraordinary attorney by the name of Donna Elm. Donna and Doug did a podcast on this subject a while back. Take a listen! https://setforsentencing.com/podcast/rotting-with-your-rights-on-indefinite-detention-for-incompetent-clients/

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 break it all down: Thomas Church & Jeff Brickman. IN THIS EPISODE: First Offender Act sentencings in Georgia; Consequences for violating these agreements; Remorse, acceptance, and letters of apology; Significant differences between state and federal diversion pleas; The efficacy of pleading in GA, when they still likely face federal charges; The possibilty of deals being already in place with Jack Smith (i.e. "global resolution"); The beef over Jenna's legal fees; Predictions for what comes next.

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 a few catagories of offenses that could result in increased guideline calculations. Helping us get Set for Sentencing, our returning champion, guidelines guru Mark Allenbaugh to help run through all of it. IN THIS EPISODE: The EIGHT categories of guidelines changes that went into effect on 11/1/23 Some practical tips and tricks for dealing with them: Compassionate release (treat) Criminal History (treat) Acceptance of Responsibility (treat) New enhancement under the firearms guideline (trick) Career Offender guidelines (trick) Safety Valve (treat, but a lame circus peanut cleanup treat) Fentanyl enhancement (another weak treat) Sexual Abuse of a Ward Enhancement (it's a trick for the staff of the Federal Bureau of Prisons, who seem to have a sexual abuse problem in their facilities, and most definitely a treat for their many victims.) Why the commission is starting to move "commentary" into the guideline itself, in order to bypass new law (Kisor) that renders commentary non-binding on judges. If you have a case involving INTENDED LOSS under the fraud guidelines, be aware of the Kisor argument that gives you a solid argument (in some circuits) that there's no such thing as "intended loss"; The connection between the Sexual Abuse of a Ward enhancement and the new expanded grounds for Compassionate release, and some practical tips for inmates who are victims of abuse in prison. OTHER PODCAST EPISODES WORTH CHECKING OUT: IMPERFECT 10 - Beware criterion 10 of the Zero Point Offender provision that seems to preclude the 2-level reduction where a person previously received a "role enhancment". Don't give up so easily on this issue! https://setforsentencing.com/podcast/imperfect10/ GOIN' RETRO: RETROACTIVE APPLICATION OF ZERO POINT OFFENDER AMENDMENT: https://setforsentencing.com/podcast/goin-retro-retroactive-application-of-zpo-and-status-point-amendments/ The First ZERO POINT OFFENDER PODCAST: THE ZIPPO IS ON FIRE! https://setforsentencing.com/podcast/zippo/

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. Heidi K. Brown, author of "Untangling Fear in Lawyering". She's here to tell us how to let go of fear and help our clients do the same. Prof. Brown teaches legal writing at New York Law School, she's an acclaimed author, speaker, avid boxer and rabid U2 fan. IN THIS EPISODE: Prof. Brown's 4-step process for "untangling fear"; Understanding "somatic intelligence" how our bodies react to fear; Tips for physically preparing for a stressful interaction (like a court appearance); Tips for helping client's prepare for stressful moments in their case; How the "sweet science" of boxing can save your soul; The connection between fear and creativity; Lawyer wellness; How fear impacts non-verbal communication. LINKS: https://www.theflourishinglawyer.org/ Heidi K. Brown on Instagram: https://www.instagram.com/theflourishinglawyer/ Heidi K. Brown on Twitter: https://twitter.com/introvertlawyer One of the reasons I was drawn to Prof. Brown's work was the 3-part podcast series I did on "FEARLESS LAWYERING". These are all examples of brave lawyers who shot for the moon at sentencing and acheived astounding results. If you haven't heard those episodes, check them out: Fearless Lawyering Vol. 3: New Mexico Attorney Joel Meyers gets a mind-blowing result in a career-offender high level drug trafficking offense: https://setforsentencing.com/podcast/joelmeyers/ Fearless Lawyering Vol. 2: Asst. Federal Defender Kara Hartzler helps expose the racist history of federal immigration laws: https://setforsentencing.com/podcast/racist1326/ Fearless Lawyering Vol. 1: Asst. Federal Defender Sharon Hicks gets probation on a resentencing for a DUI/Manslaughter case: https://setforsentencing.com/podcast/fearlesslawyer1/

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. In my experience, particularly in the sentencing world, it's the government that has no concern for the deeper truth of the case and client. I read sentencing memos from the government describing defendants I do not recognize. I listen to some callous judges pronounce sentences against defendants and I don't know who they are talking about. So how do we get to the real truth at SENTENCING? I can make a credible case that my passion, video sentencing advocacy, is the TRUEST form of legal advocacy there is. It gives the decision maker a front row seat to the client's story, her demeanor, her credibily, and her sincerity. It's objectively verifiable if the interviews and editing are done properly. Perhaps most importantly, unlike any other form of media, the lawyers who engage in this process are bound by the rules of ethics. There are no ethical standards in journalism, reality TV, or regular documentary filmmaking. Therefore, how cool is this? Helping us get Set For Sentencing is Debbie Levin, a long-time Hollywood creative professional who has spent most of her 18 years in the world of Reality Television, working on shows we've all lovingly binged, including the Real Housewives of OC/NJ, Top Chef, and many more. We had a GREAT conversation around the truth about truth! In this episode: Is legal filmmaking true? What's the difference between "literal truth" and "emotional truth"? The inside scoop on reality TV (including the "Bethany Frankel Clause"); How even nature documentaries, supposedly unvarnished views into the natural world sometimes lie for entertainment value; The wonderful world of "frankenbyting" which we reality shows can do, but legal documentaries cannot (and the greatest example of all time from the Simpsons); The very best advice for telling the truth of your clients' stories. LINKS: Just what the hell are "sentencing mitigation videos" anyway? Wanna see one? Here's an example from a case I worked on involving the plot to kidnap the governer of michigan: https://youtu.be/AOhOY3uuvRQ?si=ikj47EHiqsNy9d7P I referred to a New York Times "Op Doc" that was made about the work that I do producing "sentencing mitigation videos". Here is the link to see that piece, called "No Jail Time, the Movie" https://www.nytimes.com/video/opinion/100000005581635/no-jail-time-the-movie.html -

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 zero mention of ASD in the case thus far. That means, SBF is not only almost certainly going to be convicted in short order at trial, but the judge will punish him more severely at sentencing due to the inevitable weak-sauce mitigation story his lawyers will end up telling. We talk about all of this, including SBF's sentence exposure, and predictions for the sentencing outcome in the case. It's a long episode, but it jammed packed with useful information. Defense lawyers: NOW IS THE TIME TO LEARN ABOUT AUTISM SPECTURM DISORDER. We have all had clients on the spectrum. We've missed it. It matters at every stage of the proceeding. There are experts who know these issues inside out and they often help achieve seemingly impossible results in our cases. IN THIS EPISODE: Why autism matters at every stage of the proceeding; SBF's guidelines if convicted; Possible mitigation narratives for sentencing; How the guidelines do not expressly call for "stacking" when the guidelines exceed the statutory maximum on any given count of conviction; Why SBF may still qualify for the "Zero Point Offender" reduction (and why it won't matter); Even though he's looking at potentially 110 years if convicted, how Mark Allenbaugh's sentencing stats analyses could save his life; Potential fine ranges if convicted (Doug and Mark disagree with the fine potential); How the instability of cryptocurrency is sentencing mitigation; Life expectancy as mitigation; The deplorable conditions of BOP "camps" which will create excruciating conditions of confinement for SBF; Mark and Doug make their (wildly divergent) sentencing predictions if convicted. USEFUL LINKS: We made reference to a potpourri of past podcast episodes, so here are thinks in case you haven't heard: Episode 46, Defending Autism with Mark Mahoney (PART ONE): https://setforsentencing.com/podcast/defending-autism-mark-mahoney-pt-1/ Episode 46, Defending Autism with Mark Mahoney (PART TWO): https://setforsentencing.com/podcast/mark-mahoney-pt-2/ Episode 5, Understanding Autism at Sentencing with Jamie and Toni Sparks: https://setforsentencing.com/podcast/understanding-autism-at-sentencing/ Episode 66, Straight to Sentencing: Pre-Trial Detention Through the Lens of SBF and DJT: https://setforsentencing.com/podcast/straight-to-sentencing-pre-trial-detention-through-the-lens-of-sam-bankman-fried/ Episode 3, Telling the Story of Prison at Sentencing (with Maureen Baird): https://setforsentencing.com/podcast/telling-the-story-of-prison-at-sentencing/ Episode 72, Imperfect 10: Why Thousands Will be Deemed Ineligible for the Zippo and What to Do About It: https://setforsentencing.com/podcast/imperfect10/

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 presumes that any defendant who receives this role adjustment to be ineligible for the ZPO. BUT THEY ARE LIKELY WRONG. In this episode, we discuss why the reading of "CRITERION 10" is flawed, and why it is only defendants who receive a role adjustment while engaged in a continuing criminal enterprise, i.e., an on-going drug distribution conspiracy, are ineligible. This is significant because the Commission estimates that only approximately 11,500 currently incarcerated inmates are eligible for retroactive application of the ZPO. Since fiscal year 2013, on average roughly 3,000 defendants receive a 3B1.1 roll adjustment each year, but no more than half of them were convicted of drug distribution offenses. Thus, the Commission may be underestimating the number of ZPO eligible inmates by half. In other words, if offenders who have received a role adjustment are not automatically precluded from receiving the ZPO, there actually could be well more than 20,000 inmates currently eligible for a sentence reduction pursuant to the ZPO." IN THIS EPISODE: The breakdown of the relevant provisions and the analysis as to why leader/organizers should still qualify for the ZPO; Using the recent Pulsifer "safety valve" case to bolster our argument; LINKS & FREE RESOURCES: I was a contributing author to part 2 of a two part series on prospective and retroactive application of the ZPO in Law 360. Visit the shownotes to download free copies of the full series: www.setforsentencing/podcast/imperfect10 Don't forget to check out: zeropointoffender.com dougpassonlaw.com sentencingstats.com

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, the sentencing presentation hit all the wrong notes. Moreover, there was massive blowback over the sentencing letters submitted on his behalf, particularly the ones from his famous friends, including Ashton Kutcher and Mila Kunis. The letters did more harm than good, not only for Mr. Masterson, but for those who, with all good intentions, were offering their support. Therefore, join us for a whole lotta teachable moments as we dissect every aspect of Masterson's Sentencing with our good friend and colleague, Mark Allenbaugh. IN THIS EPISODE: Quality over quantity when it comes to sentencing letters; How to tell a mitigation story for a client who maintains their innocence at sentencing; How lawyers must lead and actively manage the mitigation narrative, particularly when it comes to sentencing letters; How tone deafness can result in the deafening sound of your bell being rung on the big day; The dangerous territory of using your kids/family as a sympathy ploy at sentencing; What we can learn from how the victims' statements far outweighed the supporters statements in terms of their emotional power and persuasion. LINKS & FREE RESOURCES: www.sentencingstats.com www.zeropointoffender.com We talked a lot about a great article by a former federal Judge, Mark Bennett about his five rules for sentencing allocution. To download the article, visit the shownotes for this episode at www.setforsentencing.com/podcast/masterson/ Lastly, we talked about the "3Rs" of sentencing mitigation. If this is new to you, and you want to download the article Doug Passon wrote on this subject, same deal... visit the shownotes for this episode! www.setforsentencing.com/podcast/masterson/

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 indignities, deprivations, and unfathomable risks to their physical and mental well-being. Judges need to understand the truth about the dysfunction and chaos inside the walls of the BOP and consider alternatives to incarceration, particularly when it comes to non-violent, first time offenders. Helping us get set for sentencing, our 2nd conversationwith Bilal Khan. He's a current inmate in the federal BOP and he is not afraid to speak his truth about what life is like on the inside. IN THIS EPISODE: Deprivation, indifference, even DEATH inside the walls of the federal BOP; Understaffing and Staff morale; Lack of accountability for staff and inmates; Safety and security issues, violence, sexual assaults; Contraband inside the walls of Ft. Dix; The myth of the "country club" environment of minimum security satellite camp facilities; The importance of filing administrative remedies and making a record; The importance of making sure all pertinent information goes into your client's Pre-Sentence Report; The importance of reaching out to your representatives (House and Senate) to demand action. LINKS: Don't take the inmate's word for how bad things are inside the walls of the BOP. Check out this recent episode we did with former BOP officials who confirm virtually every claim made by Mr. Khan: BOP stands for Big Ol' Problems, With Maureen Baird, Janet Perdue and Walt Pavlo at prisonology: https://setforsentencing.com/podcast/bop-stands-for-big-ol-problems-exposing-dysfunction-danger-at-the-federal-bureau-of-prisons/ Also, this is Mr. Khan's 2nd appearance on Set for Sentencing. He recently authored the Book "Surviving Pretrial", available now on Amazon. Here's the link to our last conversation, and a link to purchase his book: https://setforsentencing.com/podcast/surviving-pretrial-vol-1-is-my-lawyer-any-good/ SURVIVING PRETRIAL, by BILAL KHAN, ON AMAZON: https://a.co/d/9ZhE9h5 By total coincidence, this compelling and comprehensive NPR article came out right before this podcast episode dropped - it documents the high rate of DEATHS in the federal BOP due to failure to render prompt medical care, short staffing, and other issues: https://www.npr.org/2023/09/23/1200626103/federal-prison-deaths-butner-medical-center-sick-inmates

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 Howell is exactly that guy. Park is a brand storytelling strategist and keynote speaker. He is the creator of the Business of Story Podcast, recently ranked the #1 business podcast in the world by Feedspot. He is the co-author of the Narrative Gym for Business (a companion book to my Narrative Gym For Law) among other great works. In this episode, Park brings his business/marketing storytelling acumen to make narrative concepts relevant and real to our legal community. And, perhaps most fun, the two of us of spend a lot of time geeking out on what we can learn from our favorite (and not so favorite) movies and TV shows! IN THIS EPISODE: How to focus on the true hero of your criminal defense story; Great examples from the marketing/business world lawyers and clients can apply in their persuasive advocacy; The "And, But, Therefore" narrative framework; The beating heart of narrative: "find the hurt, amplify the pain, heal the wound" – what it means and how to do it; The importance of injecting emotion into your narrative; The power of the word "because"; A whole lot of fun examples from movies and television to elucidate the concept of "find the hurt, amplify the pain, heal the wound" The value of "finding your tornado" – the thing that throws your whole story into motion (another expression of the "BUT" statement of the ABT); A little bit of the big man, Joseph Campbell, because no discussion of narrative is complete without it; A word about the lawyer show "Suits", cause you know, that seems to be what everyone's watching these days. LINKS: The Business of Story Website: www.businessofstory.com The Business of Story Podcast: www.businessofstory.com/storytelling-podcast/

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 episode is for those who have resources to engage private counsel to fight this fight, or for those who may need help from the Federal Public Defender. Either way, change is coming, and we must be ready. IN THIS EPISODE: PART ONE: MARK ALLENBAUGH Overview of the "ZIPPO", or ZERO POINT OFFENDER guideline amendment; Overview of the "status points" adjustment changes; Retroactivity and the February 1, 2024 target date; DO NOT WAIT until 11/1 to ask for these 2 levels off or, consider asking for a continuance until the amendment goes into effect! Using compassionate release motions to effectuate the change on the grounds that if you are immediately eligible for release, you shouldn't have to wait until February 1, 2024; Covid is still a thing, and why it matters to Zippo motions; What to do if your sentencing is set before the changes take effect (11/1/23). PART TWO: KEITH HILZENDEGER, ASST. FEDERAL PUBLIC DEFENDER Advice for clients who cannot afford to hire counsel to deal with Zippo/Status Point changes. LINKS: For an overview of the Zero Point Offender (ZIPPO) amendment, check out episode, ___ where we go into all the basics. https://setforsentencing.com/podcast/zippo/

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 BOP even at a minimum security or a "camp." That is because the BOP is bloody mess. It is plagued by staffing shortages, lack of meaningful mental and physical care, corruption, violence, drugs and alcohol, and crumbling infrastructure. Therefore, if the system is truly concerned with rehabilitation and not just retribution, then Judges must consider with far more frequency, alternatives to incarceration that can still satisfy the goals of sentencing. Helping us get for sentencing is the staff of Prisonology, it's head, Walter Pavlo (writer for Forbes), and former BOP officials, Maureen Baird and Jan Perdue. These folks are credible voices who know the system inside and out. IN THIS EPISODE: Staffing shortages, including missing or incompetent medical and mental health staff; Change in culture at the BOP from professionalism to chaos; Lack of programming; First Step Act issues; Staff corruption issues; Lack of adequate staff training; Lack of adequate inmate orientation; Some camp horror stories; Attorney's need to get knowledgeable BOP experts to help make these sentencing arguments; Culture of silence: Retaliation against staff and inmates for speaking out; Suicide – the leading cause of death at BOP; Infrastructure problems in so many aging BOP facilities; Alternatives to incarceration – giving the judge other options besides prison. LINKS: www.prisonology.com EP. 18 – "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/ EP. 3: "Telling the Story of Prison with Maureen Baird" https://setforsentencing.com/podcast/telling-the-story-of-prison-at-sentencing/ Walt Pavlo's recent Forbes Article: "The Unnecessary Risk of Incarcerating Minimum Security Inmates" https://www.forbes.com/sites/walterpavlo/2023/06/28/the-unnecessary-risk-of-incarcerating-minimum-security-inmates/?sh=3632fe3f5353 Recent relevant post on Prof. Doug Berman's Blog: Extraordinary punishment: Conditions of Confinement and Compassionate release: https://sentencing.typepad.com/sentencing_law_and_policy/2023/08/extraordinary-punishment-conditions-of-confinement-and-compassionate-release.html

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 pre-trial detention facilities are often worse than the prisons where a client may end up serving their actual sentence. The deprivations and danger are prevalent, and the ability to defend themselves and provide meaningful assistance to their lawyer is therefore far more difficult. It's time to rethink pre-trial detention in the federal system. IN THIS EPISODE: Burden of proof in a detention hearing; How prosecutors use pre-trial detetion as leverage in plea bargaining; Statistics concerning frequency of government's motions to revoke bond; Pre-trial revocation through the lens of the Sam Bankman Fried case; Revocation statistics for those charged with witness tampering, especially in DC; Distinguishing between SBF's conduct and Trump's conduct and asking why Trump continues to avoid the consequence of Pre-Trial Release; Judge's Chutkin's potentially "hollow threat" of expediting trial as a consequence of pre-trial release violations. Links: www.dougpassonlaw.com www.sentencingstats.com

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 this constitutionally offensive practice, but punted to the sentencing commission. They currently have no plans to address it, so reach out to them and tell them to do it! Today, though, the most spirited debate focused on the distiction between "acquitted conduct" and "relevant" or "uncharged" conduct. If you're not a lawyer, this bare-knuckle brawl between two legal giants and the 5th and 6th Amendments may be a pass for you. Or maybe you'll love it just because of all the screaming. All I know, is 1) the debate is really important 2) I love spending time with these gentlemen, and 3) you need to reach out to the sentencing commission to get them to settle this shit once and for all. Ding, Ding. IN THIS EPISODE: Whether a client should have right to demand that a JURY make the determination as to whether certain sentence enhancements apply; Whether the burden of proof should be beyond a reasonable doubt for sentencing enhancements; Whether there is any meaningful constitutional distinction, between acquitted and uncharged conduct; Whether statutory ranges are too broad, allowing punishment to be untethered to counts of conviction; What can we do about all of it? RELATED EPISODES & LINKS: Mark Allenbaugh & Alan Ellis - LAW 360 Article: Supreme Court Must End Acquitted Conduct Sentencing, July 19, 2023. Contact the Sentencing Commission! https://www.ussc.gov/ Ep. 36: Presumed Guilty: Using Acquitted Conduct at Sentencing: https://setforsentencing.com/podcast/acquitted-conduct/ Berman's Sentencing Law and Policy Blog: https://sentencing.typepad.com/sentencing_law_and_policy/ Mark Allenbaugh: www.sentencingstats.com

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 ass episode) about a plea, when this is a sentencing podcast? Quite simply, because, if you don't already know, the plea agreement is the FIRST SENTENCING!! The prosecutor has far too much discretion and power about what to charge, and what kind of plea to offer. Yes, it's a negotiation, but prison (and draconian guidelines) can lead to leviathan leverage. The terms you negotiate (or capitulate to) in a plea agreement can and will seal your fate on the big day. But too many defense lawyers bend over and recommend shitty pleas with inartfully drafted language. This case appears to be a prime example. IN THIS EPISODE: Why Lawyers are like Tequila; Why a plea agreement is the "first sentencing"; The makeup of the Delware District court and Judge's background; The difference between A, B, and C pleas in federal court; Why lawyers should be willing to plead "open" if the AUSA refuses to make an offer with stipulated sentencing provisions; When pleading "straight up" could come back to bite you; Why Hunter's plea went off the rails; Speculation as to why the parties insisted on making Judge Norieka the "breach referee"; A full throated debate about whether the judge right or wrong about her separation of powers concern; How this mess could have been avoided; Why the many ways the lawyering on both sides was woefully deficient; Oh yeah, and some boring shit about tax loss issues under the United States Sentencing Guidelines (sorry Mark). LINKS: Mark Allenbaugh: www.sentencingstats.com

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 into an amazing new resource, a 500 page book called, Surviving Pretrial: The Ultimate Guide to Being Busted & Prosecuted by the Feds. This book is not just for those charged with federal crimes. It's for those with state cases, and perhaps more important, it's for lawyers who want to see the world through their clients' eyes. Not only that, but this work is a testament to resilliance and redemption. Although Mr. Khan made serious mistakes that resulted in his incarceration, his life didn't end there. He started a new chapter by authoring this work and by helping others navigate this complicated, terrifying and often unfair system. Mr. Khan helps us get set for sentencing via 15-minute increment phone calls from inside a federal institution. Our conversation focused mostly on the crucial task of making sure you have the right represenation. Hopefully, he'll be back to talk about other topics in the near future. IN THIS EPISODE: The origin story of Surviving Pretrial A glimpse of life inside a federal prison How to properly vet/question your lawyer Using data to vet your lawyer How are lawyers like tequila? LINK: SURVIVING PRETRIAL ON AMAZON: https://a.co/d/9ZhE9h5

I believe that NOTHING IN THE LAW MAKES SENSE EXCEPT IN LIGHT OF EMPATHY. This is especially true when it comes to sentencing. A lawyer's ability to understand and connect with a client is essential to their practice. But it's not an easy concept to understand, it's not always easy to put into practice, and it's even harder to get decision-makers to feel empathy for those that have done something wrong. This episode is "one from the vault," but it was too good and too important not to share. I recorded this literally six years ago, when the podcast was still a million miles away from becoming reality. Audio's a little rough, but hopefully you'll be ok. Dr. Elizabeth Segal is a Ph.D., a social worker, and a professor at Arizona State University. She is the author of the book "Social Empathy", released in 2018. I was so grateful to be able to spend some time with Dr. Segal to talk all about empathy - what it is, why it matters, and what it can mean to clients who navigate our dehumanizing legal system. LINKS: Dr. Segel's book, "Social Empathy" is available at Amazon at this link: https://a.co/d/0bBDANM

This week, helping us get Set For Sentencing is Dr. Kelly Richmond Pope. She's a fraud expert, a filmmaker, and an accounting professor at DePaul University in Chicago. Her latest book, "Fool Me Once: Scams Stories and secrets from the Trillion Dollar Fraud Industry," is burning up the charts nationally. Why do people commit fraud? What is the appropriate punishment? What is the public perception underlying and animating all of it? This was a lively discussion that really struck at the heart of the goals of punishment and the truth about how justice is "served" in America. The discussion touches on many topics, but at the center of it all is one of the largest municipal fraud cases ever, that of Rita Crundwell, the subject of Dr. Pope's incredible documentary, "All the Queen's Horses." Ms. Crundwell, was the comptroller of a small city in Illinois when she embezzled millions from the town coffers. When Ms. Crundwell received early "compassionate" release from the federal Bureau of Prisons, her victims and those following the case were outraged. They believed that because she only ended up serving 8.5 years of her 20 year sentence that a grave injustice occurred. This episode, quite unintentionally drops amidst a wave of publicity about two other very high profile offenders. The first is Elizabeth Holmes. It seems the media somehow figured out for the first time, that Ms. Holmes, like EVERY OTHER FEDERAL DEFENDANT EVER, will not have to serve her full sentence. She will literally earn YEARS off her sentence for good behavior and participating in programming. This too seems to outrage those who might otherwise have a surface level view of the many complicated layers of federal sentencing. Virtually the same day all the Elizabeth Holmes faux outrage click-bait machine revved up, we heard the news about Leslie Van Houton's parole. She was responsible, among others, for the brutal murders of Rosemary and Leo LaBianca in 1969. She was a 19-year-old runaway at the time, and under the influence of career criminal, psychopath, cult leader Charles Manson. She was sentenced to life in prison, but was paroled after serving fifty-three years. Now, compare the crimes of Van Houten (53 years for 2 heinous murders) and Holmes (11.5 years for hundreds of millions of dollars) with Crundwell (over 20 years for 50 million). Does that put Crundwell's record-setting sentence in any better perspective? Do we feel any better about the fact that she "only" served 8.5 years in federal prison? IN THIS EPISODE: The importance of storytelling to achieve empathy; The "3 forces of fraud" – Opportunity, Pressure, and Rationalization; Unpacking the Rationalization component of the fraud triangle; The "three categories" of fraud offenders: Intentional, accidental, and righteous; Dr. Pope's take on Elizabeth Holmes as "righteous perpetrator"; Dr. Pope's take on Edward Snowden as "righteous perpetrator"; The role of race and gender in sentencing; The goals of punishment and whether justice was served in Rita Crundwell's case. LINKS: Fool Me Once on Amazon: https://a.co/d/3b0NFJD Fraud Game Designed by Dr. Pope! https://trueup-content.s3.amazonaws.com/Fool+Me+Once+Fraud+Experience/story.html Rita Crundwell Documentary, Directed by Dr. Pope on Amazon Prime: https://www.amazon.com/gp/video/detail/B07BPR2Y2C/ref=atv_dp_share_cu_r Elizabeth Holmes podcast: Since we talked a bunch about Ms. Holmes in this episode, you may want to listen to our podcast about her sentencing on Youtube, the interwebs, or wherever else you get your podcasts. We also mentioned Walt Pavlo (prisonology) and Mark Allenbaugh (you know, my pal and sentencing stats guru). As always, if you need their help, I encourage you to contact them. www.prisonology.com or www.sentencingstats.com

Mark Allenbaugh and I recently had the honor of appearing on an important new podcast about drug policy, created by the Drug Enforcement and Policy Center at the Ohio State University. This six-part series was released in May 2023. In coordination with the creators of this excellent podcast, we are re-posting our episode, (ep. 5) here. If you dig this show, you can grab the other 5 episodes wherever you get your podcasts: https://moritzlaw.osu.edu/faculty-and-research/drug-enforcement-and-policy-center/depc-education/drugs-on-the-docket-podcast Drugs on the Docket: Season 1 Episode 5 – Data and storytelling in federal drug sentencing and the U.S. Sentencing Commission with Doug Passon and Mark Allenbaugh In this episode, host Hannah Miller and co-host Douglas Berman, executive director of the Drug Enforcement and Policy Center, speak with Doug Passon and Mark Allenbaugh. Passon is a criminal defense lawyer of over twenty-five years, an award-winning documentary filmmaker, and host of the Set for Sentencing podcast. Allenbaugh is an attorney and entrepreneur with nationally-recognized expertise in federal sentencing, law, policy and practice, and is a co-founder of Sentencing Stats, LLC. Passon and Allenbaugh discuss the newly resurrected U.S. Sentencing Commission and the importance of data and storytelling when it comes to federal drug sentencing.

Cyndy Short has been representing those accused of the worst crimes imaginable for most of her career – and she has NEVER had a client sentenced to death on her watch. She understands that sometimes what makes a lawyer great isn't their legal abilities, but their human abilities. In other words, it's time for lawyers to unlearn everything we were taught, roll up our sleeves, and immerse ourselves in understanding who our clients really are & why they did what they did. In so doing, we better understand ourselves. She has much to teach us about criminal defense and about finding life in the shadow of death. IN THIS EPISODE: In order to understand our clients, we must first understand ourselves; The importance of collaboration in criminal defense; Giving yourself permission to "say goodbye to the law"; The inherent satisfaction of hearing your story told; Great stories of wild and tragic cases she's handled; How where and why a lawyer must develop their storytelling capacity; How the "stages of grief" play into serious criminal cases; The importance of "bringing love into the courtroom;" Narrative is leadership; The judge is the 13th juror; The practice of social geography and body mapping and the use of VIDEO to achieve it. LINKS: https://www.linkedin.com/in/cyndy-short-b239566/ Psychodrama Podcast episode with Patrick Barone: https://dougpassonlaw.com/podcast/sentencing-psychodrama/ Alex Kotlowitz Article: In the Face of Death: https://www.nytimes.com/2003/07/06/magazine/in-the-face-of-death.html

Just when I think I'm out, they pull me back in! Not that Mark Allenbaugh isn't a great guy to spend an hour with doing law-related chitty chat, but after a barrage of Allenbaugh episodes from Elmer to Donald to Walt, I thought I was gonna get to move on to a couple of other great guests and topics. No such luck. Because... Hunter Biden. We learned Hunter will plead guilty to two misdemeanor federal tax charges and enter pre-trial "diversion" for being a "user or addict in possession" of a gun. In other words, because of his use of illicit substances, he was deemed to be a "prohibited possessor" under federal law. It's uncertain how the tax misdemeanors will resolve, but on the gun charge, which would have been a FELONY had he been convicted, he'll instead get a couple of years of probation, do some drug treatment and then the charge will be dismissed. But is he receiving special treatment with this plea? Given our experience with what a rare unicorn diversion can be in the federal system, the answer is almost certainly, yes. IN THIS EPISODE: Sentencing Guidelines for tax evasion counts; Whether the "Zero Point Offender" (ZIPPO) reduction will apply; The lowdown on 18 USC 922(g)(3), user or addict in possession of a firearm statute; Whether Hunter is getting a fair deal, a raw deal, or a sweetheart deal; The ins and outs of federal diversion, including how frequently (or not) it is offered by the government; Predictions about whether Hunter will get any time in prison for the tax misdemeanors; Predictions about whether the President will pardon his son; LINKS: Ep. 53, the Zero Point Offender (ZIPPO) episode: https://dougpassonlaw.com/podcast/zippo/ JSIN episode: https://dougpassonlaw.com/podcast/jsin-will-judicial-sentencing-information-mutilate-the-stats-or-slash-sentences/ Online USDOJ policy manual: https://www.justice.gov/jm/justice-manual

We've talked at length about Trump's exposure in the documents/obstruction case now charged in Florida. But, nobody has been talking much about the co-defendant; Trumps "body man", Waltine Nauta. What's his exposure? What's his incentive to plead guilty or testify against Trump? What is his mitigation story? Therefore, in order to be fully Set For Sentencing on this case, we gotta talk about the other guy along for this ride. IN THIS EPISODE: Sentencing guidelines for Trump's Co-defendant; Why the talking heads are getting it wrong on Trump's guidelines; Analysis under 18 USC 3553 to begin to more accurately predict the outcome; The double edged sword of mitigation, in this case his history of military service; Predictions as to whether he will "flip" and cooperate against Trump; The low down on Judge Aileen Cannon; Whether judges really care about getting reversed on appeal; Thoughts about what the Department of Justice looks like if Trump gets re-elected; How all the undermining of trust in the FBI and DOJ will result in more acquittals. RELATED LINKS: Reality Check: Unpacking the Trump Indictment: https://dougpassonlaw.com/podcast/realitycheck/ Mar-a-la-Going To Prison? https://dougpassonlaw.com/podcast/mar-a-lago-ing-to-prison-worst-case-scenarios-if-djt-ends-up-in-the-bop/

When the FBI executed the search warrant at Mar-a-lago and discovered a trove of confidential and top secret government documents, we did a deep dive into the realm of possibilities (EP 12: Mar-a-la-going To Prison??) should Trump ever be charged, tried and convicted. But, we didn't know then what we know now. So, here we follow up and fill in any holes on what's in store for the former president. In this analysis, we address the burning question: Is he being treated any differently than the average John Q Citizen that finds themselves on the receiving end of a federal indictment? In so doing, we make comparisons to another "Espionage Act" prosecution, that of Reality Winner. The most pressing question now is what happens tomorrow? We tried not to go over much of the ground we covered in Ep. 12. If you haven't heard it, you should check it out: YOUTUBE LINK: https://youtu.be/gUt2XnY4JPE APPLE PODCAST LINK: https://podcasts.apple.com/us/podcast/mar-a-lago-ing-to-prison-worst-case-scenarios-if/id1622272089?i=1000576122438 IN THIS EPISODE: Updates to the guideline calculations now that we have a better picture of the alleged conduct; Comparing Trump's case to Reality Winner; Other musings on the inner workings of the federal criminal system; RELATED EPISODE: We tried not to go over much of the ground we covered in the intial podcast back in August 2022. If you haven't heard it, you probably should: YOUTUBE LINK: https://youtu.be/gUt2XnY4JPE APPLE PODCAST LINK: https://podcasts.apple.com/us/podcast/mar-a-lago-ing-to-prison-worst-case-scenarios-if/id1622272089?i=1000576122438

After being found guilty of crimes including Seditious Conspiracy, Elmer Stewart Rhodes, leader of the "OathKeepers" was given the longest sentencing to date for any 1/6 defendant. Here, we monday-morning quarterback every aspect of Rhodes' sentencing. There is much to learn from this one, about guideline issues, written advocacy, allocution, and post-sentencing conditions of confinement. Helping us get Set for Sentencing, my great friend and colleague, Mark Allenbaugh. IN THIS EPISODE: Checking in on our guideline predictions from from an earlier episode (on YouTube only) entitled "Sedition Edition" (link below); The somewhat circuitous, but still devastating application of the terrorism enhancement; A statistical reality check for those who feel Elmer got a big break at sentencing; Life expectancy analysis of Rhodes and how his lawyers missed properly arguing it; Analyzing arguments under the "3Rs" of sentencing narrative (Revelation, Relativity, Redemption); Analysis of the stellar written pleadings of the government and the abysmal defense memo; Predicting how much time will Mr. Rhodes will actuall serve; Where he might serve his time and what will his conditions of confinement potentially look like. LINKS: SEDITION EDITION - in this early episode, Mark and I did full-on guideline predictions of this case. Were they all spot on? Check out this YouTube bonus episode: https://www.youtube.com/watch?v=u7-HXqCcH4A&t=566s Ep. 35: TRUMP THE TERRORIST? Rhodes got a "terrorism enhancment" under the federal sentencing guidelines. We did a deep dive into this in an earlier ep as well, looking at what might happen if Trump ever gets indicted for crimes related to 1/6. https://youtu.be/vYwlBdzH-ts Ep. 53: The ZIPPO is on Fire! In today's episode, we discuss how Rhodes wasn't eligible for the zero point offender reduction (i.e. the ZiPpO) because he was a "leader/organizer" under the guidelines. If you wanted more info about the ZIPPO, here's that link: https://youtu.be/NxdEycbtdo8 Walt Pavlo & Maureen Baird: We got some great input from our friends Walt and Maureen. Walt founded Prisonology, a top line prison consultancy. Unlike some other so-called prison consultants, Prisonology's expertise goes well beyond the fact that Walt spent some time in federal prison. He has amassased a team of true experts, most of whom were former high-level BOP officials. www.prisonology.com FREE RESOURCES: I do (another) deep dive into the "3Rs of Sentencing Narrative." If this is somehow new to you, and you haven't downloaded my article on this, head on over to the shownotes page at: https://dougpassonlaw.com/podcast/elmer/

Yes, we came up with a pithy name we are sure will catch on for the new and VERY consequential US sentencing guideline amendment which allows a 2-level reduction for those with zero criminal history points and who aren't excluded based on several listed criterion. This amendment is a BIG DEAL, and will be retroactive, potentially impacting thousands of inmates in the BOP, and countless clients currently facting sentencing in federal court. But, some of the language is ambiguious and you must arm yourself with the right legal ammunition and also remember to preserve the issue for appeal. To that end, bear with as, as we go waaay into the legal weeds by engaging in a mind-numbing conversation about whether "and" really means "and" as it appears in criterion 10 (leader/organizer exclusion) of the new "ZIPPO" guideline exclusion provisions. Necessary as this is, it's exactly the kind of mental masturbation that gives me flashbacks to LSATs and law school final exams and makes me wanna throw up in my mouth. So, to compensate, I barfed up a dumb song about the whole thing. If you make it past the end credits, you'll hear my debut musical performance on this podcast. As Maximus Decimus Meridius famously says, "ARE YOU NOT ENTERTAINED???!!!". Yes, this might be the moment where you say Set For Sentencing officially jumped the shark. I can live with that. IN THIS EPISODE: Overview of the "ZIPPO", or ZERO POINT OFFENDER guideline amendment; Retroactivity means over 7000 people in BOP will likely be given sentencing reductions; The sticky wicket that is Criterion 10 – does "and" mean "and" or does "and" mean "or"? How you can take advantage of this amendment before it inevitably passes on 11/1/23; The Pulsifer case pending at the supreme court may resolve the criterion 10 dilemma (whether and means or); Do not forget to preserve these issues at sentencing; Even if your court finds "and" means "or" – you can still argue for a variance; DO NOT WAIT until 11/1 to ask for these 2 levels off or, consider asking for a continuance until the amendment goes into effect; Doug's dumb ZIPPO song. OTHER LINKS: We did a general podcast on all of the major new guideline amendments. We zeroed in on the ZIPPO here b/c it's so important, but if you want a broader view, check out this ep: https://dougpassonlaw.com/podcast/big-guideline-changes-on-the-horizon-with-mark-allenbaugh/

Yes, NY Congressman George Santos is innocent until proven guilty. That said, he has already been tried and convicted in the media for a plethora of demonstrably provable falsehoods, which will not bode well for him should he choose to exercise his right to trial on fraud charges. Will he make the right choice, fall on his sword, resign from Congress, and demonstrate extraordinary remorse and acceptance of responsiblity? Well, I shook my magic 8-ball and it said, "hell no". So, now it's time to look at the possible sentence he faces if convicted. Spoiler alert - it ain't pretty. IN THIS EPISODE: Possible sentencing ranges under statutes and guidelines for Mr. Santos; Unfairness of guidelines in terms of burden of proof and relevant conduct; New guideline 2-level reduction for zero criminal history points; Criminal history issues; Real world sentencing stats (JSIN and sentencing stats). LINKS: These are the former podcast episodes you might want to check out to get the full flavor of this one: Acquitted Conduct Episode: https://dougpassonlaw.com/podcast/acquitted-conduct/ Elizabeth Holmes episode: https://dougpassonlaw.com/podcast/elizabeth-holmes-sentencing-post-mortem/ New guidelines podcast (discussing -2 levels for zero criminal history): https://dougpassonlaw.com/podcast/big-guideline-changes-on-the-horizon-with-mark-allenbaugh/ JSIN - Judicial Sentencing Information: https://dougpassonlaw.com/podcast/jsin-will-judicial-sentencing-information-mutilate-the-stats-or-slash-sentences/ And, we talked some about NARRATIVE - a series of events that occur in search of solution to a problem. If you're interested to learn more, here's a short, cheap book on amazon I co-authored with communication expert, Dr. Randy Olson: https://a.co/d/bHsD1PZ

The US Sentencing Commission created "JSIN" (sounds like "Jason") as a resource for Judges who want to understand how defendants are really being sentenced under the guidelines. And, currently thirty-one federal jurisdictions are now incorporating JSIN data into the pre-sentence report. But, are the stats accurate? Could these numbers help or harm our clients? Therefore, helping us get Set For Sentencing... duh... who else could it be besides Mark Allenbaugh, the quintessential sentencing statistics guru?! IN THIS EPISODE: JSIN's attempt to fulfill the neglected mission of the Sentencing Commission – data collection; Flaws, kinks and glitches in the database; Practical tips for doing your own JSIN database searches (check that box!); Why the data excludes 5K, substantial assistance/cooperation departures; Why CJA lawyers should now ask for expert funds to combat JSIN numbers in Pre-Sentence Reports; How JSIN data will help not just for sentencing, but for appeal, compassionate release motion, and plea negotiations. LINKS: For a list of the 31 jurisdictions that now include JSIN data in presentence reports; visit the shownotes, at: www.setforsentencing.com/jsin

What can you do when your client with two prior felony drug convictions gets arrested and charged for a new and very serious drug trafficking offense? Most lawyers, looking at this history, the substantial weight of drugs involved, a pile of money, and a gun, would resign themselves to epic defeat. This man was facing a sentence that could easily have landed this client in prison for the rest of his life. But, attorney Joel Meyers was going to do everything in his power to achieve a different result. He knew that his client had a story to tell. More importantly, he knew that if he did his homework, developed that story with credible witnesses, experts, and evidence, there was hope. I was fortunate to play a role in this result, as Joel, an "old friend" from our law school days, reached out to me to do a sentencing mitigation video in the case. He knew that the story was everything, and in this case, there was likely no better way to persuade the judge of the truth of our mitigation narrative. The end result was nothing short of astounding. IN THIS EPISODE: Cooperation as a way to demonstrate extreme remorse; Why former prosecutors don't always make great defense lawyers; Why psychological evaluations can be critical to help put the crime in proper context; The decision process for making a sentencing mitigation video; How the video inspired the attorney making it, the client who saw it, and the judge who insisted on having the whole courtroom watch it; The astoundingly good outcome achieved in the case, which included not only a low term of custody, but release at sentencing so that he could self-surrender to serve the rest of his sentence; The power of past, present and future redemption stories; The importance of building the right team of experts at sentencing. Hopefully you never need the services of Joel Meyers. But if you do: https://www.linkedin.com/in/joel-meyers-973b254/ We talked about Prison Consultants, including Maureen Baird (former BOP warden) and Walt Pavlo, President of Prisonology. Here are two recent podcast episdoes featuring both of them: https://dougpassonlaw.com/podcast/prison-consultants-and-the-myth-of-the-fixer-how-to-separate-substance-from-snake-oil/ https://dougpassonlaw.com/podcast/telling-the-story-of-prison-at-sentencing/ Also, at the beginning of this episode, I lament my lost radio career. Here's the man who crushed my dreams... but I'm not bitter! https://youarecurrent.com/2019/09/09/carmel-clay-historical-society-exhibit-features-whje/ FREE RESOURCES: NACDL ARTICLE ON SENTENCING MITIGATION VIDEOS - visit shownotes at www.setforsentencing.com/JoelMeyers NACDL ARTICLE on THE "3Rs" of SENTENCING NARRATIVE. - visit shownotes at www.setforsentencing/JoelMeyers

If you've been paying attention, you've heard me talk, ad nauseum, about the use of sentencing statistics in Federal cases. But did you know that sentencing statistics are also relevant in your STATE CASES? But, state sentencing data is often harder to access, and may require a tenacious investigator to fight arduous public records request battles. Therefore, helping us get Set for Sentencing, an extraordinary investigator, Rich Robertson of R3 Investigations, tells us how he conducts "sentencing studies" in state cases and uses them to great effect on the big day. He speaks of the first case he saw a sentencing study deployed by a judge to justify a probationary sentence (Bishop Thomas O'Brien's infamous hit and run), and two recent Arizona voter fraud/ballot harvesting cases. If you are a state-level criminal defense investigator, this is YOUR golden opportunity to carve out a niche in your jurisdiction, doing "sentencing studies". IN THIS EPISODE: How the Bishop was saved by a sentencing study; Unwarranted obstruction by the powers that be when it comes to legal obligations to make public information available to the defense; Using data to predict outcomes and manage client expectations about the ultimate result; Narrative-based sentencing outcome analyses; Challenging death penalty aggravators in the well-known Hidalgo capital case; Rich's sentencing studies on two recent Arizona voter fraud cases; Using sentencing data to give judges the cover they need to do justice (i.e. give a low or no sentence). LINKS & RESOURCES: This is where you'll find Rich if you need him: R3 Investigations That said, Rich has been all over, having worked on some incredibly high profile cases in AZ and around the country. He's been on Dateline, 48 Hours, and many major news programs. Google him! But here's a taste: (2) Private investigator in Lori Vallow case details 'bizarre' circumstances | CUOMO - YouTube You've heard me talk about the "3Rs" of sentencing storytelling. This whole episode is really about the 2nd "R", RELATIVITY stories. It can be an effective part of sentencing to compare the case at hand, with other similar cases for the judge to have a broader perspective on what other (hopefully lower) sentences judges have imposed. If you haven't gotten a free copy of my 3Rs Article from NACDL's "The Champion", go to the shownotes on my website, and download a copy --- www.setforsentencing.com/sentencingstudy JUAN MARTINEZ - A DISBARRED, DISGRACED, FORMER PROSECUTOR: In this episode, we invoked this infamous ex-prosecutor's name a couple of times, but it occurs to me the average listener may not get the reference. If you're curious, google him. He was a deeply unethical and offensive death penalty prosecutor, perhaps best known for prosecuting the Jodi Arias case. He was disbarred when 20+ years of shenanigans finally caught up with him, including multiple allegations of sexual harrasment. It's important we tell his story, because he represents everything wrong with the criminal justice system, and judges and supervisors enabled his conduct for years. Unfortunately, this happens more than you might think. Our system is only as good as the people who toil in it, and this guy was garbage of the highest order. Good riddance. https://www.abc15.com/news/region-phoenix-metro/central-phoenix/juan-martinez-disbarred-no-longer-able-to-practice-law-in-arizona https://www.phoenixnewtimes.com/news/arias-prosecutor-juan-martinez-reassigned-after-misconduct-complaint-11363444

Criminal immigration matters make up some 70 percent of all federal cases charged. But the statutes our government uses to prosecute and sentence undocumented human beings to serious prison time, was motivated by racism and discriminatory intent. Therefore, a team of fearless lawyers mounted a massive undertaking to challenge these statutes in federal court -- and WON. On August 16, 2022 Judge Du of the United States District Court for the District of Nevada issued a first-of-its-kind ruling, finding that Section 1326 of the Immigration and Nationality Act (INA) is unconstitutional because of its racist origin. Therefore, helping us get Set for Sentencing today, one of the aforementioned fearless advocates for justice, attorney Kara Hartzler. Ms. Hartzler walks us through the fascinating and dark history of these laws, the arguments that took them to task, and what the future holds. IN THIS EPISODE: The racist history behind U.S. Immigration policy; How eugenics and the US policy of "final selection" became a precurser for much of the rationale and policy in place for Hitler's "final solution"; The Undesirable Aliens Act of 1929 and The Hart-Seller Act of 1965; The litigation challenging the statute as violating equal protection; The "Arlington Heights" test for discriminatory intent; How storytelling won the day in the Nevada constitutional challenge; Parallels between immigration laws and the Major Crimes Act, giving the federal government jurisdiction over certain crimes on Indian Reservations (i.e. supposedly sovereign nations); The legal effect of the Nevada challenge and what happens next; How to use these arguments at sentencing RIGHT NOW; The importance of working with people outside of the legal community to broaden the perspective of the lawyer and the arguments she can make. LINKS: We talked about an incredible organization, the Florence Project, which helps immigrants in ways big and small. We would love for you to check it out, and maybe even hit the donate button on the home page: Home - The Florence Project (firrp.org) If you'd like to listen to Oral arguments at the Ninth Circuit, argued by renowned Constitutional Law Prof., Irwin Chemrinsky, click here: https://www.ca9.uscourts.gov/media/video/?20221208/21-10233/ As we discussed, regardless of the final outcome, fearless lawyers will continue to point out the racist origin of this statute at sentencing. If you would like to download a fantastic sample sentencing memorandum raising these issues, please visit the shownotes at www.setforsentencing.com/racist1326

On April 5, 2023, the United States Sentencing Commission voted to make several substantive changes to the federal sentencing guidelines. If approved (or not acted upon) by Congress, some of the most significant amendments in recent memory will go into effect on Nov. 1, 2023. These changes will effect anyone currently pending sentencing in federal court, and anyone currently serving a sentence in the federal Bureau of Prisons. In this episode, we are joined by my genious pal, Mark Allenbaugh, to give you the scoop on the two biggest amendments, and talk about a couple of others, including the one that didn't pass: the big white whale that is acquitted conduct (see Ep. 36, with Mark Allenbaugh and Prof. Doug Berman). IN THIS EPISODE: USSG amendment to allow for 2 level reduction for having no criminal history and reducing impact of "status" points for criminal history (point assessment for being on probation, parole or supervised release) when committing a new offense; Amendment expanding the criteria/eligibility for Compassionate Release; Commission punting on acquitted conduct and predictions about what the Supreme Court might do with this issue; What you can do RIGHT now to make use of these changes, even though they do not go into effect until Nov. 1, 2023; What you can do to ensure the contested compassionate release provisions do not get vetoed by Congress. LINKS AND OTHER INFO: Ep. 36: Acquitted conduct episode: PRESUMED GUILTY: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences. - Doug Passon Law The Sentencing Commission's detailed report on all amendments: https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/20230405_prelim-RF.pdf 18 USC § 3661 (Referred to by Allenbaugh during this episode): No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence. Proof that the BOP is inept at handling Covid: https://oig.justice.gov/reports/capstone-review-federal-bureau-prisons-response-coronavirus-disease-2019-pandemic WRITING YOUR CONGRESS-PEOPLE IN SUPPORT OF COMPASSIONATE RELEASE AMENDMENTS: We mentioned that the CR amendments was the only one passed without unanimous consent. It was split on party lines (4 Dems in favor, 3 Repubs opposed). Therefore, it would be useful for you to reach out to your Senate/House members to voice your support for the changes. You could also reach out to some criminal justice-friendly congresspeople as well (see below for a few suggestions). Here is some suggested language for your email or calls: Dear ___ I am writing to voice my support for the United States Sentencing Commission's recent amendments to the Compassionate Release Guidlines. I believe in second chances for those who deserve it. I believe that prison has diminishing returns. I believe that every human is capable of redemption. I believe that changes in the law and other new factors warrant a second look at sentencings that are often too long. I know this amendment may be objectionable to some, but it's hard to understand why. The First Step Act was legislation passed during the Trump Adminstration with overwhelming BI-PARTISAN support. The Compassionate Release amendments, merely implement the policies expressed in the First Step Act. I hope you continue to lend your bi-partisan support to this much needed criminal justice reform. Sincerely (Jane Q. Voter in your District) Here are some CJ-friendly congress-folk: COREY BOOKER: https://www.booker.senate.gov/contact/write-to-cory JAN SHAKOWSKY: https://schakowsky.house.gov/zip_authentication?form=/contact/email-me JOEL OSSOF: https://www.ossoff.senate.gov/contact-us/message/ DICK DURBIN: https://www.ossoff.senate.gov/contact-us/message/ CORI BUSH: https://bush.house.gov/contact/email-me -------------- Last, but not least, WTF is "OLD EBBIT"??????? I have a confession to make. I had no fuckin' idea what Allenbaugh was talking about when he twice mentioned the "Old Ebbit". I was too ashamed to expose my ignorance, and so I had to do some googlin'. Old Ebbitt Grill | Washington, DC Restaurant & Bar

This week, we continue our crucial conversation on Autism with Mark Mahoney, America's leading Autism defense attorney (harringtonmahoney.com). There is so much we don't know when it comes to ASD, and because it's so prevalent, lawyers must be on the lookout for this issue in every case. It matters. It matters to culpability, it matters to recidivism, it matters to conditions of confinement. This episode is for every lawyer, every judge, every prosecutor, and every PARENT with a child on the spectrum. Please listen and pass it on. IN THIS EPISODE: The Myth of "High Functioning"; The importance of doing "adaptive testing"; Camouflaging and masking as hiding the true deficits of a client; Vetting a defense attorney to test true autism experience – red flags that your attorney isn't qualified to handle an autism case; The danger of Flat Fees in Autism cases; The importance of telling the story of prison; With early intervention, the results can be astoundingly good; Why the "late diagnosis" of ASD shouldn't hinder your defense; The importance of the "parent narrative"; The need to incorporate VIDEO into ASD advocacy and some practical advice about the moments that need to be captured; The low recidivism rates among the ASD population. LINKS: www.harringtonmahoney.com MARK MAHONEY AUTISM MASTERCLASS WITH NACDL: https://members.nacdl.org/online-store/merchandise-details/?&dialog=yes&action=edit&id=13da2079-ab15-e811-90ce-000d3a00af06&isAdminSite=0&browserId=1ad284be-36cf-41a8-81e4-4375b4a3d09f We began this conversation with Attorney Jamie Sparks and Psychologist/Professor Dr. Toni Sparks, on Episode 5: "Understanding Autism at Sentencing". Understanding Autism at Sentencing - Doug Passon Law

We began this conversation in Ep.5, "Understanding Autism at Sentencing". But the topic is so important, and so close to my heart and the work that I do, it's time to dig in deeper. In the first of a two-part episode, we talk with the nation's premiere criminal defense attorney when it comes to representing those on the autism spectrum who find themselves charged with crimes, particularly online offenses – Mark Mahoney. There is so much we don't know when it comes to ASD, and lawyers need to look out for this issue in every case. It matters. It matters to culpability, it matters to recidivism, and it isn't easy to understand. This episode is for every lawyer, every judge, every prosecutor, and every PARENT with a child on the spectrum. Please listen and pass it on. IN THIS EPISODE: Defining Autism Spectrum Disorder in the criminal context; Mind-Blindness/Theory of Mind; Empathy; Moral Reasoning; Dr. Ami Klin and his animation experiment (see link below); ASD and Internet Vulnerability; Rule following and Recidivism. LINKS: Mark Mahoney: Mark J. Mahoney | Harrington & Mahoney (harringtonmahoney.com) Episode 5, "Understanding Autism at Sentencing" (With Jamie Sparks and Toni Sparks) Understanding Autism at Sentencing - Doug Passon Law YOUTUBE VIDEO - Heider Simmel (shapes video): https://youtu.be/VTNmLt7QX8E

March 19, 2023 is the 3-year anniversary of the first recorded Covid infection in the Federal Bureau of Prisons. But the true story has not been told of the BOP's failure to protect inmates and prevent the spread of the virus with all of its deadly, disastrous, and long-term consequences. Therefore, it is imperative that we continue to tell the story of BOP's incompetence, indifference, and obfuscation. We must step up our efforts to litigate (the ever-expanding) compassionate release elements, and credibly tell the story of the broken BOP at sentencing every chance we get. Warning: This is a looong conversation. That's what happens when you get two lawyers in a room together, and throw some tequila into the mix. But it's jam packed with useful, actionable information. So hang in there until the end! Maybe listen to it on double speed 😊. IN THIS EPISODE: Data collection and reporting failures of the BOP that continue to undermine confidence and obfuscate the truth of what's going on behind the walls; Reluctance of inmates to self-report Covid Symptoms; The unduly harsh punishment inmates face during Covid Home confinement during the pandemic; The coming wave of overcrowding that will fuel the BOP as covid nuclear reactors; Covid deaths over three years compared to overall deaths in BOP over eighteen years; BOP clearly fudging numbers of Covid tests currently administered; How the BOP is likely falling short on vaccines; How most of the BOP is back to business as usual, operating as if the pandemic is over; Why legislation designed to reduce the inmate population did not achieve its goal; Practical advice for how to weaponize all of this information at sentencing; How the sentencing commission is trying to broaden eligibility for compassionate release; Compassionate release and long Covid; A call to Judges to NULLIFY sentences until the BOP can prove it's capable of caring for our clients; Getting back to pre 1986 where the DEFAULT sanction in federal court was PROBATION. OTHER LINKS: OIG REPORT - Shortly after we recorded this, the Office of the Inspector General released it's own evaluation of the BOP's performance. Suffice it to say, it was not a glowing review. https://oig.justice.gov/reports/capstone-review-federal-bureau-prisons-response-coronavirus-disease-2019-pandemic The big issues the OIG identified were: • Serious failures in the BOP's use of single-celling of inmates during COVID-19 modified operations; the BOP reported to the OIG that seven inmates died by suicide from March 2020 through April 2021 while housed in single-cell confinement in quarantine units related to COVID-19. • The BOP should explore permanent facility modifications to help it more easily implement future infection control measures. • The BOP Should Assess How It Can More Effectively Utilize Its Home Confinement Authorities. While the BOP transferred a substantial number of inmates from prisons to home confinement during the first few months of the pandemic, the BOP actually transferred fewer inmates during the first year of the pandemic than it had during the year immediately preceding the pandemic. • The pandemic exacerbated the effects of preexisting BOP staffing shortages and strained staff morale, and we concluded that the BOP should improve how it communicates available staff support resources. • We identified a significant deficiency in the BOP's communication with inmates' families regarding COVID-19 related serious illnesses. • The BOP did not always provide clear guidance on staff and inmate use of healthcare protective equipment and compliance with healthcare safety guidance. CDC WARNING OF MENTAL HEALTH ISSUES AND COVID: Underlying Medical Conditions Associated with Higher Risk for Severe COVID-19: Information for Healthcare Professionals | CDC RELATED PODCAST EPISODES: I mentioned an earlier episode with Prison Consultant Maureen Baird, called, "Telling the Story of Prison at Sentencing." Here's the link: Telling the Story of Prison at Sentencing - Doug Passon Law Mark and I earlier did a deep dive into the "acquitted conduct" section of the guidelines and the seismic shift it could have on sentencing. Here's the link to that: PRESUMED GUILTY: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences. - Doug Passon Law

Have you ever wondered if Rikers Island is really as bad as it is portrayed on TV? Did you know NYC held newly sentenced prisoners in something called "the tombs"? How does New York State sentencing compare to federal? You're about to have all of those questions answered and more, with Craig Rothfeld, a New York State prison consultant. IN THIS EPISODE: From "the Tombs" to Rikers Island; Is there "self-surrender" in New York State; Are there minimum security "camps" in New York; The ins and outs of the NY State prison complex; The NYS sentencing scheme; The prevalence of "negotiated pleas" in NYS; Work release & work furlough in NYS. LINKS: www.insideoutsideltd.com Harvey Weinstein Adds 'Prison Consultant' to His Entourage - The New York Times (nytimes.com)

Many with serious mental illness and intellectual and developmental disabilities find themselves caught in the web of the criminal justice system. But these issues are complex. We need help recognizing the issue, finding the right expert to make sense of it, and properly integrating it into a client's mitigation narrative. Therefore, behold attorney Elizabeth Kelley, who has spent a career cultivating the knowledge necessary to be of service to lawyers and clients. IN THIS EPISODE: Practical tips for recognizing when a client may be struggling with mental health issues; The importance of developing a network of trusted experts; Being open to layers of diagnosis AND multiple experts/evaluations – i.e. it's often not just "one thing" interfering with your client's ability to function in the world; The importance of balancing mental health mitigation with "hope" – now that we have identified the problem, here's what we can do about to make sure we are never in this kind of trouble again; Practical advice for relating to and communicating with clients with serious mental health issues; Making the diagnosis matter at sentencing; The importance of team defense; How Sentencing Videos can be especially powerful to show the court the truth of your client's mental health challenges. LINKS: ELIZABETH KELLEY - HOME (elizabethkelleylaw.com) ELIZABETH KELLEY PUBLICATIONS: BOOKS - ELIZABETH KELLEY (elizabethkelleylaw.com) Understanding Autism at Sentencing - Doug Passon Law PRESUMED GUILTY: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences. - Doug Passon Law

Welcome back to the thrilling conclusion of my 2-part episode with Dr. Paul Zak! Dr. Zak's new book, Immersion, the Science of the Extraordinary and the Source of happiness is a powerful reminder that if we lawyers want extraordinary results at sentencing, we must create extraordinary, immersive experiences at sentencing. It's what I strive to do in every case, and Dr. Zak's years of research have been an integral part of my success. I'm humbled and grateful that he came on S4S and was so generous with his time. If you haven't heard episode 1, you really should check that out first. IN THIS EPISODE: Dr. Zak's five step "SIRTA" process to achieve immersive storytelling; How to turn a judge into a superfan with story; Why every judge and prosecutor should spend a day in prison and witness an execution; Why every lawyer needs to understand that we are now living in an "experience economy"; Running 3 minutes of Doug's sentencing video through the immersion platform; Why music is integral to storytelling. LINKS: Dr. Zak's Immersion Platform - https://www.getimmersion.com/ Immersion: The Science of the Extraordinary & the Source of Happiness, by Dr. Paul Zak on Amazon.com https://a.co/d/2XTNSoy This short video, "The Future of Storytelling," was my introduction to Dr. Zak and his groundbreaking work. It details one of his earlier studies of the effect of narrative on the brain. It's six minutes and worth a look. It will have a profound impact on the way you approach law and life. https://youtu.be/DHeqQAKHh3M IMMERSION RESULTS FOR SENTENCING VIDEO: Dr. Zak ran a few minutes of one of my videos through the system. We talked about the results during the last 1/2 of the podcast. If you'd like to see for yourself, here is a link to the Immersion report: https://sharing.getimmersion.com/analyze/0612a024-fb3f-44ee-a76f-1514cdd28406

We all want to be more persuasive communicators, especially when the big day of sentencing is upon us. But, many of us don't know whether our oral, written, or visual communications are grabbing and holding our audience, and most importantly, moving them to make the right decision in a case. Therefore, helping us get Set for Sentencing is Dr. Paul Zak! He has spent over two decades researching the neuroscience behind narrative, communication, and human connection. He's here to introduce you to the concept of IMMERSION. Immersion is a neurologic state that engages your audience and motivates them into action. For our work, immersion is everything. He knows how you achieve immersion in your communication and, more importantly, he designed a tool to measure it! Dr. Zak was so generous with his time, we couldn't pack all of this into one episode. So, enjoy part one of our discussion, and I promise you'll want to come back for part 2. At the end of this, we actually get to analyze a few minutes of one of my sentencing mitigation videos through Dr. Zak's immersion platform, which uses biometric responses smart watches to measure audience engagement with your message. This is amazing technology that is already in use in the film industry, in advertising, by fortune 500 corporations, and beyond. IN THIS EPISODE: The crucial difference between empathy v sympathy; How narrative "immersion" leads to audience action; Brain response to immersion; The importance of "opening hot"; How long immersion lasts and why the brain needs a break; The importance of strategic placement of a "call to action" in your narrative communication; Neurologic responses to written, spoken and visual communication; Why traditional "focus groups" are ineffective; Using multiple story lines to sustain immersion; Pauses – a speaker's superpower. LINKS: Dr. Zak's Immersion Platform - https://www.getimmersion.com/ Immersion: The Science of the Extraordinary & the Source of Happiness, by Dr. Paul Zak on Amazon.com https://a.co/d/2XTNSoy This short video, "The Future of Storytelling," was my introduction to Dr. Zak and his groundbreaking work. It details one of his earlier studies of the effect of narrative on the brain. It's six minutes and worth a look. It will have a profound impact on the way you approach law and life. https://youtu.be/DHeqQAKHh3M Again, stay tuned for next week's thrilling conclusion, where we finish our discussion and do an immersion analysis of one of my sentencing mitigation videos.

Sharon Hicks is the epitome of a fearless lawyer. When she had a case with bad facts, a seemingly intractable judge, and a prosecutor seeking the maximum sentence, she made a case for probation. Everyone, even her closest legal confidants told her she was dreaming. But she knew this client had a story to tell, that was never told before. With a thorough mitigation investigation and a powerful sentencing mitigation video, she did what everyone told her was impossible. This is billed as "Volume 1", because, as you might imagine, I work with lawyers to get incredible results. I will be profiling more of them as we go, the work we do together, and the extraordinary outcomes we achieve. IN THIS EPISODE: The story behind the McGirt resentencing cases and federal Indian Country jurisdiction for major crimes; How to effectively integrate a sentencing video/defense documentary into your larger presentation; Never being afraid to shoot for the moon at sentencing; Never run from bad facts at sentencing- develop them and embrace them; Chat GPT is fucking terrifying, and it exposes the tepid ridiculousness of sentencing letters; Credible ways to mitigate culpibility by Illuminating the action/inaction of other parties or entities. Don't be afraid to ask for more time to prepare for sentencing, and don't be afraid to ask for as much as possible if you need it; Whether judges come to sentencing hearings with their mind made up and the importance of doing your homework when it comes to knowing your judge; The "3Rs" of sentencing storytelling; The power of sentencing mitigation videos. RESOURCES: Free Dowload, Doug's article in NACDL's "The Champion", the "3Rs of Sentencing Narrative". Sharon and I spoke at length about the "3Rs" (Revelation, Relativity, Redemption) that can exist in any mitigation narrative. This case had all three. If you'd like to learn more, visit the shownotes page for this episode (www.setforsentencing.com/fearlesslawyer1) and scroll to the bottom of the page where you'll find the download button.

Jon May is a gentleman, a scholar, and a phenomenal criminal defense lawyer based in the Miami area. His new book, Who Says You Can't? How To Become a More Creative Criminal Defense Lawyer embodies his practice and his prolific writing on various aspects of criminal defense. It was an honor to hold court with him as he helps us get Set for Sentencing. IN THIS EPISODE: The concept of "trying your case at sentencing" Never shying away from putting your offense in the proper context; Convincing prosecutors to drop the case because your client is either not guilty, or they will likely lose at trial; A deep dive into the pros and cons of pleading guilty "straight up" (i.e. without any agreement with the government); Trying the case with the probation officer during the pre-sentence process; The value (or lack thereof) of sentencing letters. LINKS: Jon May Website: www.jonmayteamdefense.net Jon's Latest Book: Who Says You Can't? Strategies and Tactics For Becoming a More Creative Criminal Defense Lawyer: https://members.nacdl.org/online-store/merchandise-details/?action=view&id=68fcfb2a-c07b-ed11-a76e-0003ff66b1f0 SAMPLE CASE WITH SENTENCING VIDEO: Jon and I talked about never being afraid to put the offense in proper context at sentencing by pushing back on the worst aspects of the crime and telling a powerful true story around it. I used the example of the alleged "doctor drug dealer narrative" in a fentanyl death case in federal court. In this case, the client was a medical doctor who sold fentanyl resulting in death. The government referred to him as a "doctor drug dealer", and that was a gross misrepresentation. Yes, he was a doctor, and yes, he sold a dose of fentanyl, and yes, it took the life of the man who ingested the drug. But there was a deeper story to tell, and because we were not afraid to tell it, the client received a substantially lower sentence. In that case we prepared a sentencing video to tell the story in a deeper, truer way. You can view that video at this link: https://vimeo.com/743589899 DOUG'S BOOK ON LEGAL STORYTELLING: I am grateful to Jon that he included a reference to my legal storytelling book. During our conversation, I pulled from that work, referring to what we call "Shirley's Law", meaning if we don't tell our own stories, someone else will tell them for us, and we won't like it. The book I co-authored with story and communications expert Dr. Randy Olson, is called The Narrative Gym For Law: Introducing the ABT Framework for Persuasive Advocacy. And again, of course, thank you to Jon May for referencing that book in his new book! If you're interested in The Narrative Gym, it's cheap and short, and packed tight with easy to understand and implement narrative technique. Here's a link to buy on Amazon: https://a.co/d/axGvZkB FREE RESOURCE: Jon and I had a long conversation about the pros and cons of sentencing character letters. For a free download of Doug's guidelines for writing a compelling sentencing letter, visit the shownotes page for this episode: www.setforsentencing.com/jonmay

We have an attorney general, who serves as the chief prosecutor for federal or state government. So, why, if we claim to have equal justice under the law do we not have a defense counterpart? Author and attorney extraordinaire, Andrea Lyon, makes the case for exactly that in her new book, Fixing Legal Injustice In America: The Case For A Defender General of the United States. She has graciously agreed to help us get Set for Sentencing! I love this episode, because I love great stories. And Andrea Lyon is full of them. But those stories aren't just for fun, they accentuate the need for a seat at the proverbial political table for the criminal defense bar. Those with the power of the purse, and the power to pass draconian laws, the power to steal lives with overcharging and wrongful convictions, need someone to speak truth at that table. IN THIS EPISODE: Andrea Lyon's origin story and a TON of other great stories that illuminate the cause of the creation of Defender General; What is Defender General of the United States and what that would the position entail;; What YOU can do to help turn this dream into reality. LINKS: Fixing Legal Injustice The Case for a Defender General of the United States on Amazon.com https://a.co/d/ebAI94b Andrea Lyon's Website: https://andrealyon.com/ Andrea mentions the confirmation hearings of Justice Ketanji Brown Jackson as an example of the level of disdain in which politicians hold the defense bar. It made me think of the VERY FIRST episode of Set For Sentencing, where Mark Allenbaugh and I do the post-mortem of those proceedings: https://dougpassonlaw.com/podcast/senators-sell-sentencing-snake-oil-at-kbj-confirmation-hearing/ ACTION ITEMS: There are those in Congress who might very well support the idea of defender general. Here are a few, hyperlinked to their emails, so please click, and send them an email! Here's some proposed text! Dear ___ I am writing to talk to you about the importance of creating a defense counterpart to the Attorney General, called the "Defender General". This is an idea championed by Andrea Lyon in her new book, Fixing Legal Injustice The Case for a Defender General of the United States. Ms. Lyon talks about this more on a recent podcast I heard (set for sentencing) and I truly believe it's an idea whose time has come. If we claim to be a system built on the idea of "equal justice under the law," then those who give voice to the voiceless, must have a seat at the table of policy and decisionmaking. I would greatly appreciate if you would read Ms. Lyon's book, and join her in championing this brilliant and desperately necessary idea that will move our beloved country closer to the ideal of equal justice: COREY BOOKER: https://www.booker.senate.gov/contact/write-to-cory JAN SHAKOWSKY: https://schakowsky.house.gov/zip_authentication?form=/contact/email-me JOEL OSSOF: https://www.ossoff.senate.gov/contact-us/message/ DICK DURBIN: https://www.ossoff.senate.gov/contact-us/message/ CORI BUSH: https://bush.house.gov/contact/email-me

In a perfect world, the presumption of innocence is sacrosanct. If you are found not guilty by a jury, common sense and the constitution dictate that acquitted conduct should not later be used to enhance your sentence on other charges. But in federal court, it is not only possible, but commonplace to increase punishment based on acquited, uncharged and dismissed conduct. The good news is, that might be changing soon. Helping us get set for sentencing, Prof. Doug Berman and Mark Allenbaugh to talk about the proposed amendment to the United States Sentencing Guidelines on acquitted conduct. Prof. Berman is not only a federal sentencing expert, but wrote the Amicus brief for U.S. v. Daytona McClinton, an "acquitted conduct" case currently pending Cert. at the Supreme Court. Of course, we all know Mark Allenbaugh (www.sentencingstats.com) who completes what turns out to be an "all Allenbaugh January". Warning: this episode is not for the faint of heart. No, there's no sex, drugs, or rock n' roll. There are probably not even that many f-bombs dropped by Doug. It's just a really, really, really deep dive into the inner machinations of our broken federal sentencing process. So strap in, and let's get Set for Sentencing! In this episode: The pervasiveness of acquitted conduct enhancements; Acquitted conduct's role in coercive plea bargaining; The five cases waiting to be heard by the Supreme Court; Why using acquitted conduct to enhance punishment flies in the face of the presumption of innocence; The Watts case and the shaky origin story of acquitted conduct; A debate over how many cases this really affects; Burdens of proof at sentencing; Looking at the Derek Chauvin sentencing to see how proof beyond a reasonable doubt for sentencing enhancements can and should work; The possible broader implications for dismissed and uncharged conduct enhancements to fall along with acquitted conduct; What you can do to help get these amendments ratified. LINKS: Full list of Proposed Sentencing Guidelines amendments: https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/20230112_prelim_RF.pdf?utm_medium=email&utm_source=govdelivery WHAT YOU CAN DO: Believe it or not, your input matters. You can (and should) go to the sentencing commission home page at: www.ussc.gov . There, you'll find a new portal that allows you to easily submit comments on all proposed guideline amendments. The commission is listening, and they absolutely want to hear from you. RELATED EPISODES: https://dougpassonlaw.com/podcast/the-devil-we-know-the-funny-math-of-the-guidelines-proposed-fixes-and-lessons-learned-from-capital-defense/ Berman's Sentencing Law and Policy Blog: https://sentencing.typepad.com/sentencing_law_and_policy/ Mark Allenbaugh: www.sentencingstats.com

Well, January is shaping up to be an all Allenbaugh affair. Although we finished our marathon session on December's metric ton of high-profile federal sentencings, there was one other bombshell that we couldn't leave untouched: Congress's criminal referral to the Dept. of Justice of the former president, Donald J. Trump, on a series of alleged federal crimes surrounding his involvement in the attempted overthrow of our government. Yes, the presumption of innocence attaches, but if you are curious as to the possible sentences Trump could face if incited and convicted, this episode is for you. Perhaps the most serious aspect of these allegations concerns the possible application of the "terrorism enhancement" in the United States Sentencing Guidelines. We look at the enhancement and its application to another set of serious sentencings last month: the Michigan militia members convicted in the plot to kidnap Michigan's governor, Gretchen Whitmer. Both of these men received the terrorism enhancement and could have each received life sentences. But would such a thing apply in Trump's (hypothetical) case? IN THIS EPISODE: Explaining the specific federal charges referred for prosecution; Guideline analysis of each charge and terrorism enhancement; Looking at the current 1/6 prosecutions for guidance; Applying this in context of recent sentencing of Michigan militia/Whitmer kidnap case; A discussion of "the trial penalty"; Continuing to bang the drum of the life expectancy analysis; The fate of another Michigan defendant, Ty Garbin, who pled guilty early, cooperated fully, and presented a powerful redemption story to the judge at sentencing (spoiler alert, he was home for Christmas); How to handle "sentencing disparity" arguments after going to trial; Predictions about whether a 1/6 indictment really happens for Trump, including whether he would be "remanded" to custody upon arrest. LINKS: MARALAGO-ING TO PRISON? This isn't first rodeo when it comes to possible Trump Sentencings. If you haven't watched or listened to "Maralagoing to Prison?", Ep. 12, Check it out: Youtube: https://youtu.be/gUt2XnY4JPE Website: https://dougpassonlaw.com/podcast/mar-a-lago-ing-to-prison-worst-case-scenarios-if-djt-ends-up-in-the-bop/ MARK'S SPIFFY CHARTS: As always, if you just doing the audio version of the podcast, you may want to visit the shownotes page to see his great charts: www.setforsentencing.com/trumptheterrorist TY GARBIN SENTENCING VIDEO: We talked about Michigan Kidnap defendant, Ty Garbin and referred to the sentenicng mitigation video I produced for that case. While the two defendants convicted at trial received 16 and 19 years, Ty's sentence is already finished. You can watch his sentencing video here: https://youtu.be/AOhOY3uuvRQ Lastly, we talked about an incredible organization, Parents For Peace, that can assist when you or a loved one falls down the rabit hole of radicalization: https://www.parents4peace.org/

It was a long wacky December in the world of federal sentencing. I can't remember a month with more high profile proceedings, and Mark Allenbaugh (www.sentencingstats.com) and I covered all of it in a marathon, 4-hour session. Here is part 3, dissecting the sentencings of Julie and Todd Chrisley, the star of USA Network's reality shitshow, "Chrisley Knows Best." This husband and wife duo were convicted after trial of multiple fraud charges. After a lackluster performance from the defense, Todd received a 12-year sentence, his wife received 7. So, what went wrong? IN THIS EPISODE: Gender disparity in federal sentencing; Yet another missed opportunity to argue life expectancy; Explaining the very basics of sentencing memos; Why the defense memos were among the worst we've seen; How and why the power of story lies in the details; Remembering Rodney King and Stacey Coon!? – if you are still talking about your case being outside of the "heartland", you're 20 years behind schedule; The ongoing saga of the sentencing letter. LINKS: Last episode: We started this conversation in EP. #31 (Sunny Balwani Sentencing Post Mortem) by doing comparative statistical analysis of Avenatti's sentencing with Holmes, Bulwani and the Chrisleys. If you haven't heard the first 20 or so minutes of that episode, it's most certainly pertinent to today's discussion on Avenatti. Check it out at: www.setforsentencing.com/balwani Patterson study: we can't stress this enough. Unless the crime is beyond atrocious, most judges will think long and hard before imposing a sentencing they believe will result in a defacto life sentence. Therefore, life expectancy could make a huge impact at sententencing. But do it right, using this study showing that life expectancy for incarcerated individuals is far different: https://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2012.301148 We talk about the importance of telling a story with detail and making it relevant to punishment, using Mr. Chrisley's "fibromyalgia" as the prime example. The defense informed the judge of his diagnosis yet said nothing of symptoms and how it would affect him in prison. Another huge opportunity missed. If you'd like to know more about Telling the story of prison, check out EP. 3, with prison expert and former warden, Maureen Baird. https://youtu.be/fCls6d1pzuA